FLORENTINE ARCHITECTURE AND MODCO MODERN CONSTRUCTION and CITY OF BAYSWATER
[2017] WASAT 46
•16 MARCH 2017
FLORENTINE ARCHITECTURE AND MODCO MODERN CONSTRUCTION and CITY OF BAYSWATER [2017] WASAT 46
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 46 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:377/2016 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS D QUINLAN (MEMBER) | 16/03/17 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Applicants' application for costs dismissed | ||
| B | |||
| PDF Version |
| Parties: | FLORENTINE ARCHITECTURE AND MODCO MODERN CONSTRUCTION CITY OF BAYSWATER |
Catchwords: | Town planning Costs application Whether respondent genuinely attempted to make a decision on its merits Whether respondent behaved unreasonably in its conduct of proceedings Objectives of Tribunal |
Legislation: | Planning and Development Act 2005 (WA) State Administrative Tribunal Act 2004 (WA), s 9, s 26, s 60(2), s 87, s 89 |
Case References: | Boulter and Shire of AugustaMargaret River [2006] WASAT 334 Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53 Humphreys and City of Stirling [2011] WASAT 105 Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20 Springmist Pty Ltd and Shire of AugustaMargaret River (2005) 41 SR (WA) 207; [2005] WASAT 143(S) Tran and Town of Vincent (2009) 65 SR (WA) 260; [2009] WASAT 123(S Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 |
Orders | Accordingly, the Tribunal will order as follows:,1. The application for costs is dismissed. |
Summary | The applicants applied for development approval to the City of Bayswater (respondent) for one twostorey and two singlestorey grouped dwellings which included the removal of one street tree (development proposal). One of the principle reasons for refusal included a misstatement by the respondent that removal of the street tree did not comply with cl 5.3.5 of State Planning Policy 3.1: Residential Design Codes which the respondent considered 'requires driveways to be located so as to avoid street trees'. ,Following mediation, and prior to the scheduled directions hearing to program the matter to hearing, pursuant to s 26 of the State Administrative Tribunal Act 2004 (WA) and with the consent of the first applicant, the respondent's Planning and Development Services Committee granted conditional approval of the development proposal. The applicants applied for their costs of the proceedings in the Tribunal.,In consideration of all of the facts and circumstances of this matter, the Tribunal declined to exercise its discretion to award costs to the applicants. This was principally due to two reasons. Firstly, that the respondent Council relied on, albeit partially incorrect, expert town planning advice and the Tribunal found that the respondent had genuinely attempted to make a decision on its merits. Secondly, that there was nothing unreasonable in the way that the respondent conducted the proceedings in the Tribunal. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FLORENTINE ARCHITECTURE AND MODCO MODERN CONSTRUCTION and CITY OF BAYSWATER [2017] WASAT 46 MEMBER : MS D QUINLAN (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 16 MARCH 2017 FILE NO/S : DR 377 of 2016 BETWEEN : FLORENTINE ARCHITECTURE AND MODCO MODERN CONSTRUCTION
- Applicants
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning Costs application Whether respondent genuinely attempted to make a decision on its merits Whether respondent behaved unreasonably in its conduct of proceedings - Objectives of Tribunal
Legislation:
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 26, s 60(2), s 87, s 89
Result:
Applicants' application for costs dismissed
Summary of Tribunal's decision:
The applicants applied for development approval to the City of Bayswater (respondent) for one twostorey and two singlestorey grouped dwellings which included the removal of one street tree (development proposal). One of the principle reasons for refusal included a misstatement by the respondent that removal of the street tree did not comply with cl 5.3.5 of State Planning Policy 3.1: Residential Design Codes which the respondent considered 'requires driveways to be located so as to avoid street trees'.
Following mediation, and prior to the scheduled directions hearing to program the matter to hearing, pursuant to s 26 of the State Administrative Tribunal Act 2004 (WA) and with the consent of the first applicant, the respondent's Planning and Development Services Committee granted conditional approval of the development proposal. The applicants applied for their costs of the proceedings in the Tribunal.
In consideration of all of the facts and circumstances of this matter, the Tribunal declined to exercise its discretion to award costs to the applicants. This was principally due to two reasons. Firstly, that the respondent Council relied on, albeit partially incorrect, expert town planning advice and the Tribunal found that the respondent had genuinely attempted to make a decision on its merits. Secondly, that there was nothing unreasonable in the way that the respondent conducted the proceedings in the Tribunal.
Category: B
Representation:
Counsel:
Applicants : N/A
Respondent : N/A
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Boulter and Shire of AugustaMargaret River [2006] WASAT 334
Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53
Humphreys and City of Stirling [2011] WASAT 105
Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20
Springmist Pty Ltd and Shire of AugustaMargaret River (2005) 41 SR (WA) 207; [2005] WASAT 143(S)
Tran and Town of Vincent (2009) 65 SR (WA) 260; [2009] WASAT 123(S
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Introduction
1 On 29 February 2016 the applicants lodged an application for development approval in relation to Lot 52, 30 Clarke Road, Morley (subject site) for one twostorey and two singlestorey grouped dwellings which included the removal of one street tree (development proposal). Following conferral with the respondent's officers, amended plans were submitted in September 2016.
2 On 25 October 2016, in accordance with the recommendation of the Acting Director of Planning and Development Services, the development proposal was refused by the Council of the City of Bayswater for the following reasons:
1. The proposal does not comply with clause 5.3.5 of the Residential Design Codes which requires driveways to be located so as to avoid street trees.
2. The proposal which involves removal of an existing street tree is considered to have an undue impact on the streetscape amenity of the area.
3. The proposal is considered to be inconsistent with the orderly and proper planning of the locality.
3 On 29 November 2016, the applicants filed an application for review of the respondent's decision. A directions hearing was held in the Tribunal on 21 December 2016 where the time for filing the application for review was extended and the matter was referred to mediation on 13 January 2017. The matter was not resolved at the mediation and the proceedings were referred back for further directions on 27 January 2017.
4 On 24 January 2017, prior to the scheduled directions hearing, pursuant to s 26 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), with the consent of the applicants, the respondent's Planning and Development Services Committee reconsidered the development proposal and granted conditional approval.
5 At the directions hearing on 27 January 2017, the Tribunal granted the applicants leave to withdraw the proceedings subject to programming orders for an intended costs application. The applicants were ordered to file any application for costs by 2 February 2017 and the respondent had until 17 February 2017 to reply. Both parties duly complied with those orders. The Tribunal also determined on 27 January 2017 that an application for costs would be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
Application for costs
6 The applicants seek a costs order in their favour for the costs incurred by the applicants in resolving these proceedings in the Tribunal. The applicants seek reimbursement of the Tribunal's prescribed filing fee of $1,014. The applicants also seek costs of $5,500 which they submit is derived from 20 hours of work undertaken by consultant town planners, Game Planning Australia Pty Ltd at $250 per hour (including GST). The applicants further submit that the total figure sought is a discounted amount as the first applicant's internal costs are not being sought.
Legal principles in costs applications in the Tribunal
7 The effect of s 87(1) of the SAT Act, relevant to these proceedings, is that each party bear their own costs unless the Tribunal orders otherwise. This is the usual approach in review proceedings under the Planning and Development Act 2005 (WA) (PD Act):Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53 (Citygate) at [28].
8 However, pursuant to s 87(2) of the SAT Act, the Tribunal may exercise its discretion and make an order for the payment by a party of all, or any, of the costs of another party. In the recent decision of the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J, agreeing) found at [51]:
Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour. (Footnotes omitted)
9 The power to make a costs order includes the power under s 87(3) of the SAT Act to make an order for the payment of an amount to compensate a party for any expenses resulting from the proceeding. The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal: Springmist Pty Ltd and Shire of AugustaMargaret River (2005) 41 SR (WA) 207; [2005] WASAT 143(S) at [64].
10 Costs orders are generally only made in review proceedings where a party has acted unreasonably, including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act: Tran and Town of Vincent (2009) 65 SR (WA) 260; [2009] WASAT 123(S) at [35]; Humphreys and City of Stirling [2011] WASAT 105 at [27]. The expectation in s 87(4) of the SAT Act that is relevant and which the Tribunal must have regard to in determining a costs application is whether the respondent has genuinely attempted to make a decision on its merits.
11 Section 87(4) of the SAT Act identifies certain matters to which the Tribunal is to have regard in exercising its discretion to award costs in the Tribunal's review jurisdiction. That subsection does not limit the matters which might be considered under s 87(2): Citygate at [253].
12 The Tribunal is mindful in the present case that the fact that the Tribunal might have reached a different conclusion from the original decision maker does not, of itself, inevitably lead to a conclusion that the respondent failed to genuinely attempt to make a decision on its merits: Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20 at [50].
13 Pursuant to s 89 of the SAT Act, where the Tribunal makes a costs order it may fix the amount of costs.
Survey strata subdivision approval
14 On 21 June 2016, the Council of the respondent considered a referral to the respondent for comment and recommended conditions from the Western Australian Planning Commission (WAPC) for a proposed three lot survey strata subdivision at the subject site (proposed subdivision). In accordance with a recommendation by the Director Planning and Development Services, the respondent recommended the WAPC refuse the proposed subdivision for the following reasons:
1. Noncompliance with clause 5.3.5 of the Residential Design Codes which requires driveways to be located so as to avoid street trees.
2. The City does not support removal of street trees and considers the current lot configuration incapable of accommodating vehicular access to proposed Lot 2 without requiring removal of an existing street tree.
3. The proposal is considered to have an undue impact on the streetscape amenity of the area due to the removal of an existing street tree and increased number of crossovers.
4. The proposal is considered to be inconsistent with the orderly and proper planning of the locality.
(Tribunal's emphasis)
15 The Tribunal understands from the report by the Acting Director Planning and Development Services to the Council meeting on 25 October 2016 that, despite the respondent's recommendation it be refused, the WAPC approved the subdivision proposal subject to conditions.
State Planning Policy 3.1: Residential Design Codes (RCodes)
Relevant to these proceedings, the deemed to comply provisions in cl 5.3.5 C5.3 of the RCodes provide that:
Driveways shall be:
…
• located so as to avoid street trees, or, where this is unavoidable, the street trees replaced at the applicant's expense or replanting arrangements to be approved by the decisionmaker[.]
(Tribunal's emphasis)
Vehicular access provided for each development site to provide:
• vehicle access safety;
• reduced impact of access points on the street scape;
• legible access;
• pedestrian safety;
• minimal crossovers; and
• high quality landscaping features.
17 Clause 2.4 of the RCodes provide that where a development proposal does not meet the deemed to comply provisions of the RCodes and addresses the design principles, the decision maker is required to exercise judgment of merit to determine the proposal for the specific element that does not satisfy the relevant deemed to comply provisions.
18 Clause 2.5.4 of the R-Codes provides that a decision-maker shall not refuse to grant approval where a development proposal satisfies the deemed to comply provisions, the relevant provisions of the scheme and any relevant local planning policy.
The parties' submissions
The applicants submit that the respondent did not genuinely attempt to make a decision on its merits for reasons which can be summarised as follows:
a) One of the factual bases underpinning the decision was inaccurate in that Clarke Road did not have a well established planting of consistent street trees - it has a wide variety of street trees.
b) No consideration was given to the streetscape being improved by the housing renewal.
c) The respondent has maintained a blanket opposition, or inflexible approach, to street tree removal evidenced by the decisions in the development proposal, the subdivision proposal and two other unrelated matters before the Council of the respondent on 21 June 2016.
d) The respondent sought to incorrectly consider an alternative lot configuration, rather than assess the development proposal before it.
e) The respondent sought to exercise a discretion that was not available as the respondent admitted the removal of the street tree was unavoidable in its comments to the WAPC, and therefore the development proposal met the deemed to comply provisions in cl 5.3.5 C5.3 of the R Codes.
f) The respondent was seeking to contradict, or impugn, the earlier decision of the WAPC to allow subdivision.
g) The respondent failed to have any regard or follow its own policy, City of Bayswater Town Planning Policy TPP1.7 (TP-P1.7), a policy which appropriately corresponds with the R-Codes.
h) The reasons for refusal are 'invalid'.
i) The respondent ultimately approved, in substance, the same development proposal on 24 January 2017 that was before it on 25 October 2016. The only difference was the applicants proposed to provide two replacement street trees for the one to be removed. The applicants submit further that this is simply an administrative arrangement allowed for in cl 5.3.5 C5.3 of the RCodes and TPP1.7.
j) The respondent made a decision that no reasonable decision maker could make on the information available.
19 The respondent submits that it did genuinely attempt to make a decision on its merits for reasons which can be summarised as follows:
a) The applicants have been informed since a resolution of Council on 9 December 2014 that the respondent does not support removal of street trees.
b) The respondent's officers have extensively liaised with the applicants with a view to achieving an outcome consistent with the zoning and the Council's 'mandate to retain street verge trees'.
c) The respondent took the view that as the three lots had not yet been created, there remained an opportunity to reconfigure the proposal to avoid street tree removal and 'comply with cl 5.3.5 of the RCodes'.
d) The reasons for refusal (though not stated as such), included removal of the street tree would not satisfy the design principle in cl 5.3.5 in that there should be reduced impact of access points on the streetscape.
20 The Tribunal notes that both parties direct their submissions as to whether the respondent genuinely attempted to make a decision on its merits, however, this is not the only consideration for the Tribunal in exercising its discretion to award costs.
Consideration
21 During the process of referral for the subdivision proposal and consideration of the development proposal, the respondent has made it abundantly clear that it opposed the removal of the street tree. Whilst the respondent may oppose the removal of the street tree for the development proposal, the respondent is still obliged to consider the application on its merits and to apply relevant provisions of its scheme, the RCodes and local planning policy.
22 The Tribunal is cognisant that apparent noncompliance of the RCodes was only one of three reasons that the respondent refused the development proposal in its original decision. Further, the Tribunal in determining the costs application, is not to make findings as to the merits of the development proposal.
23 The Tribunal notes that if the development proposal did not meet the deemed to comply provisions in cl 5.3.5 C5.3, then that part of the development proposal, being the driveway for proposed Lot 2, needed to be assessed under the design principles of cl 5.1.5 of the R-Codes.
24 The Tribunal finds for the purposes of the costs determination that the respondent (as advised by its planning officers) consistently incorrectly states the meaning and effect of cl 5.3.5 of the R-Codes, in particular the deemed to comply provisions. The respondent consistently paraphrases one part of the deemed to comply provisions in cl 5.3.5 of the R-Codes whilst ignoring the part which addresses the situation where removal is unavoidable.
25 Plainly the deemed to comply provisions in cl 5.3.5 C5.3 of the RCodes do not state, as the respondent suggests, in that they do not require driveways to be located so as to avoid street trees. Nor do the design principles in cl 5.3.5 of the RCodes require driveways to be located so as to avoid street trees.
26 This misstatement of the meaning and effect of cl 5.3.5 of the RCodes occurred again in the respondent's written submissions opposing a costs order, despite the fact that the development proposal has now been approved by the respondent.
27 Even if the deemed to comply provisions in cl 5.3.5 C5.3 of the RCodes did state what the respondent incorrectly suggests in its reasons for refusal, in any event, the deemed to comply provisions are only one example of how the RCodes can be satisfied. The driveway for proposed Lot 2, if it did not meet the deemed to comply provisions, could then be assessed pursuant to the design principles in cl 5.3.5 of the RCodes.
28 Whilst the respondent in its decision to refuse the development proposal for the subject site incorrectly stated the meaning and effect of cl 5.3.5 of the RCodes, of note, is that the Council followed expert, albeit partially incorrect, planning advice. The Tribunal finds in all of the circumstances of this matter, in particular the Council's reliance on expert planning advice, that the respondent has genuinely attempted to make a decision on its merits. Therefore, whilst the Tribunal considers that the respondent was incorrect in pronouncing on 25 October 2016, as part of its reasons for refusal, that cl 5.3.5 of the R-Codes 'requires driveways to be located so as to avoid street trees', the Tribunal cannot find that the respondent failed to genuinely attempt to make a decision on its merits.
29 However, the exercise of the Tribunal's discretion to award costs does not end with a finding that the respondent genuinely attempted to make a decision on its merits. The Tribunal's discretion in s 87 of the SAT Act is not limited by s 87(4).
30 One factor for the Tribunal to consider is whether there is anything unreasonable in the way that the respondent has conducted itself in the proceedings before the Tribunal.
31 The brief timeline of the proceedings in the Tribunal are as follows:
a) The proceedings were filed in the Tribunal on 29 November 2016.
b) There was a directions hearing on 21 December 2016 where the matter was referred to mediation with no further documents to be filed.
c) There was a mediation held on 13 January 2017 following which the matter was referred back for a further directions hearing on 27 January 2017.
d) Pursuant to s 26 of the SAT Act and with the consent of the first applicant, on 24 January 2017 the respondent's Planning and Development Services Committee granted conditional approval of the development proposal.
e) On 27 January 2017 the Tribunal granted leave to the applicants to withdraw the proceedings and made programing orders in order for the applicants to make their intended costs application.
32 The Tribunal is unaware, as it should be, as to what transpired at the mediation and it would be inappropriate for the Tribunal to be informed of what occurred in a confidential mediation process: Boulter and Shire of AugustaMargaret River [2006] WASAT 334. However, it is clear from the brief timeline that the proceedings in the Tribunal have been resolved in a timely fashion in accordance with the objectives prescribed by s 9 of the SAT Act. Had the matter proceeded to hearing, the view of the Tribunal in relation to the conduct of the respondent may have been different.
33 From the submissions on costs and the comments by some members of the respondent's Planning and Development Services Committee, the Tribunal considers that an inference can be drawn that the respondent, somewhat reluctantly, granted approval to the applicants on 24 January 2017. Despite this apparent reluctance, the respondent has nonetheless reconsidered its position and granted approval to the applicants at an early stage of the proceedings in the Tribunal.
34 In consideration of all of the facts and circumstances of this matter, the Tribunal declines to exercise its discretion to award costs to the applicants. This is principally due to two reasons. Firstly the respondent Council relied on, albeit partially incorrect, expert town planning advice and the Tribunal finds that the respondent has genuinely attempted to make a decision on its merits. Secondly, the Tribunal finds that there is nothing unreasonable in the way that the respondent has conducted the proceedings in the Tribunal.
Orders
Accordingly, the Tribunal will order as follows:
1. The application for costs is dismissed.
I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS D QUINLAN, MEMBER
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