COSTLEY and CITY OF SWAN
[2024] WASAT 94 (S)
•7 JANUARY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: COSTLEY and CITY OF SWAN [2024] WASAT 94 (S)
MEMBER: MR R POVEY, MEMBER
HEARD: 17 JULY 2024
DELIVERED : 7 JANUARY 2025
FILE NO/S: DR 20 of 2023
DR 194 of 2023
BETWEEN: TERENCE COSTLEY
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Practice and procedure - Town planning - Costs application - Whether decision-maker genuinely attempted to make decision on its merits
Legislation:
City of Swan Local Planning Scheme No 17
Legal Profession (State Administrative Tribunal) Determination 2024 (WA)
Local Government (Model Code of Conduct) Regulations 2021 (WA)
Local Government (Rules of Conduct) Regulations 2007 (WA), r 3(1)(f)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(2), cl 75(1), cl 75(2), cl 75(3)
Planning and Development Act 2005 (WA), s 214(3)
Residential Design Codes Volume 1
State Administrative Tribunal Act 2004 (WA), s 27(1), s 31(1), s 31(3), s 87(1), s 87(2), s 87(4), s 87(4)(a), s 87(4)(b)
Result:
Applicant's costs application dismissed
Costs awarded to the Respondent
Category: B
Representation:
Counsel:
| Applicant | : | Mr T Houweling |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Cornerstone Legal |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Argyle v State Administrative Tribunal [2022] WASC 317
Aydogan and Town of Cambridge [2007] WASAT 19
Costley and City of Swan [2024] WASAT 94
Danni and Town of Cambridge [2023] WASAT 123
Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; 2016 213 LGERA 81
REASONS FOR DECISION OF THE TRIBUNAL:
What is this proceeding about?
This is a costs application. The background, I find, is as follows.
Mr Terence Costley is the owner of No 51 Jinda Road, Koongamia (site). To accommodate a new swimming pool and spa at the site, without first obtaining the necessary development approval under City of Swan Local Planning Scheme No 17 (LPS 17), retaining walls were constructed adjacent to the site's western and northern boundaries and the levels of the backyard increased, creating a flat area. Fencing, at 1.8 metres high, was then erected atop the retaining walls. The fencing and retaining walls comprise the original development (original development).
By way of further background, Mr Costley first made application to the City of Swan (City or Council) seeking retrospective development approval for the original development around 24 March 2021. This application was refused by the Council on 7 September 2022. Mr Costley sought review of this decision at the Tribunal, however this application was made out of time.[1]
[1] On 16 December 2022, the Tribunal refused to extend time for the application to be made as the Tribunal determined there was no valid reason to do so.
Then on 11 January 2023, the City issued a written direction (Notice) pursuant to s 214(3) of the Planning and Development Act 2005 (WA) (PD Act) which directed the original development be removed and the site restored. Mr Costley sought review of the Notice in the Tribunal. Those proceedings (DR 20 of 2023) are not the subject of this costs application.
Following receipt of the Notice, Mr Costley, in August 2023, made another application to the City seeking retrospective development approval. In addition to the retaining walls and fencing, this application proposed to modify a part of the length of fence on the western boundary by reducing its height from 1.8 metres to 1.3 metres above the retaining wall. Landscape screening was proposed adjacent to the reduced height fence to address the resulting overlooking into the backyard of the neighbouring property, No 49 Jinda Road (No 49). This updated proposal comprises the development (development).
On 13 December 2023, this application was considered by the Council at their Ordinary Council Meeting. However, a motion to approve the development was defeated, six votes for, eight against.[2] No decision was therefore made and the application was 'deemed refused'.[3]
[2] Applicant's Bundle of Documents, 'Transcript of City of Swan Decision, Ordinary Council Meeting, 13 December 2023'.
[3] Deemed refusal arises pursuant to cl 75(2) of the Deemed Provisions, contained in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions).
On 20 December 2023, Mr Costley sought review of the deemed refusal at the Tribunal.[4] This is matter DR 194 of 2023 and is the subject of this application for costs.
[4] Application for Review, DR 194 of 2023, Exhibit 2.
Following mediation at the Tribunal, the City was invited, pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to reconsider its decision. On 13 March 2024, the Council resolved to refuse the development giving three reasons:[5]
[5] Respondent's Submissions Opposing Application for Costs, paragraph 23.
1.The retaining wall and boundary wall (colourbond [sic] fence) above, by virtue of the building bulk entailed by its length and height, have:
a.an adverse visual impact as viewed from the outdoor living area and broader backyard of the adjoining property at No.49 Jinda Road, Koongamia;
b.failed to meet the required minimum set-back; and
c.failed to obtain agreement from the adjoining property at No.49 Jinda Road, Koongamia.
2.The Council is not satisfied that the proposed landscaping by way of screening shrubbery will provide an effective and sufficient screen so as to minimise the extent of overlooking into the outdoor living area and broader backyard of the adjoining property at No.49 Jinda Road thereby diminishing the privacy enjoyed by this property.
3.The Council is not satisfied that the application has demonstrated that the land has been filled with clean fill, free of any contaminants.
The matter proceeded to final hearing on 17 July 2024 and on 9 September 2024, the Tribunal handed down its decision,[6] granting approval to the development, subject to conditions.
[6] Costley and City of Swan [2024] WASAT 94 (Original reasons).
The costs claims
Mr Costley now seeks his costs from 20 December 2023, being the date of the application for review to the Tribunal in DR 194 of 2023, and is made for two reasons:[7]
(a)the City 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
(b)the City 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.
[7] Applicant's Submission for Costs, paragraph 2.
Mr Costley's claim, in the sum of $30,160.20,[8] is summarised as follows:[9]
(a)Legal services, at Legal Profession (State Administrative Tribunal) Determination 2024, $19,505.20.
(b)Disbursements, being town planning services, $10,655.
[8] The applicant initially sought $48,375 in costs but in the Applicant's Submissions in Reply reduced the amount to $30,160.20.
[9] Applicant's Submissions in Reply, paragraph 13 and attached Applicant's Bill of Costs.
The City seeks its costs from Mr Costley for having to defend the costs application, because it submits, his costs application is without merit, and his conduct in making a costs application is itself, unreasonable.[10] The City's claim amounts to $1,500.
[10] Respondent's Submissions Opposing Application for Costs, paragraph 6.
Costs in the Tribunal
The approach to costs in the Tribunal is well established and recently explained in Danni and Town of Cambridge [2023] WASAT 123 at [18] - [19].
The starting point is that each party will bear their own costs in a review proceeding.[11] However, I retain a residual discretion to make an order for costs if I am satisfied it is appropriate.[12] For a costs order to arise in the Tribunal's review proceeding, it will usually flow from the conduct of a party which, in all of the circumstances, is found to be unreasonable.
[11] SAT Act, s 87(1); see also Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; 2016 213 LGERA 81 [51] (Murphy JA, Martin CJ, Corboy J agreeing) (Questdale).
[12] SAT Act, s 87(2).
In Questdale,[13] Murphy JA (Martin CJ, Corboy J agreeing) explained that:
Although s 87(2) does not in terms say that the discretion [to make a costs order] is to be exercised if it is fair and reasonable in all the circumstances of the case to do so, the judicial nature of the exercise and the scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention.
[13] Questdale at [49].
Before turning to consider and determine each costs claim, I will firstly consider when and how the reviewable decision was made, given the contrasting submissions of the parties on s 87(4) of the SAT Act in this case, as to whether the respondent 'genuinely attempted to make a decision on its merits'.
The making of the reviewable decision
The reviewable decision, in this case, is the 13 March 2024 decision of the Council. A decision notice[14] was issued to the applicant and the review proceedings in the Tribunal continued on the basis of this decision.[15]
[14] Respondent's s 24 Bundle of Documents, page 47, Exhibit 4.
[15] Consistent with s 31(3) of the SAT Act.
Mr Costley in his Submission for Costs initially asserts that Council refused his development application at its meeting on 13 December 2023.[16] However, in later Submissions in Reply, Mr Costley says about this meeting:[17]
a)'the [C]ouncil's discussions or debates during the meeting do not constitute any formal decision, and certainly not a decision based on planning merits;
b)the [C]ouncil failed to express its "mind" in a manner that legally represents a decision on the planning merits; and
c)the lack of clarity or formality in the failure to make a refusal decision lead to unnecessary costs for the applicant in the first instance requiring the application.
[16] Applicant's Submissions for Costs, paragraph 9.
[17] Applicant's Submissions in Reply, paragraph 2.
While I accept the Council meeting of 13 December 2023 may be regarded as part of the Council's decision-making process, as I will come to explain, no decision was, in fact, made by the Council at this meeting.
Did Council refuse the development on 13 December 2023?
Mr Costley submits that the failure by Council to put an alternative motion at the 13 December 2023 Council meeting 'resulted in a refusal without any reasons being given'.[18] Also, as 'Council failed to provide a basis for the refusal, further costs were incurred by the Applicant as a consequence of the approach taken by the Council'.[19]
[18] Applicant's Submissions for Costs, paragraph 9.
[19] Applicant's Submissions for Costs, paragraph 12.
However, I do not accept that the Council decided to refuse the development on 13 December 2023. Rather, no decision was made to refuse or to approve Mr Costley's development application. What occurred was that a motion to approve the development was lost, by six votes to eight.[20] As no alternative motion was put to the Council meeting, it was not possible for the Council to make a decision at this meeting.
[20] Applicant's Bundle of Documents, Attachment 3 - Transcript of 13 December 2023 Ordinary Council Meeting.
Further, Mr Costley says that during debate at this meeting two Councillors identified reasons for not supporting the development, which he submits were not a proper planning basis for refusal.[21] However, considering the Council debate,[22] I accept the City's submission that the comments of the Councillors were reasonable in the circumstances, because they evidence that the Councillors gave the merits of the application close consideration and that the matters referred to, being the suitability of the vegetative screen and relevant provisions of the RCodes, are relevant planning considerations.[23] Therefore, I do not accept Mr Costley's submission that the Council failed to genuinely attempt to make a decision on its merits at this meeting.
[21] Applicant's Submissions for Costs, paragraphs 10 - 11.
[22] Applicant's Bundle of Documents, Attachment 3 - Transcript of 13 December 2023 Ordinary Council Meeting and Respondent's Submissions Opposing Application for Costs, paragraphs 13 - 14 and paragraph 16.
[23] Respondent's Submissions Opposing Application for Costs, paragraphs 13 - 14 and paragraph 16.
Mr Costley also submits the approach adopted by Council at this meeting was contrary to r 3(1)(f) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (LGRCR) (repealed) that directs that council members should base their decisions on relevant and factually correct information and that insofar as it had statutory obligations it failed.[24]
[24] Applicant's Submissions for Costs, paragraph 13.
Two things can be said about this submission. Firstly, the LGRCR was repealed on 3 February 2021 by the Local Government (Model Code of Conduct) Regulations 2021 (WA) (LGMCCR) and so had no application at the time of the 13 December 2023 Council meeting. Secondly, even considering the relevant provisions of the replacement LGMCCR, the Council did not make a decision to determine the development application at this meeting.
The City acknowledges it is regrettable that no alternative motion was considered and identifies that this may have been caused by the lateness of the hour when the vote was taken on this item, being after 10.00 pm.[25] I accept that after 10.00 pm the City's meeting procedures require the Council to separately consider and determine if the meeting should be extended.[26] On 13 December 2023 the Council decided not to extend the meeting beyond 10.00 pm.[27]
[25] Respondent's Submissions Opposing Application for Costs, paragraph 19.
[26] Respondent's Submissions Opposing Application for Costs, paragraph 19.
[27] Applicant's Bundle of Documents, Transcript of 13 December 2023 Council Meeting.
However, if a Council meeting is not extended beyond 10.00 pm, as occurred here, in circumstances where no alternative motion is put forward for an item requiring determination of a development application, as also occurred here, good governance practice, in my view, obliges that the meeting be advised that the development application has not been determined and will, therefore, need to be relisted on the agenda of the next suitable Council meeting to enable a determination to be made as promptly as possible.
This is because the Deemed Provisions, at cl 75(1) provides timeframes that a local government 'must determine an application for development approval'. If a local government fails to make a determination in the time referred to in cl 75(1), cl 75(2) provides that 'the local government is to be taken to have refused to grant the development approval', more commonly known as a 'deemed refusal'. A deemed refusal does not, however, preclude a local government determining an application.[28]
[28] Deemed Provisions, cl 75(3).
Indeed, Mr Costley, on 20 December 2023, lodged his Application for Review with the Tribunal on the basis of 'seeking to have the deemed refusal overturned and the development application be approved'.[29]
Did the Council genuinely attempt to determine the application for development on its merits?
[29] Respondent's Submissions Opposing Application for Costs, paragraph 20 and Exhibit 2, Application for Review in DR194 of 2023.
When considering an application for costs, and in the context of this matter, I am, among other things, to have regard to s 87(4) of the SAT Act which states:
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 decisionmaker to make a decision on its merits;
(b)whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
Mr Costley's principal submission is that it is fair and reasonable for all costs he incurred from 20 December 2023 to be paid by the City because the City failed to consider, and closed its mind to, the merits of the development application, even when amended, and relies on s 87(4)(b) of the SAT Act.[30]
[30] Applicant's Submissions for Costs, paragraphs 38 - 39.
Mr Costley asserts that the City, through its Councillors, impermissibly failed to consider the application and the advice it had received from its own officers and contends the Council 'cannot take it upon themselves to form a view on matters outside their expertise'.[31] Further, he submits, Council became 'resolute and stout' in the defence of its original refusal and closed its mind to the application and the recommendation of its officers in support of approval.[32] Put simply, Mr Costley says the Council failed to:
(a)properly have regard to its own planning advice; and
(b)failed to consider the amended application on its merits.[33]
[31] Applicant's Submissions for Costs, paragraphs 25 and 42.
[32] Applicant's Submissions for Costs, paragraph 43.
[33] Applicant's Submissions for Costs, paragraph 45.
As to these alleged failures, I accept the City's submission that it is plainly incorrect that the Council is somehow bound to accept its officer's advice when considering the merits of an application. This is for two reasons.
Firstly, and as Mr Costley appears to acknowledge, the officer's report and recommendation constitute 'advice', albeit I accept, professional advice. A decision-maker, however, is not bound to follow that advice.
Secondly, a Council when considering the merits of an application must, as the decision-maker, independently exercise its own judgment in considering the application and coming to a position on the planning merits. To do otherwise may well be a failure to genuinely attempt to come to a decision on the merits and would itself, in my view, be contrary to the requirements in s 87(4)(b) of the SAT Act.
What is clear, in making its decision on 13 March 2024, the Council set out its three reasons for refusal. The City submits, and as I will come to explain, I accept, the reasons for refusal are consistent with the Council considering the application on its merits.
The first and second reasons, in my view, reflect a genuine consideration of the merits of the application and of relevant provisions of the Residential Design Codes Volume 1 (R-Codes). The first reason identifies concerns of the visual impact and the lack of sufficient setback of the development on one neighbour at No 49.
The second reason identifies concerns as to the adequacy of the landscape privacy screen and the impact of this on the visual privacy of the backyard of No 49. The need for this screen arises because of the reduction proposed by Mr Costley to the fence height, from 1.8 metres to 1.3 metres, along a part of the western boundary.
The third reason relates to the filling placed on the subject site and the suitability of the filling material used.
The first and second reasons, which relate to the R-Codes, identify aspects of the development that require the exercise of judgment and are, in my view, at least arguable either way. I accept that in the circumstances of this case, in the exercise of judgment of the merits, reasonable minds may differ and that the Council, in making its decision, genuinely attempted to make its decision on the merits.
Mr Costley also submits that s 87(4)(a) has application for the 13 December 2023 and 13 March 2024 Council meetings.[34] I do not accept there is any application of s 87(4)(a) for the 13 December 2023 Council meeting because Mr Costley had not commenced his proceeding in the Tribunal at that time. Therefore, the Council could not be required to 'enable and assist' the Tribunal on 13 December 2023.
[34] Applicant's Submissions in Reply, paragraphs 5 - 8.
As to the 13 March 2024 Council meeting, where the Council was invited by the Tribunal to reconsider its deemed refusal, it did so, refusing the application and giving three reasons. I have earlier concluded, at [39], the Council genuinely attempted to make this decision on the merits.
Mr Costley's costs claim fails
The decision-making of the Council, does not, in my view, give rise to a basis for the award of costs. This is because, considering the two reasons advanced by Mr Costley for the costs application, identified earlier at [10], firstly, the Council did not, in my view, fail to consider the merits of the application when it made its determination on 13 March 2024, or even at its meeting on 13 December 2023, when no decision was made.
The fact that the Council's decision was not supported by its own planners is not determinative that the merits of the application were not genuinely considered by the Council, because it is clear the Council considered the City officer's advice, but did not agree with it, and in doing so the Council set out three reasons for its decision.
As to this decision and the three reasons, I observe that Mr Costley asserts the Council took into account 'improper considerations' 'to reaffirm its original refusal'.[35] However, this submission does not rise to identify specific 'improper considerations'.
[35] Applicant's Submissions in Reply, paragraph 9.
In Argyle v State Administrative Tribunal [2022] WASC 317 at [87], her Honour Smith J observes that cl 67(2) of the Deemed Provisions provides the 'metes and bounds of the matters that a local government is to give due regard to, to the extent that in the opinion of the local government, those matters are relevant to the development the subject of the application'. The three reasons do not, in my view, fall outside the scope of the cl 67(2) matters. Even considering the debate at the Council meeting of 13 March 2024, this does not support Mr Costley's submission because the debate does not stray beyond what, in my view, are relevant cl 67(2) matters.[36] Therefore, I do not accept this submission.
[36] The YouTube link to this debate is provided in Applicant's Submissions for Costs, page 4, footnote 1.
Secondly, having not determined the application on 13 December 2023, the City did not, in my view, act unreasonably when, following mediation at the Tribunal and an invitation to reconsider its 'deemed refusal',[37] the Council made its determination on 13 March 2024. Further, I do not accept Mr Costley's submission this decision was made on 'substantially the same grounds as the initial development application'.[38] Reviewing the reasons for the Council's decision made on 7 September 2022,[39] it is plain those reasons relate to the original development and, in my view, differ in substance to the later reasons given by Council on 13 March 2024, where visual privacy was a reason.
[37] Invitation made under s 31(1) of the SAT Act.
[38] Applicant's Submissions for Costs, paragraph 2.2.
[39] Applicant's Bundle of Documents, Attachment 1 - Background and History, paragraph 10.
At the final hearing the three issues for determination, agreed by the parties, raised considerations under the R-Codes which required the exercise of judgment when considering specific design principles.[40] In these circumstances, and while I ultimately approved the development, there is nothing extraordinary about the Tribunal reaching a different view to that of the original decision-maker, after considering the submissions and the evidence available to me.
[40] See Original reasons at [12].
As his Honour Chaney J observed in Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20 at [50]:
The fact that the Tribunal reaches a different conclusion from an original decision-maker, does not, inevitably, lead to the conclusion that the original decision-maker failed to genuinely attempt to make a decision on the merits of the application. That is so even though the original decision-maker may have failed to properly or correctly apply the relevant criteria governing the exercise of its discretion.
Mr Costley also submits that the City's counsel 'was placed in the invidious position of having to justify a Council decision that was simply wrong and without basis',[41] and that '[t]his provides a proper basis for an order for costs'.[42]
[41] Applicant's Submissions for Costs, paragraph 28.
[42] Applicant's Submissions for Costs, paragraph 29.
However, the matter was, in my view, a genuine dispute on the planning merits of the development. Because the Tribunal's review proceedings are on the basis of a hearing de novo, s 27(1) of the SAT Act makes it plain that the hearing 'is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made'.
Consequently, the presentation of the City's case at the final hearing, which I observe included three issues for determination derived from two of the reasons for refusal given in the Council's decision of 13 March 2024, does not give rise to a basis for costs.
Mr Costley's submissions do not identify another aspect of the City's conduct which may provide a basis for the award of costs.
Considering the above, I am satisfied, and I find, that Mr Costley's application for costs is without merit and made without a proper basis. I will, therefore, dismiss his application.
The City's costs claim succeeds
The City seeks costs in the amount of $1,500 on the basis that Mr Costley's application for costs is without merit and should not have been made and that in these circumstances Mr Costley should pay the City's costs of defending the costs application.
The City points to the fact that when Mr Costley's counsel, Mr Houweling, raised the possibility of an application for costs in a letter of 17 September 2024, the City advised the following day, 'that in a generally costs-free jurisdiction the making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merits itself normally involves unreasonable conduct'.[43] The City relies on Aydogan and Town of Cambridge [2007] WASAT 19, at [48], in support of this position. The City reiterated this at the directions hearing on 18 October 2024 where the application for costs was programmed.[44]
[43] Respondent's Submissions Opposing Application for Costs, paragraph 38 and Annexure B.
[44] Respondent's Submissions Opposing Application for Costs, paragraph 39.
The City submits that notwithstanding that Mr Costley was put on notice that his application for costs was 'doomed to fail and would itself amount to unreasonable conduct', he persisted with his costs application.[45] The City says that in these circumstances Mr Costley's conduct was unreasonable and warrants an order that the City be compensated for having to defend the costs application.
[45] Respondent's Submissions Opposing Application for Costs, paragraph 40.
Mr Costley's 'Submissions in Reply' are silent in response to the City's costs claim.
As to the amount of costs claimed by the City, the City submits that counsel for the City, Mr Slarke, spent approximately 6.5 hours responding to the costs application which includes corresponding with Mr Houweling, attending the directions hearing on 18 October 2024 and reviewing Mr Costley's submissions and preparing the City's submissions. However, the City claims $1,500, which it says represents 3.1 hours work for a Senior Practitioner at the rate allowed under the SAT costs scale.[46] Considering this submission, I accept the costs claimed by the City are reasonable.
[46] Respondent's Submissions Opposing Application for Costs, paragraph 41.
I am satisfied, and I find, that the City's claim for costs succeeds. This is because, considering my earlier finding as to Mr Costley's costs application, I found at [53], it is without merit and made without a proper basis. Therefore, his conduct in making the costs application is itself, I find, unreasonable. Accordingly, I will award costs of $1,500 to the City for having to defend the costs claim.
For these reasons the Tribunal makes the following orders.
Orders
The Tribunal orders:
1.The Applicant's application for costs is dismissed.
2.The Applicant is to pay the Respondent's costs fixed at $1,500 within 60 days of the date of this order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR R Povey, MEMBER
7 JANUARY 2025
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