Geographe Point Pty Ltd and Town Of Claremont - [2009] WASAT 98

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: GEOGRAPHE POINT PTY LTD and TOWN OF CLAREMONT [2009] WASAT 98

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 18 MAY 2009

FILE NO/S: DR 50 of 2009

BETWEEN: GEOGRAPHE POINT PTY LTD
Applicant
AND
TOWN OF CLAREMONT
Respondent

Catchwords:

Costs - Town planning - Development application - Alteration to roofs of approved houses - Whether respondent genuinely attempted to make decision on merits - Delay in consideration of application - Erroneous understanding of role of respondent in relation to application - Delay in forwarding application to Western Australian Planning Commission

Legislation:

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 31, s 31(1), s 46(1), s 60, s 87(1), s 87(2), s 87(4)(b)
Town of Claremont Town Planning Scheme No 3, cl 88(1)

Result:

Each party to pay its own costs

Category: B

Representation:

Counsel:

Applicant: Mr S J Bain (Acting as Agent)
Respondent: Ms K Bacon (Public Sector Employee)

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

(Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 (S)
Aydogan and Town of Cambridge [2006] WASAT 98
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282; (2006) 45 SR (WA) 242
Randall and Town of Vincent [2005] WASAT 147
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This decision related to an application for costs of proceedings for review of the deemed refusal of a development application. The proceedings were resolved by withdrawal of the application a little over three weeks after commencement, following the Tribunal's invitation to the respondent to reconsider its decision and the respondent's decision to grant development approval.
The Tribunal determined that it should not depart from its usual practice that normally each party should pay its own costs in such proceedings. Each party was therefore ordered to pay its own costs.

Application for costs

Geographe Point Pty Ltd (Geographe) seeks an order that the Town of Claremont (Town or Council) should pay Geographe's costs incurred in these proceedings for review of the deemed refusal of a development application.

Background

On 9 September 2008, Geographe applied to the Town for development approval to alter the pitch and materials of the roofs of two previously approved houses at No 16 Bindaring Parade, Claremont (site).
It is common ground that the Town was required to refer the development application to the Western Australian Planning Commission (Commission) within seven days of receipt for the Commission's determination under the Metropolitan Region Scheme (MRS). However, owing to what was described in a letter from Mr Bob Kelly, the Town's Executive Manager Regulatory Services, to Mr Simon Bain, Geographe's consultant town planner, dated 10 February 2009, as 'an oversight on the Town's behalf', the application was referred to the Commission approximately three months late, and was only received by the Commission on 29 December 2008. Mr Kelly indicated to Mr Bain that the Town 'has reviewed its procedures to ensure compliance with the seven‑day statutory referral [period]'.

On 13 January 2009, an officer of the Council, purporting to exercise delegated authority, determined:
That Council advises the Western Australian Planning Commission that it recommends refusal of the development application for alterations to the pitch and materials of the roofs situated at 16 (Unit 3 and 4) Bindaring Parade, Claremont subject to the following conditions:
1.The proposed roof does not comply with the State Administrative Tribunal (Matter No. RD 245 of 2004) condition 2.40 'Dwelling to be provided with a tiled roof';
Although this statement was referred to as 'Conditions of Refusal' in a document signed by the Town's Executive Manager Regulatory Services on 13 January 2009, and was sent to Mr Bain under cover of a letter signed by the Executive Manager Regulatory Services, dated 14 January 2009, in which the Executive Manager said that the development application 'was refused under delegated authority' for the attached reason, it is clear that the Council's delegate considered that the Council did not have a role as a determining authority and, therefore, did not purport to refuse the development application, but rather to make a recommendation to the Commission that it should refuse the development application. Nevertheless, in accordance with cl 88(1) of the Town of Claremont Town Planning Scheme No 3 (TPS 3 or Scheme), the Council was deemed to have refused the development application under the Scheme on 6 November 2008.
On 27 January 2009, Geographe applied to the Tribunal for review of what was described in the application as 'refusal of development application' by the Council under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) (the application erroneously specified s 252(2) of the PD Act as the enabling Act, but nothing turns on this).
At the first directions hearing which was held by the Tribunal on 13 February 2009, the Tribunal ordered that:
1.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Council was invited to reconsider its decision at its meeting on 17 February 2009; and
2.The proceedings were adjourned to a further directions hearing at 11.30 am on 27 February 2009 in order to await the reconsideration.
At its meeting on 17 February 2009, the Council resolved to approve the development application.
On 19 February 2009, the Tribunal ordered, by consent, that, pursuant to s 46(1) of the SAT Act, Geographe had leave to withdraw the proceedings, and the proceedings were withdrawn. However, Geographe indicated that it sought an order that the Town should pay Geographe's costs of the proceedings.
On 9 March 2009, the Commission granted development approval for the alteration of the roofs under the MRS.
On 18 March 2009, the Tribunal made orders for the filing of evidence and submissions on costs by each party and for the determination of the question of costs to be made entirely on the documents under s 60 of the SAT Act, unless either party requested an oral hearing. Neither party requested an oral hearing.

Should a costs order be made?

Section 87(1) of the SAT Act states that:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
The contemplation of the SAT Act is, therefore, that the Tribunal is generally a no‑costs jurisdiction.
Furthermore, although s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party, the Tribunal's established practice in administrative review proceedings is that normally each party should bear its own costs: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246; Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 (Shark Bay Tuna Farms). As Justice Barker explained in Shark Bay Tuna Farms at [36], the Tribunal was established with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. Consequently, an applicant should not be discouraged from seeking administrative justice by the prospect of having to pay the respondent's costs if the applicant does not succeed and, conversely, an applicant is not entitled to an award of costs simply because the applicant succeeds.
Only four awards of costs have been made in planning review proceedings since the establishment of the Tribunal almost four and a half years ago. Two of these awards were in relation to the limited costs of attending directions hearings necessitated by default in compliance with Tribunal orders (Randall and Town of Vincent [2005] WASAT 147 and Aydogan and Town of Cambridge [2006] WASAT 98) and two awards were made in circumstances where the original decision‑maker failed to genuinely attempt to make a decision on the merits of a development application (Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 (S) and J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282; (2006) 45 SR (WA) 242). In relation to the latter two awards, s 87(4)(b) of the SAT Act states that, without limiting anything else that may be considered in relation to whether to make an order for the payment by a party of the costs of another party, where the matter falls within the Tribunal's review jurisdiction, the Tribunal is required to have regard to:
whether the party (being the decision‑maker) genuinely attempted to make a decision on its merits.
In this case, Geographe contended that an award of costs should be made in its favour because of the Town's 'inadequate and incorrect dealing with the application for approval' and, in particular, the Town's failure 'to properly process the application' in four respects.
First, Geographe submitted that 'the application was never determined by the [Town]', and the letter dated 14 January 2009 advised that the application was refused for the reason set out in the attached form, whereas the form did not contain any reason for refusal, but rather contained a recommendation of refusal to the Commission.
The Council had power to determine the development application under TPS 3 although not, in the circumstance of this case, under the MRS. Owing to a misunderstanding in relation to the effect of consent orders made by the Tribunal approving the houses, the Town, or more correctly its officers, were under the impression that the only determining authority in this case was the Commission. While the letter dated 14 January 2009 referred to a refusal under TPS 3 for the reason set out in the attached form, it is clear from the form that the delegate did not purport to refuse the development application, but rather advised the Commission that it should refuse the development application because of its inconsistency with the consent orders made by the Tribunal.
However, the fact that the development application was not determined by the Town under TPS 3 prior to the commencement of the proceedings, and that the form attached to the letter dated 14 January 2009 did not contain a reason for refusal, but rather a recommendation of refusal to the Commission, does not constitute unreasonable conduct on the part of the Town warranting a departure from the Tribunal's usual practice in relation to costs. Geographe was entitled to seek review by the Tribunal of the deemed refusal of the development application on 6 November 2008, but it failed to exercise any right to seek review for a period of almost three months from that date.
Furthermore, although the Town laboured under a misconception in relation to its role, it genuinely attempted to make a merits recommendation to the Commission. While the Town did not purport to make a decision on the merits of the development application under TPS 3 until after the commencement of the proceedings and the invitation by the Tribunal for the Town to reconsider its decision under s 31 of the SAT Act, in the circumstances of its misconception and its merits recommendation to the Commission, the consideration in s 87(4)(b) of the SAT Act does not warrant the making of a costs order in this case.
Second, Geographe contended that the period of over four months between the lodgement of the development application and its consideration by the Town on 13 January 2009 was 'a significant delay given the application was for a minor alteration to a previously approved development'.
However, while it is unfortunate that the Town did not address a relatively minor application for four months, this length of delay did not amount to unreasonable conduct on the part of the Town so as to warrant a departure from the usual practice in relation to costs. Furthermore, as noted earlier, Geographe had a right to seek review of the deemed refusal of the development application, but failed to seek review for almost three months after that right arose.
Third, Geographe contended that the Town failed to properly process the application because of its incorrect understanding of its role.
However, a misunderstanding of the Town's role did not amount to unreasonable conduct on its part warranting a costs order against it. There is no evidence, for example, that the Town was presented with legal advice that it was a relevant determining authority in relation to the development application. Furthermore, as noted earlier, Geographe had a right to seek review of the deemed refusal of the development application. Had Geographe availed itself of this right at an earlier point in time, the Tribunal would have clarified the Town's role, as it ultimately did, by inviting it to reconsider its decision in accordance with s 31 of the SAT Act.
Finally, Geographe contended that the Town failed to properly process the application by its failure to refer the application to the Commission within seven days and by only referring it after three months. Geographe contended that this delay resulted in 'unquantifiable costs to the applicant as the development has been delayed during construction'.
However, while the Town's 'oversight' was both unfortunate and unsatisfactory, it was not directly relevant to the costs of the proceedings or the matter because of which the proceedings were brought, namely the deemed refusal of the development application under TPS 3. Approval by the Commission under the MRS was a separate requirement to approval by the Council under TPS 3. The failure of the Commission to approve the application under the MRS was not the subject of these or other review proceedings before the Tribunal. Furthermore, the Commission approved the development application only 18 days after the Town's approval was given under TPS 3.

Conclusion

For the foregoing reasons, the Tribunal does not consider that it should exercise its discretion in relation to costs under s 87(2) of the SAT Act to depart from its usual practice in relation to costs in the circumstances of this case.
While the Town, or more correctly its officers, laboured under a misunderstanding as to the Council's role in relation to the development application, the Council did purport to consider the merits of the application.
Geographe had a right to seek review of the deemed refusal of the development application, which it did not exercise for a period of almost three months. Had Geographe exercised its right to seek review, the Tribunal would have allayed the Town's misconception, as the Tribunal ultimately did in referring the application for reconsideration by the Council.
The proceedings were satisfactorily resolved by the Council's decision in a little over three weeks after the proceedings were ultimately commenced.
Each party should pay its own costs of the proceedings.

Order

The Tribunal orders that each party is to pay its own costs of the proceedings.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER