Building Professionals Board v Ball (No 2) (GD)

[2009] NSWADTAP 8

Appeal Panel - Internal

CITATION:	Building Professionals Board v Ball (No 2) (GD) [2009] NSWADTAP 8
PARTIES:	APPELLANT Building Professionals Board RESPONDENT Darren Ball
FILE NUMBER:	089044
HEARING DATES:	10 December 2008
SUBMISSIONS CLOSED:	10 December 2008
DATE OF DECISION:	23 February 2009
BEFORE:	Chesterman M - Deputy President; Leal S - Judicial Member; Hayward P - Non-Judicial Member
CATCHWORDS:	Costs at first instance - costs of appeal - disciplinary application - accredited certifier
DECISION UNDER APPEAL:	Building Professionals Board v Ball [2008] NSWADT 154
FILE NUMBER UNDER APPEAL:	073162
DATE OF DECISION UNDER APPEAL:	05/27/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Amendment Act 2008 Building Professionals Act 2005 Building Professionals Regulation 2007 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000
CASES CITED:	Building Professionals Board v Ball [2008] NSWADT 154 Building Professionals Board v Ball (GD) [2008] NSWADTAP 70 Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164 Insley v State Electoral Commissioner & Ors [2001] NSWADT 24 Latoudis v Casey (1990) 170 CLR 534 Mahenthirasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201 Ohn v Walton (1995) 36 NSWLR 77 Oshlack v Richmond River Council (1998) 193 CLR 72 Warringah Shire Council v Moy (2005) 142 LGERA 343; [2005] NSWLEC 416
REPRESENTATION:	APPLICANT G Elliott, barrister RESPONDENT T Howard, barrister
ORDERS:	1. Leave granted for the appeal to extend to the merits 2. Leave granted for the Appellant to adduce further evidence 3. The Appellant is to pay the Respondent’s costs, as agreed or assessed, relating to the proceedings at first instance 4. No order as to the costs of the appeal.

Introduction

1 In the decision under appeal (Building Professionals Board v Ball [2008] NSWADT 154), the Tribunal dismissed a disciplinary application lodged under the Building Professionals Act 2005 (‘the BP Act’) by the Appellant, the Building Professionals Board (‘the Board’). The application sought a disciplinary finding and consequential orders against the Respondent, Mr Darren Ball, who is an accredited certifier.

2 In the same decision, the Tribunal held, at paragraphs [65] to [71], that the Board should pay Mr Ball’s costs of the proceedings.

3 The Board did not dispute the order dismissing its application. It appealed against the costs order only. In substance, its grounds of appeal were (a) that the Tribunal made the costs order without according procedural fairness to the Board and (b) that the applicable criterion of ‘special circumstances warranting an award of costs’, laid down in section 88(1) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), had not been satisfied.

4 In a decision delivered on 7 November 2008 (Building Professionals Board v Ball (GD) [2008] NSWADTAP 70), we upheld the first of these grounds of appeal. We concluded (at [47]) that the Tribunal had failed to accord procedural fairness to the Board as required by section 73(4)(c) (if not also by section 73(2)) of the ADT Act. We accordingly held that the Tribunal’s order that the Board should pay Mr Ball’s costs should be set aside, pursuant to section 114(2)(a) of this Act.

5 We further held (at [67]) that the question of the costs of the Tribunal proceedings should be determined by us rather than remitted to the Tribunal under section 114(2)(b).

6 On 10 December 2008, we heard argument both on this question and on a further question – namely, the costs of the appeal proceedings – regarding which the parties had previously been directed to prepare submissions.

7 A preliminary matter raised at this hearing was whether our further consideration of the former question should proceed under section 114(2)(c) or (following a grant of leave pursuant to section 113(2)(b)) under section 115 of the ADT Act. The first of these provisions states that if an appeal is restricted to questions of law, the Appeal Panel may make ‘an order made in substitution for an order made by the Tribunal’. Section 113(2)(b) empowers an Appeal Panel to grant leave for an appeal to extend to the merits. If leave is granted, section 115(1) requires that the Appeal Panel must ‘decide what the correct and preferable decision is having regard to the material then before it’. This material is to include ‘any relevant factual material’ and ‘any applicable written or unwritten law’. Further elaboration of the Appeal Panel’s powers appears in subsections (2) and (3) of section 115.

8 Following brief submissions by counsel, we determined at the hearing that leave should be granted under section 113(2)(b). In consequence, we are required by section 115(1) to ‘decide what the correct and preferable decision is’ on the question of the costs of the Tribunal proceedings, having regard to the material now before us. This involves conducting a ‘rehearing’, in line with the following principles stated by the Appeal Panel in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [98]:-

While the Appeal Panel is required to exercise the jurisdiction, which the Tribunal initially exercised, the Appeal Panel is not required to exercise this jurisdiction by starting the matter afresh and by conducting a hearing as it would be conducted in the Tribunal. Unless there are exceptional circumstances the appeal should be determined by considering the transcript, the documents admitted as exhibits, any additional factual material in documentary form, which we choose to take into account and the submissions by the parties or their legal representatives.

9 In addition to the written and oral evidence on which the Tribunal based its decision, that material includes two documents that were tendered by Mr Elliott, counsel for the Board, pursuant to leave that we granted at the hearing. These were (a) a document prepared by the Building Surveyors and Allied Professions Accreditation Board Inc and dated December 1998, outlining the NSW Accreditation Scheme for accredited certifiers and (b) Ministerial Guidelines for this scheme, published in June 2002.

Factual background

10 In summary, the factual matters on which the Board based its application for disciplinary orders against Mr Ball are as follows.

11 On 17 July 2003, Blacktown City Council (‘the Council’) granted approval, subject to conditions, to a development application providing for the construction of a building at 31 Glendenning Road, Glendenning. This building, comprising a warehouse, a distribution centre and offices, was to be on Lot 101, which was one of four new lots to be created by the contemplated re-subdivision of a large block of land in common ownership.

12 One of these conditions (condition 30) of the approval was that the requirements of Parts C, D and E of the Building Code of Australia (‘the BCA’) be addressed by the issue of a construction certificate.

13 Mr Ball has at all material times been an accredited certifier, exercising functions set out in Part 4A of the Environmental Planning and Assessment Act 1979 (‘the EPA Act’). The owners of the land retained him in order to obtain a construction certificate.

14 Among the plans approved by the issue of the construction certificate were architectural and landscape plans prepared by an architect. These showed that a wall on the southern side of the building on Lot 101 was to be constructed at a distance of about three metres from the southern boundary of Lot 101. They also showed a right of way over the section of Lot 102 (the adjoining Lot) that lay immediately to the south of this boundary.

15 On 16 September 2003, the owners of the land sent a fax to Mr Ball stating that ‘the easement for emergency vehicles will be registered on the future lot 102 access handle (sic) prior to the issue of the final occupation certificate’.

16 On 2 October 2003, Mr Ball issued a construction certificate in respect of the development. It was the issue of this certificate that prompted the present disciplinary proceedings against him.

17 Annexed to the certificate was a Fire Safety Schedule listing what were stated to be the ‘essential fire safety measures’ that would be ‘implemented in the whole of the building premises’. Item 9 in this list was as follows: ‘Perimeter access for emergency vehicles – BCA C2.3 & C2.4 (Proposed).’

18 During March 2005, the New South Wales Fire Brigades advised the Council that in their opinion the proposed fire safety arrangements were satisfactory.

19 On 12 July 2005, the proposed easement over Lot 102 was registered. It was twelve metres in width. Its terms included the following:-

… it may only be used for fire fighting and emergency vehicles in the event of a fire occurring within the lot benefited, and such fire fighting and emergency vehicles and personnel may be on and remain within the said easement to undertake their duties until the fire has been extinguished to the satisfaction of the commanding fire officer in charge of and managing the fire.

20 On 23 September 2005, Mr Ball issued a final occupation certificate for the building.

The making of the complaint and the filing of the disciplinary application

21 The present proceedings stem from a complaint lodged by the Council with the Department of Infrastructure, Planning and Natural Resources (‘the Department’) on 23 February 2005. The Department was at this time the authority responsible for accrediting certifiers. Officers of the Department investigated the complaint.

22 After the commencement of the BP Act on 1 March 2007, the Board determined the complaint by resolving that it should apply to the Tribunal for a disciplinary finding against Mr Ball.

23 Before the lodgement of the complaint, Mr Ball, in a number of letters to the Council, set out reasons why he considered that the allegations that ultimately formed the basis of the complaint were based on a misconception of relevant provisions of the BCA. The Council responded by explaining why it considered its interpretation of these provisions to be correct. There was a similar debate between Mr Ball and the Board in correspondence between them before the disciplinary application was filed in the Tribunal. Mr Ball restated his position in a Reply that he filed in the Tribunal on 27 November 2007.

24 In filing the disciplinary application, the Board acted under section 31 of the BP Act. In the form that it then took, this section stated (subsection (6) is omitted):-

31 Decision after investigation of complaint

(1) After the Board has completed an investigation into a complaint against an accredited certifier, the complaint is to be dealt with in accordance with this section.

(2) The Board may apply to the Tribunal for a disciplinary finding against an accredited certifier under Division 5 if it is satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of unsatisfactory professional conduct or it may instead exercise the functions conferred on it by subsection (4).

(3) However, the Board must apply to the Tribunal for a disciplinary finding against an accredited certifier under Division 5 if it is satisfied that there is a reasonable likelihood that the accredited certifier will be found guilty by the Tribunal of professional misconduct.

(4) If the Board is satisfied that the accredited certifier is guilty of unsatisfactory professional conduct (but not professional misconduct), the Board may take any one or more of the following actions:

(a) caution or reprimand the accredited certifier,

(b) by order impose such conditions on the accredited certifier’s certificate of accreditation as it considers appropriate,

(c) order that the accredited certifier complete such educational courses as are specified by the Board within the time specified by the Board,

(d) order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the persons specified by the Board,

(e) order the accredited certifier to pay to the Board a fine of an amount not exceeding 100 penalty units within the time specified by the Board,

(f) order that no further action is to be taken by the Board in relation to the complaint if satisfied that the accredited certifier is generally competent and diligent and that no other material complaints (whether or not the subject of a disciplinary finding) have been made against the accredited certifier.

(5) The Board is to dismiss the complaint against the accredited certifier if it is satisfied that the accredited certifier is not guilty of either unsatisfactory professional conduct or professional misconduct.

25 The Board sought a finding of professional misconduct or, in the alternative, of unsatisfactory professional conduct.

26 As the conduct alleged against Mr Ball occurred before the commencement of the BP Act on 1 March 2007, the definitions of professional misconduct and unsatisfactory professional conduct set out in section 109R of the EPA Act were applicable, instead of the definition of those terms in section 19 of the BP Act 2005. This follows from the terms of Schedule 4 of the Building Professionals Regulation 2007.

27 Under section 109R of the EPA Act, ‘unsatisfactory professional conduct’ means conduct (whether consisting of an act or omission) within any of the following categories:-

(a) occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that falls short of the standard of competence, diligence and integrity a member of the public is entitled to expect of a reasonably competent accredited certifier, or

(b) by which an accredited certifier exercises his or her functions as a certifying authority in a partial manner, or

(c) by which an accredited certifier wilfully disregards matters to which he or she is required to give regard in the exercise of his or her functions as a certifying authority, or

(d) by which an accredited certifier fails to comply with:

(i) any relevant code of conduct established by the accreditation body by which he or she is accredited, or

(ii) any other act or law prescribed by the regulations, or

(e) by which an accredited certifier contravenes this Act whether or not he or she is prosecuted or convicted for the contravention.

28 ‘Professional misconduct’ is defined in this section to mean ‘conduct that is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the accredited certifier’s accreditation as an accredited certifier or the withdrawal of the accredited certifier’s accreditation’.

29 It is convenient here to reproduce the terms of section 34(2) of the BP Act, relating to the powers of the Tribunal (as at 27 May 2008, the date of its decision) following a finding that an accredited certifier had been guilty of unsatisfactory professional conduct or professional misconduct. The Tribunal was authorised to make any one or more of the following decisions:-

(a) Caution or reprimand the accredited certifier.

(b) Direct that such conditions as it considered appropriate be imposed on the accredited certifier’s certificate of accreditation.

(c) Order that the accredited certifier complete such educational courses as were specified by the Tribunal.

(d) Order that the accredited certifier report on his or her practice as an accredited certifier at the times, in the manner and to the person specified by the Tribunal.

(e) Order the accredited certifier pay to the Board a fine of an amount not exceeding 1000 penalty units specified in the order.

(f) Order the accredited certifier to pay to the complainant such amount (not exceeding $20,000.00) that the Tribunal considered appropriate by way of compensation for any damage suffered by the complainant as a result of the unsatisfactory professional conduct or professional misconduct.

(g) Suspend the accredited certifier’s certificate of accreditation for such period as the Tribunal saw fit.

(h) Cancel the accredited certifier’s certificate of accreditation.

(i) Order that the accredited certifier was not to apply for a certificate of accreditation within such period (including the period of his or her lifetime) as might be specified by the Tribunal.

30 Under section 34(3), if the Tribunal found that the accredited certifier was not guilty of unsatisfactory professional conduct or professional misconduct, it was required to dismiss the disciplinary application.

Legislative and Code provisions allegedly breached by Mr Ball

31 In the disciplinary application, the Board claimed that Mr Ball, in issuing the construction certificate and occupation certificate for the building on Lot 101, had breached a number of provisions of the EPA Act, the Environmental Planning and Assessment Regulation 2000 (‘the EPA Regulation’) and the BCA. The Board subsequently abandoned some of its allegations of breaches of these provisions.

32 The provisions on which the Board’s case, in its final form, was founded were section 109F(1)(a) of the EPA Act, clauses 145(1)(b), 168(3) and 168(4) of the EPA Regulation and clause C2.4(b) of the BCA.

33 Section 109F(1)(a) of the EPA Act stated:-

Restriction on Issue of Construction Certificates

A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless the certifying authority is satisfied that:
(a) the requirement of the regulations referred to in section 81A(5) have been complied with.

34 Clause 145(1)(b) of the EPA Regulation (being one of the regulations referred to in section 81A(5)) provided:

Compliance With Development Consent & Building Code of Australia

(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:…

(b) that the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time of the application for the construction certificate was made).

35 Clause C2.4(b)(ii) of the BCA, which fell within Part C of this Code, provided:

(b) Vehicular access required by this Part:

(i) must be capable of providing emergency vehicle access and passage from a public road; and

(ii) must have a minimum unobstructed width of 6 metres with no part of its furthest boundary more than 18 metres from the building, and in no part of the 6 metres be built upon or used for any purpose other than vehicular or pedestrian movement; and

(iii) must provide reasonable pedestrian access from the vehicular access to the building; and

(iv) must have a load bearing capacity and unobstructed height to permit the operation of passage of fire brigade vehicles; and

(v) where a public road complies with (i), (ii), (iii) and (iv), may serve as the vehicular access or part thereof.

36 Clauses 168(3) and 168(4) of the EPA Regulation provided:

(3) A fire safety schedule:

(a) must deal with the whole of the building, not merely the part of the building to which the development consent, complying development certificate, construction certificate or fire safety order relates, and

(b) must include:

(i) such of the fire safety measures currently implemented in the building premises; and

(ii) such of the fire safety measures proposed or required to be implemented in the building premises, as are statutory fire safety measures, and

(c) must distinguish between:

(i) the fire safety measures currently implemented in the building premises; and

(ii) the fire safety measures proposed or required to be implemented in the building premises; and

(d) must identify each measure that is a critical fire safety measure, and the intervals (being intervals of less than 12 months) at which supplementary fire safety statements must be given to the Council in respect of each such measure, and

(e) must specify the minimum standard of performance for each fire safety measure included in the schedule.

(4) A copy of the fire safety schedule must be attached to (and is taken to form part of) the relevant development consent, complying development certificate, construction certificate or fire safety order, and for the purposes of an appeal, forms part of the development consent or construction certificate.

The conduct relied on by the Board

37 In the disciplinary application, the Board described as follows the conduct of Mr Ball on which it ultimately relied:-

The respondent issued construction certificate number 125/03 on 2 October 2003 in respect of the development, namely, a warehouse, distribution centre, and offices at 31 Glendenning Road, Glendenning (“the development”).

The construction certificate approved certain plans prepared by Peter Hunt, Architect, (architectural & landscape), James Griffiths (structural), and Michael Frost & Associates Pty Limited (hydraulic), (collectively, “the approved plans”).

The proposed building depicted in the approved plans did not comply with the requirements of the Building Code of Australia (“the BCA”) as in force at the time that the application for the construction certificate was made.

Particulars of non-compliance with BCA

The ground floor plan, forming part of the architectural plans prepared by Peter Hunt, Architect, depicts a retaining wall parallel to the southern side of the development, which is located such that the retaining wall would:

(i) Be built on the area, which would provide vehicular access as required by clause C2.4(b)(ii) of the BCA;

(ii) Obstruct vehicular access to and around the southern side and the south western corner of the development, and

(iii) Prevent emergency vehicles from having access and passage from the public road to the southern side and the south western corner of the development…

Non-Compliant Fire Safety Schedule

(1) The fire safety schedule attached to, and forming part of the construction certificate issued by the respondent lists:

“9. Perimeter access for emergency vehicles – BCA C2.3 & C2.4 (proposed).”

as an essential fire safety measure.

(2) The above fire safety measure should not have been included in the fire safety schedule as:

(i) The perimeter access did not comply with clause C2.4(b) of the BPA as particularised in 2A(c)(i), (ii), and (iii) above;

(ii) The subdivision of the property, and the “reciprocal rights of carriageways” had not been created by being registered;

(iii) It was external to the building premises.

38 The Board claimed that this conduct of Mr Ball fell within paragraphs (a) and (e) of the definition of unsatisfactory professional conduct contained in section 109R of the EPA Act (see [27] above). According to the Board, it was conduct ‘occurring in connection with the exercise of an accredited certifier’s functions as a certifying authority that falls short of the standard of competence, diligence and integrity a member of the public is entitled to expect of a reasonably competent accredited certifier’. In addition, it was conduct by which ‘an accredited certifier contravenes this Act’.

39 The Board further claimed that this conduct of Mr Ball was of a sufficiently serious nature to be characterised as professional misconduct.

The Tribunal’s decision to dismiss the disciplinary application

40 In summary, the Tribunal’s reasons for dismissing the disciplinary application were as follows.

41 On the issue of the alleged non-compliance with clause C2.4(b) of the BCA, it held (at [59]) that there was sufficient doubt about the interpretation of this clause to provide justification for the view taken by Mr Ball at the time when he issued the construction certificate. This view was that the vehicular access (of a width of at least six metres) that the clause required for fire safety reasons did not have to be wholly within the boundaries of the subject land. Instead the requirements of the clause would be satisfied if, as ultimately occurred, access was provided by means of an appropriately drafted easement over adjoining land. As the Tribunal pointed out at [50], this easement, when granted, would give the owner of Lot 101 ‘the right to enter the servient land to do whatever is reasonably necessary to make the easement suitable for the exercise of the right granted and to maintain it in a condition suitable for that use’ and further that ‘the grantor of the easement cannot take steps to obstruct the reasonable use of the easement’.

42 In reaching this conclusion, the Tribunal treated as significant the fact that although an expert witness (Mr Wynn-Jones) called by the Board expressed the opinion that the ‘intent’ of the clause was that the requisite vehicular access must be wholly contained within the subject allotment, he acknowledged in cross-examination that at the relevant time the position on this matter was ‘not clear’.

43 The Tribunal also took account of the fact that an amendment in 2007 to the clause, putting it beyond doubt that the access must be wholly within the subject land, was prompted by Mr Ball’s issuing of the construction certificate with which these proceedings are concerned. The Tribunal commented (at [34]) that ‘the fact that an amendment is made some years later which purports to reflect the “intent” of the original clause does not dictate the meaning of the clause for all time’.

44 In this connection, the Tribunal treated as significant three further matters: (a) that an expert witness called by Mr Ball supported Mr Ball’s understanding of the meaning of the clause; (b) that the New South Wales Fire Brigades were satisfied with the fire safety arrangements; and (c) that ‘technically’, at the time of issue of the construction certificate, the vehicular access was wholly contained within the subject allotment. The basis of this third observation was that, as indicated above at [11], the subdivision to which the Council had granted development consent had not been implemented at the time of issue of the construction certificate. The ‘subject land’ accordingly included Lot 102, over part of which the proposed easement would be granted, as well as Lot 101.

45 The Tribunal accordingly said at [39]:-

In circumstances where at least two experts gave differing opinions and where the clause under scrutiny was subjected to a ‘clarifying’ amendment some years after the events which gave rise to these proceedings leads the Tribunal to conclude that it could not find that on this aspect of the complaint, the conduct of the Respondent fell short of the relevant standard of competence of a reasonably competent accredited certifier nor that he breached the EPAA. This conclusion is reinforced by the observation that the Respondent gave clear and cogent evidence as to the efforts to which he went to ensure that the building was capable of being accessed around its perimeter by emergency vehicles and moreover, that the method so devised apparently gained the approval of the agency which would rely upon those efforts, the NSW Fire Brigades.

46 The Tribunal made comments of a similar nature at [59].

47 At [40 – 41], the Tribunal rejected two associated arguments put by the Board, namely (a) that the proposed retaining wall infringed the requirement in the BCA that the access had to be at least six metres wide and free of obstructions, and (b) that the nomination of an area on the northern side of the building as an ‘External Unloading Zone’ made it possible that this access would be obstructed by vehicles unloading goods. These matters were not raised in the appeal and it is unnecessary to discuss them further here.

48 The Tribunal dismissed the Board’s claim that Mr Ball’s inclusion of item 9, relating to the perimeter vehicle access, in the fire safety schedule constituted a breach of clause 168 of the EPA Regulation. As stated above at [37], this claim was based on the following arguments: (a) that the access did not comply with clause C2.4(b) of the BCA; (b) that since neither the subdivision nor the easement had been registered at the time when the schedule was issued, part of this access was not on the ‘building premises’ as required by clause 168(3) of the Regulation; and (c) that the access was ‘external to the building premises’.

49 The Tribunal referred (at [48 – 49]) to opposing submissions by Mr Ball. These included submissions that (a) the development consent anticipated both the registration of the subdivision and the creation of an easement and (b) clause 168 of the Regulation should not be read as requiring all essential fire safety measures to be implemented on the land upon which a building sits, or else a fire safety measure involving a public road would be precluded.

50 At [61], the Tribunal, implicitly referring back to its conclusion that clause C2.4(b) did not require the vehicle access to be wholly on the subject land, disposed of the Board’s claim regarding the safety schedule in the following terms:-

Accordingly, it was appropriate and in no way a contravention of regulation 168 of the EP&A Regulations, to issue a fire safety schedule which included as an essential item the perimeter access for emergency vehicles.

51 An important component of the Tribunal’s reasoning in dismissing the disciplinary application was expressed in the following two paragraphs ([57] and [58]) of its decision:-

57 The object of disciplinary proceedings is the protection of the public. In the event that a practitioner is found to have breached professional standards, any order is to be made having regard to what is appropriate to the achievement of adequate protection of the public. It is not the purpose of disciplinary proceedings to punish the person in a criminal sense: Craig v Medical Board of South Australia [2001] SASC 149 at 41.

58 For a single instance of unprofessional conduct to amount to professional misconduct, it would have to possess a high degree of objective seriousness, involving, for example, conduct of a grave kind giving rise to significant harm to the interests of particular members of the public, or involving significant harm to the public interests viewed generally: Director General, Department of Infrastructure, Planning & Natural Resources v Boulle [2006] NSWADT 43 at paragraph 50.

52 At [62 – 63], the Tribunal said:-

62 It follows that the Tribunal is not satisfied that the Respondent engaged in conduct which fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably accredited certifier. In this regard, the Tribunal also notes that the Applicant did not refer to any antecedents of the Respondent.

63 It also follows from the foregoing findings that the Tribunal is not satisfied that the Respondent contravened the Environmental Planning & Assessment Act 1979 as alleged.

The Tribunal’s decision to award costs to Mr Ball

53 The Tribunal commenced its treatment of the question of costs by pointing out that by virtue of section 35 of the BP Act, Mr Ball’s application for costs could only be granted if the requirement of ‘special circumstances warranting an award of costs’, set out in section 88 of the ADT Act, was satisfied. Having elaborated on this requirement, it listed (at [68]) the following matters that Mr Ball relied on in seeking an award of costs:-

i. He [Mr Ball] explained his position when he was first confronted with the issue by the complainant in 2004, and at all relevant times the Applicant has been aware of that correspondence.

ii. The New South Wales Fire Brigade has effectively supported the conduct of the Respondent, notwithstanding the strong contrary position taken by the complainant, and the Applicant has been aware of that correspondence at all relevant times.

iii. The Department of Planning itself was aware that the relevant clause of the BCA was unclear as to whether the vehicular access had to be provided on the same lot as the building lot.

iv. By way of letter dated 24 October 2007 the Applicant abandoned almost half of the particulars of conduct, which it had, until then, pressed in its application.

v. On the Applicant’s arguments, even taken at their highest, it was apparent that even if the perimeter vehicular access did not comply with the deemed to satisfy the provisions of the BCA, it was nevertheless acceptable to the New South Wales Fire Brigades, and thus would have been approved as an alternative solution. On that basis, there was no harm flowing from what, at its highest, was a technical breach by the Respondent.

vi. Finally, the Respondent contended that the Applicant’s case in respect of the inadequacy of the registered easement misunderstood the fundamental principles relating to easements contained in New South Wales property law.

54 The Tribunal then set out its conclusions as follows, at [69 – 71]:-

69 In the Tribunal’s view, these matters are very persuasive, and clearly matters that one would ordinarily take into account when deciding whether there were special circumstances that would warrant a costs order being made. The Tribunal finds of significance the fact that the Department of Planning, of which the Applicant is effectively a section or an agency, was aware, at least in mid-2005, that the relevant clause of the BCA was unclear, and that was the position adopted also by the Applicant’s expert witness, Mr Wynne-Jones.

70 The other compelling argument by the Respondent is that the solution provided by him, whether or not it satisfied the deemed to satisfy provisions of the BCA, certainly would have been approved as an alternative solution, and one readily accepted by New South Wales Fire Brigades.

71 In those circumstances, the Tribunal is satisfied that there are special circumstances, which warrant the award of costs, and makes the order that the Applicant is to pay the Respondent’s costs of the proceedings.

55 It is against this decision of the Tribunal, not its decision to dismiss the disciplinary application, that the Board has appealed. As explained above at [8], our task in resolving the appeal has involved conducting a ‘rehearing’ of the matter. It is convenient to commence our account of the conclusions that we have reached by stating in our own words the principles governing the awarding of costs in proceedings such as these. These principles apply also to our decision regarding the costs of this appeal.

Relevant principles regarding costs

56 Since 1 January 2009, a new criterion for awarding costs under section 88 of the ADT Act, replacing that of ‘special circumstances’, came into force by virtue of amendments contained in the Administrative Decisions Tribunal Amendment Act 2008. But these amendments do not apply to the present case, since the hearing of it was completed during 2008.

57 The case law interpreting the requirement of ‘special circumstances warranting an award of costs’ includes one Court of Appeal decision (Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81) and a considerable number of Tribunal decisions, both at first instance and in appellate proceedings (see for example, Insley v State Electoral Commissioner & Ors [2001] NSWADT 24; Charteris v General Manager, Leichhardt Municipal Council (No 2) (GD) [2001] NSWADTAP 39 and Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164). It is clear from this case law that the requirement of ‘special circumstances’ applies both to decisions made by the Tribunal at first instance and to Appeal Panel decisions.

58 ‘Special circumstances’ are defined in the case law as ‘circumstances that are out of the ordinary, but without having to be extraordinary or exceptional’. It is not enough that the circumstances are ‘special’: they must also ‘warrant’ an order for costs. Where costs are sought following the disposal of an appeal, the matters to be taken into account include factors connected with the nature of Appeal Panel proceedings. While various categories of ‘special circumstances’ have been identified in the case law, and are also listed in the Tribunal’s Practice Note on Costs (Practice Note No. 12, October 2006), these categories are not closed.

59 In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, the Court of Appeal held that the costs of proceedings in the Tribunal under the RL Act, both at first instance and on appeal, should be awarded against the lessors. At [60], Santow JA (with whom Mason P and Brownie AJA agreed) stated that the lessors ‘so acted as by their conduct to give rise to special circumstances; that is circumstances that were clearly out of the ordinary and grossly unreasonable so far as the respondent tenant was concerned’. He pointed out that by virtue of this conduct, the tenant was ‘forced to pursue this litigation’. He also said: ‘While a finding of “serious unfairness” is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.’

60 Among the various types of situation that have been held to constitute ‘special circumstances’, one is of particular relevance in this case. It is where the proceedings instigated, or the grounds of defence raised, by the party against whom a costs order is sought are found to have lacked any real prospect of success and therefore to have been unmeritorious. This principle extends to cases where an appeal has suffered a ‘threshold rejection’ because no ‘sufficiently arguable question of law’ was disclosed. In the Tribunal’s Practice Note, it is stated that the matters to be taken into include ‘the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law’.

61 It has also been held that costs should not be awarded under section 88 for the purpose of punishing a government agency for poor administration, since to do so would infringe the principle that the general purpose of awarding costs is to ‘indemnify the successful party’ (Latoudis v Casey (1990) 170 CLR 534 at 542-543 per Mason CJ; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97, per McHugh J). In Ohn v Walton (1995) 36 NSWLR 77, the Court of Appeal held that this ‘compensation principle’ is applicable to disciplinary proceedings, even if (as in the present proceedings) the normal principle of ‘costs follow the event’ has been displaced by a statutory provision (on this specific point, see the judgment of Gleeson CJ at 78-79).

62 Recently, however, the Court of Appeal held in Mahenthirasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201 that the State Rail Authority, being a statutory body representing the Crown, was expected to act, and to be seen to act, as a ‘model litigant’, and that its failure to do so in the proceedings with which the Court was concerned constituted a sufficient reason for subjecting it to a costs order. At [23], Basten JA (with whom Giles and Bell JJA agreed) said:-

The principles applicable to a model litigant required it [the Authority] to deal with claims promptly, not to cause unnecessary delay, to endeavour to avoid litigation wherever possible, not to resist relief which it believes to be appropriate and not to decline to provide appropriate assistance to the court or tribunal whether expressly sought or not.

63 This decision is not directly applicable to the present proceedings because (a) the provision governing costs did not incorporate a limiting criterion such as ‘special circumstances’ and (b) the Board is not a statutory body that represents the Crown and forms part of the executive arm of government. But it casts some doubt on earlier decisions under section 88 attaching relatively little weight to the fact that an unsuccessful party that had conducted the proceedings in an unsatisfactory manner had the status of a public authority.

64 The Tribunal’s Practice Note mentions the following further matters, which are of relevance to our decision regarding the costs of this appeal:-

· whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;…

· whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding.

Our decision regarding the costs of the Tribunal proceedings

65 Put shortly, the main question that we should consider in deciding whether the Board should pay Mr Ball’s costs of the Tribunal proceedings is whether or not the Board’s case against him had sufficient merit to justify its being instituted in the Tribunal.

66 The Tribunal’s decision to dismiss the Board’s application stemmed principally from its conclusion that, at the time when Mr Ball issued the construction certificate, the terms of clause C2.4(b) of the BCA gave no clear indication as to whether the vehicular access that it stipulated for fire safety purposes was required (except in the case of access by a public road, as contemplated in subparagraph (v)) to be wholly within the subject land. It ruled that even if Mr Ball was wrong in acting on a belief that no such requirement was contained within the clause, this conduct could not, in all the circumstances, be characterised as ‘conduct which fell short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably accredited certifier’. Equally, the Tribunal was not satisfied that Mr Ball by this conduct had contravened the EPA Act.

67 The Tribunal’s conclusions on these matters formed the basis of its ruling that there was no breach by Mr Ball of the requirements of clause 168 of the EPA Regulation.

68 These rulings by the Tribunal were sufficient to dispose of the two grounds on which the Board had based its claim of professional misconduct or unsatisfactory professional conduct.

69 In our opinion, this outcome – which the Board has not sought to dispute in bringing this appeal – could at all relevant times have been foreseen as the correct result of the proceedings. This was particularly true in relation to the Board’s claim that Mr Ball’s conduct amounted to professional misconduct.

70 In explaining and elaborating on this conclusion, we will first set out the principal grounds on which it is based. We will then review some additional arguments put to us by Mr Elliott, appearing for the Board, and Mr Howard, appearing for Mr Ball.

71 When setting out the principal grounds for our decision, it is convenient to deal separately with the two different forms of unsatisfactory professional conduct, described in subparagraphs (a) and (e) respectively of the definition in section 109R of the EPA Act, that the Board claimed to be applicable. The full text of this definition is reproduced above at [27].

72 Subparagraph (a) – failing to comply with applicable standards of competence, diligence and integrity. There was no evidence at all to suggest that in issuing the construction certificate Mr Ball’s conduct fell short of applicable standards of diligence or integrity. Any claim that he did not act with sufficient competence was only sustainable if one or more of the following propositions could reasonably be maintained in May 2007 (the date of the disciplinary application):-

1. That any certifier adopting the interpretation of clause C2.4(b) of the BCA that Mr Ball adopted in October 2003 acted incompetently in so doing, because a competent certifier would necessarily adopt the opposing interpretation.

2. That Mr Ball’s reliance on the creation of an easement over Lot 102 as a means of complying with the requirements of clause C2.4(b) was so clearly incorrect as to constitute incompetence on his part.

3. That it was incompetent of Mr Ball to issue a fire safety schedule in which the proposed easement formed part of the fire safety measures, because (i) both clause C2.4(b) of the BCA and clause 168 of the EPA Regulation required such measures to be wholly within the subject premises and (ii) neither the subdivision nor the ‘reciprocal rights of carriage way’ had been created by registration.

73 As the Tribunal found, the expert evidence on this matter made the first of these propositions untenable. At the crucial time there was, quite simply, a conflict of professional opinion on the matter. As the Board’s own expert conceded, the text of the clause itself did not convey a clear answer to the question. The fact that a clarifying amendment was made to the clause in 2007 as a result of the issue of the very certificate that prompted these proceedings is testament to the fact that the interpretation urged by the Board was far from universally accepted.

74 In this connection, we take account also of a letter to which the Tribunal did not refer in its decision. On 25 July 2005, the Department, in the course of investigating the Council’s complaint against Mr Ball, wrote to the Australian Building Codes Board asking for ‘clarification of the intent’ of clause C2.4(b) regarding whether or not the perimeter vehicle access was required to be within the subject land. It asked that the matter be referred to the Building Codes Committee for consideration and determination and that if necessary the BCA should be amended (as indeed occurred subsequently, in May 2007). This letter further illustrates the uncertainty then surrounding the requirements of clause C2.4(b).

75 All these matters were, it seems, overlooked by the Board when dealing with the complaint made against Mr Ball by the Council. It proceeded on the basis that a competent certifier would necessarily adopt an interpretation of the clause that was neither mandated by its text nor recognised as a necessary implication.

76 The second proposition was likewise untenable, in our opinion. Since the whole of the land being subdivided was in common ownership at the time when Mr Ball issued the construction certificate, there was no practical obstacle to enforcement of the requirement that an easement be created. The terms of the easement were sufficient to ensure that if a fire occurred on Lot 101, fire fighting and emergency vehicles would have the requisite access. As the Tribunal pointed out at [50] (see above at [41]), the owner of Lot 101 would be authorised by the easement to do the following things: (a) to enter upon the relevant part of Lot 102 in order to make it suitable for access, (b) to maintain it in a satisfactory condition and (c) to insist that the owner of Lot 102 should not do anything that would obstruct access. The Board should have understood and taken into consideration these aspects of the proposed easement.

77 Except in relation to one issue, our observations about the first and second propositions are sufficient to show also that the third proposition could not reasonably be maintained. This remaining issue arises from the terms of clause 168 of the EPA Regulation (these are set out above at [36]). They require that the fire safety schedule must deal, in various ways, with the fire safety measures that are currently implemented, or proposed to be implemented, ‘in the building premises’.

78 We do not think that this clause can reasonably be interpreted as requiring, even by implication, that all fire safety measures, including emergency vehicle access, must be situated within the subject premises. The focus of the clause is expressly on what must be included in a particular document, namely, a fire safety schedule. To refer in such a document to a safety measure that is partly situated outside the premises cannot, on this reading of the clause, amount to a breach of it.

79 Even if this interpretation of clause 168 were incorrect, it could not be held to be such an unreasonable interpretation that reliance upon it by a certifier could be labelled incompetent. This conclusion is again, in our opinion, one that the Board should have reached.

80 Subparagraph (e) – contravening the EPA Act. As already indicated, the definition of ‘unsatisfactory professional conduct’ in section109R of the EPA Act includes any conduct by which an accredited certifier contravenes this Act.

81 We share the view, expressed by the Tribunal at [68], that if Mr Ball contravened clause 168 of the EPA Regulation or clause C2.4(b) of the BCA any such contravention was ‘at its highest… a technical breach’. It was also an entirely pardonable breach, resulting from an understandable misreading of the relevant provision.

82 In this connection, we accord weight, as the Tribunal did, to the fact that the New South Wales Fire Brigades declared themselves to be satisfied with the fire safety arrangements outlined in the construction certificate. Any breach committed by Mr Ball was not, in their opinion, dangerous to public safety.

83 For reasons, moreover, to which the Tribunal did not refer, conduct infringing either of these clauses does not necessarily amount to contravention of the EPA Act. As set out above at [33], section 109F(1)(a) states that ‘a construction certificate must not be issued… unless the certifying authority is satisfied’ (emphasis added) that certain regulations have been complied with. These regulations include clause 168 of the EPA Regulation and also clause 145(1)(b). The latter clause states that such a certificate must not be issued by a certifying authority ‘unless it is satisfied’ (emphasis again added) that the BCA has been complied with.

84 In Warringah Shire Council v Moy (2005) 142 LGERA 343; [2005] NSWLEC 416, Bignold J considered whether the phrase ‘is satisfied’ in these contexts should be interpreted objectively or subjectively. At [44], he stated his conclusion as follows:-

[44] In the present case in my opinion the proper interpretation of the relevant statutory phrases appearing in s 109F(1)(a) and cl 145(1)(a) of the Regulation “unless the certifying authority is satisfied … ” is that the requisite “satisfaction” is required to be according to the subjective standard, and not according to an objective standard, recognising that subjective standard may imply the obligation on the part of the certifying authority to honestly attain the requisite satisfaction.

85 There was no suggestion in this case that Mr Ball acted other than honestly and carefully. Unless the maxim that ‘ignorance of the law is no excuse’ precludes any determination that he was ‘satisfied’, the evidence amply supports a finding that he was ‘subjectively’ satisfied as to compliance with the EPA Regulation and with the BCA. This leads to the conclusion that even if his interpretation of the relevant clauses was incorrect, he did not contravene the EPA Act.

86 Even if this reasoning is flawed, we still consider that any finding of unsatisfactory professional conduct that might be made against Mr Ball under subparagraph (e) would have to be qualified by the observation that what he did was both understandable and pardonable.

87 In these circumstances, the Board’s claim in the disciplinary application that he had been guilty of professional misconduct was, in our opinion, wholly unreasonable. At most, there were possible grounds for a finding that, for reasons that could be readily understood and, indeed, characterised as pardonable, he had engaged in unsatisfactory professional conduct.

88 If, in this situation, the Board was to take any further steps at all following investigation of the Council’s complaint, it could not justifiably do any more than exercise its powers under section 31(4) of the BP Act (this subsection, in the form that it then took, is set out above at [24]). Instead of instituting proceedings in the Tribunal – proceedings, it should be added, in which the Board alleged professional misconduct as an alternative to unsatisfactory professional conduct – it could have recorded its own finding of unsatisfactory professional conduct and proceeded either to impose a low-level penalty (such as a caution or reprimand under subparagraph (a)) or to decide under subparagraph (f) that no further action was required. In instituting proceedings, it clearly did not ‘endeavour to avoid litigation wherever possible’ (to quote from Basten JA’s judgment in Mahenthirasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201, setting out the obligations of ‘model litigants’).

89 Further arguments advanced by counsel. The Board’s arguments included a submission that an amendment to legislation, such as occurred with clause C2.4(b) of the BCA, does not necessarily change the law. It may do no more than clarify what previously was the law. In support of this proposition, Mr Elliott cited Pearce and Geddes, Statutory Interpretation in Australia, 5th edition, para 3.32.

90 We do not quibble with this proposition. But the primary question in the present context is not whether clause 2.4(b), before being amended, required vehicle access to be wholly within the subject land. It is whether the Board could reasonably have held the opinion that for an accredited certifier to act on the basis that it did not so require involved incompetence and/or a contravention of the EPA Act requiring the institution of disciplinary proceedings in the Tribunal.

91 It was submitted on Mr Ball’s behalf that because the Council had approved subdivision plans, in which the building on Lot 101 was depicted as only three metres away from the southern boundary, before he was engaged as an accredited certifier, he had no leeway to change the location of the building so as to comply with what the Board considered to be the requirements of clause 2.4(b).

92 We prefer, however, the Board’s contention on this matter. According to condition 30 of the Council’s approval, the requirements of this clause of the BCA, among others, were to be addressed in the issue of a construction certificate. If the plans approved by the Council had envisaged a blatant breach of the BCA, creating an evident threat to public safety, it clearly would have been no defence to Mr Ball to assert that he was in some sense compelled to issue a certificate in which this defect was not remedied. In the actual circumstances of this case, he was similarly under no obligation simply to accept the precise location shown on the approved plans as a fait accompli.

93 Mr Ball’s submissions placed considerable emphasis on the fact that on a number of occasions following notification of the Council’s complaint against him, he informed the Council, the Department and the Board of the reasons why he believed that his issue of the construction certificate did not involve any breach of the EPA Regulation or the BCA. The Board’s submissions in response included claims that he had not, however, spelt out with sufficient detail or clarity his reasons for maintaining this belief.

94 We agree with Mr Ball that his conduct in providing these explanations of his behaviour is a relevant consideration. But we do not attach great weight to this matter. Our reason is that it was for the Board itself, irrespective of any explanations put before it by Mr Ball, to determine for itself whether it had good grounds in fact and in law for filing the disciplinary application. For reasons already outlined, we have concluded that it did not.

95 The Board argued that it was not until after the disciplinary application had been filed that Mr Ball explained why the common law obligations of maintenance imposed by the easement on the owner of Lot 102 would sufficiently ensure that access would always be available when required for emergency vehicles. This submission was contested. Our opinion, again, is that it was for the Board to determine whether this claim by Mr Ball was well founded in law.

96 A submission on Mr Ball’s behalf relating specifically to the allegation of breach of clause 168 of the EPA Regulation was as follows. At the time of issue of the construction certificate, which included the fire safety schedule, the proposed subdivision had not been implemented. Accordingly, the ‘building premises’, as defined in clause 168(1), comprised the whole of the land being subdivided, not merely Lot 101. It followed that even if the clause imposed a requirement that all fire safety measures must be within the ‘building premises’, that requirement was not infringed.

97 We have doubts about this submission. On the primary question in this case, which is whether clause C2.4(b) of the BCA was sufficiently complied with, Mr Ball’s line of argument was based on the situation that would arise when the subdivision had been implemented. This appears to us to be the correct approach. The submission that we are now discussing ignores the effect of the subdivision. But it does not bear upon our main reasons, already explained, for rejecting the Board’s arguments founded on clause 168.

98 Finally, we should say that we have examined arguments from both sides relating to an ‘alternative solution’ that according to Mr Ball was potentially available to the owner of Lot 101 in the event that the BCA requirements regarding fire safety could not be fully observed. A key factor in achieving this ‘alternative solution’ would have been the approval of the New South Wales Fire Brigades. Mr Ball’s submissions included the claim that this approval, if requested, would have been granted. But it was not a solution that he could have certified as appropriate, because his certification was at Grade 2 only, not at Grade 1 as required.

99 We do not think that this aspect of the parties’ submissions requires detailed examination. This is because, for other reasons have already been explained, we do not think that the Board had before it sufficient grounds to warrant filing the disciplinary application. We have already indicated the extent to which we have taken into account the apparent approval by the Fire Brigades of the fire safety arrangements outlined in the construction certificate.

100 For the foregoing reasons, we conclude that Mr Ball has established that there are ‘special circumstances warranting an award’ of the costs of the Tribunal proceedings.

Our decision regarding the costs of the appeal

101 As outlined above at [4], the first hearing of this appeal was concerned with the question whether the Tribunal’s decision awarding the costs of the proceedings before it to Mr Ball should be set aside on grounds of denial of procedural fairness. Our decision was in the Board’s favour.

102 The second hearing was concerned with the merits of this question of costs. We have decided this question in Mr Ball’s favour.

103 It is convenient to consider these two stages of the appeal separately when deciding what order or orders (if any) as to the costs of the appeal should be made.

104 With regard to the first stage, Mr Elliott argued on the Board’s behalf that his client’s success was an outcome that Mr Ball’s legal representatives should have anticipated and should not have actively opposed. It was clear, according to Mr Elliott, that a decision reached by the Tribunal without any input from the losing party could not be permitted to stand. It was therefore unreasonable of Mr Ball to cause the Board to incur the costs associated with the first hearing.

105 Mr Howard’s opposing contention was that in circumstances outlined in our earlier decision (see Building Professionals Board v Ball (GD) [2008] NSWADTAP 70 at [5 – 13], [43]) the Board failed to comply with a direction by the Tribunal to address the matter of costs, as well as the merits of the case, in written submissions to be filed after the Tribunal hearing. According to Mr Howard, this failure constituted ‘special circumstances warranting an award of costs’ in Mr Ball’s favour. He referred to a provision to this effect in the Tribunal’s Practice Note on Costs (see [64] above).

106 As to the second stage, Mr Elliott argued that, even if our decision on the appeal was in line with the Tribunal’s decision on costs, the appeal was nonetheless reasonably brought. Even if we agreed with the Tribunal that the Board had not acted reasonably in filing the disciplinary application, it did not automatically follow that a challenge to this assessment of the Board’s conduct was itself unreasonable and unmeritorious. These two questions of ‘reasonableness’ were quite distinct from each other.

107 Mr Howard’s principal response was to contend that in this specific situation of an appeal relating solely to an award of costs at first instance, Mr Ball, as the successful respondent, should not have to identify additional special circumstances relating to the conduct of the appeal (as distinct from the conduct of the original proceedings). If this was required, the partial indemnity against liability for costs that the Tribunal had awarded him would be unfairly eroded to a significant extent. Mr Howard urged us to treat this species of appeal as a ‘particular subset’ of appeal proceedings, calling for the criterion stated in section 88 of the ADT Act to be applied in a particular way.

108 Mr Howard also drew attention to the disparity between the Board’s resources and those of his client.

109 We have some sympathy with the Board’s arguments regarding the first stage of the appeal. Our conclusion that the Tribunal’s decision on costs should not stand was, we believe, based on relatively straightforward considerations and was eminently foreseeable.

110 We would add that, for reasons set out in our earlier decision at [43 – 46], we would not characterise the Board’s conduct in response to the direction of the Tribunal as wholly unreasonable. It did nonetheless involve a failure to comply with an explicit direction to address the question of costs in its written submissions.

111 With reference to the second stage, we do not think that the Board’s contentions on the substantive aspects of this appeal were unmeritorious. Particularly as the case that it wished to make regarding costs was not given consideration by the Tribunal, it could not be said to have acted unreasonably in seeking to challenge the costs order.

112 We have some sympathy with Mr Howard’s arguments in this context. But we do not know of any authority in favour of treating an appeal against a costs order under section 88 as a ‘particular subset’ of appeal proceedings, to which the normal requirement of establishing ‘special circumstances’ is not applicable. As we understand the authorities, the question before us is whether the Tribunal’s decision on costs was so manifestly justifiable that it was unreasonable of the Board to challenge it on appeal. We think that this question must be answered in the negative.

113 We reject Mr Howard’s submission that an alleged disparity in the resources available to the parties to the appeal is a relevant factor. We would make the following points: (a) this is not within any category of ‘circumstances that are out of the ordinary, but without having to be extraordinary or exceptional’ (see [58] above); (b) there is, as far as we know, no authority requiring it to be taken into account; and (c) there is no evidence before us as to the parties’ resources.

114 Taking all these matters into account, we conclude that neither party has established that there are ‘special circumstances warranting an award of costs’. There will accordingly be no order relating to the costs of the appeal.