Aydogan and Town of Cambridge & Anor - [2007] WASAT 19

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: AYDOGAN and TOWN OF CAMBRIDGE & ANOR [2007] WASAT 19

MEMBER: MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 24 JANUARY 2007

FILE NO/S: DR 423 of 2005

BETWEEN: SALIH AND KENAN AYDOGAN
Applicants
AND
TOWN OF CAMBRIDGE
Respondent
DION WARR
Intervener

Catchwords:

Practice and procedure - Costs - Town planning - Application for variation to acceptable development provision for alterations and additions to single house - Applicants successful on review - Building height - Applicants and respondent agreed that natural ground level is existing ground level - Neighbour granted leave to intervene in proceedings in relation to determination of natural ground level - Intervener argued that existing ground level is higher than approved by respondent and therefore not natural ground level - Intervener selfrepresented - Intervener relied on trade qualifications and experience in relation to levels at golf courses - Intervener did not present evidence from a qualified witness in relation to natural ground level - Whether respondent acted unreasonably in refusing application - Whether respondent did not genuinely attempt to make a decision on its merits - Whether intervention frivolous or vexatious - Whether intervener acted unreasonably - Costs of costs application

Legislation:

Legal Practitioners (Supreme Court) Contentious Business Determination 2004
State Administrative Tribunal Act 2004 (WA), s 36(1)(c), s 37, s 37(3), s 47, s 87, s 87(1), s 87(2), s 87(4)(b), s 87(5), s 88, s 88(1), s 88(2), s 88(3)(a), s 88(3)(b)
State Administrative Tribunal Rules 2004 (WA), r 42, r 42(1)(a)
Town of Cambridge Town Planning Scheme No 1, cl 33(1)(e), cl 33(2)

Result:

Applicants' application for costs against respondent and intervener dismissed
Applicants ordered to pay the respondent's costs of the costs application in the sum of $2841.55
Applicants and intervener to pay their own costs of costs application

Category: A

Representation:

Counsel:

Applicants:     Mr GP Mohen
Respondent:     Mr CA Slarke
Intervener:     Selfrepresented

Solicitors:

Applicants:     Wojtowicz Kelly
Respondent:     McLeods
Intervener:     Self-represented

Case(s) referred to in decision(s):

Aydogan and Ors v Town of Cambridge [2004] WATPAT 110
Aydogan and Town of Cambridge & Anor [2006] WASAT 122
Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53
Dilatte & Anor v MacTiernan [2002] WASCA 100
Oshlack v Richmond River Council (1998) 193 CLR 72
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
Springmist Pty Ltd and Shire of Augusta‑Margaret River (2005) 41 SR (WA) 207; [2005] WASAT 143(S)
Uniting Church Homes (Inc) and City of Stirling; Churches of Christ Homes and Community Services (Inc) and City of Stirling [2005] WASAT 341

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applicants who were successful in planning review proceedings sought orders that the respondent and an intervener pay certain costs incurred by the applicants in the conduct of the proceedings.
The Tribunal determined that the respondent did not act unreasonably by not approving the application and did genuinely attempt to make a decision on the merits. The proceedings involved a genuine dispute as to planning merit. The Tribunal also determined that the intervention was not frivolous or vexatious and that the intervener did not act unreasonably in the circumstances. Consequently, there was no reason to depart from the Tribunal's usual practice in review proceedings under which, normally, each party is to pay its own costs.
Finally, the Tribunal determined that the applicants should compensate the respondent for its reasonable professional costs and disbursements in relation to the costs application. In the generally costs‑free forum of the Tribunal in its review jurisdiction, the making of a costs application in proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct. In this case, the applicants' conduct in making and pursuing the costs application was unreasonable. However, as the intervener was self‑represented and as an affidavit which he obtained in relation to the costs application was of no assistance, the applicants and the intervener were each ordered to pay their own costs of the costs application.

Introduction

Having successfully applied to the Tribunal for review of the decision of the Town of Cambridge (Town or Council) to refuse planning approval for alterations and additions to an existing dwelling at No 20 Yanagin Crescent, City Beach (site) (see Aydogan and Town of Cambridge & Anor [2006] WASAT 122), Messrs Salih and Kenan Aydogan (applicants) seek orders that the Council and Mr Dion Warr pay certain costs incurred by the applicants in the conduct of the proceedings.
Under cl 33(1)(e) of the Town of Cambridge Town Planning Scheme No 1 (TPS 1 or Scheme), development approval is not required for the erection of a single house on the site. However, as the building height proposed by the applicants exceeds the acceptable development provision of 7.5 metres stated in the Town of Cambridge Residential Design Guidelines (June 2005) (Guidelines), cl 33(2) of TPS 1 requires an exercise of discretion/variation in relation to the departure from the acceptable development provision. The applicants sought an exercise of discretion/variation by the Town in relation to the departure from the acceptable development provision for building height by making a development application.
The Town refused the development application on 22 March 2005 for the following reasons:
"(i)the proposal does not satisfy the Acceptable Development Requirements or Performance Criteria of the Residential Design Codes of Western Australia Part 3.7 Element 7 ‑ Building Height;
(ii)the proposal does not satisfy the Acceptable Development Requirements or Performance Criteria of the Town of Cambridge Residential Design Guidelines Section 7 ‑ Building Height and Bulk;
(iii)the level of non‑compliance outlined above will result in an adverse impact on the amenity (with particular regard to views of significance) of adjoining landowners; and
(iv)Four of the five adjoining landowners strongly object to the proposal."
On 26 April 2005, the applicants applied to the Tribunal for a review of the Town's decision.
In June 2005, the Town amended its Guidelines with respect to building height in City Beach by, among other things, increasing the maximum wall height above natural ground level considered to be acceptable development from 6.5 metres to 7.5 metres. In consequence, the Town offered to reconsider the applicants' proposal and the applicants agreed to defer the hearing in the Tribunal to allow reconsideration to occur.
At its meeting on 23 August 2005, the Council reconsidered the proposal in light of the amended Guidelines and resolved as follows:
"(i)Council is only prepared to support additions to the existing residence to a maximum height to the roof of 7.5 metres above the existing ground level, in compliance with the Council's Residential Design Guidelines;
(ii)Council instructs its solicitors to attend the State Administrative Tribunal hearing and represent the Town in arguing the case for the rejection of the proposed building application in its current form;
(iii)The Chief Executive Officer be delegated authority to determine appropriate conditions to apply to the development."
The final hearing in the proceedings commenced before Member Ms M Connor on 24 November 2005 and continued on 29 November 2005 and 16 February 2006. For the purposes of the proceedings, the applicants and the Town agreed that natural ground level of the site is the existing ground level, as previously determined by the former Town Planning Appeal Tribunal (TPAT) in Aydogan and Ors v Town of Cambridge [2004] WATPAT 110. On the second day of the hearing, Mr Warr, who had previously been granted leave to make a submission in the proceedings, made an application under s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to intervene in the proceedings in relation to the determination of natural ground level and height controls. He claimed that he could "prove ... beyond reasonable doubt" that the existing levels had not been approved by the Town, which would show that the decision of TPAT was clearly in error. The Tribunal gave an oral decision in which it granted Mr Warr's application to intervene in relation to the determination of natural ground level, but declined his application to intervene in relation to height controls. The application to intervene in relation to the determination of natural ground level was granted "[i]n order for the Tribunal to come to the correct and preferable decision". Having been granted leave to intervene in the proceedings, Mr Warr became a party in relation to the determination of natural ground level: SAT Act s 36(1)(c).
On 16 May 2006, the Tribunal upheld the application for review and approved the exercise of discretion/variation in relation to the departure from the acceptable development provision of the Guidelines. The Tribunal granted the application because it was "satisfied that the variation/discretion sought satisfies relevant performance criteria, does not compromise the objectives of the Guidelines, and is reflect[ive] of the type of development envisaged by the Precinct Statement for this locality": at [70].

Tribunal's practice in relation to costs in review proceedings

Section 87 of the SAT Act provides, in part, as follows:
"(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to ‑
…
(b)whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party..."
In Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53, the Tribunal held, at [28], as follows:
"It is apparent from the terms of s 87(1) of the [SAT] Act that the starting proposition in this Tribunal is that parties bear their own costs in a proceeding. However, s 87(2) clearly confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party unless otherwise specified in an enabling Act." (See also Springmist Pty Ltd and Shire of Augusta‑Margaret River (2005) 41 SR (WA) 207; [2005] WASAT 143(S) at [32] and Uniting Church Homes (Inc) and City of Stirling; Churches of Christ Homes and Community Services (Inc) and City of Stirling [2005] WASAT 341 at [12]).
The Tribunal determined in both Citygate Properties Pty Ltd and City of Bunbury and Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 that normally, in administrative review proceedings, each party should bear its own costs of the proceedings. In Shark Bay Tuna Farms Pty Ltd and Department of Fisheries, the President stated, at [36], that:
"… the State Administrative Tribunal has been established by the Parliament of the State with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. The starting out position is that, absent other relevant factors, an applicant should be able to obtain review without being obliged to meet the decision‑maker's costs if they do not succeed; and similarly, the decision‑maker is not ordinarily entitled to recover costs from the applicant in the event the review application is unsuccessful."
Similarly, in Citygate Properties Pty Ltd and City of Bunbury, Senior Member Mr DR Parry observed, at [31], that there are several sound policy reasons which support an approach to the exercise of discretion under s 87(2) of the SAT Act in relation to review proceedings under which usually each party should bear its own costs:
"First, it ensures that individuals who have had an application rejected or not considered by an original decision‑maker or who have been given a direction or notice to do or cease doing something, have an opportunity for the decision to be reviewed without the fear of being ordered to pay costs if they do not succeed. Second, the review tribunal essentially 'sits in the shoes' of the original decision‑maker before whom the applicant was only responsible for its own costs. Third, although the review tribunal will usually ultimately prefer one party's position over another's, reasonable minds might well differ about an appropriate result as to merit."
The Tribunal's established practice in relation to costs in its review jurisdiction, which is reflected in these decisions, is consistent with the following statements by Gaudron and Gummow JJ in the High Court of Australia in Oshlack v Richmond River Council (1998) 193 CLR 72 at [22] and [40]:
"The terms of s 69(2) [of the Land and Environment Court Act 1979 (NSW) which provided, in part, that 'costs are in the discretion of the Court' and 'the Court may determine by whom and to what extent costs are to be paid'] contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except insofar as 'the subject matter and the scope and purpose' of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be 'definitely extraneous to any objects the legislature could have had in view' [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505].
...
There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the Court Act that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party."
Similarly, Kirby J held at [134.5] that:
"The proper approach to the exercise of a statutory discretion may be illuminated by the particular language in which it is expressed and the purpose for which it has been provided. (footnote omitted) ... In the present case, when determining the considerations that might be relevant to the exercise of the discretion in question, it would be a mistake, equivalent to that exposed in [Latoudis v Casey (1990) 170 CLR 534], to ignore the functions, powers and peculiar procedural provisions governing the Land and Environment Court in the jurisdiction which it had exercised."
The Tribunal's established practice in relation to the exercise of discretion as to costs under s 87(2) of the SAT Act in review proceedings reflects its statutory role and function when exercising that jurisdiction.

Application for costs against the Council

The applicants express their application for costs against the Council in the following terms:
"Pursuant to section 88(3)(a), 88(3)(b) and 87(4)(b) or alternatively 87(5) the Applicants claims [sic] from the Town of Cambridge the reasonable legal costs and disbursements, including witness costs of Mr Pandevski incurred from the 23 August 2005."
The application for costs under s 88(3)(a) and s 88(3)(b) of the SAT Act is misconceived. As sub‑section (1) makes plain, s 88 is concerned with "costs of, or incidental to, a proceeding of the Tribunal, other than costs of a party" (emphasis added). Section 88(2) confers power on the Tribunal to order that a party pay all or any of these costs. In other words, s 88 enables the Tribunal to make an order requiring a party to pay the Tribunal's costs of a proceeding, not another party's costs of a proceeding.
The application for costs under s 87(4)(b) and alternatively under s 87(5) of the SAT Act is also misconceived. Section 87(4)(b) simply states a matter which the Tribunal is required to take into consideration in exercising its discretion as to costs where the proceedings come within the Tribunal's review jurisdiction; it is not the source of the Tribunal's power to award costs. Section 87(5) has no application, because r 42(1)(a) of the State Administrative Tribunal Rules 2004 (WA) has the effect that r 42, which governs the effect of offers to settle on the making of an order for the payment by a party of the costs of another party, does not apply in review proceedings.
The applicants' application for costs against the Council ‑ and against Mr Warr - is made, in effect, pursuant to s 87(2) of the SAT Act.
In support of their application for costs against the Council, the applicants make two submissions, namely:
(1)Council was unreasonable in continuing to refuse to grant the applicants' planning application; and
(2)Council did not genuinely attempt to make a decision on the merits.
In relation to the first submission, the applicants contend that the Council was unreasonable in continuing to refuse their planning application at its meeting on 23 August 2005 given that:
•(i) their planning consultant gave evidence in the proceedings that the locality was in a transitional phase, with single storey dwellings being redeveloped predominantly with two to three storey dwellings;
(ii)this view was supported by the amended Guidelines; and
(iii)the proposed dwelling was consistent with the size and scale of dwellings in the vicinity;
•in light of the planning approval of "similar type" housing by the Council, "[i]nconsistency has the potential of bringing the decision making process into disrepute": Dilatte & Anor v MacTiernan [2002] WASCA 100 at [61];
•the Council's town planning consultant acknowledged that the proposed south and east elevations complied with the acceptable development provision;
•the recommendations of the Council's planning officers supported the application;
•as the Tribunal found, the variation/discretion sought by the applicants satisfied the performance criteria, did not compromise the objectives of the Guidelines and was reflective of the type of development envisaged by the Precinct Statement for the locality; and
•the Council had the opportunity at its meeting on 23 August 2005 to allow the application, but refused to do so.

We do not consider that the Council acted unreasonably in adopting the position which it took in the proceedings or in relation to the applicants' application.
The Council could not have considered the evidence of the applicants' town planning consultant at its meeting in August 2005, as the evidence was given at a hearing which commenced in November 2005. More fundamentally, while the applicants' town planning consultant considered that the proposed building height was acceptable, the parties' positions, and more particularly the planning evidence, reflected a genuine dispute as to planning merit. At [5] of its reasons, the Tribunal stated that "[t]he departure raised planning issues relating to amenity, loss of views of significance and bulk and scale". Significantly, the Town presented evidence from a qualified and experienced town planning consultant who considered that the proposed building height would have detrimental impacts on residential amenity in terms of loss of views and excessive bulk and scale. The relevant performance criteria in relation to building height referred to "the need to protect the amenities of adjoining properties, including where appropriate ... access to views of significance ...": at [49]. At [50], the Tribunal accepted the Town's submission that the aspects of amenity expressly identified in the performance criteria "were inclusive and not a complete list, and [it is] therefore open to the decision‑maker to consider other relevant amenity consideration[s] in determining whether the performance criteria [have] been satisfied".
Even if the Council had granted approval of "similar type" housing, it (and the Tribunal on review) was required to exercise discretion/variation in relation to a specific proposal which had site‑specific impacts. To have approved the proposed variation simply because the Town had approved "similar type" housing in the locality would have involved legal error in failing to address the specific application in its particular context.
The fact that the Council's town planning consultant acknowledged that the proposed south and east elevations were compliant did not have the effect that the Council was unreasonable. The critical issue in the review was the non‑compliance on the western elevation which the Council's town planning consultant considered gave rise to unacceptable amenity impacts.
The fact that the Council did not accept its planning officers' recommendation does not in itself demonstrate that it was unreasonable in continuing to refuse the application. Significantly, as noted earlier, the Council presented evidence from a qualified and experienced town planning consultant in support of its case that its decision should be affirmed on review. Had the Council rejected its officers' recommendation and not presented qualified planning evidence in support of its position, the result may well be different. However, as noted earlier, the proceedings involved a genuine dispute as to planning merit for resolution by the Tribunal.
The remaining aspects of the applicants' first submission are correctly characterised in the following submission made on behalf of the Council:
"The applicants' submission, in its essence, says no more than that the Council should have reached the same conclusion on the merits that the Tribunal did. With due respect to the applicants' submission, it falls well short of making out the ground of unreasonable conduct."
In relation to the second submission, the applicants contend that the Council did not genuinely attempt to make a decision on the merits (SAT Act s 87(4)(b)), because it focused purely on the aspect of roof height without reference to the performance criteria or objectives and did not take into account the factors identified at [24] in relation to the argument of unreasonable conduct. However, it is clear that the Council did genuinely attempt to make a decision on its merits, although the Tribunal ultimately came to a different decision. The fact that the Council considered that the building height should not exceed the acceptable development provision does not demonstrate that it failed to genuinely attempt to make a decision on its merits. The Council's merits assessment, which was shared by its town planning consultant, was that, in the circumstances of the case, the proposed building should be restricted to a maximum height of 7.5 metres.
The Council did not act unreasonably and genuinely attempted to make a decision on its merits. There is no reason, in the circumstances of this case, to depart from the Tribunal's established practice in relation to costs in review proceedings. The applicants and the Council should each pay their own costs of the substantive application.

Application for costs against Mr Warr

The applicants express their application for costs against Mr Warr as follows:
"Pursuant to section 47 for unjustified proceedings and section 88(3)(a) for proceeding 'vexatiously and frivolously' and lengthening the SAT hearing and thereby causing additional costs, the applicants claim the reasonable legal costs and disbursements incurred from 29 November 2005 (being the date on which Mr Warr first sought to intervene in the proceedings) insofar as the costs relate to his application to intervene, and the additional time spent in preparing for and attending the hearing of the application to deal with the issues raised by Mr Warr."
As noted earlier, the application under s 88(3)(a) is misconceived. In substance, the applicants' claim against Mr Warr is that he acted unreasonably in intervening in the proceedings and caused the applicants to have to incur additional costs. In an affidavit sworn on 23 October 2006, Mr Kenan Aydogan estimates that the hearing time was lengthened by at least half a day by Mr Warr's intervention. However, in an affidavit sworn on 13 November 2006, the applicants' solicitor estimates that approximately half an hour was taken up in relation to Mr Warr's intervention on each of 29 November 2005 and 16 February 2006, although he spent a total of approximately 12.9 hours in relation to Mr Warr's intervention. Member Connor's recollection accords with that of the applicants' solicitors. Mr Warr's intervention did not materially lengthen the hearing.
As the Tribunal stated at [34] of its reasons, Mr Warr's application for leave to intervene "raised a critical issue in these proceedings, that being, whether the existing levels on the site are those approved in the 1963 plan". The Tribunal noted that the outcome of this question affected "the levels that should be used in determining [natural ground level] and the point from where building height should be measured which in turn affects the level [of] non‑compliance with the requirements".
At [38], the Tribunal noted that, as demonstration of his ability to comment on the issue of natural ground level, Mr Warr relied on:
•his trade certificate qualifications as a green keeper, which included a module on "site preparation"; and
•his experience as a golf course manager, which involves working with levels and height on a continual basis.
At [39], the Tribunal noted that Mr Warr did not call a surveyor or other qualified witness to give evidence. Rather, based on his experience in relation to levels at golf courses, Mr Warr put forward two hypotheses and tested their feasibility in relation to levels. He also attempted to substantiate his contentions by relying on photographs to demonstrate where natural ground level used to be on the southern boundary of No 18 Yanagin Crescent.
At [42], the Tribunal determined as follows:
"The Tribunal is not satisfied that Mr Warr's submission has cast any serious doubt on the correctness of the Town Planning Appeal Tribunal's determination on [natural ground level]. Mr Warr does not have the qualifications or experience to question the evidence of the surveyors who gave evidence at the previous hearing or make competent comment or analysis of the surveying evidence given to the Town Planning Appeal Tribunal. Furthermore, his evidence is premised on the 1963 and 1967 contour plans of which the reliability remains in doubt. Therefore, the Tribunal finds that for the reasons of comity and consistency as expressed at [31] of The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304, the decision of the Town Planning Appeal Tribunal in Aydogan and Ors v Town of Cambridge in respect to determining [natural ground level] is to be followed. Accordingly, for the purpose of measuring the height of the building, the existing levels constitute [natural ground level]."
In his submission in relation to the applicants' application for costs against him, Mr Warr stated as follows:
"I deliberately did not engage a surveyor as part of the survey I had conducted on the 13 January 2006 nor did I engage a lawyer in order to reduce the five boundary neighbours' costs and in addition given my experience and expertise in height surveying did not think it necessary to get my case across at which I appear to have failed."
The Tribunal does not consider that Mr Warr acted frivolously or vexatiously in making his application to intervene and in participating in the proceedings. As noted earlier, the Tribunal considered that the issue which he sought to agitate involved "a critical issue" in the proceedings. Mr Warr genuinely, although mistakenly, thought that, with his practical experience in determining site levels at golf courses, he could satisfy the Tribunal that the decision of TPAT in relation to site levels was incorrect. The Tribunal accepts the following evidence given by Mr Warr in his affidavit sworn on 3 November 2006:
"I sincerely endeavoured to bring factual truth and valid information that I was aware of to the Tribunal in order to assist in the just and fair outcome for everybody.
It was never my intention to hamper proceedings or put forward frivolous arguments and to cause the applicants any unnecessary costs."
The Tribunal does not consider that Mr Warr acted unreasonably in seeking to present his case on natural ground level in the way in which he did. Mr Warr was self‑represented, had some practical experience in relation to levels and sincerely endeavoured to assist the Tribunal through his intervention.
Furthermore, Mr Warr's intervention only lengthened the hearing time on each of the second and third hearing days by approximately half an hour.
Finally, the Tribunal notes that the applicants also did not call evidence from a surveyor in relation to natural ground level.
In these circumstances, the Tribunal does not consider that the discretion as to costs under s 87(2) of the SAT Act should be exercised so as to depart from its usual practice that normally each party in review proceedings should pay its costs of the proceedings.

Costs of costs

Shortly after the applicants indicated that they would apply for an order for costs against the Council, the Council's solicitors wrote to the applicants' solicitors referring to Citygate Properties Pty Ltd and City of Bunbury, giving reasons as to why an application for costs could not be justified in the circumstances of the case and foreshadowing that, if an application for costs were pursued against the Council, the Council would apply for costs in connection with the costs application. The Council now seeks an order that the applicants pay its reasonable costs in responding to the applicants' costs application. In his affidavit sworn on 1 November 2006, Mr CA Slarke, the Council's counsel and solicitor, set out an itemised account of the work he performed in responding to the applicants' costs application. In total, Mr Slarke spent approximately 8.3 hours responding to the costs application, of which approximately 5.5 hours was spent reviewing the applicants' submissions, reviewing authorities and preparing the Council's submissions. Applying the Senior Practitioner rate under the Legal Practitioners (Supreme Court) Contentious Business Determination 2004 (Determination), Mr Slarke calculates the amount sought by the Council at $2841.55.
In his submissions in relation to the costs application against him, Mr Warr stated that he engaged a surveyor to prepare an affidavit to demonstrate that "I did in fact have valuable and critical information that decision makers ought to have been made aware of". Mr Warr filed an affidavit sworn by John Anthony McMullen, a licensed surveyor. Mr Warr seeks an order that the applicants pay the costs of retaining Mr McMullen.
As noted earlier, both the starting proposition in the Tribunal under s 87(1) of the SAT Act and the established practice of the Tribunal in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act is that, normally, each party in review proceedings should bear its own costs. The Tribunal, in its review jurisdiction, is a generally costs‑free forum.
The making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct warranting an order that the applicants for costs compensate the other party or parties for having had to defend the application. The applicants were advised of the Tribunal's practice in relation to costs, but nevertheless persisted with their application, thereby putting the Council to expense in defending it. The applicants' conduct in making and pursuing the costs application was unreasonable in a generally costs‑free jurisdiction.
In this case, the Tribunal considers that the discretion under s 87(2) of the SAT Act as to the costs of the costs application made by the applicants against the Council should be exercised so as to compensate the Council for having had to defend the costs application. The time spent by Mr Slarke in relation to the costs application on behalf of the Council is reasonable and the application of the hourly rate for a Senior Practitioner under the Determination is reasonable in relation to a contested costs application. The Tribunal, therefore, considers that the applicants should be ordered to pay the Council's costs of the costs application in the sum of $2841.55.
The Tribunal does not consider that the applicants should be ordered to pay the costs of Mr McMullen's affidavit. The Tribunal does not find Mr McMullen's affidavit to be of any assistance in the determination of the applicants' costs application against Mr Warr. The Tribunal, therefore, considers that the discretion under s 87(2) of the SAT Act in relation to the applicants' costs application against Mr Warr should be exercised such that each party pays its own costs of that application.

Conclusion

The Tribunal has found that the Council did not act unreasonably by not approving the application and that it did genuinely attempt to make a decision on the merits.
The Tribunal has also found that Mr Warr's intervention in the proceedings in relation to the issue of natural ground level was not frivolous or vexatious and that, in the circumstances, Mr Warr did not act unreasonably in seeking to present his case on natural ground level himself and without calling evidence from a qualified witness.
Consequently, the Tribunal determined that there is no reason to depart from the usual practice as to costs in review proceedings under which normally each party pays its own costs.
Finally, the Tribunal determined that, in a generally costs-free jurisdiction, the making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct. In this case, the Tribunal determined that the unsuccessful applicants for costs should pay the Council's costs incurred in responding to the applicants' costs application in the amount of $2841.55. However, the Tribunal determined that, as between the applicants and Mr Warr, each party should pay its own costs of the costs application, because Mr Warr was not represented and the affidavit which he obtained from a surveyor was of no assistance to the Tribunal in relation to the costs application.

Orders

The Tribunal makes the following orders:
1.The applicants' application for costs against the respondent is dismissed.
2.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), by 24 February 2007, the applicants must pay to the respondent its professional costs and disbursements in responding to the applicants' application for costs in the sum of $2841.55.
3.The applicants' application for costs against the intervener is dismissed.
4.The applicants and the intervener must each pay their own costs of the applicants' application for costs against the intervener.

I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER