CHAMPION AND GARY WOOD and CITY OF WANNEROO - [2018] WASAT 103

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   CHAMPION AND GARY WOOD and CITY OF WANNEROO [2018] WASAT 103
MEMBER:   MS M CONNOR (MEMBER)
HEARD:   14 JUNE 2018
DELIVERED          :   18 OCTOBER 2018
FILE NO/S:   DR 401 of 2016
BETWEEN:   KARLA CHAMPION AND GARY WOOD
Applicants
AND
CITY OF WANNEROO
Respondent

Catchwords:

Practice and procedures - Costs - Planning review proceedings - Development application - Restaurant and processing and selling of lavender products - Review application successful - Applicants seeking costs of proceeding from respondent - Whether respondent genuinely attempted to make a decision on the merits in relation to development application - Whether respondent acted unreasonably in proceeding - Respondent seeking costs of costs application from applicants.

Legislation:

City of Wanneroo District Planning Scheme No 2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(2)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(4), s 88

Result:

Application for costs against respondent allowed
Respondent's application for costs on cost is dismissed

Category: B

Representation:

Counsel:

Applicants	:	Mr T Houweling
Respondent	:	Mr M Gregory

Solicitors:

Applicants	:	Cornerstone Legal
Respondent	:	Castledine Gregory

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

Chew and Director General of the Department of Education and Training [2006] WASAT 248
Moore and City of Wanneroo [2017] WASAT 145 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms Karla Champion and Mr Gary Wood (applicants) seek their costs of a planning review proceeding in which they sought review of the refusal of a development application for a restaurant and for the processing and selling of lavender products from Lot 506 (No 272) Old Yanchep Road, Carabooda (subject land). The applicants were successful in the application for review and obtained conditional development approval from the Tribunal. Oral reasons for the Tribunal's decision were delivered on 2 March 2018 and will be referred to as 'the earlier reasons'.
At the conclusion of the delivery of the earlier reasons, counsel for the applicants foreshadowed an application for costs and as such, the question of costs was reserved.
An application for costs pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) was made by the applicants on 22 March 2018 seeking an order that the City of Wanneroo (respondent or Council) pay all the costs incurred by the applicants after 14 February 2017, which amounted to $42,585.40 or alternatively, for reasons expressed by the applicants below, the respondent pay 50% of the applicants' costs.

Applicable legislation and principles

The SAT Act confers discretion on the Tribunal to award costs. The relevant provisions are set out below:
87.Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to
(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.
88.Costs of proceeding
(1)In this section -
Costs of a proceeding means costs of, or incidental to, a proceeding of the Tribunal, other than costs of a party.
(2)The Tribunal may order that all or any of the costs of a proceeding be paid by a party.
(3)If the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal cannot make an order under this section against a party unless -
(a)the party brought or conducted the proceeding frivolously or vexatiously; or
(b)section 87(4) applies to the party; or
(c)circumstances have arisen in which the Tribunal could make an order under section 46, 47 or 48.
Parry DJ in Moore and City of Wanneroo [2017] WASAT 145 (S) at [13][17] recently articulated the following principles to be applied when considering a costs application:
It has been recognised in Tribunal decisions and decisions of the Court of Appeal that it is apparent from the terms of s 87(1) of the SAT Act that the starting proposition in the Tribunal is that parties bear their own costs of proceedings. Although s 87(2) confers on the Tribunal a broad and unconfined discretion to make an order for the payment by a party of all or any of the costs of another party, unless otherwise specified in the enabling Act, as the Tribunal observed in Pearce and Germain [2007] WASAT 291 (S) (Pearce) [17], s 87(1) and s 87(2) of the SAT Act together indicate that there is a presumption that there will not be an award of costs in the Tribunal except in special circumstances. As the Tribunal said in Pearce [17], this presumption is desirable because it promotes access to civil and administrative justice through the Tribunal.
SAT can therefore be characterised and neither Mr Moore nor the City contest this characterisation as a generally 'no costs' or 'costs-neutral' jurisdiction.
Furthermore, the Tribunal's established practice in relation to the exercise of its broad and unconfined discretion as to costs under s 87(2) of the SAT Act in review proceedings, including planning review proceedings, is that, normally, each party should bear its own costs of the proceedings.
As the Tribunal's inaugural President Barker J observed in Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206 [36]:
… [T]he State Administrative Tribunal has been established by the Parliament of the State with its review jurisdiction as part of the system of public administration of the State to ensure that the citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. The starting out position is that, absent other relevant factors, an applicant should be able to obtain review without being obliged to meet the decisionmaker's costs if they do not succeed; and similarly, the decision-maker is not ordinarily entitled to recover costs from the applicant in the event the review application is unsuccessful.
Section 87(4) of the SAT Act requires the Tribunal, without limiting anything else which may be considered in the making of an order for the payment by a party of the costs of another party in review proceedings, to have regard to, in par (b), whether the party, being the decision-maker, genuinely attempted to make a decision on its merits. Section 87(4)(a) requires the Tribunal to consider in a review proceeding whether the 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 decision-maker to make a decision on its merits.

Applicants' case

The applicants submit that the respondent should pay all the costs incurred by the applicants after 14 February 2017 for the following reasons:

Reason 1:

[5.1]The respondent acted unreasonably by failing to consider the merits of the development application and continued to refuse the development application despite that position being wholly unsupported by its own planners; and

Reason 2:

[5.2]The respondent acted unreasonably by closing its mind to the merits of the amended development applications referred to it and refused the amended development applications on substantially the same grounds as the initial development application.

The alternative position put forward by the applicants is that the respondent pay 50% of the cost it has incurred because:
… in the face of concessions made by experts through their joint statement the Respondent continued to hold a position in the Tribunal that the development application be refused in its entirety, advancing a position not in the statement of issues, facts and contentions that a 50% porosity buffer is a dividing fence and therefore the development approval could not be lawfully approved at all. A position never previously advanced.
The applicants argue that the respondent did not genuinely attempt to make a decision on the merits of the application, nor did it make any reasonable concessions. Rather, the applicants say that the respondent closed its mind to the merits of the development by relying on the same justification for refusing the application, despite the application having been amended.
The applicants submit that had the Council of the respondent properly had regard to its own planning advice and considered the amended development on its merits, the approval granted by the Tribunal would have been given sooner and at substantially less cost to the applicants.

Respondent's case

In response to the first reason, the respondent submits that the applicants' submissions do not state the matter accurately as the respondent's planner 'acknowledged that he could accept the application, on planning grounds, if the environmental experts agreed that the mitigation measures proposed by the Applicant were adequate'. The respondent contends that the views of the environmental experts on the mitigation measures were tested at the final hearing, which the respondent asserts is not an unreasonable course.
The respondent also submits that it was not unreasonable for the Council of the respondent to refuse the development application against the advice of its officers at its meeting of 5 December 2017 given the history of the matter and 'with the Applicant's science being reasonably susceptible to further probing and testing' to justify departure from the default separation distance of the Department of Health (WA) guidelines.
Further, the respondent says, that if it is applicants' cost argument that in every case where the local government decision-maker's Council decides a planning matter contrary to its administrative recommendation, then this cannot possible be the intent of the SAT Act costs jurisdiction as costs should only be awarded in 'extenuating circumstances': Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85]-[86].
In response to the second reason, the respondent submits that it did not close its mind to the merits of the amended application as can be evidenced by the fact that the proposed development evolved as the applicants gradually introduced improvements in respect to environmental issues and as such, Council made three decisions as to whether to approve the applicants' development application (6 December 2016, 4 April 2017 and 5 December 2017). The respondent asserts that it is clearly evident that the Council engaged with the development application as it stood before it, as on each occasion where the decision of the Council was contrary to the recommendation put forward by the respondent's Administration, the Council gave extended reasons for its alternative decisions. Counsel for the respondent pointed to the difference between the reasons given for the alternative decisions observing that the 6 December 2016 reasons primarily relate to planning concerns whereas in the 5 December 2017 reasons the Council 'was concerned that the buffer would not be sufficient to fully reduce the spray drift potential, noting that advice provided by the Applicant's environmental expert that the buffer would result in a reduction of 6090%, rather than complete elimination'.
In regards to the alternative position put forward by the applicants, the respondent contends that there is no basis to the applicants' submission that dividing fence issue was not raised in the respondent's statement of issues, facts and contention, or otherwise took the applicants by surprise when it was raised the respondent at the final hearing, or that it unnecessarily added to the length of the final hearing for the following reasons:
•The issue of the eastern artificial barrier potentially being considered as a dividing fence (dividing fence issue) arose late in the history of the matter entirely because the applicants continued to amend their application. The first ability to consider the issue arose at the Council meeting of 5 December 2017 at which time the owners of the adjoining property had no objection to the proposed artificial barrier.
•Written confirmation of the owners of the adjoining property withdrawing consent to the artificial barrier as a boundary fence was only received by the respondent on 24 January 2018. The amended statement of issues facts and contentions at paras 70-72 expressly raised the issue (see Exhibit 2).
•The approach taken by the respondent in respects to this issue was constructive as it explored solutions and made concessions.
•The dividing fence issue was never stated to be one of the respondent's reasons for refusal. The issue only arose as a potential legal argument between the date of the Council's third decision (5 December 2017) and the commencement of the final hearing. Although the illegality point was pressed as a reason for the Tribunal to refuse the development, the respondent submits that it also made concession, by indicating that the potential 'illegality' could be resolved by the eastern artificial barrier being set back from the eastern boundary.
•The dividing fence issue did not unnecessarily lengthen the hearing for the following reasons. Firstly, it was proper to bring the matter of potential 'illegality' to the Tribunal's attention. Secondly, the issue was clearly a relevant consideration. Thirdly, the Tribunal asked questions of the planning witnesses regarding the eastern boundary setback. Fourthly, questioning of witnesses and the making of submission regarding the eastern artificial barrier did not material lengthen the hearing (estimated 10-20 minutes of witness time and around 5-10 minutes of time in closing submissions). Fifthly, the respondent actively and proposed solutions to the potential 'illegality' issue.
The respondent also contends that the applicants' own conduct militates against costs awarded in favour of the applicants, as the applicants' conduct has not met the standard of 'genuinely attempting to enable and assist the decision-maker to make an decision on its merits: s 87(4) of the SAT Act.
The respondent cites the following actions of the applicants in support of their contention:
(a)the Applicant initially provided a development application entirely lacking in a landscape plan, or accompanying environmental advice, to deal with the mitigation of potential effects of spray drift, odour and noise;
(b)the Applicant, over time, amended its application and (at the behest of the Tribunal) eventually obtained environmental advice;
(c)the Applicant's development application was put forward in a piecemeal manner that eventually met with minimum expectations for a landscape management plan[.]
(d)even by the time the matter came before the Tribunal at the hearing, the environmental experts agreed that the landscape management plan was still deficient in respect to the details regarding maintenance[.]

The chronology of events

In order for the Tribunal to determine whether it is appropriate, in the circumstances of this case, to exercise discretion to awards costs in this matter it is necessary to review the history of the applicants' application for development approval.
Infinite Developments Pty Ltd trading as PPCM made application on behalf of the applicants to the respondent on 23 November 2015 for development approval for a restaurant and for the processing and selling of lavender products on the subject land.
Officers of the respondent prepared a report that formed part of the 'City of Wanneroo Agenda of Ordinary Council Meeting 6 December, 2016', which contained a planning assessment of the proposed development and a recommendation that development approval be granted for the 'Restaurant and Rural Use' subject to 11 conditions.
The respondent at its meeting of 6 December 2016 resolved to refuse to grant development approval under the provisions of the City of Wanneroo District Planning Scheme No 2 (DPS 2) and the Metropolitan Region Scheme (MRS) for the following two reasons:
a)The proposed Restaurant is not considered to be compatible with the surrounding Intensive Agricultural land uses and is therefore not considered to be consistent with the objectives of the Rural Resource zone; and
b)The proposed Restaurant may be impacted by the activities associated with the operations of the Intensive Agricultural uses in the surrounding area[.]
The Council also resolved the following:
2.NOTES Administration's responses to the submissions as provided in Attachment 3;
3.ADVISES the submitters of its decision; and
4.INSTRUCTS Administration to draft a Local Planning Policy to guide future applications for sensitive land uses in the Rural areas of the City.
The 'City of Wanneroo Minutes of the Ordinary Council Meeting of 6 December, 2016' also contains a section headed 'Reasons for Alternative Motion' and reads as follows:
Numerous objections to the proposed Restaurant have been received from surrounding landowners in relation to:
•The incompatibility of the Restaurant use with the surrounding agricultural area; and
•Potential complaints from the owners of the Restaurant, regarding noise and odour from surrounding agricultural land uses, which will threaten the viability of these agricultural land uses.
These are considered to be legitimate concerns. It is also considered to be inconsistent with State Planning policies.
The proposed restaurant is located approximately 85m from the south western lot boundary which has an existing intensive Agricultural use.
Council at its meeting of February 2016 supported the elevation of agribusiness as a priority advocacy position statement. In addition, the Council endorsed the Economic Development Strategy and Action Plan 2016 2021 in June 2016, which in Section 1.2 Agribusiness and Aquaculture, refers to identifying, protecting and supporting high value production precincts.
Whilst I am supportive of tourismrelated land uses, the proposed Restaurant is not considered to be suitably located in an area of intensive agriculture activity and would be better located in the Landscape Enhancement zone, which is recognised for these purposes.
On 20 December 2016, the applicants made an application under s 252(2) of the Planning and Development Act 2005 (WA) (PD Act) seeking to have that decision reviewed by the Tribunal.
As part of the proceedings in this matter, the parties engaged in mediation process, which resulted in an amended application being provided to the respondent. The Tribunal, on 14 February 2017, made orders inviting the respondent to reconsider its decision in light of the amended proposal.

Officers of the respondent prepared a report that formed part of the 'City of Wanneroo Agenda of Ordinary Council Meeting for April, 2017'. The report outlined the amended proposal which included details of signage to be displayed in the car parking area and a landscaping plan showing plant species to be installed around the restaurant and the boundaries of the subject site in order to reduce the effects of noise odour and spray drift from surrounding properties. The report also informed the Council that a town planning consultant and an environmental consultant had been engaged to provide comment on the landscaping plan submitted by the applicants. The advice given by the environmental consultant was that the proposed landscaping on the subject site did not sufficiently address the criteria required to provide an effective buffer and was therefore not likely to be an effective buffer to spray drift. Consequently, officers of the Administration considered the landscaping plan to be insufficient to effectively mitigate noise, odour and spray drift from the surrounding agricultural land uses and recommended that the Council affirm its decision dated 6 December 2016.
The respondent, at its meeting of 4 April 2017, reaffirmed its previous decision.
The matter proceeded to final hearing and as usual the Tribunal made standard programming orders for the filing and serving of documents required for the final hearing. The respondent filed a statement of issues, facts and contentions on 12 May 2017 which clearly identified, amongst other things, environmental considerations as an issue in dispute.
The issues identified by the respondent were accepted by the applicants in its statement of issues facts and contentions dated 2 June 2017.
At the commencement of the final hearing on 27 July 2017, the Tribunal observed that the respondent was intending to adduce evidence from an environmental consultant and that the applicants had not called an expert in this field to address the environmental concerns raised by the respondent. The Tribunal offered to adjourn the proceedings to allow the applicants the opportunity to engage an environmental expert and for further mediation between the parties. This offer was taken up by the applicants.
Following mediation on 3 October 2017, the Tribunal made orders for the applicants to provide revised plans and supporting information for the proposed development to the respondent and further invited the respondent to reconsider its decision in light of the revised plans.
Officers of the respondent prepared a report that formed part of the 'City of Wanneroo Agenda of Ordinary Council Meeting 5 December, 2017' (Agenda Report Dec 2017) which described the modified application as follows:
The modified application included a plan for a fencing and vegetation buffer to be installed to reduce the effects of noise, odour and spray drift from the surrounding properties …. Details of this proposed buffer are as follows:
•1.8mhigh cyclone fencing, covered in a hessian material, on portions of the western and eastern lot boundaries; and
•The planting of a variety of vegetation species along the western and eastern lot boundaries.
Under the heading 'Odour and Spray Drift' of the Agenda Report Dec 2017 the following relevant paragraphs were included in respect to environmental considerations:
The environmental consultant engaged on behalf of the City [Mr Mack] has provided the following comments in relation to potential odour and spray impacts on the restaurant: 'I am satisfied that what is proposed, as outlined in the Witness Statement of [the applicant's environmental consultant], will provide an appropriate level of protection in relation to spray drift, dust and odour'. Further to this advice, two conditions are recommended to ensure that the proposed buffer is a sufficient mechanism for addressing odour and spray drift: 1) the extension of the proposed fence (including the hessian material) on the western boundary down to the southern lot boundary; and 2) maintenance of the proposed landscaping and fencing to be in accordance with the maintenance plan included in Attachment 2. Both of these are included as recommended conditions of any development approval issued.
In relation to the absence of a landscape buffer on the eastern boundary, the City's environmental consultant [Mr Mach] has advised the following:
'The level of impact on the eastern boundary is unlikely to be as significant as that from the west. There is less of a 'source' due to a more limited area of agriculture and greater separation between source and receptor. Further to this, the general prevailing winds will be southwesterly/westerly and thus the need for the vegetated buffer along the western boundary of the property. The eastern boundary will however incorporate a ''fenced'' buffer to provide further reduction to any realised impacts if they arise'.
In response to the Administration's concerns that the proposed landscaping will not be able to provide a sufficient buffer until such time as it is fully grown, the City's environmental consultant [Mr Mach] has advised the following:
'The fenced buffer proposed along both boundaries will provide appropriate protection from the potential impacts associated with dust, spray drift and odour from the agricultural uses on the adjacent properties'.
It is also noted that the fencing and vegetation buffer plan provided by the applicants identifies the proposed species as fast-growing.
The concluding paragraph to this section of the Agenda Report Dec 2017 reads as follows:
To summarise the above, the applicants have provided a plan for a fencing of vegetation buffer on the subject site which is intended to address potential spray drift and odour issues. The applicants have engaged an environmental consultant [Mr Harper] to review the plan, who has advised that the proposed landscaping and fencing is considered to meet the buffer requirements of the Department of Health. The environmental consultant engaged on behalf of the City [Mr Mach] has also reviewed the plan and has advised that the proposed buffer is considered appropriate to address potential spray drift and odour issues. The applicants have also provided a written statement, acknowledging the nature and legitimacy of nearby existing and future priority uses, as required under DPS 2.
It is also noted that the Agenda Report Dec 2017 included an assessment of the proposed fencing against the requirements of the respondent's Fencing Local Law 2016.
The officers recommended that the Council set aside its decisions dated 6 December 2016 and 4 April 2017 and approved the development application subject to 11 conditions, one of which reflected the comments from the environmental consultant.
The respondent, at its meeting of 5 December 2017, resolved to affirm its decision dated 6 December 2016 and refused the modified application for the following reasons:
(a)The proposed Restaurant is not considered to be compatible with the surrounding Intensive Agricultural land uses and is therefore not considered to be consistent with the objectives of the Rural Resource zone; and
(b)The proposed Restaurant may be impacted by the activities associated with the operations of the Intensive Agricultural uses in the surrounding area. Particularly as this application includes half (76) of the restaurant seating outside of the proposed building.
The 'City of Wanneroo Minutes of the Ordinary Council Meeting of 5 December, 2017' also contains a section headed 'Reasons for Alternative Motion' and reads as follows:
Numerous objections to the proposed restaurant have been received from surrounding owners in relation to:
•The incompatibility of the Restaurant use with the surrounding agricultural area; and
•Potential complaints from the owners of the Restaurant, regarding noise and odour from surrounding agricultural land uses, which will threaten the viability of those agricultural land uses.
The applicant has provided an environmental consultant report which recommends the provision of a landscaping and fencing buffer on the subject site as a means of addressing the concerns relating to spray drift, dust and odour.
It is considered that the impacts of spray drift, dust and odour would be greatest for the outdoor seating area, which represents half (76) of the total seating proposed.
The advice provided by the applicant's environmental consultant confirms that an artificial or natural barrier (such as that proposed by the applicant) may be effective at reducing spray drift potentially between 60 to 90%. Whilst these measures may be able to mitigate the potential impact, they will not be able to fully negate the potential impact on the restaurant from the surrounding agricultural land uses.
It is not considered that the proposed measures would adequately negate the potential impact of the existing intensive agricultural operations to the east and west of the site and therefore lead to potential future objections which may impact the ongoing operation of the surrounding agricultural uses. On this basis and the fact that it is a discretion use, it is recommended that the application be refused for the above reasons.
The matter, once again, was listed for final hearing and programming orders made for the filing and serving of required documents for the hearing of this matter. The respondent filed an amended statement of issues, facts and contentions dated 25 January 2018 pressing the same issues identified in the original statement of issues facts and contentions dated 12 May 2017, although including additional contentions:
… the proposed fence does not meet the definition of a 'sufficient fence' under the City's Fencing Local Law 2016 and therefore requires consent of the adjoining properties'.
… without the fence, the proposed measures are inadequate to warrant a reduce separation distance.
As required by the Tribunal, the experts in each field of expertise conferred with one another and produced a joint statement of evidence.
The only area of disagreement between the environmental experts related to whether the artificial barrier on the western boundary should remain in place once the vegetation buffer was established and approaching maturity.
The planning experts in their joint statement agreed that 'if sufficient measures were in place to mitigate the impacts of dust, odour, noise and spray drift from adjacent land uses, neither expert would oppose the proposed ''Restaurant development'''. As to the determination of 'sufficient measures' both planning experts deferred to the environmental experts. At the conclusion of the environmental experts' evidence, the planning experts expressed that they did not oppose the proposed restaurant.
The Tribunal in considering the substantive merits of the case and having due regard to the planning framework was satisfied that the proposed development was consistent with the principles embodied in State Planning Policy 2.5 – Rural Planning and the objectives of the Rural Resource Zone and was persuaded that the potential land use conflicts could be adequately mitigated by a combination of measure and as such determined that the proposed development warranted approval subject to the imposition of appropriate conditions.

Consideration of the application for costs

In considering the chronology of events as set out above and the arguments submitted by the parties, the Tribunal is of the view that from the date of the lodging of the development application to the third consideration and determination of the matter at its meeting of 5 December 2017, the respondent had at all times genuinely attempted to make a decision on the merits of development application. The fact that the Council did not accept its planning officers' recommendation in its deliberation in December 2016 is not unreasonable, particularly given that there were valid planning and environmental concerns identified relating to land use conflict and the application of State policies, which on reassessment of the amended application in April 2017 resulted in its planning officers recommending refusal of the application for the very reasons expressed in the December 2016 decision. Further, it is clear from the 'Reasons for Alternative Motion' in both the December 2016 and December 2017 decisions that the respondent engaged in the decision-making process and on both occasions gave reasons for its decision, identifying different issues and concerns for each of the determinations.
The applicants' conduct during this period was not without fault in that the response to the environmental concerns raised by the respondent was piecemeal but given that the applicants were unrepresented in the initial stage the development process their conduct is perhaps understandable. Further, once the review proceedings highlighted the significance of the environmental issue, the applicants engaged the relevant expert to assist in the decision-making process.
Given these findings, the Tribunal does not consider it appropriate to award costs in the terms sought by the applicants. However, the Tribunal does not consider that the respondent acted reasonably in its pursuit of the matter to final hearing. So, if the preparation for and the conduct at the hearing had supported the reasoning put forwarded by the Council at its meeting in December 2017, that being, the mitigation measures will not be able to fully negate the potential impact on the restaurant from the surrounding agricultural land use, then the conduct maintaining their position to final hearing would have been entirely reasonable. However, this was not the case.
The amended witness statement of Mr Andrew Mach and the Joint Witness Statement of the environmental expert did not approach the issue from this perspective. Mr Mach in his amended witness statement held the view that 'the landscaping management plan provided by the applicants as part of the December 2017 Application aligns with the minimum expectations for a plan of this nature' and he made recommendations in respect to additional screening requirements to provide further protection of the restaurant use from spray drift from the existing intensive agricultural uses. The only caveat Mr Mach made was that if any aspect of the plan could not be implemented then the application should be refused. The conferral of the environment experts, which lead to the production of the joint witness statement, resulted in the environmental experts agreeing that the potential land use conflicts between the existing intensive agricultural uses and the proposed restaurant can be adequately mitigated by a combination of measures. The only area of disagreement, which the Tribunal was required to determine, related to whether the artificial barrier on the western boundary of the subject land should remain in place once the vegetation buffer is established and approaching maturity.
The aspect of unreasonableness was not the decision to take the matter to hearing at all, but rather the decision to fully contest the application despite the agreement by the experts.
If the preparation for and conduct of the hearing after the joint witness statement of the environmental experts had been limited to the question of whether the artificial barrier on the western boundary of the subject land should remain in place once the vegetation buffer is established and approaching maturity, there would be no basis for costs.
The respondent, if acting reasonably, should have sought to resolve the only issue remaining in dispute which, in the Tribunal's view ought to have been resolved by the parties without the need for a final hearing. On this basis, the respondent should pay a 100% of the applicants' costs for preparation to hearing from the date of the filing of the joint witness statement of the environmental experts and 80% of the applicants' costs relating to the conduct of the final hearing because the applicants chose to argue the disputed issue, when it could have accepted the imposition of a condition on an approval.

Respondent's application for costs of costs application

Given the Tribunal's determination in relation to the costs application, it is unnecessary for the Tribunal to address this application.

Orders

For the above reasons, the Tribunal makes the following orders:
1.Application for costs against the respondent is allowed.
2. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) the respondent must pay to the applicants 100% of its costs for preparation to final hearing from the date of the filing of the joint witness statement of the environmental experts and 80% of its costs for the conduct of the final hearing to be taxed, if not agreed within four weeks of the date of this order.
3. The respondent's application for costs on the costs application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
18 OCTOBER 2018