GODENZI and CITY OF JOONDALUP
[2007] WASAT 189
•19 JULY 2007
GODENZI and CITY OF JOONDALUP [2007] WASAT 189
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 189 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:188/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR M SPILLANE (MEMBER) | 19/07/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for costs dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN AND BIRUTA GODENZI CITY OF JOONDALUP |
Catchwords: | Costs Application for development approval Matter resolved through mediation save as to costs Whether respondent acted unreasonably |
Legislation: | City of Joondalup District Planning Scheme No 2, cl 6.1.2 Planning and Development Act 2005 (WA), s 238(3), s 239(1), s 239(2), s 239(4) State Administrative Tribunal Act 2004 (WA), s 9, s 54(10), s 60(2), s 87, s 87(1), s 87(3), s 87(4) |
Case References: | Citygate Properties Pty Ltd and City of Bunbury [2005] 38 SR (WA) 246; [2005] WASAT 53 Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 |
Orders | The applicant's claim for costs is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GODENZI and CITY OF JOONDALUP [2007] WASAT 189 MEMBER : MR M SPILLANE (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 JULY 2007 FILE NO/S : DR 188 of 2006 BETWEEN : JOHN AND BIRUTA GODENZI
- Applicants
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Costs - Application for development approval - Matter resolved through mediation save as to costs - Whether respondent acted unreasonably
Legislation:
City of Joondalup District Planning Scheme No 2, cl 6.1.2
Planning and Development Act 2005 (WA), s 238(3), s 239(1), s 239(2), s 239(4)
State Administrative Tribunal Act 2004 (WA), s 9, s 54(10), s 60(2), s 87, s 87(1), s 87(3), s 87(4)
(Page 2)
Result:
Application for costs dismissed
Category: B
Representation:
Counsel:
Applicants : Self-represented
Respondent : Self-represented
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Citygate Properties Pty Ltd and City of Bunbury [2005] 38 SR (WA) 246; [2005] WASAT 53
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143
(Page 3)
Summary of Tribunal's decision
1 Mr and Mrs Godenzi commenced proceedings in the Tribunal in June 2006 seeking approval of a residential development within the City of Joondalup. There was a long history of dealings between the applicants and the City concerning various proposals for development on the applicants' land. Upon receipt of the application, the Tribunal embarked upon what became a lengthy process of mediation. In the course of that process, further plans and information was provided by the applicants to the respondent to deal with various concerns that had arisen. Eventually, after numerous mediation sessions, the parties reached agreement and the Tribunal granted planning consent for a new grouped dwelling on the land in accordance with plans received by the City on 26 February 2007. That resolved the application before the Tribunal save for an application for an order that the respondent pay certain costs which the applicants had incurred in relation to the proceedings. The costs application was then listed before a different member of the Tribunal for determination. The applicants claimed costs for a cadastral survey, drafting of certain plans, anticipated legal costs in relation to the costs application, the costs of a new survey strata application, and for loss of rent which it was claimed could have been received from the development had it been approved in a timely way.
2 The Tribunal had directed that the costs application be dealt with on the papers. The applicants sought an oral hearing, and sought to be represented by lawyers at that hearing, notwithstanding that they had made an election under the Planning and Development Act 2005 (WA) to have no legal representation when they commenced the proceedings. They also sought to have the costs application dealt with by a three member Tribunal.
3 The Tribunal determined that it was obliged to have only a single member hear the costs application, and declined an oral hearing. It considered the written submissions in relation to costs, and concluded that the applicants had not demonstrated any foundation upon which a costs order could be made in their favour. Accordingly, the Tribunal dismissed the application for costs.
Background
4 Mr and Mrs Godenzi's proposals to develop their land at No 65 Kempenfeldt Avenue, Sorrento date back to 1998 when they received an
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- approval on 26 June 1998 to place an additional grouped dwelling on the land. The approval was subject to a condition that it was valid for a period of 24 months and that "if development is not completed within that period a fresh approval must be obtained before commencing or continuing with the development".
5 The approval contained an advice note which stated:
"The applicant is advised that the revised State government Sewerage Policy 1995 became effective from 1 July 1996 and will preclude grouped dwelling development on this lot should development not be completed within the two year period of this approval. No further development approvals will be issued in relation to the current status of the land being unsewered."
6 It is common ground that the development was commenced within two years of the approval in 1998, but reached only the point of construction of a large concrete slab with a partly enclosed space beneath it.
7 In 2004, Mr Godenzi lodged a further application dated 30 June 2004 for development approval for a proposed second dwelling on the land. There followed a series of dealings between Mr Godenzi and the City involving numerous revised plans being submitted. Eventually, by November 2004, the City, probably under authority delegated to planning officers, determined that it was prepared to grant approval of Mr and Mrs Godenzi's latest plans. A letter notifying that approval dated 25 November 2004 was apparently prepared, but was not sent to the applicants. The reason for that, is that before the approval was posted, the City received a letter from Mr Godenzi dated 27 November 2004. The letter commenced "I understand you have favourably considered the plans submitted on 2 November 2004, and it is with much regret that I resubmit another drawing for your consideration". The letter explained that Mr Godenzi's wife was not happy with the plans submitted, and sought approval of different plans.
8 Between December 2004 and July 2005, a number of further plans were submitted to the City and were referred to adjoining owners for comment. On 27 July 2005, Mr Godenzi withdrew his application for development approval.
9 It is apparent that the matter was subsequently revived. Between October 2005 and March 2006, there were meetings between the City's planners and Mr Godenzi and his representatives, and further plans were
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- prepared. Some time in early 2006, Mr Godenzi apparently applied to the Western Australian Planning Commission (WAPC) for approval of a strata title subdivision of the land. In a letter dated 28 March 2006 from Mr Godenzi to the WAPC, Mr Godenzi advised that he wished to vary his application for subdivision because he had decided to demolish the existing dwelling at the front of the property rather than retain it as he had earlier advised. On 3 April 2006, Mr Godenzi wrote to the Chief Executive Officer of the City making a number of complaints about the course of his application for planning approval. He also noted his proposal to demolish the existing house once the rear development had been completed.
10 Between April and May 2006, a representative of Mr Godenzi met with City officers to discuss the proposed plans, and a further set of revised plans were provided to the City. On 24 May 2006, Mr Godenzi wrote to the City advising that, if the plans were not approved by 1 June 2006, he would commence proceedings in the Tribunal for a review of a deemed refusal of his application. He commenced an application for review in the Tribunal on 8 June 2006.
11 The initial directions hearing before the Tribunal proceeded by way of a mediation. It would appear from the orders on file that approximately five or six mediation hearings were conducted, and on a couple of occasions, mediation appointments were vacated. During the course of the mediation, it is apparent, from the orders that were made, that it was agreed that the applicants would provide further information or plans. Eventually, on 3 April 2007, the mediator made an order allowing an application for review and granting planning consent on the basis of plans received by the City on 26 February 2007. In the same order, the member reserved the question of costs, making the following order:
"The question of costs is reserved. If the applicant wishes to make application for costs under s 87 of the State Administrative Tribunal Act 2004, the following directions shall be complied with:
(i) any application for costs and supporting submissions shall be filed with the Tribunal and served on the other party by Friday 4 May 2007;
(ii) the respondent shall file with the Tribunal and provide to the other party its submissions in reply within two weeks of the receipt of the respondent's submissions;
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- (iii) the applicant shall file with the Tribunal any submissions in reply within one week of the receipt of the respondent's submissions in reply; and
(iv) unless either party specifically requests an oral hearing on costs, the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA)."
12 Section 54(10) of the State Administration Tribunal Act 2004 (WA) precludes a member of the Tribunal who has acted as mediator from taking any further part in dealing with the proceeding after the mediation unless all parties agree otherwise. No agreement to the mediator dealing with the question of costs was forthcoming in this case. Accordingly, when the applicants applied for costs pursuant to the mediator's direction, the matter was referred to me for determination.
13 The applicants' initial claim for costs contained a request for an oral hearing. In view of the contents of the claim for costs, I held a directions hearing principally to explain the ambit of costs that might be potentially recoverable under s 87 of the SAT Act as explained by the Tribunal in Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143. At that hearing, I made a direction varying the earlier direction by the mediator concerning the time for making submissions, and directed that the matter is to be determined entirely on the documents pursuant to s 60(2) of the SAT Act. As a result of that directions hearing, a revised claim for costs was lodged by the applicants. It is that revised claim to which these reasons are directed.
Constitution of the Tribunal
14 Subsequent to the directions hearing, Mr Godenzi wrote to the Tribunal, and telephoned administrative staff of the Tribunal indicating that he wished to have an oral hearing, and to have the Tribunal constituted by three members for the purpose of hearing his costs claim. That matter was referred to me. Because Mr and Mrs Godenzi's application is one which comes within s 238(3) of the Planning and Development Act 2005 (WA) (PD Act), the Tribunal is required to be constituted by an ordinary member sitting alone when dealing with it. By reason of s 239(4) of the PD Act, that requirement does not apply if the President is of the opinion that the application is likely to raise complex or significant planning issues. In light of the request for a three member Tribunal, the matter was referred to the President to ascertain whether, in his opinion, the application is likely to raise complex or significant issues.
(Page 7)
- The actual planning application has, of course, been resolved by consent following mediation. The question of costs raises no planning issues let alone complex or significant ones. Accordingly, the President did not form the opinion required to alter the constitution of the Tribunal from an ordinary member sitting alone, and therefore the request for a three member Tribunal was declined.
Oral hearing
15 Mr Godenzi also sought an oral hearing on the question of costs. Although that possibility was left open by the mediator in her initial directions concerning any application for costs, having received initial submissions and called the parties in for a directions hearing, I amended the initial direction so as to provide that it should be determined entirely on the documents. Other directions made at the time ensured that each party had ample opportunity to provide written submissions on the question of costs.
16 Mr Godenzi revived his request for an oral hearing in both correspondence and telephone calls to the Tribunal staff following the directions hearing. The reason expressed for seeking an oral hearing was to enable the applicants to instruct lawyers to appear on their behalf on the costs application, and to enable cross-examination of Mr Sullivan, an officer of the respondent who had filed affidavits in relation to the costs issue.
17 When commencing proceedings in the Tribunal, the applicants made an election, pursuant to s 239(1) of the PD Act, that no party to the application is to be represented by a legal practitioner. Section 239(2) provides that where that election is made, no party to the application is entitled to be represented by a legal practitioner unless certain circumstances apply. One of those circumstances is where the applicant withdraws the election. The applicants have not formally withdrawn their election, but the request to be represented by solicitors in relation to a hearing on costs might be treated as, in substance, a withdrawal of the election. The consequence of a withdrawal of the election is that both parties would be entitled to legal representation. It might reasonably be anticipated that, if the applicants are legally represented, the respondent will choose to also be represented by lawyers, or by an independent agent.
18 That consequence is relevant to the request for an oral hearing. It is apparent that, if an oral hearing were to take place, substantial fees for representation may be incurred by both parties. The applicants' claim for costs consists of five items. They are a cadastral survey ($925), drafting
(Page 8)
- costs ($1100), anticipated legal costs in relation to the claim for costs (estimated $6000), a new survey strata application to the WAPC ($780) and loss of rent ($10 000). It can be seen that the anticipated legal fees amount would increase the total cost claim by some 50%. If it is reasonable to assume that the respondent would incur similar costs, the effect is that the total costs of representation on an oral hearing would roughly equal the amount at stake. It is clear, therefore, that the objective of the Tribunal, found in s 9 of the SAT Act, of minimising costs to parties would not be achieved by holding an oral hearing. The question is whether that objective must be sacrificed in order to provide a fair hearing on the question of costs and to give the parties a reasonable opportunity to present their cases. In this case, directions have been made, and revised, to enable the parties to file and serve whatever submissions and other materials they wish. A substantial volume of material has been lodged, and written submissions made by each party. The parties have been given ample opportunity to present their cases on the question of costs.
19 An oral hearing might present an opportunity for Mr Godenzi, or his lawyers, to cross-examine Mr Sullivan, who is the deponent of affidavits filed with the respondent's submissions on costs. I have considered whether cross-examination of Mr Sullivan should be permitted, and determined that it should not. Mr Sullivan's affidavits do little more than outline the history of Mr Godenzi's applications for approval by reference to documents. Mr Godenzi has similarly provided a substantial number of documents by way of background material. The fact that the respondent's documents were provided by affidavit is of little significance. Having considered the various items of claim made by the applicants, I cannot see how cross-examination of Mr Sullivan would assist in addressing the issue before me for determination. I have not found it necessary to rely on any particular assertions made in Mr Sullivan's affidavits in reaching a decision on this application.
20 It was for those reasons that I concluded that the direction, that the matter should be dealt with on the papers, should stand, and I declined to hold an oral hearing.
Mr Godenzi's affidavit
21 On 10 July 2007, well after the time for filing submissions had passed, the Tribunal received an affidavit by Mr Godenzi from solicitors acting on his behalf. The solicitors requested the Tribunal to take the affidavit into account in determining the issue of costs. The Tribunal directed that the solicitors ascertain the respondent's attitude to reception
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- of the affidavit. In the affidavit Mr Godenzi abandoned the legal costs item of claim, but made reference to an increase of $50 000 in building costs by reason of delay in the approval process. Presumably, although it is not expressly said in the affidavit, the applicants wished to include a claim for that amount as costs. The affidavit otherwise sought to provide an evidential foundation for other aspects of the costs claim.
22 The respondent, through an agent, Allerding and Associates, objected to the reception of the affidavit on the basis that the parties had ample opportunity to present their cases, and that, if Mr Godenzi's affidavit were to be relied upon, the respondent would request an opportunity to respond to it. In view of the apparently new claim for $50 000, that request was entirely reasonable.
23 The Tribunal declined to rely on Mr Godenzi's affidavit. To do otherwise would be to further escalate costs to the parties, and prolong the proceedings unnecessarily. It is important, in light of the Tribunal's statutory objectives, that where applications for costs are made, those applications be dealt with quickly and as inexpensively as possible. For reasons that will emerge, in relation to the claim for lost rent, the proposed new claim for increased building costs would be unsustainable in any event. The other claims can be determined on grounds that would make the contents of the affidavit irrelevant to the determination.
The claim for costs
24 I have already outlined the items in respect of which costs are claimed. As has been pointed out by the Tribunal on numerous occasions, the starting point in relation to costs of parties to proceedings before the Tribunal is that the parties bear their own costs – see s 87(1) of the SAT Act; Citygate Properties Pty Ltd and City of Bunbury [2005] 38 SR (WA) 246; [2005] WASAT 53. One of the factors to which the Tribunal can have regard in deciding whether to depart from that general rule is whether a decision-maker genuinely attempted to make a decision on its merits – s 87(4). While that matter is identified by the SAT Act as a factor for consideration, the Tribunal will generally consider whether a party has acted in some way unreasonably so that the other party has been put to unnecessary expense. In the absence of some conduct of that nature, the Tribunal will generally decline to make an order for payment of one party's costs to the other.
25 In this case, it is a little difficult to precisely identify what conduct the applicants contend was unjustified or vexatious. There is a complaint that the officers of the respondent failed to show "any encouragement or
(Page 10)
- willingness to have the application approved" so that the process "stretched out for three years" instead of "the normal turnaround time for acceptance of plan [of] three weeks". There is also conduct identified in relation to each of the items of claim that is best dealt with in the context of discussion of each item.
Cadastral survey
26 It is apparent from correspondence that, during the course of the mediation process, the City requested the applicant to arrange for a surveyor to undertake a cadastral survey to confirm the location of lot boundaries. A letter from the planning officer, Mr Meggitt, to the Tribunal dated 24 January 2007 indicates that that request was made because "the applicant proposes that a number of walls are to be built up to the boundary and there are existing unauthorised structures built over the boundary." The letter refers to discussions with Mr Godenzi in which "it was revealed that the lot boundaries … on the submitted plans were indicative and did not necessarily reflect the actual cadastral boundaries."
27 Mr Godenzi complained of that requirement in a letter to the Tribunal dated 26 January 2007. The letter stated:
"Yesterday I asked Mr Meggitt and Mr Brady why the fences on my boundaries are now being an issue when on all my side boundaries the neighbours were subdivided without any problems. Mr Brady said he would check with another property section and report.
…
As stated I have ordered the cadastral survey anyway to facilitate the resolution of this application."
28 The applicants' claim for costs appears to be based on the proposition that the council officers should have checked their records to see whether or not they had information as to the location of boundaries before requiring Mr Godenzi to undertake a further survey.
29 The authority of the applicant to require things such as cadastral surveys arises under cl 6.1.2 of the City of Joondalup's District Planning Scheme No 2. The City submits that the request for the survey of boundaries was necessitated by concerns raised by an adjoining owner as to whether an existing structure on the land was built over the boundary.
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30 It is not apparent from the information before me what other information may have been available somewhere in the Council's records in relation to cadastral surveys of adjoining lots. In my view, however, it cannot be said that the requirement of council officers for the provision of a cadastral survey was unreasonable. That conclusion is reinforced by the context in which the requirement was made. It arose as part of the ongoing discussions between the parties in the context of the mediation process. That process is essentially a voluntary and consensual one. If the applicants objected to requests made in the context of that process, that objection could be dealt with at the next mediation hearing, or if necessary at a hearing of the matter if the mediation came to an end. So long as the parties continue to endeavour to resolve issues in the Tribunal through the mediation process, the Tribunal will be slow to subsequently undertake a review of the various steps and negotiations that occur.
Existing house drafting costs
31 Mr Godenzi complains that he was required to provide as constructed drawings of the existing house, for which he engaged a Mr Fraser. That requirement was the subject of a direction made by the mediator on 23 June 2006. Plans of the existing house ultimately formed part of the approved plans the subject of the consent orders made by the Tribunal. There is no basis on the information provided by the applicants to conclude that the requirement to provide plans of the existing house was unreasonable. It needs to be borne in mind that Mr and Mrs Godenzis' plans underwent numerous changes from time to time as their proposals developed, and as they sought to accommodate the concerns expressed by the City. It would appear that the plans of the existing house were useful in ultimately resolving the matter given that they form part of the ultimately approved plans.
Legal costs
32 As indicated earlier in these reasons, the sum of $6000 was sought as an estimated cost of legal representation for assistance in respect of the claim for costs. Given that there was no oral hearing, the foreshadowed costs have not been incurred. The claim falls away.
New survey strata application
33 The applicants claim an amount of $780 for a new survey strata application. The reason for this claim is expressed as follows:
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- "The council in their letter of letters [sic] to the Planning and Infrastructure told them the existing front building was to be demolished along with walls and fences to be removed. This was after they knew the existing house was to be not demolished. See Council's letter of 26 June 2006, where my demolition fee was returned."
34 From the documents supplied by Mr Godenzi, it is apparent that he made an application in the first half of 2006 through the WAPC for a survey strata subdivision. The application contemplated the demolition of the existing house at the front of the property. On 11 May 2006, Mr and Mrs Godenzi made an application to the City for a demolition licence in respect of the existing building. On 24 May 2006 they wrote to the City asking for the demolition licence to issue. On 8 June 2006, they commenced proceedings in this Tribunal for approval of the proposed redevelopment, and in that application stated that it was planned to demolish the existing house. On 26 June 2006, Mr Godenzi wrote to the City advising that it did not plan to go ahead with the demolition of the existing house. On 27 June 2006, an officer of the City sent an email to the WAPC advising that the City had received advice from Mr Godenzi that he will no longer be demolishing the existing dwelling on Lot 49. On 6 July 2006, the City wrote to Mr Godenzi advising that the demolition licence had been cancelled, and that he would receive a refund of $150 for the licence fee. On 7 August 2006, the City wrote to the WAPC, apparently in response to an email from it dated 24 May 2006, concerning the proposed subdivision. The letter advised that the City opposed the proposed subdivision but indicated a number of conditions which it suggested, should the WAPC decide to approve the application. One of the conditions was "demolition and removal of all structures straddling the proposed survey strata boundary and on the proposed lots, to the specification and satisfaction of the City of Joondalup." On 22 January 2007, the WAPC issued an approval of the survey strata plan subject to conditions, including a condition for demolition of all buildings from the proposed front, rear and common property lots.
35 The applicants' complaint appears to be that the City should not have responded to the WAPC on 7 August 2006 suggesting a condition for demolition of existing structures. It would appear, however, that the City was merely responding to the proposal which the WAPC had before it. It Mr and Mrs Godenzi did not wish to proceed with that application to the WAPC, it was for them to withdraw it or advise of a variation to the proposal. The City did all that might be expected of it by the email of
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- 27 June 2006. It was not for the City then to pursue a variation to the application on the applicants' behalf.
36 There is nothing unreasonable in the conduct of the City which should attract an order that it pay any costs in relation to any future survey strata application that may now be necessary.
Loss of rent
37 The applicants' claim an amount of $10 000 based upon an estimated loss of rent for a period from 1 June 2006 to 1 June 2007. That claim appears to be based on the proposition that, had Council's planners approved of the plans submitted in late 2004, any further application would not have been necessary.
38 As earlier indicated, the City was prepared to approve plans in November 2004. It would appear from Mr Godenzi's letter of 27 November 2004 that he appreciated that the City was prepared to approve the plans, when he stated "I understand you have favourably considered the plans submitted on 2 November 2004". Mr Godenzi then, in effect, withdrew his application for approval of those plans by seeking approval of a different plan on the basis that his wife did not wish to proceed with the plans submitted.
39 It may be that, had the City simply posted out the approval of the November 2004 plans, Mr Godenzi may have persuaded his wife to proceed with the development. However, in the circumstances, I am not prepared to conclude that the City acted unreasonably in acceding to Mr Godenzi's request to consider other plans and assuming that it was pointless to send out the approval letter for the superseded plans.
40 In any event, if the applicants suffered some loss by reason of the City not issuing the development approval in November 2004, that loss is not recoverable as costs of these proceedings under s 87 of the SAT Act. As the Tribunal observed in Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 at [65]:
"Section 87(3) does not provide a basis upon which compensation, in the nature of damages, can be awarded because of some negligence or failure on the part of the decision-maker to perform its function diligently and timeously, or because a decision-maker's conduct falls short of the usual expectation of those who seek some consent, approval or permit."
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41 It is not open for the Tribunal to now undertake some enquiry as to the consequences which flow from an administrative decision which is not the subject of review by the Tribunal made by a local government, almost two years before the proceedings in the Tribunal were commenced. It is for the same reason that any foreshadowed claim in relation to increases in building costs would have been similarly dismissed.
Conclusion
42 In the circumstances, I am not satisfied that any basis has been made out for any award of costs in favour of the applicants in this case, and the claim for costs is dismissed.
Order
1. The applicants' claim for costs is dismissed.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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