BRUHN and CITY OF JOONDALUP
[2014] WASAT 174 (S)
•11 JUNE 2015
BRUHN and CITY OF JOONDALUP [2014] WASAT 174 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 174 (S) | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:196/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS N OWEN-CONWAY (MEMBER) | 11/06/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded | ||
| B | |||
| PDF Version |
| Parties: | PETER BRUHN DEIRDRE BRUHN CITY OF JOONDALUP |
Catchwords: | Costs Award No challenge to quantum Factors Turns on own facts |
Legislation: | City of Joondalup District Planning Scheme No 2 Planning and Development Act 2005 (WA) State Administrative Tribunal Act 2004 (WA), s 47, s 87 |
Case References: | Aydogan and Town of Cambridge & Anor [2007] WASAT 19 Bruhn and City of Joondalup [2014] WASAT 174 Chew and Director General of the Department of Education and Training [2006] WASAT 248 Humphrys and City of Stirling [2011] WASAT 105 J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 Pearce & Anor and Germain [2007] WASAT 291 (S) Rossi and City of Bayswater [2010] WASAT 33 Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 Tran and Town of Vincent [2009] WASAT 123 |
Orders | On the application determined on the documents by Member Natasha OwenConway, it is on 11 June 2015 ordered that: ,1. The respondent shall pay to the applicants the sum of $14,880 by 4 July 2015. |
Summary | The applicants sought an order for costs against the respondent for the costs incurred by them in prosecuting the application in the Tribunal for a review of a conditional grant of approval to operate a home business. The Tribunal considered the respondent's conduct in responding to the review application to be unreasonable. The respondent maintained that it was necessary to preserve the residential amenity of any area that the respondent conceded was the subject of a proposed change in zoning from Residential to Mixed Use. The respondent conceded that the proposed change should be relied upon by the Tribunal as a seriouslyentertained amendment. Further, the respondent, in drafting a proposed amendment to its policy to guide it on how the discretion conferred by the City of Joondalup District Planning Scheme No 2 should be exercised, intended to, in effect, prohibit its full exercise of the conferred discretion. The respondent did not challenge the quantum of the costs claimed by the applicants, which costs appeared within the reasonable expectation of the Tribunal for a matter of this nature. The Tribunal awarded costs be paid by the respondent to the applicants. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BRUHN and CITY OF JOONDALUP [2014] WASAT 174 (S) MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 11 JUNE 2015 FILE NO/S : DR 196 of 2014 BETWEEN : PETER BRUHN
- DEIRDRE BRUHN
Applicants
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Costs Award No challenge to quantum Factors Turns on own facts
Legislation:
City of Joondalup District Planning Scheme No 2
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 47, s 87
Result:
Costs awarded
Summary of Tribunal's decision:
The applicants sought an order for costs against the respondent for the costs incurred by them in prosecuting the application in the Tribunal for a review of a conditional grant of approval to operate a home business. The Tribunal considered the respondent's conduct in responding to the review application to be unreasonable. The respondent maintained that it was necessary to preserve the residential amenity of any area that the respondent conceded was the subject of a proposed change in zoning from Residential to Mixed Use. The respondent conceded that the proposed change should be relied upon by the Tribunal as a seriouslyentertained amendment. Further, the respondent, in drafting a proposed amendment to its policy to guide it on how the discretion conferred by the City of Joondalup District Planning Scheme No 2 should be exercised, intended to, in effect, prohibit its full exercise of the conferred discretion. The respondent did not challenge the quantum of the costs claimed by the applicants, which costs appeared within the reasonable expectation of the Tribunal for a matter of this nature. The Tribunal awarded costs be paid by the respondent to the applicants.
Category: B
Representation:
Counsel:
Applicants : Mr M Swift (Acting as Agent)
Respondent : Mr J Corbellini
Solicitors:
Applicants : Michael Swift & Associates (Town Planners)
Respondent : City of Joondalup
Case(s) referred to in decision(s):
Aydogan and Town of Cambridge & Anor [2007] WASAT 19
Bruhn and City of Joondalup [2014] WASAT 174
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Humphrys and City of Stirling [2011] WASAT 105
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
Pearce & Anor and Germain [2007] WASAT 291 (S)
Rossi and City of Bayswater [2010] WASAT 33
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143
Tran and Town of Vincent [2009] WASAT 123
The application for costs
1 The applicants sought a review of the respondent's decision to grant approval to operate a home business from No 26 (Lot 240) Banks Avenue, Hillarys. On 23 December 2014, upon review, the Tribunal varied the respondent's conditional grant of approval by deletion of condition (j) to the original conditional approval (Bruhn and City of Joondalup [2014] WASAT 174).
2 On 11 January 2015, the applicants made application for the payment of costs by the respondent pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). By letter dated 6 February 2015, the respondent informed the applicants of its response to the various arguments advanced by the applicants in support of their application for costs. The respondent asserts that the applicationis 'misconceived, lacking in substance and should be withdrawn'. The respondent asserts that the application for costs should be the subject of an order to dismiss pursuant to s 47 of the SAT Act.
The proceeding in the Tribunal - costs
3 The application for costs was listed for directions on 25 February 2015. On that date, the Tribunal made orders for each party to file in the Tribunal, and serve on the other, their respective submissions. The Tribunal also ordered that, subject to any further order, the application for costs should be determined on the documents. On 25 February 2015, the Tribunal ordered that the parties agreed that the Tribunal may have regard to the correspondence filed by each party, along with the submissions to be filed, when making its decision. The applicants filed a copy of an open letter from the applicants' representative, Mr Swift, offering to resolve the application for costs by the respondent paying the sum of $14,880 by way of a cheque or direct deposit receipted by the applicants by 4.30 pm on 6 February 2015. The applicants have not provided any itemisation of that offer. At the directions hearing, the applicants' representative claimed $14,880 against the respondent for costs. On 12 March 2015, the parties filed their final submissions.
The statutory framework
4 Section 87 of the SAT Act provides that the primary position is that each party is to bear their own costs of the proceeding in the Tribunal (Aydogan and Town of Cambridge & Anor [2007] WASAT 19), subject to:
a) another provision in the SAT Act;
b) a provision in the enabling Act (being the Planning and Development Act 2005 (WA) (PD Act) in this proceeding); or
c) an order by the Tribunal made 'under' s 87 of the SAT Act.
5 Relevantly, s 87(2) of the SAT Act empowers the Tribunal to make an order for the payment by a party of all or any of the costs of another party. This power is subject to the provisions of the relevant enabling Act. The PD Act does not prohibit the Tribunal from making an order that one party pay some or all of the other party's costs of the proceedings. The nature of the recoverable costs is identified in s 87(3) of the SAT Act.
6 Accordingly, the Tribunal has jurisdiction and power to make an order in this proceeding that one party pay some or all of the other party's costs of the proceeding in the Tribunal. The application is not therefore misconceived as asserted by the respondent.
7 The order that the Tribunal may make must be compensatory and not punitive in nature. An order for costs is intended by s 87(3) of the SAT Act to address the compensation a party has suffered, within the bounds of s 87 of the SAT Act as a whole. In considering s 87(3) of the SAT Act in Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (Springmist), the Tribunal concluded that the costs recoverable under s 87 of the SAT Act were costs of the proceeding in the Tribunal. However, the 'type' of costs recoverable pursuant to s 87 of the SAT Act is not limited to 'traditional notions of legal costs' and includes other expenses and losses incurred which are connected with the conduct of the Tribunal process. The Tribunal may order that one party pay:
• the other party's expenses incurred to a 'non lawyer advocate' (Springmist at [64]);
• the other party's expenses of having to travel to a hearing (Springmist at [64]); or
• some other amount which compensates a party for the inconvenience or expense of its participation in the proceedings (Springmist at [64]).
8 Section 87(4) of the SAT Act proposes that the Tribunal 'is to have regard to' two additional factors without limiting 'anything else that may be considered' in relation to a matter that falls within the Tribunal's review jurisdiction. This proceeding falls within the Tribunal's review jurisdiction. The two factors outlined in s 87(4) of the SAT Act are:
(a) whether a party (in bringing or conducting the proceeding before the decisionmaker in which the decision under review was made) genuinely attempted to enable and assist the decisionmaker to make a decision on its merits;
(b) whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
9 Relevantly, the authorities concerning a finding in relation to s 87(4)(b) of the SAT Act arise:
• where a decisionmaker has failed to give proper, genuine and realistic consideration to the substantial merits of the particular case before it;
• where a decisionmaker has applied one consideration with greater weight than was justified or warranted; or
• where a decisionmaker rejected the reasoned professional advice of an officer of the decisionmaker or the determination of the Tribunal in an earlier related proceeding;
(see: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282); Rossi and City of Bayswater [2010] WASAT 33; Tran and Town of Vincent [2009] WASAT 123 and Humphrys and City of Stirling [2011] WASAT 105).
10 Whilst the discretion conferred on the Tribunal to award costs pursuant to s 87 of the SAT Act should not be an indication that the costs should follow the event (Pearce & Anor andGermain[2007] WASAT 291 (S)), it is open to the Tribunal to order that the costs of a party be paid by another party in circumstances where that other party has conducted itself unreasonably, particularly where that conduct gives rise to unnecessary costs being incurred by the other party(see: Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85]).
Consideration and conclusion
11 In this proceeding:
a) The respondent maintained at all times that condition (j) of the approval was necessary to ensure that the proposed home business did not expand beyond the definition of Home Business Category 3 as provided for in the City of Joondalup District Planning Scheme No 2 (DPS 2), whereas it was obvious that the other conditions were more than adequate to limit the type of home business that could be operated at the applicants' property to one that conformed with the DPS 2 definition of Home Business Category 3.
b) Condition (j) was not a necessary or suitable means of enforcing compliance with the other terms and conditions of the conditional approval granted by the respondent.
c) The respondent placed too great a weight and emphasis on the need to maintain a residential amenity in the area in question when, by its own admission, the Tribunal was to treat a proposed amendment to DPS 2 as a seriouslyentertained amendment by which the zoning of the area in question would become mixed use.
d) The respondent's assertion that the area in question should be treated as being zoned for mixed use was also inconsistent with the respondent's assertion that the residential amenity of the area was to be preserved.
e) The respondent, in an endeavour to succeed in this proceeding, resolved to pass a number of amended policies, the crux of which was to place upon itself a restriction from exercising the wide discretion that DPS 2 had conferred upon the respondent in such matters.
f) The respondent advanced no alternative condition to condition (j) to the Tribunal that might have been open for the Tribunal to impose.
12 The respondent's commitment to the maintenance of the residential amenity of the area in question, in the face of an amendment to the zoning of the area from Residential to mixed use was not reasonable. The respondent's endeavour to maintain the supremacy of this factor over the reality of the proposed change to the zoning of the area in question extended to the respondent making several proposed changes to its internal policy on the exercise of its discretion in such matters so as to restrict the outcome in this and, indeed, any similar case, evidenced the respondent's overreliance on the residential amenity of the area as a factor. The respondent's position as referred to above, in the circumstances of this proceeding, was unreasonable and as a result of which the applicants' were compelled to prosecute this proceeding so as to vindicate their position. For these reasons, the Tribunal concludes that it should make an order that the respondent pay the applicants' costs of this Tribunal proceeding.
13 As to the quantum of the costs that the respondent should be ordered to pay, it appears that the respondent has no submission to make in opposition to the amount that the applicants have advanced ($14,880). The costs incurred are not itemised, but the respondent has not challenged the lack of itemisation. The respondent has not challenged the amount at all. Given that the applicants filed a comprehensive application, written submissions in support of the substantive application, and written submissions on the issue of costs, the amount claimed does not appear, on its face, to be manifestly excessive or excessive at all. The Tribunal considers that the applicants have prosecuted the proceeding in an efficient and cost effective manner. In light of these facts and the fact that the respondent has not in any way challenged the amount sought by way of costs, the Tribunal considers that the quantum claimed is within the reasonable expectation and contemplation for such an application.
14 Accordingly, the Tribunal concludes that the respondent should pay the applicants' costs of the proceeding in the Tribunal in the sum of $14,880 pursuant to s 87(2) of the SAT Act. The Tribunal heard no submissions on the time for compliance with the order but shall permit 21 days as a reasonable period of time for compliance with an order to pay money.
Order
1. The respondent shall pay to the applicants the sum of $14,880 by 4 July 2015.
I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS N OWEN-CONWAY, MEMBER
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