Clarence City Council v Resource Management and Planning Appeal Tribunal (No 2)

[2018] TASSC 51

[2018] TASSC 51

COURT:                   SUPREME COURT OF TASMANIA

CITATION:              Clarence City Council v Resource Management and Planning Appeal Tribunal (No 2) [2018] TASSC 51

PARTIES:  CLARENCE CITY COUNCIL
  v
  RESOURCE MANAGEMENT AND PLANNING

APPEAL TRIBUNAL
BARKER, Phillip Charles
WOOLLEY, Allison Ella Margaret

FILE NO:  2766/2017
JUDGMENT

APPEALED FROM:                  P Barker & A Woolley v Clarence City Council

[2017] TASRMPAT 15

DELIVERED ON:  10 October 2018
DELIVERED AT:  Hobart
HEARING DATE:  6 September 2018 (written submissions)
JUDGMENT OF:  Brett J
CATCHWORDS:

Procedure – Costs – General rule: costs follow event – General principles and exercise of discretion – Usual order for costs should be made.

Aust Dig Procedure [1477]

REPRESENTATION:

Counsel:
           Appellant:  C Groves
           Respondents:  S B McElwaine SC
Solicitors:
           Appellant:  Dobson Mitchell & Allport
           Respondents:  Shaun McElwaine + Associates

Judgment Number:  [2018] TASSC 51
Number of paragraphs:  9

Serial No 51/2018
File No 2766/2017

CLARENCE CITY COUNCIL v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL, PHILLIP CHARLES BARKER
and ALLISON ELLA MARGARET WOOLLEY (NO 2)

REASONS FOR JUDGMENT  BRETT J

10 October 2018

1. This is my decision in relation to the second and third respondents' application for costs.

2. The appellant submits that the usual order in favour of the successful party should not be made in this case. Its arguments are:

   ·    in respect of grounds 1 and 2, the respondents were successful because of an interpretation of the relevant legislation by the Court which was inconsistent with the interpretation urged by each of the parties; and

   ·    in respect of grounds 3 and 4, the respondents were successful because the Court relied on a point raised late in argument by the respondents' counsel, and which was the subject of supplementary written submissions.

3. These arguments are, with respect, misconceived.  The purpose of a costs order is to compensate a successful party who has been brought unnecessarily to litigation and forced to defend its position in court.   The second respondents were in this position. They were the correct respondents in the appeal.  Although the Tribunal was listed as a respondent, this was inappropriate (see comments of Blow CJ in Boland v Clarence City Council [2018] TASSC 43 at [2]). In any event, the Tribunal took no active part in the appeal. The second and third respondents, accordingly, had no option but to actively resist an unmeritorious appeal.

4. In order to be successful in the appeal, the appellant was required to demonstrate an error of law on the part of the Tribunal.  It failed to do so.  The question of whether argument on the part of the respondents did or did not align with my reasons for judgment is irrelevant to the disposition of the costs application.  The onus was on the appellant to demonstrate an error of law in order to succeed in the appeal.  It failed to do so and the respondents should therefore have their costs.  The cases referred to by the appellant, in my view, turn on their own facts and do not demonstrate any principle contrary to this view.

5. In any event, the underlying premise of the appellant's position is incorrect. The primary issue underlying the disposition of grounds 1 and 2 was whether s 85 conferred a general and overriding discretion upon the Council to refuse approval of a proposed subdivision if a planning scheme specified an acceptable solution or performance criteria in respect of such an application. The ultimate disposition of the argument depended on whether s 85A of the Local Government (Building and Miscellaneous Provisions) Act 1993 evinced a legislative intention to confine the discretion to refuse a subdivision to the standards in the planning scheme if an acceptable solution or performance criteria was so prescribed. This was, and had always been, the position of the respondents, and it was this position which was accepted by the Court. The reasoning by which the conclusion was reached required construction of s 85A, and in this regard the respondents approached that question differently to that determined by the Court, but the resulting conclusion had always been the basis of the respondents' argument.

6. I note also that a review of the transcript will reveal that the construction adopted by the Court was raised by me with the appellant's counsel during the course of argument.

7. Once this question had been resolved contrary to the appellant's position, much of the balance of the appeal fell away.  In particular, the cases dealing with the validity of a condition which imposes a requirement for public open space, became irrelevant.  The respondents, of course, had been required to deal with these arguments in the event that the primary argument was accepted by the Court.

8. In relation to grounds 3 and 4, the matter raised late in argument by the second respondents concerned the operation of cl 8.10.3.  This point was peripheral to the point which was ultimately dispositive of those grounds.  This was whether the Tribunal had erred in its approach to the assessment of the application, in particular in terms of its interpretation and application of the provisions of the planning scheme.  The correct operation and construction of a performance based scheme had always been central to this question, and again the appellant failed to demonstrate an error of law in the approach of the Tribunal.

9. I am satisfied that the usual order for costs should be made in this case.  Accordingly, I order that the appellant pay the costs of the second and third respondents of the appeal to be taxed.