5KIPGFD[#WUV.

++

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION
VCAT REFERENCE NO. P1242/2015

PLANNING AND ENVIRONMENT LIST

APPLICANTS

Hopley Recycling Pty Ltd and Kenneth Hopley

RESPONSIBLE AUTHORITY

Greater Bendigo City Council

SUBJECT LAND

Crown Allotment 432E, Section R, Parish of

Sandhurst, BENDIGO

BEFORE

Mark Dwyer, Deputy President

HEARING TYPE

No Hearing (Costs determination on papers)

DATE OF ORDER

12 April 2016

CITATION

Hopley Recycling Pty Ltd v Greater Bendigo CC

[2016] VCAT 560

ORDER

Pursuant to section 109 of the Victorian Civil and Administrative Act 1998,
the applicants (Hopley Recycling Pty Ltd and Kenneth Hopley) must jointly
and severally pay the costs of the responsible authority (Greater Bendigo
City Council) in this proceeding, such costs being fixed at $38,000 and
payable by 1 June 2016.

Mark Dwyer
Deputy President

4GVTKGXGFHTQO#WUV.++QP#RTKNCV

8GTKH[XGTUKQP

5KIPGFD[#WUV.++

REASONS
What is this costs application about?

By order dated 27 January 2016 in this proceeding, I amended an

enforcement order made in VCAT proceeding P2578/2013, to extend the
time until 1 June 2016 for Hopley Recycling Pty Ltd and Kenneth Hopley
(collectively referred to as Hopley) to remove processed materials
unlawfully stockpiled on land in White Hills, Bendigo.

Although Hopleys application to VCAT had initially sought to extend the

date for removal of the process materials until 1 June 2016, at the hearing it
sought to amend that date until 17 June 2017. Greater Bendigo City Council
(the Council) had been willing to conditionally support the original date
of 1 June 2016, but was not prepared to endorse the later date.

The Council foreshadowed an application for costs, and my order of 27

January 2016 provided an interlocutory timetable for this.

On 26 February 2016, the Councils solicitors filed a costs submission

seeking costs fixed at $44,949 (for which details were provided) or,
alternatively, an award of costs to be assessed by the Costs Court. The
application for costs is based on the nature of the proceeding, Hopleys
long-standing non-compliance with the original enforcement order, and
Hopleys conduct in the proceeding itself (including non-compliance with
procedural orders, and the changing nature of Hopleys case which the
Council says disadvantaged its preparation).

On 30 March 2016, Hopleys solicitors filed a response to the costs

submission, opposing the application both generally and in relation to
quantum.

Consideration of issues

The starting point for the consideration of the costs application is that,
ordinarily, each party is to bear its own costs in a proceeding at VCAT.
Under s 109(3) of the Victorian Civil and Administrative Tribunal Act
1998, the Tribunal may make an order for costs only if it is satisfied that it
is fair to do so having regard to a number of factors set out in that provision,
albeit that the last mentioned factor, in s 109(3)(e), is a catch-all factor
allowing VCAT to effectively consider any matter that it considers relevant.

I agree with Hopley that, although costs are often awarded in enforcement
proceedings, there is no presumption to that effect. However, the nature of
an enforcement proceeding (a relevant factor under s 109(3)(d)), and the
primary consideration of what is fair (having regard to the opening words
of s 109(3)), will perhaps more commonly lead to an award of costs in such
matters. I agree with the sentiment expressed by the then Justice Morris in
Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441 at
[11], that there is merit in the distinction between enforcement proceedings

VCAT Reference No. P1242/2015

4GVTKGXGFHTQO#WUV.++QP#RTKNCV

Page 2 of 5

8GTKH[XGTUKQP

5KIPGFD[#WUV.++

and applications for review in the approach to costs, but it does not follow
from this that costs should be regarded as automatic or likely in
enforcement proceedings. The general rule as to costs still applies, and it is
still necessary to look at the circumstances of each proceeding, particularly
matters that occurred after the proceeding was brought, in order to
determine whether it is fair to award costs.
8

Here, the proceeding was not about the initial making of an enforcement
order, but rather an application to amend an enforcement order already
made, by extending the time for compliance for the removal of processed
material from the land. I do not however agree with Hopley that it was
seeking a reasonable time to vacate the Councils land.

In its application, Hopley had sought an extension of time from 1 May 2015
to 1 June 2016, based on three grounds. As the decision reflects, two of
those grounds failed at a threshold level, and the third was not made out on
the evidence. More particularly, at the hearing, it became apparent that
Hopley was no longer seeking an extension only until 1 June 2016, but was
by then seeking an extension until mid-2017, on different grounds, and on
flexible terms that changed several times through the hearing. Again, as the
decision reflects, I was left in some doubt as to the seriousness of Hopleys
commitment to remove all processed material land even by then.

10

Furthermore, at the hearing, the Council had been prepared to conditionally

consent to an extension of the enforcement order until 1 June 2016. The
hearing was thus only necessitated, in reality, because of Hopleys everchanging position. I agree with the Council that this ever-changing position
disadvantaged the Council in its final preparation for the hearing, and
during the hearing.

11

For its application for costs, the Council relies in part on an allegation that
Hopley failed to comply with Deputy President Gibsons procedural order
of 13 August 2015. I agree with Hopley that there is some doubt whether
this order (relating to the requirement for a relocation plan, containing
specified information) applied only to the compulsory conference, or more
generally. A relocation plan was ultimately filed before the main hearing following a practice day request by the Council. I disagree with Hopley
that this issue is not at all relevant, but I would not have awarded costs on
this ground alone.

12

I agree with the Council that Hopleys belated attempt to use the physical
condition of the site, and potential health risks, as a justification to delay
compliance and to substantiate its application for an extension of time, was
a diversion from the real issues. It increased the costs, and disadvantaged
the Council, in its preparation for the hearing, and at the hearing.

13

I think Hopley is drawing a very long bow, in its response to the costs
application, in relying in part on a suggestion that it was ultimately
successful in extending the enforcement order. By the time of the hearing

VCAT Reference No. P1242/2015

4GVTKGXGFHTQO#WUV.++QP#RTKNCV

Page 3 of 5

8GTKH[XGTUKQP

5KIPGFD[#WUV.++

in January 2016, and with the volume of processed material still remaining
on the land by reason of Hopleys continuing non-compliance with the
original enforcement order, both the Council and VCAT were left with little
choice but to allow a short extension. Given that Hopley had failed to
substantiate its application for an extension of time on any ground, I
indicated in the decision there was a question as to whether it was entitled
to any further time at all. I indicated that, had the Council fully opposed the
request for an extension of time, and not shown a pragmatic preparedness to
allow a short extension in a final attempt to facilitate compliance, I would
likely have refused the application completely.
14

I disagree with Hopley that the Council has failed to substantiate a ground
for costs based on the relative strengths of the claims made by the parties.
It will be clear from any reading of my decision that I found Hopleys
application for an extension of time to be weak, and that the Council had
acted reasonably throughout the enforcement process. Hopleys application
lacked merit. Indeed, even Hopleys advocate at the hearing conceded that
the application was essentially a plea for more time.

15

Having regard to the factors in s 109(3)(a) to (e), I am satisfied that it is fair

to award costs against Hopley and in favour of the Council.

16

An award of costs is not a penalty against an unsuccessful party, but rather

to fairly compensate a party for costs reasonably and necessarily incurred.

17

I turn then to the question of quantum. The Council seeks costs equating to
90.8 hours of professional time to charge out rate of $495 per hour,
amounting to $44,949. The attendances are fully itemised in an annexure to
the application.

18

Hopley contends that all of the work was done by very senior lawyer (Mr
Egils Stokans) at a significant charge out rate, and that costs could have
been minimised by utilising more junior lawyers. Whilst that may be a
legitimate issue in some proceedings, I consider it a bit disingenuous in this
case. Mr Stokanss participation in the proceeding avoided the need for
external counsel to be briefed. Even if more junior lawyers were used for
some attendances, this may have necessitated at least some additional costs
for supervision. I note that Hopley also used an experience planning
lawyer, albeit that it says that its overall costs were less than the $44,949
claimed by the Council. Moreover, this proceeding was one of significant
local controversy, attracting both media and political attention, and forming
part of what had become an ongoing saga between the parties. Whilst the
County Court scale (used as the default in VCAT matters) envisages a
general charge out rate of $386 per hour for general attendances, I consider
that the circumstances of this proceeding warranted the involvement on
behalf of the Council of a senior and experienced planning lawyer such as
Mr Stokans. I have nonetheless made a minor adjustment on this basis.

VCAT Reference No. P1242/2015

4GVTKGXGFHTQO#WUV.++QP#RTKNCV

Page 4 of 5

8GTKH[XGTUKQP

5KIPGFD[#WUV.++

19

I disagree with Hopley that it is contrary to the spirit of mediation for the
Council to subsequently claim its costs in relation to the compulsory
conference. The Councils preparation for, and attendance at, the
compulsory conference involved costs reasonably incurred in the
proceeding.

20

I agree with Hopley that the Councils application at the directions hearing
on 7 August 2015, for an order that no processed material could be brought
on to the land until the compulsory conference was complete, was
unsuccessful. However, the directions hearing was initially listed for other
purposes, and dealt with other procedural matters, such that the costs of the
Councils preparation for, and attendance at, that directions hearing still
primarily involved costs reasonably incurred in the proceeding. I have again
made a minor adjustment on this basis.

21

In relation to Hopleys general submission that not all of the work claimed
by the Council is reasonable, I have had regard to the itemised attendances.
In any given case, there will be some attendances undertaken in good faith,
but which, with the benefit of hindsight, may later appear unnecessary
e.g. the initial investigation of a seemingly relevant issue of fact or law that,
upon analysis, is not considered so relevant. Given the short description for
each of the itemised attendances, I do not know whether that is the case
here.

22

However, having regard to Hopleys general submissions about the

quantum of costs, I consider in an overall sense that it is appropriate to
reduce the costs claimed by approximately 15% to take account of all the
matters raised above, and to avoid the incurring of further costs through
taxation. I therefore fix costs at $38,000.

Mark Dwyer
Deputy President

VCAT Reference No. P1242/2015

4GVTKGXGFHTQO#WUV.++QP#RTKNCV

Page 5 of 5

8GTKH[XGTUKQP