Firestar Enterprises Pty Ltd and Town Of Vincent

[2007] WASAT 100

FIRESTAR ENTERPRISES PTY LTD and TOWN OF VINCENT [2007] WASAT 100

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 100
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:476/2006	Heard:	DETERMINED ON THE PAPERS
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	2/05/07
No of pages:	10	Judgment Part:	1 of 1
Result:	No order for costs on original proceedings Condition set aside
Category:	B
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Parties:	FIRESTAR ENTERPRISES PTY LTD TOWN OF VINCENT
Catchwords:	Costs ­ Review of notice requiring compliance with requirements for disabled access to building ­ Proceedings resolved when conditional approval granted for work to remedy access issue ­ Condition imposed requiring payment by applicant of local governments costs of review proceedings ­ Application for costs of original proceedings ­ Application for review of condition requiring payment of costs ­ Whether condition valid
Legislation:	Building Regulations 1989 Disability Discrimination Act 1992 (WA) Local Government (Miscellaneous) Provisions Act 1960 (WA), s 401, s 401(1)(b) State Administrative Tribunal Act 2004 (WA), s 31, s 46(1), s 87, s 87(1), s 87(4) Town of Vincent's Town Planning Scheme No 1
Case References:	Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Orders	CC 3208 of 2005,The respondent's application that the applicant pay the respondent's costs in this matter, and in DR 68 of 2006 is dismissed.,DR 476 of 2006,1. The application for review is allowed.,2. Condition (iv) of the respondent's approval to commence development dated 14 February 2006 is set aside.,3. There is no order as to costs.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : FIRESTAR ENTERPRISES PTY LTD and TOWN OF VINCENT [2007] WASAT 100 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE PAPERS DELIVERED : 2 MAY 2007 FILE NO/S : DR 476 of 2006

CC 3208 of 2005

BETWEEN : FIRESTAR ENTERPRISES PTY LTD

Applicant

AND

TOWN OF VINCENT
Respondent

Catchwords:

Costs ­ Review of notice requiring compliance with requirements for disabled access to building ­ Proceedings resolved when conditional approval granted for work to remedy access issue ­ Condition imposed requiring payment by applicant of local governments costs of review proceedings ­ Application for costs of original proceedings ­ Application for review of condition requiring payment of costs ­ Whether condition valid

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Legislation:

Building Regulations 1989

Disability Discrimination Act 1992 (WA)
Local Government (Miscellaneous) Provisions Act 1960 (WA), s 401, s 401(1)(b)
State Administrative Tribunal Act 2004 (WA), s 31, s 46(1), s 87, s 87(1), s 87(4)
Town of Vincent's Town Planning Scheme No 1

Result:

No order for costs on original proceedings

Condition set aside

Category: B

Representation:

Counsel:

Applicant : N/A
Respondent : N/A

Solicitors:

Applicant : McDonald Pynt
Respondent : Mullins Handcock Lawyers

Case(s) referred to in decision(s):

Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Firestar Enterprises Pty Ltd obtained an approval in 2004 to carry out certain structural alterations to commercial premises in Oxford Street, Leederville. The building licence issued pursuant to that approval required compliance with the Building Code of Australia provisions relating to disabled access. The building, as it was constructed, did not comply with those requirements. Accordingly, the Town of Vincent issued a notice requiring the building to be brought into compliance with the access requirements.

2 Firestar Enterprises commenced proceedings in the State Administrative Tribunal to set aside the notice. Various alternative solutions to the problem were proffered by it. Eventually, it sought approval to modify the building in accordance with one of its proposed solutions. That application was refused, and a further application was made to the Tribunal in relation to that refusal. After further discussions and negotiations a further application for approval of works to resolve the access issue was made by Firestar Enterprises. That application was granted, but subject to a condition that the applicant pay the Town's legal costs in relation to the earlier proceedings. A third application was then brought seeking a review of that condition. The Town then sought an order under s 87 of the State Administrative Tribunal Act 2004 (WA) that Firestar Enterprises pay its costs of the earlier proceedings.

3 The Tribunal reviewed the history of the proceedings, and determined that there was nothing exceptional in the earlier proceedings which would warrant an order for costs in favour of the local government. It concluded that the condition, imposed on the final approval, requiring payment of costs of the earlier proceedings, was invalid and should be set aside. It declined, however, Firestar Enterprises' application for an order that the Town pay the costs of the proceedings relating to the invalid condition.

Background

4 There have been three proceedings before the Tribunal involving Firestar Enterprises Pty Ltd (Firestar) as applicant, and the Town of Vincent (Town) as respondent. They all relate to a development of a commercial building at No 226 Oxford Street, Leederville. The substantive planning issue concerning the building has now been resolved, and all that remains for determination by the Tribunal is the issue of the

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costs of the proceedings. In relation to matters DR 68 of 2006, and CC 3208 of 2005, the issue of costs arises by virtue of applications by the Town for an order, pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), that the applicant pay the Town's legal costs. In relation to proceedings numbered DR 476 of 2006, the issue of costs arises in the context of an application by Firestar for review of a condition of an approval of alterations to the building designed to resolve the issues in the earlier proceedings. The condition imposed by the Town required the payment by Firestar of the Town's costs in relation to the earlier proceedings. As well as challenging that condition, Firestar seeks an order that the Town pay its legal costs in relation to DR 476 of 2006.

5 The original approval for the building works was granted on 2 July 2003. On 9 July 2004 a building licence was issued. In August 2004, Firestar entered into a building contract with a builder to carry out the works which were due for completion by 1 December 2004. There were delays in construction and practical completion was not achieved until about April 2005.

6 On 4 March 2005, the respondent wrote to the builder, following a site inspection, stating the respondent's officers had noticed that the new floor levels were significantly higher than the existing footpath level. The letter pointed out that condition 13 of the building licence required access to be provided for people with disabilities in accordance with the Building Code of Australia Part D3. A series of correspondence and meetings between the architect for the project, Mr Ricci, and officers of the respondent took place between March and May 2005. In June 2005, Mr Ricci provided a report from a licensed building surveyor in respect of access to the premises. The respondent did not accept the contents of that report. On 26 July 2005, Mr Ricci submitted two further options to the respondent to remedy the problem in respect to disabled access and following various further meetings and consultations, the Town rejected the further access options on 18 August 2005.

7 On 23 August 2005, the respondent issued a notice under s 401(1)(b) requiring Firestar to alter the building so as to comply with the requirements of the building licence. That led to the first application to the Tribunal, application CC 3208 of 2005, seeking an order setting aside or varying that notice.

8 When that application came on for initial directions, it was listed for hearing on 10 November 2005, with the hearing to commence at 9:30 am with a site visit. When that site visit commenced, the parties agreed to

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adjourn the hearing, and it was re-listed for 21 December. It is apparent that the reason for that adjournment was to enable the Council of the respondent to consider a proposal for the construction of an access ramp at a gradient of 1:8 instead of the gradient prescribed by the Building Code of Australia (BCA). At its meeting on 14 February 2006, the respondent's Council refused that application. Firestar then made an application for review of that decision in proceedings DR 68 of 2006. The two sets of proceedings were then dealt with together in the Tribunal, and on 16 March 2006 were listed for final hearing on 31 May, with the usual directions being made in relation to witness statements and expert evidence.

9 Accompanying the application in DR 68 of 2006, the applicant had filed a number of photographs of other premises within the Town of Vincent where works had been performed on commercial buildings without meeting the disabled access requirements of the BCA, and where access solutions similar to those being proposed by Firestar had been utilised. Those other examples were relied upon by Firestar as a basis upon which it should be permitted to solve the access issue by the methods it proposed in its application. The respondent did not deal with that aspect of the applicant's case in the documents it filed in advance of hearing, and because it wished to do so, the hearing did not proceed on 31 May 2006. Instead it was adjourned to 10 August 2006 with directions being made for further evidence and submissions to be filed. On 10 August 2006, the matter was again adjourned to 21 September 2006, and a direction made that "in light of the additional evidence put forward by the applicant, the respondent is invited under section 31 of the State Administrative Tribunal Act 2004 to reconsider the decision". On 21 September 2006, the application was further adjourned to enable the applicant to submit applications for approval for a solution to the access issue by 5 October 2006. It was proposed that the respondent would consider the proposals at its meeting on 24 October 2006. The matter was adjourned for directions to 2 November 2006. On 2 November, it was listed for further directions on 28 November.

10 On 21 November 2006, the respondent's Council resolved as follows:

"That;

In accordance with the provisions of the Town of Vincent Town Planning Scheme No. 1 and the Metropolitan Region Scheme, the Council SUPPORTS as part of the State Administrative Tribunal Review Matter No. CC 3208 of 2005 and Matter No.

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DR 68 of 2006, the proposed 'Deemed To Satisfy Resolution' submitted by Studio Di Architettura on behalf of the owner Firestar Enterprises Pty Ltd for Access Footpath Gradients to Alterations and Additions to Existing Shops, and APPROVES the application for the portion of these works at No. 226 (Lot 1 D/P: 956) Oxford Street, corner Richmond Street, Leederville, and as shown on amended plans stamp-dated 6 November 2006 and 16 November 2006, subject to the following conditions:

(i) the external access and footpath gradient to shops 3, 4 and 5 shall not exceed a gradient of 1:20;

(ii) the principal public entrance to shops 3, 4 and 5 shall comply with the requirements of the Building Code of Australia and the Australian Standard (AS) 1425.1;

(iii) the Town, at the applicant's full cost, shall modify the on-road parking and footpath immediately adjacent to shops 3, 4 and 5 to achieve a maximum gradient of 1:20 to the property boundary as specified and in accordance with the Town's Technical Services requirements, with the cost of the Town carrying out this work being $12,851.00 GST inclusive and which is subject to additional labour and material price increases; and

(iv) the legal costs incurred by the Town in dealing with Review Matter No. CC 3208 of 2005 and Matter No. DR 68 of 2006, to the State Administrative Tribunal shall be paid in full by the applicant/owner."

11 The first three conditions of the approval were acceptable to the applicant. The fourth condition requiring the payment of the Town's costs in relation to CC 3208 of 2005 and DR 68 of 2006 were not acceptable, and accordingly, Firestar instituted a further application to the Tribunal for review of condition (iv). That application is matter DR 476 of 2006.

12 On 30 November 2006, an order was made granting Firestar leave to withdraw the proceedings pursuant to s 46(1) of the SAT Act. No provision was made in that order in relation to any order for costs. Matter CC 3208 of 2005 remained on foot, but was adjourned for directions on 1 March 2007, presumably to enable the applicant to carry out the proposed works which would then provide a basis for withdrawal or setting aside of the s 401 notice. On 1 March 2007, those proceedings were further adjourned to 12 March in order to allow the Town's officers

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to inspect the works carried out. On 12 March, the Tribunal ordered that the notice under s 401 of the Local Government (Miscellaneous) Provisions Act 1960 (WA) be set aside "because an alternative solution achieving accessibility for people with disabilities to shops 3, 4 and 5 was approved and has been satisfactorily completed". The notice was revoked. An order was made that the question of costs be reserved on the basis that that question would be dealt with on the materials that had been filed in support of DR 476 of 2006 and entirely on the documents.

13 The issues that remain therefore are whether there should be an order for costs in favour of the Town in CC 3208 of 2005 and DR 68 of 2006, and whether condition (iv) of the approval granted on 14 February 2006 should be set aside.

Costs on CC 3208 of 2005

14 The Town seeks an order that the applicant pay its costs in relation to CC 3208 of 2005, and DR 68 of 2006. The Town contends that the applicant should have constructed the building in accordance with the requirements of the BCA in the first place and if it had done so, the proceedings would not have been required. The Town asserts that its decision to issue a notice was based on valid reasons and was designed to meet the objectives and requirements of the Disability Discrimination Act 1992 (WA), Local Government (Miscellaneous) Provisions Act 1960, Building Regulations 1989, the Building Code of Australia, the Town of Vincent's Town Planning Scheme No 1 and its policies. It argues that, had it failed to pursue the matter, an undesirable precedent would have been created within the Town.

15 As the Tribunal has observed repeatedly, the starting point in relation to the costs of proceedings in the Tribunal is that each party bears its own costs – see SAT Act s 87(1): Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 at [30-31]. Essentially, the respondent's contention is that, because it was justified in issuing the notice, and because the issue of the notice was necessary because of a default by the applicant in properly constructing the alterations to the building, the respondent has been put to expense for which it should be now compensated. If that argument were accepted, then it would seem to follow that, whenever a local authority had justification for the issue of a notice in respect of which a review was sought, it should recover its costs in relation to subsequent proceedings. That approach is inconsistent with the proposition that, in all proceedings, the starting point is that each party should bear its own costs. The approach taken by the Tribunal to the

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award of costs in its review jurisdiction has been that there must be some exceptional reason for ordering that one party pay the costs of another. Usually, an exceptional reason will be in the nature of the matters referred to in s 87(4) or that one party has conducted itself unreasonably in some respect.

16 In this case, the applicant always accepted that the building did not comply with the requirements of the building licence. From the outset, efforts were made by the applicant to resolve the access issue in a manner which was acceptable to the local government. Firestar now complains that the solution ultimately adopted was one which had been suggested to the Town some time in 2005, and that the Town should have accepted that solution at that time, rather than more than one year later. While each party is critical of the conduct of the other, I am satisfied that the respondent was properly motivated by a desire to ensure that the objectives and intent of the legislation dealing with access was met, and that the applicant was generally attempting to resolve the issue in a way which was practically and economically feasible. In the circumstances, there is nothing in the conduct of either party which might be considered unreasonable or otherwise might provide a basis upon which the usual position in relation to the costs of proceedings should be varied. No basis lies for an exercise of the discretion to award costs in favour of the respondent in matters CC 3208 of 2005 or DR 68 of 2006. That application for costs should be dismissed.

Condition (iv) of the 14 February 2007 approval

17 The imposition of a condition which requires the payment of costs of proceedings before the Tribunal on a planning approval relating to building access is misconceived. For a condition to be valid, it must reasonably be related to the development to which it attaches. The question of whether or not an approval should be granted, and the conditions to attach to it, are matters to be dealt with having regard to the planning merits of the application. A condition of a development approval must not be imposed for some ulterior purpose.

18 Condition (iv) of the approval of 14 February 2007 does not go to the planning merits of the application, nor does it relate to the development the subject of the approval. The issue of costs of proceedings is a matter under s 87 of the SAT Act, and is a matter which is subject to the exercise of a discretionary judgment by the Tribunal. To seek to obtain the costs of proceedings through the imposition of a condition of development approval is to seek to achieve an ulterior purpose.

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19 Condition (iv) is invalid and should be set aside.

Costs of DR 476 of 2006

20 The applicant seeks an order that the Town pay its costs in relation to DR 476 on a full indemnity basis. It seeks that order on the ground that it contends that the respondent sought to circumvent the intention, purpose and powers of the SAT Act by the imposition of the condition.

21 While I have concluded that the condition would have the effect of circumventing a discretion imposed on the Tribunal under the SAT Act, and while I consider the condition to be invalid, it does not follow that the respondent has behaved unreasonably in imposing the condition. Undoubtedly, the earlier proceedings in relation to this issue have involved the respondent (and no doubt the applicant as well) in significant legal costs. The approval of the solution to the access issue was directly related to the proceedings then on foot before the Tribunal. Although the imposition of the condition was an error, I have no reason to doubt that it was an error made in good faith with the genuine belief as to the Town's entitlement to impose it.

22 The circumstances of the imposition of the condition and the proceedings which flowed from it do not provide a basis to depart from the usual rule that each party bears its own costs. I would therefore not be inclined to make an award of costs in favour of the applicant in relation to the institution of proceedings in DR 476 of 2006.

23 There were several directions hearings held in matter DR 476 of 2006 during the course of which there was a deal of discussion as to the appropriateness of condition (iv) and an opportunity was given to the respondent to review its position on the condition. Properly advised, it might have been expected that the Town would abandon its attempts to defend the condition. It did not do so, and I have considered whether its maintenance of opposition to the setting aside of the condition, in the light of observations by the Tribunal member about the condition, was unreasonable and should result in an order for costs against it. There is a fairly persuasive case that it should.

24 However, had the Town abandoned its defence of the condition, the question of costs in relation to the earlier proceedings would have remained to be determined. There would have been no basis for an order for costs against the Town up until the directions hearing after which the condition was abandoned. Costs would have been incurred on the argument for costs of the earlier applications. Any additional cost in

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relation to the argument concerning the validity of the condition would have been marginal, if it could sensibly be identified at all. In those circumstances I do not consider that any order for payment of the applicant's costs is appropriate.

Orders

CC 3208 of 2005

25 The respondent's application that the applicant pay the respondent's costs in this matter, and in DR 68 of 2006 is dismissed.

DR 476 of 2006

1. The application for review is allowed.

2. Condition (iv) of the respondent's approval to commence development dated 14 February 2006 is set aside.

3. There is no order as to costs.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT