Drake and City Of South Perth and Anor
[2005] WASAT 271 (S)
•14 OCTOBER 2005
DRAKE and CITY OF SOUTH PERTH & ANOR [2005] WASAT 271 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 271 (S) | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:327/2004 | 6 AND 9 SEPTEMBER 2005 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 14/10/05 | |
| 9/12/05 | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for costs dismissed | ||
| B | |||
| PDF Version |
| Parties: | BARRIE M DRAKE CITY OF SOUTH PERTH BENITTA PANIZZA |
Catchwords: | Costs Ministerial referral of representations to Tribunal for report and recommendations under Town Planning and Development Act 1928 (WA) s 18(2a) Applicable principles Whether partial or complete success warrants costs order |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 17(1), s 60(2), s 87(2) Town Planning and Development Act 1928 (WA), s 10(3), s 18(2a), s 18(2b), s 18(2c) |
Case References: | Citygate Properties Pty Ltd and City of Bunbury [(2005) 38 SR (WA) 246] Drake and City of South Perth & Anor [2005] WASAT 128 Drake and City of South Perth & Anor [2005] WASAT 271 Lakes Action Group Association (Incorporated) and Shire of Northam & Anor [2005] WASAT 185(S) Nil |
Orders | The applicant's application for the payment of his costs of the proceedings by the first respondent and by the second respondent is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : DRAKE and CITY OF SOUTH PERTH & ANOR [2005] WASAT 271 (S) MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 6 AND 9 SEPTEMBER 2005 DELIVERED : 14 OCTOBER 2005 SUPPLEMENTARY
DECISION : 9 DECEMBER 2005 FILE NO/S : DR 327 of 2004 BETWEEN : BARRIE M DRAKE
- Applicant
AND
CITY OF SOUTH PERTH
First Respondent
BENITTA PANIZZA
Second Respondent
Catchwords:
Costs Ministerial referral of representations to Tribunal for report and recommendations under Town Planning and Development Act 1928 (WA) s 18(2a) Applicable principles Whether partial or complete success warrants costs order
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Legislation:
State Administrative Tribunal Act 2004 (WA), s 17(1), s 60(2), s 87(2)
Town Planning and Development Act 1928 (WA), s 10(3), s 18(2a), s 18(2b), s 18(2c)
Result:
Application for costs dismissed
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
First Respondent : Mr CA Slarke
Second Respondent : Mr J Colliere (Agent)
Solicitors:
Applicant : Hardy Bowen
First Respondent : McLeods
Second Respondent : Self-represented
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [(2005) 38 SR (WA) 246]
Drake and City of South Perth & Anor [2005] WASAT 128
Drake and City of South Perth & Anor [2005] WASAT 271
Lakes Action Group Association (Incorporated) and Shire of Northam & Anor [2005] WASAT 185(S)
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The Minister for Planning and Infrastructure referred representations concerning alleged noncompliance with a town planning scheme to the Tribunal for its report and recommendations. The Tribunal reported that the representations were wellfounded and recommended that the Minister require the City to direct a landowner to demolish part of a building and to make other alterations. The representor applied for an order that the City and the landowner pay his costs of the proceedings.
2 The Tribunal refused the costs application. The discretion to award costs is to be exercised in the same way as in ordinary review proceedings. Parties usually bear their own costs of such proceedings. Partial or complete success does not in itself warrant a costs order.
Costs application
3 Mr Barrie Drake has made an application under s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for an order that the City of South Perth and Ms Benitta Panizza pay his costs of the proceedings. Section 87(2) provides that, unless otherwise specified by an enabling Act, "the Tribunal may make an order for the payment by a party of all or any of the costs of another party … ".
4 The proceedings involved a referral by the Minister for Planning and Infrastructure, the Hon Alannah MacTiernan, of representations made by Mr Drake to her for the Tribunal's report and recommendations under s 18(2a) of the Town Planning and Development Act 1928 (WA) (TPD Act). The Tribunal determined that part of Mr Drake's representations fell outside the ambit or scope of s 18(2) of the TPD Act: see Drake and City of South Perth & Anor [2005] WASAT 128 (Drake No 1). However, the Tribunal was satisfied that Mr Drake's contention that a building which had been erected at No 11 Heppingstone Street, South Perth had a plot ratio in excess of 0.66 fell within the scope of the legislation, as the City had imposed a condition of planning approval which required that the building be modified to comply with that plot ratio. This aspect of the representations was the subject of a final hearing.
5 The Tribunal found that the building was in breach of the condition and had a plot ratio of 0.78: see Drake and City of South Perth & Anor [2005] WASAT 271 (Drake No 2). It found that the City failed to enforce effectively, or at all, the observance of the town planning scheme for
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- which it was the responsible authority. The Tribunal recommended that the Minister order the City to direct the owner, Ms Panizza, to demolish part of a masonry section which enclosed a terrace, and to make other physical alterations to "lobby" areas and to an "equipment store", within six months.
6 The Tribunal made orders for the filing of written submissions in relation to the costs application and for the determination of the application on the documents pursuant to s 60(2) of the SAT Act. Submissions were received from Mr Drake, the City, and Mr Drake in reply. Ms Panizza did not file any submissions.
Parties' submissions
7 Mr MJ Hardy makes essentially three submissions in support of the application for costs. First, he contends that "in essence" the representations made by his client were supported by the Tribunal in circumstances where the City and Ms Panizza actively resisted his claim. In reply, Mr CA Slarke, counsel for the City, notes that part of Mr Drake's representations were found to fall outside the scope of the legislation and that Mr Drake did not succeed in arguments put to the Tribunal that a number of terraces and store rooms were included within plot ratio or that significant parts of the building should be demolished. Mr Slarke submits that "all in all, significant parts of [Mr Drake's] application were unsuccessful".
8 Second, Mr Hardy submits that the nature of a hearing under s 18(2a) of the TPD Act is "quite different to the conduct of an application for review in other circumstances pertaining to the Act where an applicant, with respect to its own application, seeks to set aside a decision of a responsible authority and, in that sense, 'perfect' an application for planning consent on a de novo basis". He submits that, in contrast, in these proceedings, the Tribunal was asked to find, and did find, that the City failed to enforce the requirements of its town planning scheme.
9 Third, Mr Hardy submits that it would be "inequitable" for Mr Drake to have to bear his own costs of the proceedings in circumstances where the City has a statutory obligation to administer and enforce its scheme and Ms Panizza has an obligation to comply with the requirements of the planning approval granted for the erection of the building. Had Mr Drake not made the representations and pursued the proceedings, "it may well have been the case that the failure on the part of the [City] to enforce the observance of its town planning scheme in the circumstances would not have been brought to light".
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10 In reply, Mr Slarke submits that there is "nothing inherent in the nature of [s 18(2a) proceedings] which suggests that a partly successful applicant should be awarded costs". He also notes that "it has not been asserted by the applicant that the [City's] position was hopeless or unarguable" or that its "conduct in the hearing was unreasonable, frivolous or vexatious".
Consideration of costs application
11 In Lakes Action Group Association (Incorporated) and Shire of Northam & Anor [2005] WASAT 185(S), the Tribunal recently considered an application for costs in proceedings involving a Ministerial referral of representations under s 18(2a) of the TPD Act. The Tribunal held, at [27], as follows:
"The nature of proceedings referred under s 18 is prescribed by s 18(2b). It provides that Part V of the Act applies as if the referral were an application for review. The consequence of that provision is that the party making the representation and parties directly affected by the representation will be placed in the same position as parties to a review application under the Act. That position is that 'the starting proposition in this Tribunal is that parties bear their own costs in a proceeding', although s 87(2) of the SAT Act 'clearly 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': Citygate Properties Pty Ltd and City of Bunbury [(2005) 38 SR (WA) 246] at 252."
12 It is correct, as Mr Hardy submits, that the nature of proceedings under s 18(2a) of the TPD Act is in some respects different to planning review proceedings under that Act and review proceedings generally in the Tribunal. There are three obvious differences.
13 First, unlike an applicant in planning and other review proceedings, a representor under s 18(2) does not have a right to commence proceedings. Rather, s 18(2a) confers a discretion on the Minister to refer the representations to SAT for its report and recommendations.
14 Second, as the Tribunal recognised in Drake No 1 at [37], "[i]t is implicit in s 18(2) of the TPD Act that representations to the Minister must concern or relate to an alleged failure on the part of a council to enforce effectively a town planning scheme or a provision of a scheme, or to carry out works required by a town planing scheme". Referral
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- proceedings under s 18(2a), therefore, concern, at least as a threshold issue, whether a responsible authority failed to enforce requirements of its scheme.
15 Third, unlike planning and other review proceedings, the Tribunal's function in s 18(2a) proceedings is not to make a final and (subject to appeal in relation to questions of law) binding determination. Rather, its function is to provide a report and recommendations to the Minister in relation to the representations.
16 However, as the Tribunal recognised in Lakes Action Group Association (Incorporated) and Shire of Northam & Anor in the passage set out earlier, the nature of s 18(2a) proceedings is prescribed by s 18(2b). That section provides as follows:
"For the purpose of making a report and recommendations on a referral under subsection (2a), Part V applies, with such modifications as may be necessary, as if the referral were an application for review."
17 The Parliament has, therefore, determined that s 18(2a) proceedings are to be conducted as though they were an application for review under Part V, with such modifications as may be necessary. As the Tribunal emphasised, the consequence of the deeming provision in s 18(2b) is that parties involved in 18(2a) proceedings are placed in the same position as parties to review proceedings under the Act, including in relation to the costs of the proceedings. The established practice in the Tribunal is that, in planning and other review proceedings, the broad discretion as to costs conferred by s 87(2) of the SAT Act will usually be exercised such that each party bears its own costs of the proceedings.
18 The Tribunal does not consider that the nature of s 18(2a) proceedings necessitates "modifications" to this costs practice for each of two reasons.
19 First, although there are differences between proceedings for report and recommendations and ordinary review proceedings, the former, in substance if not in law, "necessarily involv[e] a review of a decision" of the responsible authority and would, therefore, arguably fall within the Tribunal's review jurisdiction irrespective of the deeming provision: SAT Act s 17(1). In this regard, it is likely that, prior to making representations to the Minister under s 18(2) of the TPD Act, a representor will have made similar allegations to the responsible authority. It is likely that the authority will have made a decision, whether expressly or
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- implicitly, that it is not relevantly required to enforce the scheme, has effectively enforced it, is not required to execute works, or has executed works, as the case may be. It is inevitable that, by the time s 18(2a) proceedings come to a contested final hearing before the Tribunal, the responsible authority will have made such a decision.
20 Second, the policy reasons or similar policy reasons to those which underlie the Tribunal's established practice in review proceedings that each party should usually bear its own costs also apply in Ministerial referral proceedings.
21 In Citygate Properties Pty Ltd and City of Bunbury, the Tribunal observed at 252 253 as follows:
"There are several sound policy reasons which support [an] approach to the exercise of discretion [that usually each party bears its own costs in merit review proceedings]. First, it ensures that individuals who have had an application rejected or not considered by an original decisionmaker or who have been given a direction or notice to do or cease doing something, have an opportunity for the decision to be reviewed without the fear of being ordered to pay costs if they do not succeed. Second, the review tribunal essentially "sits in the shoes" of the original decision-maker before whom the applicant was only responsible for its own costs. Third, although the review tribunal will usually ultimately prefer one party's position over another's, reasonable minds might well differ about an appropriate result as to merit."
22 The first policy reason identified in relation to ordinary review proceedings applies equally, if not with greater force, to s 18(2a) proceedings. As the Tribunal recognised in Drake No 1 at [36], "the evident legislative purpose of s 18(2) and s 18(2a) of the TPD Act … [is] to facilitate some community or third partydriven enforcement of town planning law". The approach to the exercise of discretion as to costs which has been adopted in review proceedings ensures that individuals who make representations to the Minister in relation to the enforcement of schemes, which are referred to the Tribunal for report and recommendations, can pursue their representations without the fear of being ordinarily ordered to pay costs if the Tribunal reports that the representations are not wellfounded or does not make recommendations sought by the representor. Indeed, if this approach were not taken to the exercise of discretion, a referral by the Minister of representations for
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- report and recommendations might have the effect of the representations not being pursued before the Tribunal out of fear of an adverse costs order. The result might well be that town planning law is not, therefore, ultimately enforced.
23 The second policy reason applies, because, in substance if not in law, the Tribunal "sits in the shoes" of the responsible authority against which an allegation of failure to enforce effectively the observance of a town planning scheme or execute works has been made. As noted above, the authority will have inevitably made a decision that it is not relevantly required to enforce the scheme, has effectively enforced it, is not required to execute works, or has executed works, as the case may be, by at least the stage of a final contested hearing, if not earlier. In substance, if not in law, the Tribunal's task is to undertake a review of the responsible authority's decision. Moreover, s 18(2c) of the TPD Act contemplates that the Minister may hold an inquiry in relation to the representations as an alternative to referring the representations to the Tribunal and receiving a report and recommendations from it. In such an inquiry, each party would only be responsible for its own costs. It would be contrary to the public interest for different costs consequences to flow from the Minister's decision to refer the representations to the Tribunal for report and recommendations or to hold an inquiry in relation to the representations.
24 Finally, as the report and recommendations in this case clearly demonstrates, reasonable minds might well differ about an appropriate result in proceedings under s 18(2a). In this case, the Tribunal did not accept Mr Drake's argument that discreet, but nevertheless significant, portions of the buildings should be demolished, namely the entire top level, a 41.2 square metre terrace and the eastern protruding section of the building over three levels: Drake No 2 at [101] [108]. The recommendations made by the Tribunal to the Minister were not advocated by any party, but rather reflected the Tribunal's view of an appropriate and proper exercise of the responsible authority's discretion to give a direction to the owner of the land under s 10(3) of the TPD Act.
25 The costs application should be dismissed. Partial or complete success in review proceedings is not sufficient, in itself, to warrant an order in the exercise of discretion for the payment of costs by an unsuccessful party. Although, as Mr Hardy submits, the Tribunal made a finding in this case that the City failed to enforce its town planning scheme, the making of such a finding in contested s 18(2a) proceedings could not, in itself, warrant the making of an order for costs against a responsible authority in the exercise of discretion; otherwise, an order for
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- costs would be made in any s 18(2a) proceedings in which the Tribunal recommends to the Minister that the representations are well-founded.
26 Moreover, although it might well be the case, as Mr Hardy submits, that had his client not made the representations and pursued the referral before the Tribunal, the City's failure to enforce its scheme would not have been brought to light, that is likely to be the case in most such proceedings.
27 Finally, as Mr Slarke submits, it has not been asserted that the City's (or Ms Panizza's) position was hopeless or unarguable. It has not been asserted that the responding parties' conduct at the hearing was unreasonable, frivolous or vexatious: cf Lakes Action Group Association (Incorporated) and Shire of Northam & Anor at [38] [39].
Conclusion
28 Mr Drake's application for costs should be dismissed. Section 18(2a) proceedings are conducted as if the referral were an application for review "with such modifications as may be necessary": TPD Act s 18(2b). A modification to the deeming provision is not necessary in relation to the exercise of discretion as to costs. Section 18(2a) proceedings involve, in substance if not in law, a review of a decision of a responsible authority in relation to compliance with a town planning scheme. Furthermore, there are sound policy reasons which suggest that the same approach to the exercise of discretion is appropriate as in ordinary review proceedings.
29 The established position in planning and other review proceedings in the Tribunal is that the broad discretion conferred by s 87(2) of the SAT Act should be exercised such that parties usually bear their own costs of the proceedings. Partial or complete success in review proceedings does not, in itself, warrant an order for costs in the exercise of discretion.
30 It has not been asserted that the responding parties' position was hopeless or unarguable or that their conduct in the proceedings was unreasonable, frivolous or vexatious. Although the circumstances in which it may be appropriate to exercise the Tribunal's discretion to award costs in review proceedings are not closed, there was nothing in the conduct or circumstances of these proceedings or in the result which would warrant a departure from the Tribunal's usual practice.
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Order
31 The Tribunal makes the following order:
1. The applicant's application for the payment of his costs of the proceedings by the first respondent and by the second respondent is dismissed.
I certify that this and the preceding [31] 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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