Drake and City of South Perth & Anor - [2005] WASAT 271

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

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 6 AND 9 SEPTEMBER 2005

DELIVERED : 14 OCTOBER 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:

Ministerial referral of representations to Tribunal for report and recommendations under Town Planning and Development Act 1928 (WA) s 18(2a) - Condition of planning approval required that building be modified to comply with maximum plot ratio - Whether City failed to enforce effectively the observance of town planning scheme - Whether the building as erected complied with maximum plot ratio - Extent of breach of condition - Whether Tribunal should recommend that Minister order City to direct partial demolition of building - Factors for consideration in exercise of responsible authority's discretion to give direction to owner of land under Town Planning and Development Act 1928 s 10 - Exclusion of floor areas of building not reasonably open, but in accordance with City's practice - Recommendation by Tribunal that Minister order City to direct partial demolition to ensure that terrace is open balcony, and alterations to ensure that physical characteristics of spaces within building are consistent with designations in approved plans - Words and phrases: "equipment rooms", "lobbies ... common to more than one dwelling", "private open balconies"

Legislation:

Interpretation Act 1984 (WA), s 56(1)

State Administrative Tribunal Act 2004 (WA), s 167(4)(a)

Town Planning and Development Act 1928 (WA), s 10, s 10AA, s 10AB, s 18(2), s 18(2a), s 18(2b), s 18(2c)

Result:

The Tribunal reports to the Minister:

(a)The City has failed to enforce effectively the observance of a town planning scheme in relation to non-compliance with a condition of planning approval which requires that the building be modified to comply with a 0.66 maximum plot ratio.
(b)Other than in relation to the well-founded allegation that the building exceeds a plot ratio of 0.66, the representations made by the applicant to the Minister fell outside the scope or ambit of s 18(2) of the Town Planning and Development Act 1928 (WA).

The Tribunal recommends that the Minister order the City to direct the owner of the land on which the building is erected to demolish a masonry section and to carry out other alterations to the building.

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):

Drake and City of South Perth & Anor [2005] WASAT 128
Lakes Action Group Association Incorporated and Shire of Northam [2005] WASAT 8
Re Griffiths; Ex parte Homestyle Pty Ltd (2005) 139 LGERA 178
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Winn v DirectorGeneral of National Parks and Wildlife (2001) 130 LGERA 508

Case(s) also cited:

Nil

REPORT AND RECOMMENDATIONS OF THE TRIBUNAL:

Summary of Tribunal's report and recommendations

The Minister for Planning and Infrastructure, the Hon Alannah MacTiernan, referred representations by Mr BM Drake for the Tribunal's report and recommendations under s 18(2a) of the Town Planning and Development Act 1928 (WA). The representations relevantly alleged that a building which had been erected at No 11 Heppingstone Street, South Perth had a plot ratio in excess of 0.66. In granting planning approval for the erection of the building, the City of South Perth had imposed a condition which required that the building be modified to comply with a plot ratio of 0.66.
The Tribunal found that the building was in breach of the condition and had a plot ratio of 0.78. The exceedence of the permitted plot ratio was principally due to three parts of the building. These were:
(i)a terrace which was not a "private open balcony";
(ii)two "lobby" areas which were not "common to more than one dwelling"; and
(iii)a so‑called "equipment store", which was not reasonably required for the placement or keeping of implements for the maintenance or daytoday operation of the building and which was reasonably capable of use for other purposes.
The Tribunal found that the City failed to enforce, effectively or at all, the observance of the town planning scheme for which it was the responsible authority.
The Tribunal recommended that the Minister order the City to direct the owner to demolish part of a masonry section which enclosed the terrace, and to make other physical alterations to the "lobby" areas and to the "equipment store", within six months.

Introduction

These proceedings involve a referral, for the Tribunal's report and recommendations, of representations made by Mr BM Drake to the Minister for Planning and Infrastructure, the Hon Alannah MacTiernan. By letters dated 3 May 2004 and 13 September 2004, Mr Drake made representations to the Minister under s 18(2) of the Town Planning and Development Act 1928 (WA) (Act) in relation to a three to four level apartment building (building) at No 11 Heppingstone Street, South Perth (site). By letter dated 22 December 2004, the Minister referred Mr Drake's representations to the Town Planning Appeal Tribunal under s 18(2a) of the Act. In accordance with s 167(4)(a) of the State Administrative Tribunal Act 2004 (WA), on 1 January 2005, these proceedings were transferred to, and are to take place before, this Tribunal.
Section 18 of the Act provides, in part, as follows:
"(2)A person may make representations to the Minister if the person is aggrieved by the failure of a local government to
(a)enforce effectively the observance of a town planning scheme in force under this Act, or any of the provisions of the scheme; or
(b)execute any works, which under the scheme or this Act, the local government is required to execute.
(2a)The Minister may determine not to take any action in response to the representations or, if the Minister considers it appropriate to do so, the Minister may refer the representations to the State Administrative Tribunal for its report and recommendations.
(2b)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.
(2c)If, after holding an inquiry or receiving a report and recommendations from the State Administrative Tribunal, the Minister is satisfied that the local government has failed
(a)to enforce effectively the observance of a scheme or a provision of a scheme; or
(b)to execute any works which the local government is required under a scheme or this Act to execute,
the Minister may order the local government to do all things necessary to enforce the observance of the scheme or provision or to execute the works."
Following the transfer of the proceedings to the Tribunal, the City of South Perth (City) made application that the matter be, in effect, summarily determined and dismissed, on the basis that Mr Drake's representations did not fall within the ambit or scope of s 18(2) of the Act: see Drake and City of South Perth & Anor [2005] WASAT 128. Mr Drake's representations were set out in full at [7] and [13] of the Tribunal's reasons for decision in relation to that application. They are, therefore, not repeated in this report.
The Tribunal accepted a part of the City's argument. It determined that Mr Drake's representations concerning the height of the building did not relate, whether expressly or implicitly, to a "failure of [the City] to enforce effectively the observance of a town planning scheme in force under [the] Act": at [41] [42]. This aspect of the representations related only to an alleged failure by the City to properly apply City of South Perth Town Planning Scheme No 5 (TPS 5) in its determination to grant planning approval to the erection of the building. In this respect, Mr Drake's representations, in effect, asked the Minister to look behind a planning approval in order to determine whether it had been lawfully granted: at [44]. As neither the Minister nor the Tribunal had power to undertake such a review (Lakes Action Group Association Incorporated and Shire of Northam [2005] WASAT 8), the Tribunal determined that part of Mr Drake's representations to the Minister were not competent representations under the terms of s 18(2) of the Act.
However, the Tribunal was satisfied that Mr Drake's representations did fall within the scope or ambit of the legislation, insofar as he asserted to the Minister that the building, as erected, was in breach of the maximum 0.66 plot ratio which was prescribed at the date of planning approval by the Residential Planning Codes of Western Australia (R‑Codes). The City had granted planning approval to the erection of the building under TPS 5 and the Metropolitan Region Scheme subject to conditions including the following:
"The building shall be modified to comply with the 0.66 maximum plot ratio described by Table 1 of the Residential Planning Codes for the type of development concerned."
This condition was condition 7 in the planning consent dated 4 January 2001 which was tendered by the City at the initial hearing and was accordingly referred to as "condition 7" in the Tribunal's reasons for decision. At the final hearing, Mr CA Slarke, counsel for the City, indicated that, on 8 January 2001, the City had issued a replacement planning consent which deleted a condition and renumbered the condition in question as 6. The condition is, therefore, referred to as "condition 6" in this report.
The Tribunal determined that as the City had required by condition 6 that the development be modified to meet the specified plot ratio, the assertion in the representations that the building was erected in breach of that plot ratio implicitly related to a failure on the part of the City to effectively enforce the observance of TPS 5 and/or City of South Perth Town Planning Scheme No 6 (TPS 6) (which revoked and replaced TPS 5 after the building was erected) in relation to that condition: at [36] [40]. The Tribunal held that, on the proper construction of s 18(2) of the Act, it was of no consequence that Mr Drake did not appreciate that this was, in fact, the relevant failure by which he was aggrieved, nor that he mistakenly thought that the failure lay in the grant of an invalid approval.
The result of the Tribunal's earlier decision was that part of Mr Drake's representations proceeded to hearing for the purposes of a report and recommendations to the Minister. In order to facilitate the expeditious conduct of the proceedings, the Tribunal conducted a directions hearing at which it made the following orders:
"1.By 8 July 2005, [Mrs Panizza] shall file and provide to each other party a set of professionally drawn and scaleable plans and elevations of the building as built at 11 Heppingstone Street, South Perth.
2.By 8 July 2005, each party shall, if it intends to rely on expert evidence at the hearing, nominate a town planner and provide contact details to the Tribunal and each other party.
3.By 5 August 2005, the town planners retained by the parties shall jointly review the as built plans and inspect the building in order to determine whether the building exceeds the plot ratio of 0.66 and what options are available to remedy any breach.
4.By 19 August 2005, the town planners retained by the parties shall file and provide to each party a joint statement of evidence identifying matters agreed, matters not agreed and the reasons for any disagreement in relation to:
(1)whether the building is in breach of condition [6] of the development approval;
(2)what is the extent of any breach;
(3)what are the available options and estimated costs for remedy of any breach;
(4)what are the impacts of any breach on the surrounding locality in general and [Mr Drake's] property in particular;
(5)what would be the internal and external effects of each of the available options in (3); and
(6)is the imposition of any or all of the options warranted."
At the directions hearing, the parties' representatives agreed that the six matters referred to in order 4 where the principal matters for consideration in the proceedings. The matter proceeded on the basis that the issue for report and recommendations is whether the City has failed to enforce effectively the observance of the provisions of a town planning scheme which require that conditions of planning approval be complied with and, if so, what action is necessary and appropriate on the part of the City to enforce the observance of the scheme.
In accordance with the Tribunal's orders, Mr John Colliere, the designing architect of the building, provided a set of 11 drawings of the building as built, each party nominated a town planner, and the town planners, Mr Colliere and Dr Michael Panizza, Mrs Panizza's husband, jointly inspected the building, including "all potentially contentious spaces", on 4 August 2005. The experts nominated by the parties were Mr KA Adam, a consultant town planner, architect and registered builder engaged by Mr Drake, Mr CO Buttle, a town planner employed by the City, and Mr PD Webb, a consultant town planner retained by Mrs Panizza. Following their inspection of the building, the experts prepared and filed a joint statement of evidence.
At the hearing, Mr Adam, Mr Buttle and Mr Webb gave evidence concurrently. Mr Colliere, who both represented and gave evidence on behalf of Mrs Panizza, responded to matters raised by the town planning witnesses and gave further oral evidence. The City also called Mr RH Bercov, who is the City's Manager, Development Services, to give evidence. Mr Bercov has been employed by the City as a planner since 1969, and, between 1984 and 2003, was Manager, City Planning with responsibility for the City's planning approval process.
In this report, the Tribunal will, at first, set out important aspects of the factual background to the representations and the proceedings, before considering whether the building is in breach of condition 6, the extent of breach, and whether the City has failed to enforce effectively the observance of its town planning scheme. Finally, the Tribunal will consider what recommendations it should make to the Minister.
For reasons set out below, the Tribunal finds that the City has failed to enforce, effectively or at all, the observance of the provisions of TPS 5 and/or TPS 6 which require that conditions of planning approval be complied with. In particular, whereas condition 6 requires that the building be modified to comply with a 0.66 maximum plot ratio, the Tribunal finds that the plot ratio of the building is 0.78, constituting a breach of the maximum plot ratio prescribed by condition 6 by 95.9 square metres or approximately 18 per cent.
Although the building is in significant breach of the maximum plot ratio imposed by condition 6, the Tribunal does not consider that, in the circumstances of this case, a proportionate part of the building should be demolished so that it is brought into compliance. This is because approximately 48 per cent of the breaching floor area of the building comprises so‑called "equipment store" and "lobby" areas which were excluded by the City from the calculation of gross floor area for plot ratio purposes in accordance with an established (but mistaken) practice, the demolition proposed by Mr Drake would not result in a material reduction in apparent bulk and scale, and it would not be reasonable to require other parts of the building to be demolished. In addition, approximately 42 per cent of the breaching floor space is comprised of a terrace which does not constitute a "private open balcony", and is, therefore, not excluded from the calculation of gross floor area for plot ratio purposes, but which can be turned into a "private open balcony" by the demolition of a masonry section.
The Tribunal considers that this masonry section should be demolished so as to convert the terrace into a "private open balcony". The Tribunal also considers that alterations should be made to the building to ensure that the physical characteristics of the equipment store and lobby areas are consistent with the requirements of the City's (mistaken) practice and the designation of those areas on the approved plans. The Tribunal recommends that the Minister order the City to give Mrs Panizza a direction under s 10 of the Act to require her to cause this demolition and alterations to take place.
In accordance with r 63(4) of the State Administrative Tribunal Rules 2004 (WA), after drafting a report to the Minister, but before making any recommendation to her, the Tribunal released the draft report to the parties and directed that they may comment in relation to it in writing within two weeks. Mr Drake and the City each filed written submissions in relation to the Tribunal's draft report and recommendations. Mrs Panizza did not do so.

Factual background

In their joint statement of evidence, the town planning experts agreed in relation to the following factual matters:
"(1)The subject property is described on Certificate of Title Volume 1902, Folio 369 as being Portion of Swan Location 37 and being Lot 38 on Diagram 14711.
(2)The property is situated on the south‑eastern corner of Heppingstone and Lamb Streets which streets meet at right angles, to form the corner.
(3)The property has a frontage to Heppingstone Street of 36.23m and to Lamb Street of 13.66m, with a truncation between the two of 8.53m. The property comprises a land area of 782m² (excluding any allowance for the truncation). With the truncation included the site has an area, for plot ratio calculation purposes, of 800m².
(4)An Application for two Multiple Dwellings was lodged on behalf of [Mrs Panizza] by CMP architects in September 2000. A subsequent submission including amended plans was lodged and was considered by the Commissioners of the [City] on 19 December 2000.
(5)The Commissioners approved the application subject to a number of conditions at their meeting on 19 December 2000.
(6)A Grant of Planning Consent form dated 8 January, 2001 was issued by the City (the Planning Consent) …
(7)A building licence was issued by the [City] on 26 February, 2002.
(8)At the time of the application and its consideration by the [City], the land was subject to the (then) operative District Planning Scheme, [TPS 5].
(9)Under TPS 5 the subject land was zoned 'Residential R' with a designated density code of R60.
(10)The development of the land was subject to the requirements and provisions of the (then) [RCodes], subject to any variations incorporated in TPS 5.
(11)The development of the land was subject to a plot ratio maximum, under Table 1 of the RCodes, of 0.55.
(12)The allowable plot ratio was further subject to a possible bonus of up to 20%, under Clause 4.7.6 of the RCodes. This would bring the allowable plot ratio up to 0.66, provided certain conditions were met.
(13)The [City's] administration formed the view that, in the circumstances of the application, the maximum 20% plot ratio bonus would be allowed as the proponent had provided, " … communal facilities incorporating a terraced entertaining area and kitchen, gymnasium, sauna, internal landscaped garden, and indoor lap pool". (The Administration Report to the Commissioners also advised that, "the applicant is required to justify the cost of the communal facilities in relation to the value of up to 20% plot ratio bonus".) We do not dispute this conclusion, given the facilities provided.
(14)The relevant Processing Sheet for the Application … states the following:
(a)Lot area 782m² (800m²with truncation)
(b)Maximum allowable plot ratio 0.55 (0.66 with 20% bonus)
(c)Maximum allowable plot ratio area: 440m² (528m²with 20% bonus)
(d)Plot ratio area proposed 533.5m²
(e)Plot ratio proposed 0.6936.
(15)The calculation of proposed plot ratio is incorrect: for a plot ratio area of 533.5m² the plot ratio would be 0.6669.
(16)The Administration's Report to the Joint Commissioners referred to:
(a)a proposed plot ratio of 0.6936;
(b)the plot ratio exceeding the maximum by 1.3% or 5.5m² (in fact a 5.5m² excess is equivalent to 1.04%); and
(c)the observation that the 5.5m² excess was minimal and 'accounted for within measuring and drafting error'. …
(18)The reference in Condition 6 to a maximum plot ratio of 0.66 prescribed by Table 1 of the R‑Codes is not correct, as Table 1 prescribes a maximum plot ratio of 0.55. We have assumed that this is an unintentional error and a plot ratio of 0.66 was intended. …
(20)A plot ratio of 0.66 applied to the subject site would allow a plot ratio area of 528m².
(21)The definition of 'plot ratio' in the 1991 R‑Codes provides the relevant basis for calculation of plot ratio floor area. It states as follows:
Plot ratio means the ratio of the gross total of the areas of all floors to the area of land within the site boundaries and in calculating the gross total of the areas of all floors, the areas shall be measured over any walls but shall not include lift shafts, stairs or stair landings, machinery rooms, air conditioning, equipment rooms, nonhabitable floor space in basements, areas used exclusively for the parking of wheeled vehicles at or below ground level, lobbies or amenities common to more than one dwelling, or private open balconies."

The site is adjacent to a foreshore reserve and has uninterrupted views of the Swan River, East Perth and the City of Perth. The building, as approved by the City, and as built, comprises three to four levels. Level 1 includes an enclosed car park accessed from Heppingstone Street which comprises five car parking bays and two "store" areas. This level also contains a number of facilities which are common to the two residential units above, including entry and lobby, art garden, lounge/gym with kitchen, and swimming pool overlooking the foreshore reserve and river.
Level 2 of the building, as approved and built, comprises a self‑contained, three‑bedroom unit which occupies the whole floor, and terraces. There is also a "lobby" area on this level which necessarily serves the only unit. The approved plans showed the floor area of the unit as separated from the "lobby" by glass walls and double glass doors.
Levels 3 and 4 of the building, as approved and built, comprise a self‑contained, four‑bedroom unit and terraces. Most of the internal floor space of this unit is on level 3. The floor space on level 4 includes a lobby, study, toilet, "equipment store", "outdoor kitchen" and large roof terrace. On level 3, there is also a matching "lobby" to that shown on the approved plans for level 2. The level 3 "lobby" is also shown on the approved plans as separated from the floor area of the upper unit by glass walls and double glass doors. In addition, the building, as approved and built, includes a lift which serves each of the levels. The lift opens into the "lobby" areas on levels 2, 3 and 4.
The Administration's Report to the Joint Commissioners referred to at par (16) of the agreed facts was expressed as being a report of Mr Bercov as Manager, City Planning. However, in his evidence, Mr Bercov said that the report was prepared by Mr Greg Bowering, then a planning officer of the City. It was the City's practice at the time for planning reports to be presented in the name of the Manager, City Planning, without identifying the planning officer who prepared the document. Mr Bercov did not have any personal involvement in the preparation of the report or the assessment of the development. His role in connection with the report was limited to checking the report in a general way to ensure that it was in an appropriate form and dealt with the "planning" issues in a manner consistent with the City's usual approach.
Mr Bercov did not separately check the calculations regarding plot ratio which formed part of the report. However, he gave evidence that he could "say with confidence that the calculation of plot ratio floor area would have been carried out by Mr Bowering using a hand-held device known as a planimeter". A planimeter calculates the area of a space by the operator placing it and "clicking" at various external "corner" points of the space shown on a plan. Although use of a planimeter avoids the need to scale and undertake manual calculations, "there is necessarily a margin for error in planimeter calculations attributable to the operator not clicking precisely on the external points of a space, and by reason of the printing of the lines on the plan themselves".
Mr Bowering's report included the following under the heading "plot ratio":
"The minimal (5.5sq. metre) excess plot ratio is considered to be accounted for within measuring and drafting error. Although the proposed development slightly exceeds the maximum allowable plot ratio, only minor amendments are necessary to bring the floor space down to the maximum permitted. This will be addressed by way of a condition of Planning Consent."
Mr Bercov gave evidence that the condition referred to by Mr Bowering in his report was a standard condition imposed on development at the time, and became condition 6.
Mr Bercov also said that "as Greg Bowering was the officer assigned to assess the development application, he retained the responsibility for the proposal as it progressed, including undertaking a cross check between the sketch plans lodged for the purposes of the development application, and the detailed working drawings lodged at the building licence stage". Building licence plans were lodged for approval on 24 December 2001. On 10 January 2002, Mr Bowering sent a facsimile to the designing architects in which he stated that the submitted documents were inconsistent with the planning consent and could not be signed off for four reasons, including the following:
"No plot ratio calculation figures diagrams and [sic] have been provided with the working drawings as required by Condition No. 6 of the Planning Consent. The plot ratio of the plans granted planning consent was 0.693 which exceeded the maximum plot ratio of 0.66. The plot ratio calculations were based [on] a lot area of 800 sq. metres which included the street corner truncation in the total lot area. You are required to demonstrate that the working drawings comply with the maximum permitted plot ratio by way of calculations and plans showing areas included and excluded from the calculations."
On 27 January 2002, the designing architects submitted plot ratio calculations which, on the stated assumption of a site area of 803.4 square metres (including truncation), asserted that the proposed gross floor area of the building for plot ratio purposes was 529.1 square metres, which was 1.14 square metres less than the maximum permitted floor area of 530.24 square metres.
It appears that Mr Bowering undertook a fresh calculation of gross floor area for plot ratio purposes in relation to the building licence plans, and arrived at a floor area of 529.76 square metres, which was 1.76 square metres in excess of 528 square metres determined by a calculation of 0.66 x 800 square metres. Mr Bowering considered this exceedence to be minor and acceptable. It appears that, as Mr Slarke submitted, Mr Bowering "literally ticked off" condition 6 on the copy of the development consent on the building licence file. As noted earlier, on 26 February 2002, the City granted a conditional building licence for the erection of the building.
The building was erected some time between March 2002 and October 2003. In that month, Mr Adam prepared a report for Mr Drake in relation to the compliance of the building with TPS 5 and the R‑Codes. At par [26] of the report, Mr Adam said that, in his professional assessment, "the actual plot ratio of the building as depicted in [the] drawings is 0.86". Mr Drake submitted Mr Adam's report to the Minister together with his representations of 3 May 2004.

Is the building in breach of condition 6?

The town planning witnesses agreed that the answer to this question is "yes". Having each undertaken independent checks, they were satisfied that computer generated figures presented by Mr Colliere accurately showed that, leaving aside the so‑called "contentious areas" which were the subject of debate in the proceedings, the building exceeded the maximum plot ratio permitted by condition 6 by 3.5 square metres.
However, because they disagreed about whether some of the "contentious areas" should be included in the calculation of plot ratio, the town planning witnesses disagreed as to the extent of breach. The Tribunal now turns to an examination of each of the "contentious areas".

What is the extent of breach of condition 6?

The expert witnesses agreed that a 4.9 square metre mezzanine space used as a library should be included in the calculation of floor area for plot ratio purposes. The mezzanine was not shown on the approved planning application plans, but appeared for the first time on the building licence plans.
Mr Adam considered that a number of other areas of the building should also be included in floor area for plot ratio purposes. These areas fall into three categories.

"Lobby" areas on levels 2 and 3

First, as noted earlier, there is a designated "lobby" area on each of levels 2 and 3 of the building. Each "lobby" has an area of 12.4 square metres and is surrounded by the lift entry, a coatroom, a toilet, fire stair entry leading to level 1, a fire hydrant and the floor space of the relevant residential unit. As also noted earlier, the approved plans showed glass walls and double doors as separating the "lobby" from the internal floor area of each residential unit. Mr Colliere gave evidence that, although the glass walls and doors were erected in accordance with the approved plans, to his surprise, Mrs Panizza subsequently had them removed on each of the two levels. Mr Bercov gave evidence that the City undertook an inspection of the building, although he was unclear as to whether this occurred before or after completion of the works. He was not aware of what the inspection revealed.
It is clear from the photographs in evidence that there is no partition of any sort separating the "lobby" on either level 2 or 3 from the residential unit it serves. The photographs clearly show that the "lobby" simply forms part of the floor area of each of the units. It is also to be noted that Mr Colliere included the floor space of the coatroom and the toilet adjoining the "lobby" on each of levels 2 and 3 in his calculation of gross floor area for plot ratio purposes, although one cannot get to these spaces from the residential units without crossing the "lobby".
Mr Adam considered that the "lobby" areas on each of levels 2 and 3 were not excluded from the floor area of the building for plot ratio purposes by the words "lobbies … common to more than one dwelling" in the definition referred to at [21 (21)] above, because "they are exclusive to the single apartments that each serves". In Mr Adam's opinion, the glass walls and doors which were shown on the approved plans, and which were apparently erected and then removed, would not alter this characterisation.
Mr Buttle and Mr Webb each agreed that, as presently constructed, the two "lobby" areas should be included in floor area for plot ratio purposes. However, Mr Buttle and Mr Webb considered that, as approved with glass partition, the "lobby" areas were properly excluded by the City from its calculation of gross floor area. Mr Buttle conceded that he could understand "that whether or not [the lobbies] should have been included in the City's plot ratio calculation is contentious", although he sought to justify their exclusion for three reasons. First, the "lobby" was designed and shown on the plans as a space that operated independently from the remainder of each of the dwellings. Second, the "lobby" is accessed by the lift and fire stair, to which each of the dwellings has access. Third, a fourunit building could have been erected on the site. In oral evidence, Mr Buttle stated that there are other examples where the City has accepted similar arrangements of glazed wall and door separation as excluding "lobby" areas from the calculation of gross floor area for plot ratio purposes. This evidence was not questioned or contradicted.
The Tribunal finds that, both as approved and as presently built, the "lobby" areas on levels 2 and 3 of the building do not constitute "lobbies … common to more than one dwelling", and that the City's characterisation of that area in that it way was not reasonably open. Because of the physical configuration of the building, each of the lobbies on levels 2 and 3 serves only one unit, namely the unit which is also located on the corresponding level, whether or not the "lobby" is separated from the designated floor space of that unit. Neither "lobby" is "common to more than one dwelling". As Mr Adam suggested, there would be no practical purpose served in the occupants of the unit on levels 3 and 4 using the "lobby" on level 2 other than to visit the occupants of the unit on level 2 (and vice versa). The use of a lobby on a level otherwise comprising a single residential unit by the occupant of a unit on another level to visit the occupant of the first unit does not make the lobby "common to more than one dwelling".
Mr Buttle's three reasons in support of the City's approach are not satisfactory. First, the physical separation of the "lobby" from the unit in the approved plans does not suggest that the two spaces operate "independently". Rather, the plans indicate that the lobby is integral to the use of the unit in providing the only access to it. Second, although the fire stair is accessed from each "lobby", as Mr Adam said, "fire stairs can be entered from the dwellings they serve, but may only be exited at the base". The plans, which show the direction of door swings, and hence of travel, demonstrate this clearly. Moreover, even if the lift is keyed or configured to permit access by the occupants of each unit to the alternative "lobby", as Mr Colliere indicated is presently the case, the only purpose for which access to the alternative "lobby" is likely to occur is to visit the occupants of the other unit. As noted earlier, this would not make the "lobby" area "common to more than one dwelling". Finally, the fact that the building could have accommodated four units, with two common lobbies serving two units each, is irrelevant. The fact is that the building has two units and that each of the lobbies on levels 2 and 3 serves only one unit.
In consequence, the Tribunal finds that the lobbies on each of levels 2 and 3 of the building are not excluded from gross floor area for the purposes of plot ratio under condition 6. While the City apparently had a practice of excluding such areas where they were physically separated from the floor area of the unit by glass walls and doors, it is not reasonably open to characterise a lobby on a single-unit level as "common to more than one dwelling" on the basis of such separation.
In its written submissions commenting on the draft report, the City stated that it "does not dispute the Tribunal's reasoning" in relation to whether the lobbies referred to at [43] and the "equipment store" referred to at [60] [62] below are excluded for plot ratio purposes. However, it noted that "when the City excluded those areas from the plot ratio calculation, it did not have the benefit of any guiding rules such as those formulated by the Tribunal in this case". The City submitted that "in the circumstances the Tribunal's determinations ought not to be expressed in terms that the City's view was not 'reasonably open'".
The "guiding rules", which are assumed to be a reference to the reasoning and factors set out at [41] and [54] [56], are simply drawn from the definition of "plot ratio" in the R‑Codes. They reflect the proper construction of parts of that term. The City's practice was not reasonably open under the terms of the definition.

"Store" and "equipment store" areas

The second category of floor area which Mr Adam considered should be included in plot ratio is storage areas. As noted earlier in this report, there are two "store" areas in the garage and an "equipment store" area on level 4.
The "equipment store" area on level 4 comprises two parts. The door to this space opens into an upper area of approximately 4.25 square metres including four steps down to a lower area. The principal part of the "equipment store" space has an area of approximately 16 square metres, and dimensions of approximately 4.0 metres by 4.0 metres. The area is comprised, in part, within the roof form, and has floortoceiling heights ranging from 1.8 metres to 2.45 metres. There is a northfacing window which, according to the photographs in evidence, provides good natural light to this area. The photographs show that this area is tiled, has ceiling and wall lights, and presently contains a bookshelf with books, a number of desks, one with a computer and printer, and a large amount of other equipment. Mr Colliere indicated that Dr Panizza is a specialist medical practitioner undertaking research in relation to sleep apnoea, and the items of equipment in the "equipment store" are used in his practice or research.
Mr Adam considered that the "equipment store" "is clearly an active space, not a store of any kind".
Mr Buttle gave the following evidence in relation to this room:
"In accordance with the definition of plot ratio contained in the R‑Codes, the Equipment Room was excluded from plot ratio calculations. The plans identify the space as an "Equipment Room", I think that the decision was correct.
The R‑Codes do not provide an explanation of the type of equipment to be found within an equipment room. I do acknowledge, however, that the authors of the Codes may have expected such spaces to be occupied by equipment of a kind that would be necessarily in association with the daytoday operation of the building, rather than storage of personal equipment. It is not clear to me though what one might expect to find in an "equipment room", or the practical reason for its exclusion from plot ratio.
An inspection of the Equipment Room demonstrated that the room is used for the storage of personal equipment rather than the housing of equipment associated with the use or operation of the building. It is therefore arguable that it now should technically be included in plot ratio. However to me, that would not be rational given that the use to which the room is put has no bearing on building bulk."
Mr Webb considered that the "equipment store" should be excluded from gross floor area for plot ratio purposes, although he frankly conceded that "this may be contentious". He gave the following evidence:
"It occurs that the nature of the 'equipment' required to be accommodated in the equipment room, is not defined. There may be some view about what this is intended to mean but in the absence of any definitive description, the 'equipment' used by the owner (a specialist medical practitioner who is involved in extensive medical research projects) is bona fide 'equipment'."
Mr Bercov gave evidence that, throughout his many years of experience as a planner employed by the City, "storerooms have always been excluded, being taken as equipment rooms".
The two "store" rooms on level 1 have a total area of 21 square metres. Mr Adam considered that these areas were not excluded from the calculation of gross floor area by the words "equipment rooms", because their physical location within the building is such that they could not be reasonably used for equipment associated with the management of the building, but rather are likely to be used for personal storage. He suggested that the fact that there are two separate stores supports this inference. He considered that these spaces could only reasonably be used for storage purposes.
Mr Buttle said that he was "comfortable that the store rooms were and would be excluded in the calculation of plot ratio", on the basis that they would be used for storage of equipment, whether or not it is private or building equipment. Mr Webb also considered that the "store" rooms on level 1 were "equipment rooms" and, therefore, excluded from the calculation of gross floor area for plot ratio purposes.
The meaning of the term "equipment room" was not defined in the R‑Codes. It remains an undefined, express exclusion in the definition of "plot ratio" in the Residential Design Codes of Western Australia (Design Codes). The relevant, ordinary meaning of the noun "equipment" is "a collection of necessary implements (such as tools)" (The Macquarie Dictionary (Revised Third Edition) page 636). An "equipment room" is, therefore, a room for the placement or keeping of necessary implements. In the context of a definition of plot ratio of a building, necessary implements are those which are required for the maintenance and continued functioning of the building. Mr Buttle is correct in his view that the words "equipment room" relevantly contemplate "equipment of a kind that would be necessarily in association with the daytoday operation of the building, rather than storage of personal equipment". The answer to his query as to what one might expect to find in an "equipment room" is a ladder, maintenance tools, gardening equipment, pool or pond maintenance equipment, light globes, spare paint and the like.

In order for a local government, or the Tribunal in planning review matters, to be satisfied that floor area of a proposed building should be excluded for plot ratio purposes on the basis that it is an "equipment room", it must necessarily consider two questions, namely:
1.Is the floor area in question reasonably required for the placement or keeping of implements for the maintenance or daytoday operation of the building?
2.Is the floor area in question reasonably capable of use for any purpose other than the placement or keeping of implements for the maintenance or daytoday operation of the building?
It is only if the answer to the first question is "yes" and the answer to the second question is "no" that the floor area in question can be reasonably characterised as an "equipment room" and, therefore, excluded for plot ratio purposes.
Mr MJ Hardy, counsel for Mr Drake, submitted that each of the exclusions in the definition of "plot ratio" necessarily fell within one of two categories, namely "common" floor area or "private" floor area. He submitted that the only exclusion in the latter category is "private open balconies", while each of the other exclusions fell within the former. Mr Slarke submitted that such a neat division is not apparent from the definition.
The Tribunal does not accept Mr Hardy's submission. A number of the exclusions which Mr Hardy suggested were to be characterised as "common" areas could just as well be "private" areas depending on the circumstances of a particular building. For example, "stairs or stair landings" could be either "common" or "private" floor area. The building in question in these proceedings provides examples of both. "Areas used exclusively for the parking of wheeled vehicles" could be in the form of a "common" parking area or "private", secure garages. Similarly, "equipment rooms" could be either "common" or "private", particularly in a building such as that in issue in these proceedings, which has large areas of "common" and "private" internal and external living areas. However, even small residential units would reasonably require a small "equipment room" for a ladder, tools, light globes, paint and the like.
The Tribunal finds that it is reasonably open to characterise the "stores" on level 1 as "equipment rooms" in this case. These areas are reasonably required for the placement or keeping of implements for the maintenance or daytoday operation of the building. In this regard, while, as Mr Adam said, the "stores" are not particularly proximate to the pool, there is no other designated space for pool equipment. It is common ground that these areas cannot reasonably be used for any purpose other than storage.
However, it is not reasonably open to characterise the "equipment store" on level 4, or at least its lower, principal part, as an "equipment room", for each of two reasons. First, it is not reasonably required for the placement or keeping of implements for the maintenance or daytoday operation of the building. The upper unit has the benefit of an equipment room or rooms on level 1. Moreover, although some space might be reasonably required within the upper unit for maintenance‑type implements, a space of the size in question is plainly not reasonably required.
Second, as Mr Adam said, the physical characteristics of the "equipment store", in particular its size, floor‑to‑ceiling height and access to natural light, are such that it is clearly capable of use for purposes other than the placement or keeping of implements for the maintenance or daytoday operation of the building. Obvious uses of this space are as a rumpus room or home office.
It does not relevantly matter that, as Mr Slarke pointed out, the ceiling height of this room is less than the generally required 2.4 metres for a habitable room under the acceptable construction provision in cl 3.8.2.2 of the Building Code of Australia. The space is probably an "attic room", in which case the minimum ceiling height is "a height which does not unduly interfere with the proper functioning of the room or space". In any case, whether the space is technically a "habitable room" or not, it is obviously reasonably capable of use for habitable purposes.

Terraces

The final category of "contentious" floor space comprises eight, and possibly nine terraces, on levels 2 and 3 of the building. Under the definition of "plot ratio", these areas are to be excluded only if they constitute "private open balconies".
Terraces 9, 16 and 27, on each of levels 2 and 3 of the building, have areas of 1.5 square metres, 12.2 square metres and 7.7 square metres, respectively. Each of these terraces is enclosed by walls of the building on two‑and‑a‑half or three sides. Each is covered by the floor of the terrace above or a roof structure. Terraces 9 and 27 on each level and terrace 16 on level 2 have solid masonry balustrades approximately 1.1 metres in height. In addition, terraces 9 and 27 on each level have obscure glazed privacy screens fitted above the masonry balustrade to a height of approximately 1.65 metres. Above the masonry balustrades and privacy screens, each of these terraces is open to the elements along the whole of its external side.
In his written evidence, Mr Adam referred to the definition of "balcony" in TPS 5, namely "a platform outside and protruding from the main structure of a building with access from an upper floor", and considered that terraces 9, 16 and 27, on each of levels 2 and 3, "must be included in plot ratio area because they are not platforms outside and protruding from the main structure and hence do not qualify as balconies under TPS 5". He considered that they were, in fact, the opposite of protruding, because they were indented, and fully enclosed on two‑and‑a‑half or three sides. In his oral evidence, Mr Adam considered that the terraces should be included in plot ratio, irrespective of the definition of "balcony" in TPS 5.
Mr Buttle gave evidence that "there are numerous Multiple Dwelling Developments approved by the City at the time of the 1991 Codes or before which incorporate a private open balcony which is 'open' on one face only and enclosed on three other faces". In oral evidence, Mr Buttle suggested that an "open balcony" is a balcony open for at least its longest face.
Mr Webb referred to the explanatory notes of the R‑Codes which advised that balconies "are in effect outdoor rooms" and considered that "almost regardless of the degree of enclosure, a balcony might also be considered to be an external space which is subject to all or some of the various climatic conditions".
Neither the term "private open balcony" nor "balcony" was defined in the R‑Codes. The relevant, ordinary meaning of the noun "balcony" is "a balustraded or raised and railed platform projecting from the wall of a building" (The Macquarie Dictionary (supra) page 138). The relevant, ordinary meaning of the adjective "open" is "not closed, covered, or shut up, as a house, box, drawer, etc" and "not enclosed as by barriers, as a space" (page 1341). An "open balcony" is, therefore, an unenclosed raised platform projecting from the wall of a building. As Mr Slarke observed, an assessment of whether floor area of a building is an "open balcony" necessarily involves questions of fact and degree.
The Tribunal finds that each of terraces 9, 16 and 27 at levels 2 and 3 of the building are unenclosed, raised platforms projecting from the wall of a building. A raised platform does not cease to be a "balcony" if it projects from more than one wall.
Although cl 7(1A) of TPS 5 provided that the R‑Codes were to "be read as one with this Scheme", the meaning of the word "balcony" in the R‑Codes cannot be construed by reference to the definition of that term in TPS 5, at least unless TPS 5 expressly varied the R‑Codes definition, which was not the case. However, in any case, each of terraces 9, 16 and 27 would satisfy that definition. They are each platforms outside and protruding from the main structure of the building. Each of the walls which "enclose" these terraces forms part of the main structure. The terraces "protrude" from each wall. The definition in TPS 5 did not require that a balcony protrude forward of the building line, only that it "protrude" from the main structure.
The Tribunal considers that Mr Buttle's suggestion that a balcony is relevantly "open" if it is open above its balustrade and any necessary obscure glazed privacy screen for at least its longest face, is a useful "rule‑of‑thumb", subject to the specific circumstances of a case. Each of terraces 9, 16 and 27 satisfies that criterion. The Tribunal does not accept Mr Webb's evidence that openness is simply a product of exposure to climatic conditions. An assessment of openness is to be made not only from the perspective of someone within a balcony, but also from the perspective of someone viewing the balcony from the private and public domain. However, contrary to Mr Hardy's submission commenting on the draft report, the construction of the terraces does not "add to the 'footprint' of the building as it presents to and imposes upon the public domain".
Terrace 12 on level 3 is also plainly a private open balcony, being open on two sides above a masonry balustrade. However, the Tribunal finds that terrace 12 on level 2 could not be reasonably characterised in that way. As Mr Adam noted, the perimeter of this terrace is "almost completely solid wall with only window‑scale openings to the outside". In particular, at the south‑western corner of the building, this terrace presents as a solid masonry structure to Heppingstone Street, with three window‑scale openings. Two window‑scale openings face south to an adjoining property and one faces west to the street. In between these openings is a curved masonry section approximately 4.0 metres wide and 4.6 metres high, which, Mr Colliere candidly conceded, has a "heavy appearance on the corner". Importantly, terrace 12 does not satisfy Mr Buttle's suggestion that an "open balcony" is a balcony open along at least its longest face. Although Mr Bercov gave evidence that he had "no doubt" that each of the terraces in question were "open balconies", it is notable that the series of photographs which he provided of approved balconies in the City's local government area do not include any balcony which has the extent of masonry elements on its "open" side as terrace 12 on level 2. Contrary to Mr Slarke's submission commenting on the draft report, this terrace is not "an example at, or approaching the margin".
Terrace 12 on level 2 has an area of 41.2 square metres. As this area does not constitute an "open balcony", it forms part of the gross floor area of the building for plot ratio purposes.
Finally, Mr Adam identified three areas which he considered to be "marginal". He only gave considered evidence in relation to two of these areas, namely terrace 13 on level 2, which has an area of 19 square metres, and the "outdoor kitchen" on level 4, which has an area of 10.3 square metres. Terrace 13 has two "external" sides which are both apparent from Heppingstone Street. On its northern, narrower face, it is completely open (with a glass balustrade). On its western, longer face, it presents to Heppingstone Street with two openings separated by a solid masonry section. The openings occupy approximately 30 per cent of its western face. On balance, taking into account both its northern and western faces, the Tribunal considers that it is reasonably open to characterise terrace 13 on level 2 is an "open balcony". If its northern face were not completely open, the Tribunal is likely to have come to a different view. The outdoor kitchen area on level 4 clearly forms part of an "open balcony". Above a 1.1 metre high masonry balustrade and an obscure glazed privacy screen, this area is open along the whole of its longest side. It also has a small open section on a second side.
The Tribunal, therefore, considers that the following "contentious" areas, which were not included in the calculation of gross floor area by the City, are required to be included for the purposes of condition 6 under the definition of "plot ratio" in the R‑Codes:
•the "lobby" areas on levels 2 and 3                24.8 square metres
•terrace 12 on level 2  41.2 square metres
•"equipment store" on level 4  21.5 square metres
•mezzanine bookshelf area on level 3              4.9 square metres
Total  92.4 square metres
Adding the agreed exceedence of 3.5 square metres, the Tribunal finds that the building comprises 95.9 square metres of gross floor area in excess of the maximum plot ratio of 0.66 permitted by condition 6. The actual plot ratio of the building is 0.78, which is approximately 18 per cent in excess of the maximum permitted by the condition.

Has the City failed to enforce effectively the observance of a town planning scheme?

At the time when the City granted planning approval for the erection of the building, the applicable planning instrument was TPS 5. Clause 86 of TPS 5 provided as follows:
"If the Council grants planning consent for a development subject to conditions the development shall be carried out and the land shall not be used for any purpose otherwise than in accordance with those conditions."
Clause 94 of TPS 5 provided, among other things, that a person shall not erect a building or use a building unless all conditions imposed upon the grant or issue of any approval required by the Scheme have been and continue to be complied with.
Clause 1.7 of TPS 6 revoked TPS 5 after the building was apparently erected. Clause 9.2(b)(iii) of TPS 6 is in similar terms to cl 94 of TPS 5. Under cl 5 of TPS 5 and cl 1.2 of TPS 6, the City is responsible for carrying out or implementing each Scheme.
It follows from the findings at [33] above that the building is in breach of condition 6 and at [76] above as to the extent of breach, that there has been a contravention of cl 86 and cl 94 of TPS 5 and cl 9.2(b)(iii) of TPS 6.
In addition to its power to commence a criminal prosecution for the contravention of TPS 5 and TPS 6 under s 10AB of the Act, the City has power under s 10 of the Act to direct the removal of unlawful development or the execution of works to remedy unlawful development. Section 10 provides, in part, as follows:
"(1)For the purposes of subsections (2) and (3) a development is undertaken in contravention of a town planning scheme if the development
(a)is required to comply with a town planning scheme; and
(b)is commenced, continued or carried out otherwise than in accordance with that scheme or otherwise than in accordance with any condition imposed with respect to the development by the responsible authority pursuant to its powers under that scheme. …
(3)If a development has been undertaken in contravention of a town planning scheme, the responsible authority may give a written direction to the owner or any other person who undertook the development
(a)to remove, pull down, take up, or alter the development; or
(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority. …
(6)A direction given under subsection (3) … is to specify a time, being not less than 60 days after the service of the direction, within which the direction is to be complied with. … "
The City has not prosecuted Mrs Panizza under s 10AB or given her a direction under s 10 to remedy the breach of condition 6. The City has not suggested that it has sought to enforce the observance of TPS 5 and TPS 6 in any other way. In consequence, the Tribunal finds that the City has failed to enforce, effectively or at all, the observance of TPS 5 and TPS 6.
Mr Slarke submitted, however, that notwithstanding the Tribunal's earlier determination that Mr Drake's representations concerning exceedence of plot ratio fell within the scope or ambit of s 18(2) of the Act, the competence of the representations, and hence of the proceedings, should be "looked at again in light of the evidence which is now before the Tribunal". In particular, Mr Slarke relied on the evidence that Mr Bowering only proposed condition 6 to address what he considered to be "the minimal (5.5 sq. metre) excess plot ratio … accounted for within measuring and drafting error" and in the expectation that "only minor amendments are necessary to bring the floor space down to the maximum permitted". Significantly, in Mr Slarke's submission, by granting conditional planning consent, the City approved the structure and design of the building, including the "lobby" areas on levels 2 and 3, terrace 12 on level 2, and the "equipment store" on level 4. Moreover, condition 6 was intended to be capable of satisfaction "once and only once". The condition "was intended to require the developer to produce slightly modified plans which showed a compliant plot ratio, and if that was achieved the condition would receive a tick and the building could go ahead". On the evidence, this is what occurred.
In consequence, according to Mr Slarke's submission, "any determination made by SAT to the effect the building does not comply with the condition would be, in substance, a determination that the City exceeded its powers". As the Tribunal noted in its earlier determination in these proceedings, at [44], "the legislation in question does not permit such a review by either the Minister or this Tribunal".
The Tribunal rejects the City's submission. It is premised on a misconception as to the nature and function of a planning approval and a misunderstanding as to the meaning of condition 6. As Spigelman CJ observed in Winn v Director‑General of National Parks and Wildlife (2001) 130 LGERA 508 at [4], in a passage quoted with approval by Kirby J in Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 79 ALJR 298 at [89]:
"A public document such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has … an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees or the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions."
Condition 6 is to be construed according to its terms, not according to the mistaken understanding on the basis of which it was apparently imposed. As the Tribunal observed in its earlier determination, at [39], "the development approval could not have been invalid for breach of a nondiscretionary standard, because the [City] explicitly addressed that standard by the imposition of condition [6]". The Tribunal's findings that the building is in breach of condition 6 and that the City's exclusion of the lobbies, terrace 12 and equipment store from plot ratio was not reasonably open, does not involve a determination that the City exceeded its power in granting planning approval. Rather, in granting planning approval subject to condition 6, the City acted within power, although on a mistaken understanding as to what consequences condition 6 involved. Moreover, on its proper construction, condition 6 remains operative notwithstanding the City's approval of the building licence plans. It was not expressed as requiring the submission of slightly modified plans, but rather as requiring modification of the building to achieve a particular standard.
In his written submissions commenting on this aspect of the draft report, Mr Slarke contended that condition 6:
"cannot literally mean that the building is to be modified. That must be so, as the building had not been erected when the planning consent was granted and condition 6 applied. Rather, the word 'building' must be understood to mean 'the plans showing the building' are to be modified."

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

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.
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.
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.

Order

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