13 November 2015 Dalia Cook Member, Victorian Civil and Administrative Tribunal Planning Enforcement Officers Association Conference 2015

Compulsory conferences Shift from mediation in Planning and Environment List Higher proportion of enforcement matters referred to CC, with broader proportion of mediators becoming experienced in these matters Very high success rate ‒ Why? ‒ What can you aim for? ‒ What/who do you need to support/advise you beforehand and on the day? ‒ Importance of being pragmatic 2

Form of orders Section 119 of the Planning and Environment Act 1987 – very broad powers to address the breach: ‒ to stop the use or development; ‒ not to start (or re-start) the use or development; ‒ to maintain a building in accordance with the order; ‒ to do specified things within a specified period; ‒ to restore the land; or ‒ to otherwise ensure compliance with the Act, or the planning scheme, permit condition or agreement under section 173. How will the respondents get from A to B? Tailor it to the circumstances… 3

Form of orders Think about how to characterise the breach/es May be a self executing order Eg. (a)Must do XYZ by X date unless a planning permit is granted for the use/development by that date. (b)If a permit is issued, the works required before any use must commence must be carried out to the satisfaction of the RA. May be staged – possibly by reference to a marked up plan/aerial photo May require anything reasonably ancillary to be demonstrated e.g. landfill receipts for disposal of materials for recycling, sampling/surveys, engineering/drainage specifications May require further plans to be approved by RA e.g. land rehabilitation plan – need to provide detailed parameters May require respondents to provide opportunity for inspection for compliance purposes 4

Recovery of fees Request can be made for lodgement fee and/or daily hearing fee (day 2 onwards – before or after incurred) to be reimbursed by respondent or other party Application is made under section 115B of the VCAT Act 1998 Award at Tribunal’s discretion – in whole or in part Mandatory considerations include: nature of and issues involved, conduct of parties, result of proceeding Recent trend to award reimbursement of application fee where requested – favourable comments by DP Dwyer in Moira SC v Sidebottom Group Pty Ltd & Ors [2014] VCAT 1206 Not aware of recovery of daily hearing fee in enforcement proceeding, although one potentially in the pipeline 5

Recovery of costs To be made under section 109 of the VCAT Act 1998 (Or may be under section offer of compromise – high legal hurdles) Starting point is that each party bear their own costs in a Tribunal proceeding Overwhelming consideration is fairness in all the circumstances Need to consider factors including: ‒ conduct causing disadvantage ‒ unreasonably prolonging proceeding ‒ relative strengths of the parties’ claims ‒ the nature and complexity of the proceeding ‒ any other matter the Tribunal considers relevant - public duty to bring proceeding is often a relevant factor 6

Costs claims (cont.) More regularly awarded in enforcement proceedings compared with review proceedings in Planning and Environment List “Costs” generally confined to legal costs, legitimate disbursements and out of pocket witness costs. Not often full cost (indemnity recovery) – only in exceptional circumstances Can fix sum or award on scale basis eg. party-party/solicitor/client (may require taxation of costs) VCAT Rules provide that relevant default scale is County Court i.e. 80% of Supreme Court Scale Submissions should focus on ‒ Why an award of costs is justified ‒ Which costs should be claimable and on what basis (need at least line itemisation of costs actually incurred) 7

8 Being realistic Supplement application with supporting material Make the most of the Practice Day Hearing process Assess your options – prioritise what you want to achieve Consider your realistic costs and chances of recovery Consider real impacts and physical issues ‘on the ground’ rather than being only ‘process driven’ (important discretion) Try to obtain agreement, at least in part Circulate evidence on time Remember council’s duty to the Tribunal