CROWN CASTLE AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2008] WASAT 162 (S)
•16 JULY 2008
CROWN CASTLE AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 162 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 162 (S) | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:426/2007 | 8 JULY 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 16/07/08 | |
| 11/08/08 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application for costs refused | ||
| B | |||
| PDF Version |
| Parties: | CROWN CASTLE AUSTRALIA PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
| Catchwords: | Costs Town planning Subdivision Infrastructure lot Applicant elected that no party be represented by a lawyer President formed opinion that application is likely to raise complex or significant planning issues President subsequently directed that each party may be represented by a lawyer Whether President was misled by overstating nature and scale of planning issues |
| Legislation: | Planning and Development Act 2005 (WA), s 238, s 239 State Administrative Tribunal Act 2004 (WA), s 9(b), s 87 |
| Case References: | Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246 Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162 Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 |
| Orders | 1. The application for costs is dismissed. |
| Summary | A successful applicant in a planning review applied for an order that the respondent pay all or part of its legal costs of the proceedings. The applicant had elected that neither party may be represented by a lawyer. However, on the respondent's application, the President of the Tribunal directed that each party may be represented by a lawyer.,The applicant argued that the respondent had misled the President by overstating the nature and scale of the planning issues in the proceedings. It also argued that legal representation did not advance the matter.,The Tribunal determined that it should not depart from its usual practice in review proceedings under which normally each party should bear its own costs of the proceedings. The President had formed the opinion that the application was likely to raise complex or significant planning issues prior to the application by the respondent for a direction that the parties may be legally represented. Furthermore, the application did raise complex or significant planning issues, although the arguments as ultimately advanced at the hearing did not entirely accord with the contentions foreshadowed in the respondent's application to the President. Finally, the applicant chose, but was not compelled, to be represented by a lawyer.,The application for costs was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CROWN CASTLE AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 162 (S) MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR L GRAHAM (SENIOR SESSIONAL MEMBER)
DECISION : 11 AUGUST 2008 FILE NO/S : DR 426 of 2007 BETWEEN : CROWN CASTLE AUSTRALIA PTY LTD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Costs - Town planning - Subdivision - Infrastructure lot - Applicant elected that no party be represented by a lawyer - President formed opinion that application is likely to raise complex or significant planning issues - President subsequently directed that each party may be represented by a lawyer - Whether President was misled by overstating nature and scale of planning issues
(Page 2)
Legislation:
Planning and Development Act 2005 (WA), s 238, s 239
State Administrative Tribunal Act 2004 (WA), s 9(b), s 87
Result:
Application for costs refused
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Ms MJ Paterson with Mr H Leith
Solicitors:
Applicant : Self-represented
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246
Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206
(Page 3)
Summary of Tribunal's decision
1 A successful applicant in a planning review applied for an order that the respondent pay all or part of its legal costs of the proceedings. The applicant had elected that neither party may be represented by a lawyer. However, on the respondent's application, the President of the Tribunal directed that each party may be represented by a lawyer.
2 The applicant argued that the respondent had misled the President by overstating the nature and scale of the planning issues in the proceedings. It also argued that legal representation did not advance the matter.
3 The Tribunal determined that it should not depart from its usual practice in review proceedings under which normally each party should bear its own costs of the proceedings. The President had formed the opinion that the application was likely to raise complex or significant planning issues prior to the application by the respondent for a direction that the parties may be legally represented. Furthermore, the application did raise complex or significant planning issues, although the arguments as ultimately advanced at the hearing did not entirely accord with the contentions foreshadowed in the respondent's application to the President. Finally, the applicant chose, but was not compelled, to be represented by a lawyer.
4 The application for costs was dismissed.
Introduction
5 Crown Castle Australia Pty Ltd (Crown) has made an application under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for an order that the Western Australian Planning Commission (Commission) should pay all or part of Crown's legal costs incurred in the proceedings. Although Crown was legally represented at the substantive hearing in the proceedings, it made the application for costs itself in a letter dated 1 August 2008. It does not appear that the letter was copied to the Commission. However, as it is clear that the application for costs should be dismissed, and in order to minimise further costs to the parties (SAT Act s 9(b)), the Tribunal has proceeded to determine the costs application.
(Page 4)
Background
6 The proceedings concerned a subdivision application to create a small infrastructure lot to accommodate an existing telecommunications facility and to enable the facility to be expanded by the co-location of other communications providers. The hearing of the proceedings took place on 8 July 2008 and on 16 July 2008 the Tribunal published reasons for decision in which it granted conditional subdivision approval - see Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162.
7 In its application for review filed on 12 December 2007, Crown elected pursuant to s 239(1) of the Planning and Development Act 2005 (WA) (PD Act) that no party to the application is to be represented by a lawyer. Crown was entitled to make this election, because the application to the Tribunal was for review of the determination of an application for approval to subdivide a lot into not more than three lots: see PD Act s 238(3)(a)(iii). For this reason, also, s 238(3) of the PD Act provides that, subject to the exception that we will refer to in the next sentence, the Tribunal is to be constituted by an ordinary member sitting alone when dealing with these proceedings. However, both the "no lawyer" election made by Crown and the requirement and limitation for composition of the Tribunal can be overridden by the President if the President is of the opinion that the application is likely to raise complex or significant planning issues: PD Act s 239(2)(a) and s 238(4).
8 On 11 March 2008, Member Marie Connor conducted a mediation in the proceedings, adjourned the proceedings for further mediation and also listed the matter for final hearing on 24 April 2008. It appears, both from an order made by Member Connor requiring that three copies of all documents must be filed and from a letter from Crown's consultant town planner, Mr Joe Algeri, to the President dated 20 March 2008, that there was agreement at the mediation that, in consequence of the issues in the proceedings, the Tribunal would comprise a panel consisting of two members at the final hearing. In his letter dated 20 March 2008, Mr Algeri clarified that it was his understanding from Member Connor that the Tribunal would consist of a two member panel that would include a legal practitioner at the final hearing. The Tribunal could not be constituted in this way unless the President formed the opinion that the application is likely to raise complex or significant planning issues.
9 On 13 February 2008, Ms Connor advised the President that the application raises significant planning issues and suggested that he should form the opinion under s 238(4) of the PD Act that the application is likely to raise complex
(Page 5)
- or significant planning issues so that the Tribunal can comprise the two members who ultimately conducted the hearing. On 14 February 2008, the President formed this opinion and constituted the Tribunal to comprise the relevant members.
10 It appears that at a further mediation on 6 March 2008, Member Connor informed the parties that the two member listing had been confirmed. On 19 March 2008, the secretary of the Commission wrote to the President requesting that he direct, in accordance with s 239(2)(a) of the PD Act, that each party may be represented by a lawyer. The letter referred to the Commission's statement of issues, facts and contentions filed on 12 March 2008 and then stated as follows:
In the [Commission]'s view, resolution of this matter raises significant planning issues in that it will necessarily require consideration of whether it is appropriate for a freehold lot to be created for the purpose of accommodating private infrastructure. Further, matters of this nature do not regularly arise and any precedent created by the Tribunal's decision may have far-reaching implications for the State.
11 By letter addressed to Ms Catherine Ide of the State Solicitor's Office dated 31 March 2008, the President advised that:
As I am of the opinion that the application is likely to [involve] complex or significant planning issues, I direct that in accordance with section 239(2)(a) of the Planning and Development Act 2005 the parties may be represented by a legal practitioner.
12 The President confirmed that the matter was listed for hearing on 24 April 2008 before a panel comprising a legally-qualified senior member and an ordinary member who is a town planner.
13 On 11 April 2008, the hearing date of 24 April 2008 was vacated and the proceedings were listed for final hearing on 3 July 2008. The hearing date was subsequently changed administratively to 8 July 2008.
Application for costs
14 Crown contends that the Commission "misled the President and the Tribunal by overstating the true nature and scale of the planning issues". Crown contends that legal representation "did not advance the arguments before the Tribunal but it did significantly add to the cost of the review". Crown also notes that, at the commencement of the hearing on 8 July 2008, the Commission advised the Tribunal that it would not contend that the subdivision application
(Page 6)
- should be refused on the basis that it would create an adverse planning precedent.
15 Section 87(1) of the SAT Act provides that, unless otherwise specified in that Act, the enabling Act or an order of the Tribunal, parties bear their own costs in Tribunal proceedings. However, 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 unless otherwise specified in an enabling Act. The relevant enabling Act, the PD Act, does not restrict the discretion conferred by s 87(2) of the SAT Act.
16 However, the Tribunal's established practice in relation to the exercise of its discretion as to costs in review proceedings is that normally each party should bear its own costs of the proceedings: 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.
17 The Tribunal does not consider that it should depart from its usual practice in relation to costs in the circumstances of this case.
18 The President had formed the opinion that the application is likely to raise complex or significant planning issues before the Commission's application that he direct that the parties may be legally represented. The President did not, therefore, form that opinion on the basis of the Commission's letter of 19 March 2008.
19 Furthermore, the Commission did not mislead the President in relation to the nature and scale of the planning issues. The proceedings certainly involved complex and significant planning issues. Although the key issues as ultimately articulated and argued at the final hearing were expressed differently to the first sentence in the extract from the Commission's letter set out earlier, the issues and arguments presented at the hearing reflected the statement of issues, facts and contentions and involved issues of importance for the State.
20 The Commission did not act unreasonably in indicating at the commencement of the hearing that it would not press an argument of adverse planning precedent. This was an appropriately made concession having regard to the evidence. The making of this concession at this time did not materially alter the length of the hearing. The hearing focused on four substantive planning issues in relation to which there was a genuine dispute.
(Page 7)
21 Finally, we note that the President directed that each party may be represented by a lawyer, but did not compel either party to be legally represented. It was open to Crown not to retain lawyers in the proceedings. It is not unusual in the Tribunal for a party to represent itself or to be represented by an agent, such as a consultant town planner, in circumstances where the other party is legally represented. Having said that, the Tribunal was assisted in the determination of the proceedings by the involvement of both parties' legal representatives.
22 It follows that the application for costs should be dismissed.
Order
23 The Tribunal makes the following order:
1. The application for costs is dismissed.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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