By Dongyun Kwon
Yarra Ranges Council’s application for costs covered for a Victorian Civil and Administrative Tribunal (VCAT) case proceeding has been unsuccessful, but reimbursement of the application fee has been granted.
In May last year, the VCAT ruled in Yarra Ranges Council’s (YRC) favour, allowing the council to proceed with an enforcement order to remove all items at 81-83 Don Road, Healesville.
The Slawinski family unlawfully used the property as a store.
The property was included in the Low Density Residential Zone (LDRZ) under the Yarra Ranges Planning Scheme.
Under the planning scheme, it was required to have a permit for the use of a store.
Yarra Ranges Council made one more application to the VCAT for costs of the proceeding against the first and second respondents (John M Slwainski and John Peter Slwainski) and reimbursement of the application fee from them.
The council sought an order for costs fixed at 80 per cent of the professional fees.
However, Mr John Peter Slwainski submitted it would not be fair to award costs against him because his conduct in the proceeding did not unnecessarily disadvantage the application or cause delay in the hearing of the enforcement application.
He also claimed not only the matter was very simple but also he made a good faith effort to clear the goods from the land prior to the proceeding by attempting to reach John M Slwainski, and there were factors beyond his control that prevented him from complying with the Yarra Ranges Council’s demand including the fact that he did not own the goods in question, held only a one-third interest in the subject land and had been in ill-health from a stroke.
In a decision on 12 February, VCAT senior member S P Djohan said she refused to make an award of costs.
“In my consideration of the nature of the proceeding, I acknowledge that the enforcement application was brought in furtherance of its duty to enforce the planning scheme,” she said.
“I am not satisfied however that the existence of that duty or the action taken by the applicant in commencing this proceeding, is sufficient to award costs against the respondents in light of my reasons for not awarding costs.”
Ms Djohan noted all the issues in the proceeding were properly raised by the applicant in furtherance of the enforcement application.
“I find that there was no disentitling conduct on the part of the applicant to support displacement of the presumption,” she noted.
“I also find that the failure of the first and second respondents as joint owners of the subject land to respond to the applicant’s requests to bring the land into compliance with the planning scheme led to the commencement of this proceeding by the applicant in order to obtain an enforcement order requiring the first and second respondent to do so.
“Accordingly, the application for reimbursement of fees is granted.”
