PENINSULA Aero Club has failed in a bid to force Mornington Peninsula Shire Council and several Tyabb residents to pay nearly $124,000 in legal costs.
The Victorian Civil and Administrative Tribunal last month ruled that PAC and Westernport Airfield Pty Ltd could not claim costs as they were not “substantially successful” in their dispute with council over: the description of the use of the land as an ‘airfield’ or ‘airport’; the use of the east-west runway; the total number of take-offs and landings of aircraft with an all-up weight of between 4,500 and 12,500 pounds; and the prohibition on night landings and take-offs (“Aero club given clear air to operate” The News 12/10/22).
“Except for the declarations with respect to the use of the land as an airport and the east-west runway, the applicants were not successful with respect to the total number of take-offs and landings in one day nor their interpretation of the term ‘night’,” VCAT deputy president Teresa Bisucci and senior member Rachel Naylor found.
The tribunal members said the “complex” proceedings fitted the “high bar” required for the VCAT to not award costs.
The proceedings had involved: detailed documentary material; a plethora of permits with a variety of contradictory conditions requiring interpretation to enable these permits to be read together harmoniously; complex and detailed facts from the mid-1960s; and extensive lay evidence from many witnesses.
“The nature of this proceeding arose because of differing interpretations of the permits and historical documents by the parties to the proceeding,” the members wrote in their 6 March determination to not award the costs sought by the PAC and Westernport Airfield.
“The interpretation included how the permits work together and the permissions given as the permits were issued over decades under various and differing planning scheme provisions.
“As such we are satisfied that the presumption that a successful party is entitled to an order … for the reimbursement of fees is displaced. Accordingly, we refuse to make any order for the reimbursement of fees.”
The shire and PAC have a long running history of litigation and hearings at VCAT. In late 2022 the shire controversially gave the club $350,000 (“‘Secretive’ $350,000 payout to aero club” The News 26/10/22).
First published in the Western Port News – 19 April 2023
