DANNI and TOWN OF CAMBRIDGE
[2023] WASAT 123
•11 DECEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: DANNI and TOWN OF CAMBRIDGE [2023] WASAT 123
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 11 DECEMBER 2023
FILE NO/S: DR 32 of 2023
BETWEEN: KEVIN DANNI
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Practice and procedure - Town planning - Costs - Failure to genuinely attempt to make a decision on the merits
Legislation:
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 31, s 87(1), s 87(2), s 87(3), s 87(4), s 87(4)(b)
Result:
Costs awarded to the Applicant
Respondent's costs application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel [2017] WASAT 138; (2017) 93 SR (WA) 86
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90
Madame Ma's Proprietary Ltd and City of Perth [2019] WASAT 131 (S)
McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9
Ransburg Pty Ltd and City of Bayswater [2016] WASAT 43 (S); (2017) 92 SR (WA) 230
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S); (2005) 41 SR (WA) 207
Vespoli and City of Stirling [2013] WASAT 161
Walsh and Shire of Peppermint Grove [2009] WASAT 46 (S)
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 to which I find as follows.
Kevin Danni (Applicant) together with his wife Natalie, own 38 Bendigo Way, City Beach (Subject Land). They purchased the Subject Land in February 2020. In July 2022, the terracotta roof of the dwelling on the Subject Land was damaged during a severe storm. The Applicant's insurance company gave 90 days to enact repairs to the roof, otherwise the insurance would lapse.
However, the Applicant's builder advised that the damaged roof was beyond repair and needed to be replaced. In October 2022, the Applicant applied to the Town of Cambridge (Town or Respondent) for a building licence for a replacement roof. The Town's staff advised that development approval was required for the new roof (being 'Surfmist' Colorbond) because it exceeded the deemed-to-comply maximum roof reflectivity requirements of Local Planning Policy 3.21: Local Law 43: Building on Endowment Lands and Limekilns Estate (Local Law) and Local Planning Policy 3.1: Streetscape (Local Policy).
Neither the Applicant nor his builder were aware of either the Local Law or the Local Policy.
On 15 November 2022, the Applicant lodged an application for development approval for the new roof (Proposed Development). The Proposed Development was supported by the Town's professional staff and no objection was raised from the 16 neighbouring properties contacted during the assessment process. Solar panels were also proposed which would further negate any issues with excessive glare. The Applicant made it clear to councillors that the matter was urgent because the roof was damaged and not secure. It is also the case that the (then) mayor lived approximately 100 metres away from the Subject Land and would ultimately, but not initially, declare a proximity interest.
Nevertheless, the Development Committee of the Town recommended that the Proposed Development be refused at its meeting on 6 February 2023. At the subsequent full Council (Council) meeting on 21 February 2023, the Town decided neither to refuse nor approve the Proposed Development.
Incredibly, having regard to the pressing context which I have detailed above, and which is uncontested, the Town's decision was to defer the Proposed Development so that, in effect, the Local Law could be reviewed, and a formula could be developed to control glare and reduce the impact of coloured roofs on surrounding residents.
The Council minutes record that:[1]
During discussion, Mayor Shannon foreshadowed that she intended to move that the item be deferred to enable the Administration to review Local Law 43 and come up with a formula to control glare and reduce its impact on surrounding residents.
[1] Applicant's Bundle of Documents dated 20 October 2023 (Applicant's Second Bundle), page 84.
The Council ultimately resolved:[2]
That Council DEFERS the item relating to Lot 195 (No 38) Bendigo Way, City Beach.
[2] Applicant's Second Bundle, page 84.
On Friday 24 February 2023, the Town's planning manager sent an email where she explained that the Applicant was trying to get some kind of timeframe on when the Council may make a decision. Her email reads:
I have called Kevin and told him that he would need to get his own advice from here. He was trying to say Council had to give him a timeframe for the decision, but I told him they hadn't and that was the end of the decision.[3]
[3] Applicant's Bundle of Documents dated 9 October 2023, page 8 (Applicant's First Bundle).
Because there was no determination by the Town, or any indication as to when one might be made, the Applicant had to apply to the Tribunal for a review and spent approximately $9,220 on a planning consultant throughout the process. He also says he has suffered increased building and construction costs resulting from the delays. In addition, the dwelling sustained internal damage as a result of the roof not being secure during the winter months.
While the substantive matter was resolved relatively promptly by way of a reconsideration, provided for by orders made under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Applicant, unsurprisingly, is most displeased with how the Town dealt with the Proposed Development. Through the review process, the placement of the solar panels was adjusted and, as I understand it, there was an agreement on the question of the street trees. Ultimately, the Town approved the Proposed Development on 27 June 2023.
The Applicant now seeks costs and claims compensation as a result of the Town's conduct. Those costs range from the cost of his planning consultant to damages arising from increased building costs, as well as costs for 'inconvenience'. The total amount claimed is $79,874.05.
The Town, somewhat surprisingly, also seeks its costs from the Applicant on the basis that it says the costs application lodged by the Applicant itself constitutes unreasonable conduct. The Town seeks $12,848 in this regard.
Based on the materials that I have reviewed in dealing with the question of costs, it is apparent that this matter has become something of a saga to both parties, particularly the Applicant. As I will come to explain, the Applicant's frustration, even outrage, at what has occurred is hardly surprising. His outrage and frustration is certainly justified.
Having regard to this background, I have therefore dealt with this costs application as promptly as I can, so that all parties can move on.
For the following reasons, the Town's claim for costs should be dismissed. The Applicant's claim for costs succeeds in part. The Town should pay the Applicant $9,220 as a result of its conduct in making the reviewable decision.
Costs in the Tribunal
It is trite law that the starting point is that each party will bear their own costs in a review proceeding.[4] However, I retain a residual discretion to make an order for costs if I am satisfied it is appropriate.[5] 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.
[4] 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).
[5] SAT Act, s 87(2).
In Questdale, 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.[6]
The making of the reviewable decision
[6] Questdale [49].
I must say that I find that the Town's decision, being the reviewable decision, in the context in which the Proposed Development was put forward, was staggering. That is not to say that the Town had to blindly support the Proposed Development because it was regarded, by the Applicant at least, as urgent. It was, after all, a discretionary decision.
The Town was entitled, indeed required, to evaluate the Proposed Development in the light of the applicable planning framework and the surrounding circumstances.
However, those surrounding circumstances included a roof damaged by a storm and landowners trying to urgently put in place a new roof to maintain their home insurance and where no objection had been raised from the 16 surrounding residents, even though the glare from the proposed 'Surfmist' roof exceeded the deemed-to-comply glare rating under the Local Law. It was also the case that the Town had dealt with this roof colour in other developments in City Beach.
While it may well have been a discretionary decision of an administrative nature, the Town was nevertheless required, at least for the purposes of s 87(4)(b) of the SAT Act, to genuinely attempt to make a decision on the merits.
I find that in the context that the Proposed Development was made, the Council's decision to defer consideration for an unspecified period, so that the Town may work towards some kind of new formula to manage glare from reflective roofs, was unsatisfactory.
It was almost certainly somewhat capricious. I say that because by the time the Town came to formally consider the matter at the Council meeting on 21 February 2023, professional staff had visited the Subject Land and would have observed the state of the roof which, based on the photographs that have been provided by the Applicant, looked like it was being held together, only just, by plastic tarpaulin supported by beams of wood literally placed across it.
Furthermore, it should have been apparent to everyone that an indefinite deferral of the Proposed Development would have meant that there was no resolution, nor any certainty as to a timeframe in which there might be a resolution, as to the Applicant's legitimate need to secure his roof as the winter months approached.
As stated, I find that the Town's decision on 21 February 2023 was not a genuine attempt to make a decision on the merits of the Proposed Development. Rather it was a decision which suggested that the Town considered it had a lacuna in its policy framework and that it should defer applications for new roofs that exceeded the glare requirements of its Local Law, until it had filled that policy void. Such an approach was unreasonably insouciant to the Applicant's circumstances and can hardly be regarded as satisfactory administrative decision-making.
Now, of course, the Town is entitled to identify issues to consider that may arise in the context of development applications that are lodged, and it may well decide that new policies or local laws are required or that the existing framework may well need to be considered, even urgently.
The question of how 'reactive' policies may apply to the applications which promoted their preparation (or revision) has been addressed in previous decisions of the Tribunal.[7] However, that question is not currently before me.
[7] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187; see also McCabe Street Joint Venture and City of Fremantle [2009] WASAT 37; (2009) 61 SR (WA) 9 [87] - [89], Vespoli and City of Stirling [2013] WASAT 161 [41] - [45] and Georgiou Property 2 Pty Ltd and Presiding Member of the Metro West Joint Development Assessment Panel [2017] WASAT 138; (2017) 93 SR (WA) 86 [61]. But see: Sharon Property Pty Ltd and Presiding Member of the Metro Inner-North Joint Development Assessment Panel [2021] WASAT 63 [360] - [366].
Coming back to the making of the reviewable decision, what was, I find, unacceptable, having regard to the particular context of this matter, was for the Town to simply defer an application indefinitely to allow the Town to, as it were, 'get its house in order' before making any kind of decision on the merits of the Proposed Development. Simply deferring future consideration of the Proposed Development (in effect, 'kicking the can down the road') until the Town had what it regarded as a better policy framework in place, is not a genuine attempt to make a decision on the merits.
I turn, next, to consider, and assess, the costs that are claimed by the Applicant.
The costs/compensation application
The costs claimed by the Applicant are neatly summarised as follows:
(a)Allerding & Associates costs (including SAT Application fees), $9,220.05;
(b)Building costs for being on standby, fixed price for reasonable time, $23,980;
(c)Roof insulation replacement cost; damp insulation due to rainwater leaks from roof damage, $5,130;
(d)Solar panels: unable to place order, as no roof on which to install, $5,850;
(e)Damages to home during winter of 2023 where roof was not fixed, ceilings and cornices, roof battens, walls paint, estimate $25,000;
(f)Inconvenience due to living in stressful conditions, uncertainty as to when problem would be fixed, and uncomfortable during storms, $4,750;
(g)Further inconvenience as Town did not follow the Model Litigant for Civil Litigation Policy, $4,000;
(h)Applicant's total hours spent for 'unnecessary' mediation, $250; and
(i)Compensation for a condition for street trees which was imposed for an improper purpose, $1,694.
Total: $79,874.05.
Consideration of the Applicant's claim
Items (b) to (g) of the claim fail
It may immediately be said that items (b) through to (g) are not of a kind that may be awarded as costs under the SAT Act.
While s 87(3) of the SAT Act does refer to a power to awards costs for any 'expenses, loss, inconvenience or embarrassment' resulting from the proceedings, the Tribunal has not interpreted s 87(3) as a power to, in effect, award tortious damages against a party.
For example, in Springmist Pty Ltd and Shire of AugustaMargaret River (Springmist),[8] the Tribunal, after examining the operation of similar legislation in the Victorian Civil and Administrative Act 1998 (Vic) stated:
64The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal. For example, the costs may include the costs of a non lawyer advocate, the expenses of a party having to travel to a hearing or some amount which compensates a party for the inconvenience or expense of its participation in the proceedings.
65Section 87(3) does not provide a basis upon which compensation, in the nature of damages, can be awarded because of some negligence or failure on the part of the decision-maker to perform its function diligently and timeously, or because a decisionmaker's conduct falls short of the usual expectations of those who seek some consent, approval or permit.
[8] Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S); (2005) 41 SR (WA) 207.
Springmist is authority for the proposition that costs 'in connection with the conduct of the proceedings before the Tribunal' are recoverable such as, for example, costs of representation and travel expenses. However, claims for consequential losses do not fall within the scope of s 87(3) of the SAT Act.[9]
[9] Springmist [54], [59] and [65].
In Walsh v Shire of Peppermint Grove (Walsh),[10] the Tribunal explained that:
67The Tribunal, with respect, adopts the findings of the Tribunal in respect of s 87(3) of the SAT Act in Springmist. That is, s 87(3) of the Act explains that costs 'in the proceeding' can be covered, but does not extend to damages beyond the hearing[,] such as loss of enjoyment, stress experienced and inconvenience because the hearing has been commenced and includes the interveners.
68The Tribunal finds that, consistent with the findings in Springmist, s 87(3) of the SAT Act does not provide the applicants with a basis for compensation for the personal suffering they have identified.
[10] Walsh and Shire of Peppermint Grove [2009] WASAT 46 (S).
I agree with the Tribunal's analysis from Springmist and Walsh that s 87(3) of the SAT Act does not allow for recovery of the construction costs, even increased costs, that may have flowed from the making of the reviewable decision. The Town was not privy, nor a party, to the commercial arrangements that the Applicant had agreed to in relation to the new roof.
It is also the case that the roof that the Applicant selected did, as a matter of fact, exceed the deemed-to-comply requirements of the Local Law. The Town is not responsible, nor can it be made accountable, for that decision. In my view, s 87(3) of the SAT Act is not a basis on which the Town can be made to be liable to, in effect, meet the Applicant's costs for the construction of the new roof. In my view, such costs are too remote from the making of the reviewable decision.
Likewise, s 87(3) is not a basis to award compensation for inconvenience nor does it provide an avenue for what are, in effect, consequential damages arising from the delay in securing the new roof. They are not costs borne by the Applicant in the conduct of the proceeding in the sense explained in Springmist.
Item (h) of the claim fails
In terms of the Applicant's claim for costs for his own time, I agree with the analysis in Madame Ma's Pty Ltd and City of Perth,[11] where the Tribunal set out, in the context of where a party, in effect, chooses to represent itself, their costs of doing so are not recoverable. The Tribunal explained:
… Apart from some (minor and somewhat rare) exceptions not relevant to these proceedings, such as that found in s 87(3) of the SAT Act, a party who represents himself or herself in the Tribunal will not be granted costs for his or her own time preparing and presenting his or her case (this includes a Director of a company). Even if the Tribunal was minded to exercise its discretion to award costs in favour of the applicant, none of Ms Gorman's costs as claimed can be, or would be, granted by the Tribunal in the circumstances.
Item (a) of the claim succeeds
[11] Madame Ma's Proprietary Ltd and City of Perth [2019] WASAT 131 (S) [24].
Section 87(4) of the SAT Act supports the Applicant's claim for its costs in having to engage a professional planning consultant.
As (then) President Chaney explained in Springmist, where it is the decision-maker against whom a costs order is sought, the Tribunal is, pursuant to s 87(4)(b), to have regard to whether the decision-maker genuinely attempted to make a decision on its merits. That subsection identifies, without limiting other matters that may be considered in the exercise of discretion, one factor which the Tribunal is required to consider where costs are claimed against a decision-maker in the Tribunal's review jurisdiction.
Section 87(4) necessarily involves an examination of the parties conduct prior to commencement of the application for review.[12]
[12] However, that requirement would also apply to an invitation to reconsider made pursuant to s 31 of the SAT Act. See, for example, Ransburg Pty Ltd and City of Bayswater [2016] WASAT 43 (S); (2017) 92 SR (WA) 230.
The point is illustrated by the Tribunal's decision in Leseur Investments Pty Ltd and City of Melville,[13] where the Tribunal made an order for payment of costs under s 87(2) of the SAT Act on the basis that the respondent had failed to properly consider the application on its merits. In reaching that conclusion, the Tribunal examined the history of the application before the original decision-maker, and in particular the factors to which it appears to have had regard in reaching its decision. Having reached its conclusion, the Tribunal ordered that the respondent pay the applicant's costs of $1,500, which represented the costs of the applicant's agent in conducting the proceedings.
[13] Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90.
Likewise in J & P Metals Pty Ltd and Shire of Dardanup,[14] the Tribunal awarded costs against the Shire on the basis that it refused a proposed development for a landfill facility solely on the basis that there was some community opposition, rather than evaluating the proposal on its merits. The Tribunal ordered that the Shire pay $10,288 in costs.
[14] J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282.
In this instance, I have found that the Town did not genuinely attempt to make a decision on the merits. Rather, it instead charted a course to enable it to further consider the matter, at some future, but unspecified, time, once it had what it considered a suitable policy framework in place.
After the Council meeting on 21 February 2023, the Town's staff ceased assisting the Applicant and reiterated there was no set timeframe in which the Council would further consider the Proposed Development. The Town also advised him he needed to seek his own advice. At that point, the Applicant had little choice other than to engage his own professional advice and to lodge an application for review.
In the circumstances of this case, I find that the Town's conduct should attract a costs order under s 87(2) of the SAT Act.
Let me be clear, I am not saying that the Town should have exercised its discretion any particular way on 21 February 2023 (although I consider the Applicant's case was somewhat compelling given the absence of objections, the fact that Surfmist Colorbond had been approved by the Town on other roofs in City Beach, the lack of objections from surrounding residents, the proposed placement of solar panels on the roof and conditions requiring the planting of new street trees that would further limit any impacts from glare) but it actually needed to genuinely grapple with the merits of the application. I find it did not. It follows that I do not accept the Respondent's submissions to the contrary.
I have reviewed the invoices issued and paid by the Applicant's planning consultants throughout the review process which culminated in a successful reconsidered decision. Those costs include preparing and lodging the application for review, multiple liaisons with the Town and the Applicant, preparing for and attending mediation as well as directions hearings. In the circumstances of this case, I find that these costs should be recovered entirely by the Applicant, including the costs of the SAT application fee.
Those costs equate to $9,220.05.
Item (i) of the claim fails
That leaves the trees. The Applicant has used his costs application as a vehicle to complain about the cost of the trees he was required to provide under a condition attached to his approval. He says the trees were already dead. If there was an issue with that condition, it should have been challenged. As a matter of principle, it is not appropriate to comply with a condition and then seek to recover costs at a later point on the basis that it ought not have been imposed.
Furthermore, the street trees were, it seems, evidently required to attempt to manage glare from the new roof as viewed from the street. That condition, based on the limited information that is before me, is not likely to be regarded as unreasonable given the issue of glare.
The Town's costs application fails
I find that the Town's application for costs should be dismissed. The Applicant had every right to be very disappointed in how these events transpired.
Furthermore, in these reasons, I have not discussed in detail the Town's proposal, which it seems was put to the Applicant, to coat the roof to reduce glare in circumstances where the Town's staff knew that to do so would void his roof warranty.[15] I must say some of the documents obtained by the Applicant under freedom of information (FOI) do not, on their face, read terribly well for the Town's staff. However, there is insufficient information available to me to be able to discern the full context for these discussions, particularly as they occurred through the mediation process. Nevertheless, from reviewing these documents, I can well understand the Applicant's outrage with how he has been treated.
[15] Applicant's First Bundle, page 9.
In any event, as I have explained, the Town failed to genuinely attempt to make a decision on the merits.
In my view, the Applicant was entitled to make a claim for costs. The fact that in doing so he claimed costs and damages well outside what may properly be recovered under the SAT Act is not, in the context of this case, conduct which should attract an adverse costs order.
Some final comments
These reasons should not be read as suggesting that decisionmakers are not entitled to, on occasion, defer matters for further consideration at a later point. In all cases, it depends on the circumstances of the case in question.
However, in the context of this proceeding, I find that the approach taken by the Town, was cold-heartedly indifferent to the Applicant's circumstances. A decision to indefinitely defer consideration of the Proposed Development, to allow the Town to, in effect, consider and revise its policy framework, should, I find, properly attract sanction.
It is also appropriate that I comment on the Applicant's criticism of Mr Algeri who, he considers, has acted unethically. I find that is not so.
The Applicant obtained information (under FOI) relating to advice given by Mr Algeri to the Town at the time he was engaged. In those communications, Mr Algeri gave blunt and fearless advice, the effect of which was that the Proposed Development was not objectionable and that the Tribunal processes would allow the Town to properly make a decision on the merits. Having regard to his view on the merits, he also advised that he would not be of assistance to the Town in the event of a final contested hearing.
It was Mr Algeri, as advocate, who was ultimately able to persuade the Council to actually make a decision on the merits of the Proposed Development. Mr Algeri succeeded where the Town's professional staff had not. While it is true that the mediation and reconsideration process did take some time, Mr Algeri should be commended here, not criticised. The Applicant must also appreciate that Mr Algeri was acting for the Town in these proceedings and was required to act consistent with his instructions. My decision to award costs against the Town in no way reflects on Mr Algeri's efforts in this matter.
As for the Town, and particularly its residents, all I can say is that one only hopes that these events were an unfortunate anomaly and not indicative of the general manner in which those who seek development approval are treated.
Orders
The Tribunal orders:
1.The Respondent is to pay the Applicant's costs fixed at $9,220.05 within 60 days of the date of this order.
2.The Respondent's application for costs is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
11 DECEMBER 2023
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