Christie and Town Of East Fremantle
[2011] WASAT 176
•3 NOVEMBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CHRISTIE and TOWN OF EAST FREMANTLE [2011] WASAT 176
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 3 NOVEMBER 2011
FILE NO/S: DR 500 of 2009
BETWEEN: BRONWYN JANE CHRISTIE
Applicant
AND
TOWN OF EAST FREMANTLE
Respondent
Catchwords:
Practice and procedure Costs Town planning Development application Conditions of development Whether respondent genuinely attempted to make a decision on its merits Whether respondent acted unreasonably
Legislation:
Planning and Development Act 2005 (WA), s 242, s 244, s 244(2), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 87(2), s 87(4)(b)
Result:
Application for costs refused
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr S Wearne (Public Sector Employee)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Christie and Town of East Fremantle [2010] WASAT 124
Christie and Town of East Fremantle [2010] WASAT 160
Humphrys and City of Stirling [2011] WASAT 105
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Ms Bronwyn Christie sought an order requiring the Town of East Fremantle to pay Ms Christie's costs of a planning review proceeding in relation to two conditions of development approval. Ms Christie argued that a costs order should be made principally because the Town did not give her an adequate opportunity to respond to objections and to present her position and refused to take account of the argument she presented both before it made its decision and in the proceeding.
The Tribunal acknowledged that Ms Christie's frustration with the process leading up to the Town's determination of the development application was understandable. In particular, it was unfair and inappropriate for the Town Planning & Building Committee to hear from objectors and to consider the application after the Town had advised Ms Christie that the item had been withdrawn from the agenda, and in the absence of Ms Christie and her representatives. It was also unfair and unreasonable for the Town to then require Ms Christie to respond to objections in what was, in effect, less than one day.
However, the Tribunal determined that it could not be found that the Council failed to genuinely attempt to make a decision on the merits of the development application, because the Committee did not determine the application and Ms Christie and her town planning consultant ultimately had five or six days in which to prepare to address the Council meeting at which the application was determined. The Tribunal also found that there was a genuine dispute as to planning merit in relation to the conditions in question and the Council had not acted unreasonably in the proceeding.
Therefore, in exercising its discretion as to costs, the Tribunal decided that it should not depart from its usual practice under which parties, normally, bear their own costs of review proceedings. Each party was also ordered to pay its own costs of the cost application.
Introduction
Ms Bronwyn Christie seeks an order, pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), requiring the Town of East Fremantle (Town or Council) to pay Ms Christie's costs of this proceeding. The proceeding involves an application brought by Ms Christie on 24 December 2009, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the decision of the Council made on 15 December 2009 to grant conditional development approval for boundary fences with 26 associated masonry piers and pier caps at No 18 Munro Street, East Fremantle (site). In particular, Ms Christie challenged the first two of the five conditions subject to which the Council had granted development approval.
Condition 1 imposed by the Council required that 'the fence piers [are] to be reduced to a height of 1.8 metres within 60 days'. Through mediation in the Tribunal, the parties agreed that the dispute related solely to piers 16 to 26 inclusive and that piers 1 to 15 inclusive did not have to be reduced in height. Piers 16 to 26 are located in the front setback area of the site, between the façade of the dwelling and the Munro Street frontage.
Condition 2 of the development approval imposed by the Council stated that the approval 'does not extend to any element of the pier caps located outside the applicant's property boundaries'.
The application for review was determined on the documents on 30 August 2010 by Senior Sessional Member Ross Easton see Christie and Town of East Fremantle [2010] WASAT 124 (Christie No 1). The Tribunal affirmed condition 1 in relation to piers 16 to 26 inclusive and affirmed condition 2.
Ms Christie subsequently made an application under s 244 of the PD Act for a review by a judicial member of the determination made by the Tribunal see Christie and Town of East Fremantle [2010] WASAT 160 (Christie No 2). Ms Christie did not challenge the Tribunal's decision to affirm condition 2. Ms Christie challenged the Tribunal's decision to affirm condition 1 on two grounds. First, Ms Christie submitted that the Tribunal misinterpreted the meaning of the expression 'ground level' in cl 5.1 of the Town of East Fremantle Policy on Local Laws relating to Fencing. Secondly, Ms Christie submitted, in essence, that, in its determination, the Tribunal failed to take into account a relevant consideration, namely, the impact of landscaping that she could install in the garden beds adjoining the fence on views from the adjoining property at No 16 Munro Street across the front setback area of the site.
The President Justice Chaney held that the Tribunal did not err in its interpretation of the expression 'ground level'. However, the President determined that the Tribunal erred in law in that it failed to give proper, genuine and realistic consideration to the effect of past and likely future landscaping in the front setback area of the site on the views available from No 16 Munro Street: Christie No 2 at [24]. At [24] of the decision in Christie No 2, the President determined as follows:
The impact of landscaping that could be installed without development approval in the constructed planters on views from No 16 Munro Street across the setback area of the site was plainly a relevant consideration in determining whether the fence piers should be reduced in height. The failure to give 'proper, genuine and realistic' consideration to a relevant matter for assessment involves legal error. The determination of the Tribunal in relation to condition 1 should, therefore, be revoked.
At [25] of Christie No 2, the President noted that s 244(2) of the PD Act authorises a judicial member to 'revoke the direction, determination or order and substitute another direction, determination or order that the State Administrative Tribunal could have made in relation to that matter'. His Honour then determined as follows:
In my view, having regard to:
•the evidence of Mr Webb set out earlier;
•the fact that the views in question were obtained across a side boundary and through the front setback area of the site;
•the fact that the views in question could be readily blocked by the placement of landscaping in constructed planters adjoining the fenceline to a height equivalent or greater than the fence piers (as has, indeed, occurred in the interim); and
•the finding by the Tribunal (which is not challenged) that the only reason for reducing the height of the fence piers was to mitigate loss of views from the adjoining property,
the correct and preferable decision in this case is to set aside condition 1. In the circumstances of this case, condition 1 serves no legitimate planning purpose.
On 30 January 2011, Ms Christie applied for an order that the Town should pay her costs of the planning review proceeding. On 4 March 2011, the Town filed submissions in opposition to the application for costs, but appears not to have provided its submissions to Ms Christie. After the Tribunal provided a copy of the Town's submissions to Ms Christie, on 29 September 2011, Ms Christie provided submissions in response.
The Tribunal's established practice in relation to costs in planning review proceedings
In Humphrys and City of Stirling [2011] WASAT 105 (Humphrys), the Tribunal summarised its established practice in relation to costs in review and, in particular, planning review proceedings, at [25] [27], as follows:
In Geographe Point Pty Ltd and Town of Claremont [2009] WASAT 98; (2009) 64 SR (WA) 1 (Geographe Point), the Tribunal said the following at [14] [17]:
Section 87(1) of the SAT Act states that:
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.
The contemplation of the SAT Act is, therefore, that the Tribunal is generally a nocosts jurisdiction.
Furthermore, although s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party, the Tribunal's established practice in administrative review proceedings is that normally each party should bear its own costs: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246; Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 (Shark Bay Tuna Farms). As Justice Barker explained in Shark Bay Tuna Farms at [36], the Tribunal was established with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. Consequently, an applicant should not be discouraged from seeking administrative justice by the prospect of having to pay the respondent's costs if the applicant does not succeed and, conversely, an applicant is not entitled to an award of costs simply because the applicant succeeds.
Only four awards of costs have been made in planning review proceedings since the establishment of the Tribunal almost four and a half years ago. Two of these awards were in relation to the limited costs of attending directions hearings necessitated by default in compliance with Tribunal orders (Randall and Town of Vincent [2005] WASAT 147 and Aydogan and Town of Cambridge [2006] WASAT 98) and two awards were made in circumstances where the original decision-maker failed to genuinely attempt to make a decision on the merits of a development application (Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 (S) and J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282; (2006) 45 SR (WA) 242). In relation to the latter two awards, s 87(4)(b) of the SAT Act states that, without limiting anything else that may be considered in relation to whether to make an order for the payment by a party of the costs of another party, where the matter falls within the Tribunal's review jurisdiction, the Tribunal is required to have regard to:
whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
Since the publication of the decision in Geographe Point on 18 May 2009, there have been only two further awards of costs in planning review proceedings in the Tribunal. In Tran and Town of Vincent [2009] WASAT 123 (S) (Tran) and Rossi and City of Bayswater [2010] WASAT 33, the Tribunal made orders for costs on the basis that the respondent had acted unreasonably in refusing to grant development approval or imposing a condition of development approval when the Tribunal had, in previous proceedings, granted development approval for essentially the same development or deleted essentially the same condition, the planning framework had not changed and the circumstances had not changed in any substantial or material way since the earlier proceeding.
In Tran, the Tribunal noted, at [29], that '[s]uccessful costs applications in the Tribunal are a "rare bird" indeed'. As the Tribunal recognised in Tran at [35], costs orders have only generally been made in review, including planning review, proceedings, where a party has acted unreasonably, including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act.
In Humphrys, I found at [28] [29] that, in the circumstances of that case, the respondent had failed to genuinely attempt to make a decision on the merits of the development application, for the purposes of s 87(4)(b) of the SAT Act, and made an order requiring the respondent to pay the applicant's costs in a specified sum.
Determination of costs application
Ms Christie summarised the bases upon which she seeks an order for the payment of costs by the Town as follows:
My claim is based upon:
•the deliberate withholding of information by the [Town] initially to prevent my input into the Council process of making a decision on the Application,
•the lack of time the [Town] afforded me in adequately replying to the [Town's] information to justify my position (prior to the [Council] making a decision on the Application), and
•the consequential refusal by the [Council] to take account of the established case law precedents on the issue of 'protection of views' despite the detailed information/presentation by an informed professional Town Planner Consultant provided, prior to their decision on our application. Further, the Council refused to acknowledge this information, although it was continually (both in writing and verbal form) communicated to the [Town] through all the Reports requested by SAT and at mediation, as required by SAT.
The first two bases upon which Ms Christie seeks an order for costs relate to the circumstances leading up to the Council's decision in relation to the development application on 15 December 2009. It appears that the development application was advertised for public submissions from 24 November 2009 to 8 December 2009. By letter dated (Friday) 4 December 2009, the Town informed Ms Christie that the development application would be considered by its Town Planning & Building Committee (Committee) on (Tuesday) 8 December 2009. The letter was delivered to Ms Christie's address on (Monday) 7 December 2009 and was read by her at around 5 pm that day. Ms Christie emailed the Town at 6 pm on 7 December 2009 and again at 8 am on 8 December 2009 requesting the 'withdrawal of the matter from the Agenda' to enable her to receive and consider the Town's report 'so as to resolve the matter as quickly as possible'.
At 11.49 am on 8 December 2009, Ms Deborah Elliott, an administrative officer of the Town, emailed Ms Christie as follows:
Thanks Bronwyn
I confirm that your item (18 Munro Street, East Fremantle) has been withdrawn from the Town Planning & Building Committee agenda tonight.
Regards
Deborah
At 3.34 pm on 8 December 2009, Ms Christie responded to Ms Elliott's email as follows:
Hi Deborah
Thank you for your attention to this matter. On the basis that our item (18 Munro Street, East Fremantle) has been removed from the Agenda we will not be attending the Town Planning & Building Committee meeting tonight.
Regards
Bronwyn
However, notwithstanding the Town's statement to Ms Christie that the development application had been withdrawn from the agenda and Ms Christie's consequent absence from the meeting on 8 December 2009, the Committee proceeded to hear from two neighbours in relation to the development application and to consider the application at the meeting.
On 9 December 2009, Mr Stewart Wearne, the Chief Executive Officer of the Town, wrote to Ms Christie stating, in part, as follows:
I refer to your email of 8 December 2009.
At the Town Planning & Building Committee meeting held on 8 December some discussion of the matter occurred, given this was a listed agenda item. In addition, two of your neighbours spoke on the issue. However, in consideration of your request and that of Mr De Lucia [Ms Christie's building designer] and Mr Webb [Ms Christie's consultant town planner] for the matter to be deferred, no decision on the matter occurred, with this aspect held over to the Council meeting of 15 December 2009 for the following reasons:
To allow the applicants to respond to the neighbour objections, with such response to be received by 4 pm Thursday 10 December 2009.
To allow the applicants to clarify the issue of whether the pier caps, as constructed, on the southeast boundary intrude into the neighbouring property, with such clarification to be received by 4 pm Thursday 10 December.
To allow the Acting Town Planner to consider the objections received from Mr MacMillan of 27 Locke Crescent, and Ms Craig of 14 Munro Street, neither of which the Acting Town Planner had viewed at the time his report was completed, a further letter from Ms Byrne and the further representations of Mr Cullity & Ms Byrne made at this meeting.
With respect to the first point, please find the officer's report attached, which includes the objections of Denis Cullity dated 2 December and the objection of Jennifer Byrne and Denis Cullity dated 4 December. Please find further attached objections received after this report was completed by Joseph MacMillan, Julie Craig and Jennifer Byrne (point 3 above refers).
It is requested your response to these objections be received by 4 pm Thursday 10 December 2009.
The last paragraph of Mr Wearne's letter to Ms Christie of 9 December 2009 stated as follows:
Noting neither yourselves, Mr De Lucia or Mr Webb were present at last night's meeting, despite no advice from Council that the matter would be deferred (this would have been a decision for elected members in any event), I suggest that it would be in your best interests for some form of representation to occur next Tuesday. (Emphasis in bold added)
Ms Christie received the Town's letter dated 9 December 2009 by email at 5.03 pm on that day. This gave Ms Christie less than one day in which to review the Town's report and the objections from neighbours, to 'clarify the issue of whether the pier caps, as constructed, on the southeast boundary intrude into the neighbouring property' and to respond to the objections by the specified deadline of 4 pm on Thursday 10 December 2009.
On 11 December 2009, Mr Webb wrote to the Town requesting that the matter should be withdrawn from the Council meeting on 15 December 2009 to enable Ms Christie more time to respond to the matters raised by the Town and the objectors.
The Council proceeded to consider the development application at its meeting on 15 December 2009. Ms Byrne, an objecting neighbour, addressed the meeting in opposition to the proposal. Ms Christie and Mr Webb then addressed the meeting in support of the application. According to the Council's minutes, when Mr Webb was questioned by a councillor as to whether Ms Christie sought an adjournment,
Mr Webb advised that it had originally been his client's intention to seek a deferral, however his client now wished the matter determined this evening.
There is nothing to suggest that the Council 'deliberately withheld information', as asserted by Ms Christie. However, Ms Christie's obvious frustration with the Council's process in relation to the development application is entirely understandable. The Committee's consideration of the development application on 8 December 2009, following the Town's statement that the item 'has been withdrawn from the [Committee] agenda', and in the absence of Ms Christie, her designer and her town planner, was unfair and inappropriate. The Committee should not have proceeded to hear from objecting neighbours or to have considered the development application in the circumstances. Furthermore, the demands made by the Town in its letter dated 9 December 2009 were unfair and unreasonable. Providing less than one day in which to respond to the objections and to clarify the issue of whether the pier caps, as constructed, on the southeast boundary intruded into the neighbouring property, was grossly inadequate. It is also concerning that the statement in the final paragraph of the letter of 9 December 2009 that Ms Christie and her representatives were not present at the meeting 'despite no advice from Council that the matter would be deferred', was untrue.
However, it could not be found that the Council failed to genuinely attempt to make a decision on the merits of the development application, because the Committee did not determine the application on 8 December 2009 and Ms Christie and Mr Webb were given the opportunity to address the Council meeting on 15 December 2009, which they did, having had five to six days in which to prepare, and as Mr Webb withdrew the application for a deferral of the matter and conveyed Ms Christie's instructions that she wished to have the matter determined that evening.
In relation to Ms Christie's contention that the Council failed to take account of 'the established case law precedents on the issue of "protection of views'' despite the detailed information/presentation' by Mr Webb, it is clear that there was a genuine dispute as to planning merit in relation to whether condition 1 should be imposed by the Council and on review by the Tribunal. It cannot be said that the Council either failed to genuinely attempt to make a decision on the merits of the development application or acted unreasonably in not acquiescing to Mr Webb's submission.
In the course of her submissions, Ms Christie also contended that the Town 'acted inequitably by giving preference to the complaining neighbour and their concerns without any/due consideration with ourselves'. In particular, Ms Christie noted that, whereas councillors of the Town visited the neighbouring property to discuss the matter, they did not attend her property. Ms Christie also noted that, during a directions hearing, the Town indicated that it supported a neighbour's request to make a submission to the Tribunal under s 242 of the PD Act.
However, the fact that councillors attended the neighbouring property, without having attended Ms Christie's property, does not indicate that the Council did not genuinely attempt to make a decision on its merits or behaved unreasonably in the conduct of the proceeding. Having said that, it is always preferable for councillors and council officers who undertake a site inspection of properties affected by a proposed development to also undertake an inspection of the property in question, ideally accompanied by the applicant or its representative. A consent authority must not only be impartial, but must be manifestly seen to be impartial.
The fact that the Town supported an application by an adjoining neighbour to make a submission under s 242 of the PD Act is neither unusual nor unreasonable.
Finally, Ms Christie submitted that the mediation process was 'flawed from the outset since the [Town] refused to enter into any discussion on the intended landscaping regardless of our continual insistence and reference to case law and precedents set'. However, as found earlier, there was a genuine dispute as to planning merit in relation to condition 1 (including the significance of past and future landscaping in relation to the planning assessment). The Town did not act unreasonably in the proceeding.
Conclusion
While Ms Christie's frustration with the Town's process leading up to its determination of the development application on 15 December 2009 is understandable, the Council genuinely attempted to make a decision on its merits and did not act unreasonably in the proceeding. In consequence, in exercising its discretion as to costs under s 87(2) of the SAT Act, the Tribunal should not depart from its usual practice in relation to costs in review, including planning review, proceedings under which, normally, each party is to pay its own costs of the proceeding.
The Town sought an order that Ms Christie should compensate it for its costs in relation to the costs application on the basis that Ms Christie's application for costs was 'vexatious and frivolous'. However, in light of the Town's conduct in relation to and following the Committee meeting on 8 December 2009, it could not be said that Ms Christie's application for costs was unreasonable, much less vexatious or frivolous. Furthermore, it does not appear that the Town has incurred any costs, beyond Mr Wearne's time in preparing its written submission, in relation to the costs application. Consequently, each party should pay its own costs of the cost application.
Orders
The Tribunal makes the following orders:
1.The application by the applicant for an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) that the respondent should pay the applicant's costs of the proceeding is dismissed.
2.Each party is to pay its own costs of the costs application.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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