Boulter and Shire Of Augusta - Margaret River

[2006] WASAT 334

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   BOULTER and SHIRE OF AUGUSTA - MARGARET RIVER [2006] WASAT 334

MEMBER:   JUDGE J CHANEY (DEPUTY PRESIDENT)

HEARD:   8 NOVEMBER 2006

DELIVERED          :   14 NOVEMBER 2006

FILE NO/S:   DR 183 of 2006

BETWEEN:   SANDRA BOULTER

Applicant

AND

SHIRE OF AUGUSTA - MARGARET RIVER
Respondent

Catchwords:

Costs - Application for review of refusal to permit development - Application resolved by consent following mediation - Application to respondent to pay applicant's costs - Whether respondent genuinely attempted to make original decision on its merits - Whether refusal decision made peremptorily - Significance of identity and experience of applicant with region to manner in which application dealt with

Legislation:

Shire of Augusta­Margaret River Town Planning Scheme No 11, cl 4.5.3(6)

State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(4)

Result:

Application for payment of costs dismissed

Category:    B

Representation:

Counsel:

Applicant:     Ms P Cahill

Respondent:     Mr A Roberts

Solicitors:

Applicant:     Jackson MacDonald

Respondent:     McLeods

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

Dumbleton & Anor and Town of Bassendean [2005] WASAT 145(S)

Gangemi and Shire of Augusta‑Margaret River [2005] WASAT 113

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Ms Boulter applied for an order for the payment of her costs in relation to proceedings in the Tribunal which had been resolved following mediation.  Her principal contention was that the Shire of Augusta‑Margaret River had not genuinely attempted to make a decision on its merits when it resolved to refuse the development.  Ms Boulter also argued that the Council of the Shire had failed to assume that, given Ms Boulter's experience and knowledge in planning matters, the application had been given careful consideration.  She asserted that rather than making that assumption the Council had dealt with the application peremptorily.  She also contended that the application should not have been dealt with peremptorily in light of the fact that she is a former employee of the Shire who had been involved in a legal dispute with the Shire over the termination of her employment.

2. The Tribunal considered the procedures of the Shire leading to the decision to refuse the application, and concluded that it could not be said that the Shire had not genuinely attempted to make a decision on its merits.  It considered that the other bases upon which it was suggested costs should be ordered against the Shire were without foundation. 

Introduction

1. On 24 May 2006, the Council of the respondent resolved to refuse an application by the applicant, Ms Boulter, for the development of a grouped dwelling in Prevelly.  On 8 June 2006, Ms Boulter applied for a review of that decision by the Tribunal.  When the application was made, the respondent appointed solicitors to act on its behalf.  The matter first came before the Tribunal for directions on 23 June 2006, when directions were made to identify the issues between the parties, and referring the matter to mediation.  A mediation conference occurred on 25 July 2006 and was adjourned to 28 August 2006, apparently on the basis that the parties would exchange further information between themselves concerning the issues.  The date for the adjourned mediation was subsequently vacated, apparently in view of the progress which the parties had made towards settlement.  On 18 September 2006, the matter was resolved by a consent order, save for the question of the costs of the application.  The parties subsequently filed submissions and affidavits in relation to the question of costs and these reasons concern that application. 

The applicable principles

1. There is no issue between the parties as to the broad principles to be applied in relation to an application for costs in the Tribunal.  They accepted that the starting point is that parties to review proceedings in the Tribunal normally bear their own costs (s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)). There exists, however, a broad discretion to make an order for payment of all or any of the costs of another party (s 87(2)). Section 87(4) of the SAT Act requires the Tribunal, in dealing with costs on a matter within its review jurisdiction to have regard to:

   "(a)whether the party (in bringing or conducting the proceeding before the decision‑maker in which the decision under review was made) genuinely attempted to enable and assist the decision‑maker to make a decision on its merits;

   (b)whether the party (being the decision‑maker) genuinely attempted to make a decision on its merits."

2. It is now well accepted that s 87(4) does not limit the circumstances in which a costs order might be made – see Dumbleton & Anor and Town of Bassendean [2005] WASAT 145(S) at [8].

The applicant's arguments

1. The applicant identifies four factors as supporting an order for costs in her favour. 

2. The first is that she genuinely attempted to assist the respondent to reach a decision on the merits in respect of her application for development approval.  The evidence of Ms Boulter in her affidavit establishes that proposition, and it was not contended otherwise by the respondent.  Counsel for Ms Boulter did not suggest that a finding that an applicant genuinely attempted to assist the decision‑maker to make the original decision, gives rise to a basis for ordering that the respondent pay the applicant's costs.  Rather, a failure by an applicant to enable and assist a decision‑maker to make the original decision on its merits might be a factor which disentitles an applicant to an order for costs, that might otherwise be made, against a respondent.  It may also constitute a factor which leads to an order that the applicant pay the decision‑maker's costs on the review.  In this case, there is nothing in Ms Boulter's conduct which would disentitle her to an order for costs if a basis for an order is otherwise made out.

3. The second factor relied upon by Ms Boulter is a contention that the Shire of Augusta‑Margaret River (the Shire) did not genuinely attempt to make a decision on its merits when it rejected her application for development on 24 May 2006.  It is clear that this contention provides the principal foundation for the application.  To deal with this contention, it is necessary to review the events leading to the Council's resolution. 

4. Ms Boulter first approached the respondent on 5 January 2006 when she lodged an application for preliminary planning approval which sought "in principle approval" for the construction of a grouped dwelling on the applicant's land.  The Shire was unwilling to accept that application.  Ms Boulter engaged a consultant to develop a set of plans and make a full application for planning approval.  The consultant had meetings with several representatives of the Shire including meetings concerning the proposed use of an aerobic treatment unit for the treatment of waste, water and sewerage.  An application was made to the Shire on 26 February 2006.  A number of subsequent communications and meetings took place between the applicant's representative and the Shire and ultimately, staff of the respondent prepared a report recommending approval subject to some 22 conditions (the report).  The report came before the Council at its meeting on 24 May 2006. 

5. The report identified that the density coding for the site permitted the proposed group dwelling only if the Council was satisfied that the drainage conditions are suitable to ensure that on site effluent disposal methods will continue to function effectively on a permanent basis (cl 4.5.3(b) of the Shire of Augusta‑Margaret River Town Planning Scheme No 11 (TPS 11)).  The officers commented that "as to how the applicant should satisfy the Council in relation to the adequacy of on‑site effluent disposal, it would be necessary to provide details of what is proposed in that respect and for those details to be assessed by the Shire".  The report suggested that details in relation to the specifications of the effluent disposal unit could be required as conditions of the proposed approval.  The report also pointed out that the proposed development did not comply with certain provisions of the Council's sewerage policy.  The officers expressed the view that, although there was non‑compliance with the policy, it was open to the applicant to satisfy Council that on site effluent disposal could be acceptably managed on a permanent basis without meeting all of the criteria of the policy.  It observed that additional information was required as part of the proposed conditions of approval.

6. In relation to policy, the report made reference to an earlier decision of this Tribunal which reaffirmed the proposition that policies should not be applied inflexibly, but rather the circumstances of a case, which suggest that a variance from a policy may be appropriate on a particular occasion, need to be considered ‑ Gangemi and Shire of Augusta‑Margaret River [2005] WASAT 113.

7. The report recorded that Council had received eight submissions opposing the proposal and one of which was indifferent.  A summary of the submissions was attached to the report.  Some of the objections concerned the effect of effluent disposal on ground water, to which the officers responded by noting the concerns and observing that "there is limited information with regards to possible ground water contamination and the Scheme does not have specific requirements".  Other objections concerning ground water contamination gave rise to the officer's response "uphold".  In relation to ground water, the report observed that "the groundwater in Prevelly has in the past been subject of investigations for contamination however no formal report was available at the time of writing this report".  The others observed that there were a total of 20 lots with the potential of grouped dwellings in Prevelly, but because of provisions of the Scheme relating to the separation between grouped dwellings, the scope for further grouped dwelling development was no more than 10 potential new dwellings.

8. Council did not accept the officers' recommendation, and the minutes record that the motion for approval subject to conditions was "lost 3‑4".  The minutes then record the reason for that decision as follows:

   "Council voted against the recommendation due to:

   1.increases in housing population density,

   2.submissions made by neighbours;

   3.environment impact and concerns on ground water."

9. Ms Susan Oosthuizen, the Executive Manager Planning and Development Services, was present at the Council meeting.  In an affidavit filed in relation to the costs application, she said that:

   "6.Upon hearing Council state those reasons during the meeting, I was concerned that although the motion had been lost, Council had not actually resolved to refuse the application and that the reasons did not express with sufficient clarity the grounds on which Council had refused the application.  I verbally informed the collective Council of my concerns in that regard.  As a consequence, the matter was further considered later at the same meeting at which time an alternative recommendation was adopted which clarified and provided a better explanation of the reasons for refusing Ms Boulter's application.  The recommendation was drafted by Cr J McGregor and Shire President, Mr Harrison.  The recommendation is recorded at pages 126 and 127 of the Minutes."

10. The minutes then record:

    "Procedural Motion

    That the earlier agenda item 8.2.1… be considered as new business of an urgent nature in order to clarify the outcome of Councils decision on  item 8.2.1. 

    Cr McGregor offered a proposal alternative motion to agenda item 8.2.1

    An amendment to the alternative recommendation was put by Cr Harrison, the insertion of reason 6.  Accepted by the mover Cr McGregor and the seconder Cr Taylor

    ALTERNATIVE RECOMMENDATION/COUNCIL DECISION

    CR MCGREGOR CR TAYLOR OM06/05 027

    It is recommended that the proposed Group Development located at Lot 16 Wooredah Crescent, Prevelly be refused for the following reasons:

    1The density development is inconsistent with the mandatory provisions in part 3 of Councils PE 26 Sewerage Policy;

    2.The density development is inconsistent with the discretionary provisions in Part 4 of Council's PE. 26 Sewerage Policy;

    3.The Density development is inconsistent with the mandatory and discretionary provisions in the state Drat [sic] Country Sewerage Policy;

    4.The density development is inconsistent with the provisions of clause 4.5.3(b) in Town Planning Scheme No 11.

    5.The amount of objections from surrounding neighbours.

    6.That the grouped dwelling would increase the housing and population density and give rise to an expectation by others, that similar developments could take place.

    CARRIED 4 - 3

    CR COLYER, CR MIDDLETON AND CR WYBURN VOTED AGAINST THE MONTION

    REASON:

    Council's Sewerage Policy was put in place with the specific intention not to allow further development in Prevelly until reticulated sewer is available.  This policy was adopted with the community fully aware of the provisions in it.

    The scheme requires Council to be satisfied that the onsite sewer will function effectively on a permanent basis; this requires the policy to be applied consistently and to take into account the potential cumulative impacts on public health and the environment.  Although the Policy cannot override the Scheme, the policy was adopted after the scheme to ensure consistent decision making with regards to specific clauses such as this in the scheme.

    The proposal is inconsistent with the adopted sewer policy that:

    I.was put in place specifically to promote consistent decision making;

    II.takes into account the cumulative adverse impacts on public health and the environment and;

    III.prohibits further development in Prevelly without reticulated sewer."

11. The applicant makes a number of criticisms of the manner in which the agenda was dealt with.

12. First, the applicant contends that the reasons expressed for the vote against the officers' recommendation suggests that there was no genuine attempt to deal with the application on its merits.  It is argued that the reference to increases in housing population density ignores the officers' advice that only up to 10 additional residences might be possible.  It is further said that reference to submissions made by neighbours lacks any particularity or explanation as to what aspect of those submissions were relied upon.  It is contended that the reference to "environment impact and concerns on ground water" provides no explanation as to why the solution to those issues suggested by the officers was not acceptable. 

13. It is then contended that the subsequent resolution of Council was nothing more than an attempt to "rehabilitate" or "rectify" the earlier decision. 

14. Finally, it is said that the reason expressed for the revised resolution demonstrates a failure to properly consider the application on its merits.  That contention is based on the proposition that the second paragraph of the reasons indicates nothing more than an inflexible application of the policy in a context where the Council had, through the officers' report, been expressly directed to avoid that approach.

15. To a significant extent, the applicant's submissions require an inference that the minutes reveal the full extent of the Council's deliberations.  It is said that that inference should be drawn because the respondent has not taken the opportunity to adduce evidence from the Councillors who voted against the recommendations as to their deliberations and reasons for decision.  In my view, that inference cannot reasonably be drawn.  Although the reasons initially expressed for the decision are inadequately expressed, the more detailed reasons ultimately expressed are arguably encompassed by the more generally expressed initial reasons.  Both the initial reasons, and the revised resolution address issues which emerge from the officers' report.  Even though the officer had expressed a solution to the issues identified, it was obviously open to the elected Councillors to make their own assessment of the position and, if they saw fit, to reject the officer's recommendation. 

16. Also inherent in the applicant's submissions is the proposition that the reasons expressed were inherently unsustainable.  In my view, that puts the position too highly.  The officers' report indicates that there was a lack of information about ground water conditions.  A number of local residents had raised ground water issues as a matter of concern.  It is not difficult to see all of the reasons expressed for refusing the application as being either directly or indirectly related to that issue.  Even if, as the applicant contends, the reasons for refusal ultimately proved not to be sustainable, that does not mean that the Council did not endeavour to determine the matter on its merits.  Failure to genuinely attempt to determine a matter on its merits is quite different from making an error as to the merits.  In my view, the applicant's submissions go no further than suggesting that the Council erred in its deliberations. 

17. I accept Ms Oosthuizen's explanation as to how the further consideration of the agenda item occurred.  The fact that the Council initially recorded its reasons in an unspecific way does not suggest that its decision resulted from an inadequate consideration of the officers' recommendations.  It is commendable that, when the deficiency of the reasons as expressed by the minutes was brought to Council's attention, it further addressed the matter so as to more clearly express the concerns which those voting against approval apparently had.  The fact that amendment to the revised motion occurred during debate suggests that there was active consideration of the motion during the course of the meeting.  I do not consider that the description of "rehabilitating" the earlier decision can be fairly applied to the process which occurred at the meeting. 

18. As I have indicated, I do not consider that the generality of the initial reasons as expressed leads to a necessary inference that the discussion and the decision by Council was "peremptory". 

19. The applicant also relies on the fact that the ultimate resolution of the application before the Tribunal resulted in an approval subject to fewer and less onerous conditions than had been recommended in the officers' report.  In particular, the conditions relating to matters of effluent disposal were less demanding.  That is said to support the proposition that the original concerns expressed by the Council in its resolution were without foundation.

20. It is clear that, as a result of mediation in the Tribunal, there was an exchange of information, and in particular quite a deal of further information was provided by the applicant in relation to the proposed arrangements for effluent disposal.  That process is typical of the processes which result from mediation within the Tribunal.  Additional exchange of information, and better understanding of the respective position of the parties, is the very purpose of mediation.  It is not uncommon that mediation results in the removal, or simplification, of conditions originally imposed on developments.

21. In this case, I am not privy to what transpired at the mediation, and it would be quite inappropriate for the confidence of the mediation process to be breached.  Amongst the materials annexed to the applicant's affidavit was correspondence which, however, demonstrates that, following the initial mediation, further information was provided.  In my view, no inference that the original decision lacked any foundation can be drawn from the fact that less conditions were imposed following mediation that had originally been suggested.

1. In my view, the applicant has not established that the respondent did not make a genuine attempt to deal with her application on the merits.

2. The final two factors on which the applicant relied can be dealt with together.  The applicant suggests that a more thorough consideration ought to have been extended by the Council to her application than the peremptory treatment it was given.  Given that I am not satisfied that the consideration of the application was peremptory, these objections largely fall away.  There were two aspects which the applicant says should have caused the Council to more carefully consider the application.  The first is that, being formerly employed as the Director of Sustainable Planning for the Shire, Ms Boulter should have been recognised as having particular knowledge and experience in relation to planning matters such that the respondent "should reasonably have assumed that the applicant had given careful consideration to the nature and content of the development application and should have assessed the application in that context".  In my view, that contention is without foundation.  Many applications for development approval are prepared by planning consultants who have extensive knowledge and experience in planning, and dealings with particular local governments.  That fact does not absolve either the officers, or the elected representatives, from considering each application on its merits.  The obligation to give proper consideration to an application exists regardless of the identity of the proponent. 

3. The second basis upon which Ms Boulter contends that it was incumbent upon the respondent to give careful consideration to the application was the fact that Ms Boulter had been involved in a legal dispute with the Shire in relation to the termination of her employment.  Again, I consider there is no substance in that contention, and it is a little difficult to follow its logic.  The obligation of Council is to give objective consideration to an application regardless of the identity of the proponent.  There is nothing in any of the materials before the Tribunal to suggest that the previous history of dealings between the Shire and Ms Boulter play any part whatsoever in the decision that was made. 

4. I have reached the view that there is no basis upon which the Tribunal should depart from the usual rule in planning review cases that each party should bear its own costs.  The applicant's application that the respondent pay her costs is therefore dismissed.

Orders

1. The application that the respondent pay the applicant's costs is dismissed.

   I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   JUDGE J CHANEY, DEPUTY PRESIDENT