J & P Metals Pty Ltd and Shire of Dardanup - [2006] WASAT 282

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: J & P METALS PTY LTD and SHIRE OF DARDANUP [2006] WASAT 282

MEMBER: MS M CONNOR (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 14 SEPTEMBER 2006

FILE NO/S: DR 694 of 2005

BETWEEN: J & P METALS PTY LTD
Applicant
AND
SHIRE OF DARDANUP
Respondent

Catchwords:

Town planning – Development – Upgrade of existing landfill facility from Class II to Class III site – Removal of time limit on approval – No identification of environmental planning issue by the respondent – Community opposition as sole consideration – Failure of respondent to give proper, genuine and realistic consideration of the substantial merit of the particular case – Draft conditions raise issues of nexus, certainty and finality – Costs

Legislation:

Local Government Act 1995 (WA), s 2.7, s 2.10
Shire of Dardanup Town Planning Scheme No 3, cl 2.1, cl 2.2.4, cl 3.1.3, cl 3.13.1, cl 7.2.1, cl 7.2.4, cl 7.3.3, cl 7.3.5, Pt III, Zoning Table
State Administrative Tribunal Act 2004 (WA), s 27(1), s 60(2), s 87(1), s 87(2), s 87(4)(b)
State Administrative Tribunal Rules 2004 (WA), r 43

Town Planning and Development Act 1928 (WA), s 8A(1)

Result:

The application for review is allowed
The time limit set out in Condition 10 of the planning approval issued by the Shire of Dardanup on 1 November 1999 for a private, solid waste disposal facility at Lot 2 Location 3003 Banksia Road is extended indefinitely
Development approval for the upgrade of the existing landfill facility from Class II to Class III landfill site is granted subject to conditions

Category: B

Representation:

Counsel:

Applicant: Mr ML Chester
Respondent: Mr G Smith (Acting as Agent)

Solicitors:

Applicant: Sparke Helmore Lawyers
Respondent: Shire of Dardanup

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

Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Fawcett Properties Ltd v Buckingham County Council [1961] AC 636
Judith Nominees Pty Ltd v Shire of Swan (1984) 2 SR (WA) 273
Lakes Action Group Association (Incorporated) and Shire of Northam & Anor [2005] WASAT 185(S)
Lloyd v Robertson (1962) 107 CLR 142
Newbury District Council v Secretary of State for the Environment [1981] AC 578

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's Decision

J & P Metals Pty Ltd applied to the Shire of Dardanup for approval to upgrade the existing landfill facility on Lot 2 Banksia Road, Crooked Brook from Class II to Class III landfill. The application also included a request to remove the 10 year time limit on the planning approval issued in 1999, granting approval to the establishment of the landfill facility. The Shire of Dardanup resolved not to approve the upgrading of the existing landfill site and considered that it was premature to consider permanent approval for the use prior to the expiry of the original approval. J & P Metals Pty Ltd applied to the State Administrative Tribunal to have the decision reviewed.
The Shire of Dardanup failed to identify any environmental planning issues in respect to this matter and justified their decision based on community opposition to the proposal. The Tribunal determined that community opposition could not of itself be a determinative matter, as it was but one of many considerations relevant to the determination of the application. The elevation of this consideration to the sole criterion was an error. The Tribunal was of the view that the Shire of Dardanup failed to give proper, genuine and realistic consideration to the substantial merits of the application.
The Tribunal was persuaded by the arguments presented by J & P Metals and was satisfied that the upgrade of the existing landfill facility from Class II to Class III would not prejudicially affect the amenity of the area and was consistent with the orderly and proper planning of the locality. Planning approval for the upgrade of the existing landfill facility to accept Class III landfill was granted subject to a number of conditions.
In relation to the term of the development approval issued in 1999, the Tribunal considered that the upgrade of the landfill facility to a Class III landfill site provided an opportunity to reassess the land use and its impact on the surrounding locality. The re‑evaluation of the use did not raise any planning issues that warranted refusal of the application or identified any planning issues that needed to be addressed in the intervening period. Consequently, the Tribunal was prepared to extend the period of time indefinitely.
The Tribunal made an order that the Shire of Dardanup pay the applicant's professional costs and disbursements incurred arising from the application for review. The Tribunal considered that although, in review proceedings, each party should usually pay its own costs, a costs order was warranted in the circumstances of this case, because the Shire failed to genuinely attempt to make the decision on its merit.

Introduction

J & P Metals Pty Ltd (applicant) made application to the Shire of Dardanup (respondent) for approval to upgrade the existing landfill facility on Lot 2 Banksia Road, Crooked Brook (subject land) from Class II to Class III landfill. The application also included the development of various infrastructure on site, comprising access roads, transportable office, toilet block, tank stand, leachate pond, drying beds, a concrete crusher yard inert lay down areas and a weight bridge and a request to remove the 10 year time limit on the planning approval issued in 1999.
The development application was considered by the respondent at its ordinary meeting of 24 November 2005. The respondent dealt with the three components of the application separately and resolved:
a)not to approve the upgrading of the Banksia Road Landfill site from a Class II to a Class III waste landfill site, stating the following reasons:
"1.There is no demonstrated benefit to the community.
2.Council has given a clear commitment to the community against upgrading the Class II site to a Class III site.
3.Hostility from the community to upgrade the Class II site to a Class III site.
4.J&P Group of Companies have been reluctant to allay the concerns of the community with regards to consulting directly with the community despite having previously made offers to do so and are now putting up impediments to such a process."
b)that it was premature to consider permanent approval for the use of the subject land as a waste landfill site prior to the expiry of the original approval, which is not until 2009; and
c)to grant planning approval for various facilities and infrastructure on the subject land, subject to seven conditions.
The applicant, on 21 December 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (TPD Act) to have the decision, in relation to part (a) and (b) above, reviewed.

Background

A chronology of events in relation to the subject land assists in providing context to the subject matter of this review.
The applicant is the owner of the subject land and is a subsidiary company of Kingscape Holdings Pty Ltd, trading as South West Waste (SWW). In December 1998, SWW made a formal planning application to the respondent for development approval to establish a Class II landfill facility on the subject land. This application was refused by the respondent at its meeting of 12 May 1999 as the proposal was considered to be "contrary to the best interest of the residents and ratepayers of the shire, and that the imposition on both the physical and financial infrastructure of the Shire [was] excessive and unwarranted".
The applicant appealed to the then Minister for Planning against the decision of the respondent. The Hon Minister decided to uphold the appeal and granted approval to "the establishment of this site as a privately owned and operated refuse/waste disposal site in accordance with the Works Approval granted by the Department of Environmental Protection". The Hon Minister further outlined his view in relation to some aspects of the development and the appropriateness of imposing certain conditions on the approval, including such matters as hours of operation, time limited approval and a contribution towards the construction of road access to the site.
Following the decision of the Minister, the respondent at its meeting of 27 October 1999 resolved to grant development approval to establish a private, solid waste disposal facility on the subject land subject to the following conditions:
"1Approval is for a class two site only as defined in the Landfill Waste Classification and Waste Definitions 1996 document as published by the Chief Executive Officer, Department of Environment Protection.
2.Access to the site is to be by a route negotiated with Council (Ferguson Road, Depiazzi Road & Banksia Road) but shall not be via Dillon Road or Crooked Brook Road; Developer shall contribute to the upgrading of any access route, as required.
3.Prior to development commencing, detailed engineering drawings and specifications to be submitted to and approved by Council with respect to the following:
a)Dam construction;
b)Surface water run-off and erosion controls.
4.Monitoring bores to be installed on the northern boundary of the site adjacent to the Shire's public waste disposal facility to the satisfaction of Council and bores are to be sampled and monitored with results of sampling to be submitted to Council.
5.The operation of the site shall be restricted to the hours between 7.00 am to 9.00 pm.
6.A management plan to be submitted to and approved by Council covering items such as, but not limited to, litter, dust and vermin control.
7.Suitable and sufficient fire fighting facilities are to be jointly made available on site or in the close vicinity to the satisfaction of Council.
8.All disposal activities are to take place within the cell area. There is to be no storage of material of any type at the site.
9.A landscaping plan is to be submitted to and approved by Council so designed that the visual impact of the site on the surrounding area is lessened.
10.This approval is valid for 10 years only provided that the development has commenced within 12 months. At the conclusion of 10 years or if the development has not commenced within 12 months, this approval shall lapse and no further works may be carried out without Council's further approval.
Footnotes:
a)Proponents be advised that Council will not consider any application for a Class III or IV facility on any area of Lot 2 Location 3003 Banksia Road;
b)Proponents be advised that site operation and approved management plans will be policed by Council staff. Any breach may result in this approval being revoked in accordance with Clause 7.3.2 of Council's Town Planning Scheme No 3.
c)Council will continue to negotiate and promote initiatives that include the sharing of staff, plant/equipment, access and fire control facilities between the site and Council's waste disposal facility on the adjacent land."
In June 2001 the then Department of Environmental Protection issued a licence permitting the acceptance and disposal of Class II waste and used tyre storage at the landfill site. The use commenced, starting with one cell and a further second cell added in 2003.
Department of Environment (DoE) renewed the licence in May 2005, and in doing so, amended the conditions of the licence allowing Kingscape Holding Pty Ltd to accept Class III waste and dispose of that waste within Cell 3 of the landfill.
The respondent appealed to the Minister for the Environment against the conditions imposed on the licence, particularly in relation to the ability of the facility to accept Class III putrescible waste as defined in Landfill Waste Classification and Waste Definitions 1996 (as amended). The Hon Minister considered the DoE's decision to modify the licence to permit the acceptance of Class III waste within Cell 3 was reasonable and determined that the licence remain in its current form.
In October 2005, a planning application for the upgrade of the landfill facility to Class III was submitted to the respondent. This application is the subject of this review.

Subject land

The subject land is more particularly described as Lot 2 on Diagram 4586 on Certificate of Title Volume 1670 Folio 568, and is 121.67 hectares in area. Lot 2 is located approximately 5 kilometres south west of the town of Dardanup.
The landfill operation that currently operates on the subject land consists of:
•leachate storage pond;
•water storage dam;
•three waste cells, two of which are completed and the third is currently being constructed;
•ten monitoring bores;
•four drainage basins;
•office;
•toilets; and
•concrete crusher yard and storage.

Surrounding land use context

The applicant produced evidence to establish the surrounding land uses in the immediate locality. This evidence was not disputed by the respondent.
According to the evidence, directly adjacent to the northern boundary of the subject land is a landfill facility which commenced operation in approximately 1999. This facility is operated by the respondent. In addition, there are four ponds located on the northern edge of this site that are used to treat waste water from the town of Dardanup. These ponds are managed by the Water Corporation.
Approximately 2 kilometres south west of the subject land is a chicken abattoir that has recently received approval from the respondent to relocate to land adjacent to the respondent's landfill site.
A heavy vehicle transport company is located on the corner of Ferguson Road and Depiazzi Road.
The land on the western side of Banksia Road, opposite the subject land and the respondent's landfill site, is used for general farming purposes and the land on the southern and eastern boundaries of the subject land is native forest.
The evidence provided by the applicant identifies that the nearest residential properties are located on Crooked Brook Road and Panizza Road, approximately 1.8 kilometres and 3.2 kilometres, respectively, from the subject land. This evidence was disputed by the respondent which contended that the nearest "property" was 1 kilometre from the site on Banksia Road, although the respondent did not identify which property it was referring to.

Details of the proposal

The planning approval issued by the respondent in 1999 granted approval to establish a private solid waste disposal facility on the subject land. Condition 1 of that approval limited the approval to a Class II landfill site only. This application seeks to upgrade the existing facility from Class II to Class III and to remove the 10 year time limit imposed on the operations by condition 10 of that approval.
The definitions for the classification of landfills and wastes in Western Australian are contained in the Landfill Waste Classification and Waste Definitions 1996 (as amended). A Class II landfill is defined as "[a]n un‑lined landfill designed to accept putrescible and inert wastes", whereas a Class III landfill is defined as "[a] lined landfill, which may include leachate collection, designed to accept putrescible and inert wastes".
The upgrade of the landfill site to a Class III facility, in practical terms, means that the difference between the types of waste that may be accepted on the site is as follows:
a)a Class III landfill may accept contaminated solid waste meeting waste acceptance criteria specified for Class II and Class III landfills (refer to Table 3 of the Landfill Waste Classification and Waste Definitions 1996 for contaminant thresholds); and
b)a Class III landfill may accept Type 1 special waste (asbestos wastes) and Type 2 special waste (biomedical wastes), whereas a Class II landfill may only accept Type 1 and Type 2 special wastes if it is an approved site under the Controlled Waste Regulations.

Planning Framework

The subject land is zoned "General Farming" under the Shire of Dardanup Town Planning Scheme No 3 (TPS 3 or Scheme). The "General Farming" zone is included in the "Non Urban" Use Type (cl 2.1).
Although the current use of the subject land is not expressly mentioned in the Zoning Table, cl 2.2.4 provides for uses that cannot reasonably be determined as falling within the type, class or genus of activity of any other use category listed in the Zoning Table.
Part III of the Scheme sets out the development standards and requirements applicable to various uses. Pursuant to cl 3.1.3, where the proposed use is not specified in the Development Table, the Council may grant approval imposing such conditions as it thinks fit.
Clause 3.13.1 of TPS 3 sets out the matters the Council is to have regard to in considering an application for planning consent to commence development. These are as follows:
"(a)the need to protect the economic viability of the rural land use generally;
(b)the need to preserve the rural character and a rural appearance of the area;
(c)the need to ensure that the existing standard of roads, water and electricity supply and other services is sufficient for the additional demands that the proposed development would create; and
(d)the need to ensure that in general all buildings are at least twenty metres from any lot boundary adjoining a street and the Council may require an additional setback in order to preserve the rural character of the area."
In the case of an application that requires special approval, cl 7.2.1 requires that notice is to be given to ratepayers likely to be affected by the granting of such special approval. Given the particulars of this application, the Tribunal ordered on 3 February 2006 that the respondent advertise the development application for a period of two weeks.
Clause 7.2.4 of TPS 3 sets out the matters the Council is to have regard to in making its decision on applications for special approval. The relevant matters relating to this application are as follows:
"(a)The provisions of [the] Scheme and of any other Town Planning Scheme affecting the land the subject of the application or affecting land in the vicinity.
(b)The nature of the proposed development in relation to the development of any land within the vicinity of the said land.
(c)The size, shape and character of the parcel of land to which the application relates …
(d)Any representations which may be made by any statutory authority.
(e)The submissions received by the Council.
(f)The existing and likely future amenity of the neighbourhood, including (but without limiting the generality of the foregoing) the question of whether the proposed development is likely to cause injury to such amenity including injury due to the emission of light, noise, electrical interference, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, liquid wastes or waste products.
(g)The nature of the roads giving access to the said land.
(h)…
(i)Whether the proposed development will cause a traffic hazard.
(j)Such other matters as the Council considers relevant."

Respondent's position

The Tribunal at the directions hearing held on 17 March 2006 order the respondent to file a Statement of Issues, Facts and Contentions clearly identifying the environmental planning issues it says arise for consideration in review.
The respondent engaged an independent town planning consultant, Mr Graham Houghton, to review the documentation and provide advice in respect to this matter. The conclusion reached by Mr Houghton, in the report to the respondent, was that "there are no sound planning reasons why the site should not be used to its maximum capacity and the proponent be allowed to develop and operate within the environmental requirements".

The matter was further presented to the respondent at its ordinary meeting of 23 March 2006 where the report from Mr Houghton and further comments from the respondent's planning officer were submitted.
The respondent subsequently informed the Tribunal that it had considered the independent report from Mr Houghton and notwithstanding the findings of the report reaffirmed its objection to the application and the reasons for refusal remained unchanged. Therefore, this matter proceeded on the following grounds:
•there is no demonstrated benefit to the community;
•the respondent had given a clear commitment to the community against upgrading the Class II site to a Class III site;
•hostility from the community to upgrade the Class II site to a Class III site; and
•the applicant has been reluctant to allay the concerns of the community with regards to consulting directly with the community despite having previously made offers to do so and are now putting up impediments to such a process.
The respondent failed to produce any evidence in support of its decision and only sought to clarify its position in respect to a few points raised in the applicant's submission. The challenge against the evidence of Mr Robert Glenn Hutchinson, witness for the applicant and Chief Executive Officer of the J & P Group, identified small errors of fact and argued that the comparisons made by Mr Hutchinson with the Shire of Dardanup waste landfill facility were not relevant to the application or the subsequent refusal of the application by the respondent.
In relation to the removal of the 10 year time limit on the planning approval issued in 1999 the respondent did not produce any evidence to support its position and only responded to the applicant's initial "Grounds for Review". The main thrust of the respondent's argument was that the applicant's reason for requesting the removal of the time limit was premised on commercial decisions and not planning grounds.

Applicant's position

Upgrade to Class III

The applicant submitted that if approval was given to permit the acceptance of Class III waste at the site, no actual change of use would be involved as:
"(a)permission to use the site as landfill has already been allowed;
(b)the relevant portions of the property will still be used as a landfill; and
(c)the activities carried out at the site will be no different, when dealing with Class III waste, from those carried out when dealing with Class II waste."
Mr Hutchinson in his witness statement asserted that the same process for sorting, disposing and covering waste would continue to be followed and that the acceptance of Class III waste did not entail any activities not presently carried out.
The applicant contended that given the above, matters relating to the suitability of the site for accepting landfill per se were largely irrelevant to the matters which can properly be taken into account.
The applicant further submitted that none of the reasons for refusal were relevant planning considerations. However, as a precaution the applicant provided the following arguments in respect to each of the reasons:
1.Demonstrated Benefit to Community – this is not an express requirement of the Scheme or any relevant planning policy. This assertion was accepted by the respondent in the "Statement of Issues Facts and Contentions Arising" dated 22 February 2006.
Additionally, the applicant argued that there are no facilities presently available in the Shire that are able to accept Class III waste and there are businesses in the Shire that generate a considerable amount of Class III waste. Approval of a Class III facility will ensure that businesses within the Shire of Dardanup are serviced locally at a reasonable cost.
2.Council clear commitment to the community against upgrading the site – the applicant disputes that there has been a general commitment given or any specific commitment in relation to the subject land or in respect of Class III waste. The applicant asserted that the respondent cannot depart from its responsibility to consider relevant planning matters by giving some form of prior inconsistent commitment to the community.
3.Community hostility against upgrade from Class II to a Class III licence – this fact does not entitle the decision‑maker to ignore proper and relevant planning principles.
4.The applicant has been reluctant to allay the concerns of the community by consulting directly with the community despite previously offering to do so – the applicant asserted that it had at all times remained committed to community consultation and independent auditing of the subject land and that there was nothing before the respondent that supported any finding that the applicant had been reluctant to consult directly with the community.
The applicant further considered the application against the relevant matters the respondent is required to take into consideration in determining an application (cl 7.2.4). In short, the applicant asserted that the proposal did not conflict with the Scheme and would not have any detrimental impact on the development of land within the near vicinity or have any significant impact on traffic movements or access routes to and from the subject land.
Mr Hutchinson, in his witness statement, outlined the current operations of the facility and explained that the same process for sorting, disposing and covering waste would continue if the facility was upgraded to accept Class III waste. He contended that the impact on the amenity of the surrounding area from the upgrade would be minimal. In relation to traffic movements, Mr Hutchinson asserted that even if the number of movements to the landfill facility increased as a result of the upgrade, the number of movements would be significantly less than the original traffic movements due to the construction of the transfer station in Picton in 2004. Mr Hutchinson produced a table which demonstrated that the vehicle movements to the landfill facility substantially decreased after the construction of the transfer station. This evidence was not challenged by the respondent.

Term of the development approval

The applicant asserted that removal of the uncertainty will allow the applicant and its clients to plan for the mid to long term future. The applicant provided the following justification in support of the application:
"(a)there is no reasonable objection to the use of the Site as a landfill facility;
(b)there have been no breaches of the Applicant's licence or other planning conditions relied on by the Respondent to refuse the Applicant's application;
(c)having been used as a landfill facility, the Site will not be able to be use for another purpose after 2009 (at least not without significant expense);
(d)the Respondent's Site has a life of 22 years;
(e)it seems highly likely that the Respondent will continue to operate the Respondent's Site (immediately adjacent to the Site) as a landfill facility and that the land in question will continue to house the waste water facility;
(f)the Applicant and its customers (present and potential) need certainty in order to make commercial planning decisions beyond 2009;
(g)the Applicant's ability to invest in appropriate capital items (eg machinery) will be compromised if the requisite certainty cannot be obtained;
(h)operation of the Site will continue to be subject to ongoing DoE review and licensing at any time the Applicant may have its right to operate the Site withdrawn or altered if it fails to comply with DoE licensing requirements; and
(i)Cell 3 will not be used to its design capacity within the existing 10 year term."

Tribunal's consideration

The Tribunal on 17 March 2006 made orders requiring the respondent to provide a Statement of Issues, Facts and Contentions clearly identifying the environmental planning issues it say arise for consideration under review. As a result, Mr Houghton was engaged by the respondent to advise the Council of the Shire of Dardanup on this matter. At its ordinary meeting of 23 March 2006 the respondent was advised of the following:
" … neither staff nor the consultant can find any [planning] issues. As such staff are in the invidious position of not being able to comply with the SAT directions to prepare a statement of facts etc as they are of the opinion that there are no planning issues arising from the application for the upgrade.
The Member has already indicated that public opposition, on its own, is not sufficient reason to refuse an application.
In view of the consultant's report this Council is urged to reconsider the original decision."
The respondent did not rescind its previous decision and requested that the matter be determined entirely on the documents. The Tribunal on 12 April 2006 ordered pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the proceedings be determined entirely on the documents.
No evidence was lead by the respondent in support of its contentions. It is obvious, from the minutes of the respondent's meeting of 23 March 2006, that the driving force of the respondent's stance was premised on community opposition to the proposal. The respondent made particular reference to the 60 submissions received during the advertising period, but failed to develop any planning arguments from the submissions. The Tribunal can only surmise that there was no valid planning basis for the objections.
Clause 3.13.1 and cl 7.2.4 of the Scheme clearly set out the matters that the Council is required to take into consideration in the exercise of its discretion. Community opposition cannot of itself be a determinative matter, it is but one of many considerations that are relevant in the determination of an application. To elevate this consideration to the sole criterion is an error. The Tribunal is of the view that the respondent has failed to give proper, genuine and realistic consideration to the substantial merits of the particular case before it, which is contrary to the general proposition of law in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522.
Pursuant to s 27(1) of the SAT Act, the review of a reviewable decision is by way of a hearing de novo, and therefore it is incumbent upon the Tribunal to consider and determine an application fairly and according to the substantial merits of the case. In doing so, the Tribunal must consider the planning merits in accordance with sound town planning principles.
In determining this matter, the Tribunal is required to take into consideration those matters set out in cl 7.2.4 of the Scheme. The contentions put forward by the respondent did not assist the Tribunal in its deliberations and no evidence was led to suggest that the proposal was inconsistent with the provisions of the Scheme or, more particularly, with any of the matters set out in cl 7.2.4 of the Scheme, except as to say that there was community opposition to the proposal.
The applicant relevantly addressed each of the matters set out in cl 7.2.4. The respondent did not challenge the veracity of this evidence. The Tribunal is persuaded by the arguments presented by the applicant and is satisfied that the upgrade of the landfill facility from Class II to Class III will not prejudicially affect the amenity of the area and is consistent with the orderly and proper planning of the locality.

Term of the development approval

The initial approval for the landfill facility in 1999 established that the use was appropriate on the subject land. The then Hon Minister in upholding the appeal accepted the argument that there may be a need to time limit the first approval. Clause 7.3.3 of the Scheme provides authority to limit the time for which the Council's special approval remains valid. Condition 10 of the planning approval issued in 1999 was imposed in order to limit the approval to 10 years. There is no evidence before the Tribunal to explain the need to limit the time of the approval.
The evidence demonstrates that the land use is appropriate in context with surrounding activities and its continued use is unlikely to detrimentally impact on the future development of any land in the vicinity. Furthermore, there does not appear to be any environmental concerns arising from the operations as indicated by the Minister for the Environment in the determination of the appeal against the DoE's decision to modify the licence, where the Minister states:
"I note the advice of the DoE that it considers the site to be managed in an acceptable manner and that this has been confirmed through site inspections and compliance audits. It also appears that [the applicant] has positively responded to previous concerns regarding its operations and that the management systems in place, particularly monitoring, have been demonstrated to operate effectively."
Clause 7.3.5 of the Scheme provides for a review of condition 10, as under this clause a request can be made for an extension of the term of the planning approval at any time prior to the expiry of the approval period in cl 7.3.3.
The upgrade of the landfill facility to a Class III site has provided an opportunity to reassess the land use and its impacts on the surrounding locality. The re‑evaluation of the use has not raised any planning issues that would warrant refusal of the application or identified any planning issues that have needed to be addressed in the intervening period. The Tribunal is persuaded by the arguments put forward by the applicant and does not consider there to be a need to limit the period of the approval to 10 years. Consequently, the Tribunal is prepared to extend the period of time indefinitely.

Conditions

As required by direction of the Tribunal, the respondent prepared "without prejudice" draft conditions of approval, which are as follows:
"(a)The proponent providing written confirmation from the Department of the Environment indicating that the recommendations of the STASS Environment Report (2004) have been implemented to the satisfaction of the Department of the Environment.
(b)The proponent providing details of the final height and contours of the proposed waste cells (AHD).
(c)Results of analysis from all ground water monitoring bores being supplied to Council annually.
(d)A ground water monitoring bore being installed adjacent to the Council landfill site on the northern boundary to the satisfaction of the Chief Executive Officer.
(e)The proponent negotiating with Council an appropriate contribution to the future upgrading of access roads to the site."
The applicant raised concern with conditions (a), (d) and (e). The respondent did not provide any evidence in support of the imposition of such conditions nor did it dispute any of the arguments put forward by the applicant. The respondent's failure to provide any justification for the imposition of such conditions has not assisted the Tribunal in determining this matter.
In relation to condition (a) the applicant argued that the respondent had already received confirmation, from Stass Environmental, that the Stass Environment Report (2004) (2004 Stass Report) recommendations have been implemented. According to the applicant, the Report on Installation of Monitoring Bores J & P Regional Landfill Dardanup, WA (Nov 2005) (2005 Stass Report) confirms the implementation of the recommendations it made in the 2004 Stass Report. In addition, the applicant submitted that it does not consider that it can require the DoE to separately confirm whether the recommendations have been implemented.
The Tribunal is of the view that the condition lacks certainty and finality as the condition is reliant on the actions of a third party and therefore, the Tribunal considers that it would be unreasonable to impose such a condition. Furthermore, the Tribunal does not see the need to impose a condition requiring the implementation of the recommendations of the 2004 Stass Report as the evidence indicates that the recommendations have already been implemented.
In response to condition (d) the applicant argued that this condition had already been complied with or was not required due to the monitoring bores on the northern boundary of the subject land, which included those installed in late 2005 by Stass Environmental. The respondent did not produce any evidence to suggest that the monitoring bores on the northern boundary on the subject land were deficient and that a further bore needed to be installed to fulfil the desired purpose.
According to the 2005 Stass Report, "[t]he locations for [the new ground water monitor wells] were selected after an evaluation of the regional groundwater flow direction (previous ground water monitoring) and hydraulic gradients measured at the site during past hydrogeological investigations (Stass Environmental, 2001 to 2004)". This included the installation of wells SE‑1S and SE‑ID on the north boundary of the subject land. There is no evidence before the Tribunal to suggest that an additional monitoring bore is required.
Regarding condition (e) the applicant submitted that there was no demonstrable need for the road upgrade and there is nothing the activities of the proposed upgrading that would require the road upgrade. In particular, the applicant argued that there would be no increase in traffic to the site and that the applicant has no need to use alternative routes to the site. The applicant further contended that the objective evidence revealed that relevant traffic flow had reduced by about 80% since the initial approval was granted in 1999, as a result of the development of the Picton transfer station. The respondent did not dispute this evidence nor did it lead any evidence to show that there was a need, or any future need, for road upgrades resulting from the upgrade of the landfill facility. The respondent failed to demonstrate any nexus between the proposed development and the need for any road upgrades. A condition of approval can be said to reasonably relate if it arises from changes precipitated by the development. In this instance, the respondent has not demonstrated a need therefore, the condition cannot be said to fairly and reasonably relate to the development, and as such, fails to meet the second test for the validity of a condition as articulated in Newbury District Council v Secretary of State for the Environment[1981] AC 578.
Furthermore, in Fawcett Properties Ltd v Buckingham County Council [1961] AC 636, Lord Denning stated that a planning condition is void for uncertainty only if no meaning or sensible or ascertainable meaning can be found. The condition as proposed lacks certainty as no ascertainable meaning can be interpreted from the condition. The Tribunal could not lawfully impose conditions in that form.
The Tribunal considers that there are a number of conditions of the original approval issued in 1999 that should be incorporated, in modified form, as conditions of this approval. These included a modified form of condition 2, conditions 5 and 7 and a modified form of condition 8.

Costs

The applicant as a part of its submissions made application for an order that the respondent pays its costs. The applicant contended that the respondent did not act appropriately or reasonably in considering the application. In particular, the applicant submitted that the respondent acted without regard to:
(a)the merits of the applications;
(b)the relevant planning considerations under the Scheme; and
(c)the objective evidence.
Furthermore, the applicant contended that the respondent was aware that there were no proper town planning reasons that justified the refusal and that the respondent's unreasonable conduct has been compounded by the nature of additional conditions intended to be imposed, in the event that the Tribunal finds in favour of the applicant as these conditions:
(a)have no demonstrable link to the application;
(b)are outside the control of the applicant;
(c)have been dealt with and resolved by the DoE; and
(d)are manifestly unreasonable.

The respondent submitted that the reasons stated by the applicant suggest that the Councillors should ignore their role and responsibility as defined by sections 2.7 and 2.10 of the Local Government Act 1995 (WA) (LG Act). The respondent asserted that although the subject land is approved for a landfill facility the Council has the power to consider and refuse, if they so choose, any application to increase the class of waste to be disposed of at the site. In addition, the respondent argued that it is reasonable for the Council to apply conditions to a development application if the conditions will reduce the impact of the development on the environment and the community.
The respondent maintained that it acted in good faith and without fear or favour in what it believes to be in the best interests of the people that they represent.
The Tribunal has recognised that, from the terms of s 87(1) of the SAT Act, the starting proposition is that parties bear their own costs in a proceeding: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 at [28]. Section 87(2), however, clearly 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, unless otherwise specified in an enabling Act. As to the extent of matters that can be considered under s 87(2), the Tribunal stated in Lakes Action Group Association (Incorporated) and Shire of Northam& Anor[2005] WASAT 185(S):
"22. … from 1 January 2005, the question of costs of parties to proceedings … became governed by s 87 of the SAT Act.
23. … Section 87(4) 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 Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246 at 253."
Section 87(4)(b) relevantly requires the Tribunal to consider "whether the party (being the decision‑maker) genuinely attempted to make a decision on its merits".
Section 2.7 of the LG Act requires the respondent to be responsible for the performance of the local government's functions. Discharge of that responsibility requires due and proper consideration of the substantial merits of the development application and exercise of the respondent's discretion. It is apparent from the documentation and submissions made, that the respondent did not attempt to consider substantial merits of the application.
Furthermore, the exercise of discretion must be exercised in accordance with sound planning principles and in good faith (see Lloyd v Robertson (1962) 107 CLR 142 at 153‑155 and Judith Nominees Pty Ltd v Shire of Swan (1984) 2 SR (WA) 273 at 281). On the face of the evidence, it is difficult to find that the exercise of discretion was undertaken in accordance with sound planning principles or in good faith.
The Tribunal finds, for the reasons outlined above at [50], that the respondent failed to genuinely attempt to make the decision on its merits, and considers it appropriate that an order for costs be made in favour of the applicant. The Tribunal is unable to determine the quantum of costs at this time as a breakdown of the applicant's cost in preparing for the proceedings has not been provided. The Tribunal determines that the respondent should pay the applicant's reasonable professional costs and disbursements incurred arising from the application for review. The amount to be paid is to be agreed or, failing agreement, as assessed by a member of the Tribunal nominated by the President on application by either party in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).

Orders

1.The application for review is allowed.
2.The time limit set out in Condition 10 of the planning approval issued by the Shire of Dardanup on 1 November 1999 for a private, solid waste disposal facility at Lot 2 Location 3003 Banksia Road is extended indefinitely.
3.Development approval is granted for the upgrade of the existing landfill facility on Lot 2 Banksia Road, Crooked Brook from Class II to Class III landfill site, subject to the following conditions:
(i)The proponent providing details of the final height and contours of the proposed waste cells (AHD).
(ii)Results of analysis from all ground water monitoring bores being supplied to Council annually.
(iii)Access to the site is to be via Ferguson Road, Depiazzi Road, Banksia Road but shall not be via Dillion Road or Crooked Brook Road.
(iv)The operation of the site shall be restricted to the hours between 7.00 am to 9.00 pm.
(v)Suitable and sufficient fire fighting facilities are to be jointly made available on site or in the close vicinity to the satisfaction of Council.
(vi)All disposal activities are to take place within the cell areas.

4.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Shire of Dardanup must pay the applicant's reasonable professional costs and disbursements incurred arising from the application for review, as agreed or, failing agreement, as assessed by a member of the Tribunal nominated by the President on application by either party in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).

I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: J & P METALS PTY LTD and SHIRE OF DARDANUP [2006] WASAT 282 (S)

MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)

HEARD: 27 FEBRUARY 2007

DELIVERED : 14 SEPTEMBER 2006

SUPPLEMENTARY
DECISION :15 MARCH 2007

FILE NO/S: DR 694 of 2005

BETWEEN: J & P METALS PTY LTD
Applicant
AND
SHIRE OF DARDANUP
Respondent

Catchwords:

Costs Assessment of reasonable costs Substantive matters decided on documents Respondent raising no planning objections to proposal Whether matter complex Relevance of importance of matter to applicant to determination of whether costs reasonable Appropriate measure as to costs

Legislation:

Legal Practice Act 2003 (WA), s 215
Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006
Legal Practitioners (Supreme Court)(Contentious Business) Determination 2004
Rules of the Supreme Court 1971(WA), Order 66 Rule 12
Shire of Dardanup Town Planning Scheme No 3, cl 7.2.4
State Administrative Tribunal Act 2004 (WA), s 9, s 87

Result:

Costs assessed at $10 288

Category: A

Representation:

Counsel:

Applicant: Ms ML Coulson and Ms R Harding
Respondent: Mr ML Chester, Mr D Stuart and Mr R Quinn (Acting as Agents)

Solicitors:

Applicant: Sparke Helmore Lawyers
Respondent: Shire of Dardanup

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

Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S2)
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
Schmidt v Gilmour [1988] WAR 219

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

On 14 September 2006, the Tribunal, then constituted by Member Ms M Connor, allowed an application by J & P Metals Pty Ltd for review of a refusal by the Shire of Dardanup to grant approval for the upgrade of an existing landfill facility from class 2 to class 3 subject to certain conditions. Member Connor also made an order that the Shire of Dardanup pay the applicant's reasonable professional costs and disbursements arising from the application for review on the basis that the Shire had failed to genuinely attempt to make a decision on the merits of the application.
The parties were unable to agree the quantum of costs, and in accordance with Member Connor's order, the costs were to be assessed by the Tribunal. The President of the Tribunal appointed the Deputy President, Judge Chaney, and Ms Connor to constitute the Tribunal for the purpose of assessing the appropriate amount of costs.
The applicant claimed recovery of a total in excess of $85 000, some $15 000 of which constituted costs said to have been incurred in relation to the assessment of costs. The respondent contended that the costs claimed were excessive and thus unreasonable. The Tribunal agreed with the respondent. It concluded that the matter was not complex, that the time said to have been spent on the matter was not adequately explained, and it would be unreasonable to require the Shire to pay costs anything like the amount claimed. It considered that an appropriate recovery of costs was $10 288. In view of the unreasonableness of the claim for costs, the Tribunal declined to allow recovery of any of the applicant's costs related to the assessment of costs.

Background

On 14 September 2006, Member Ms M Connor delivered a decision, determined on the documents, allowing the application by J & P Metals Pty Ltd for a review of a refusal of development approval by the Shire of Dardanup – see J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282. For reasons which were fully canvassed in the published reasons for decision, Ms Connor determined that the respondent had failed to genuinely attempt to make the decision under review on its merits, and consequently made an order in the following terms:
"Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Shire of Dardanup must pay the applicant's reasonable professional costs and disbursements incurred arising from the application for review, as agreed or, failing agreement, as assessed by a member of the Tribunal nominated by the President on application by either party in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA)."
On 11 October 2006, the solicitors for the applicant, Sparke Helmore, wrote to the Chief Executive of the respondent. They advised that their client had incurred legal costs and disbursements in excess of $91 000. An offer was made to accept the sum of $65 000 in full and final settlement of the claim for costs on the basis that if not accepted, indemnity costs would be sought in relation to the applicant's costs of the assessment by the Tribunal. Upon receipt of that offer, and consideration of it by the Council of the respondent, the respondent rejected the claim and sought to have the President assess the costs payable.
On 8 December 2006, the Tribunal conducted a directions hearing at which time the applicant was ordered to file and serve a detailed bill of costs, any evidence in support of its claim and an outline of submissions on the question of costs. The respondent was ordered to file submissions in response. The matter was listed for argument.

The approach to the assessment of costs

Adopting the approach which had been sanctioned by the Tribunal in other cases, the applicant prepared its bill of costs by reference to scale of costs prescribed by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006. On the basis of s 215 of the Legal Practice Act 2003 (WA), the applicant sought to uplift certain items in the scale on the basis that the matter involved "unusual difficulty, complexity or importance". It was submitted that "the sheer volume of work undertaken can demonstrate unusual difficulty and/or complexity for the purposes of s 215". Authority for that proposition is cited in Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors[2003] WASC 53(S2) and Schmidt v Gilmour [1988] WAR 219.
Neither of those cases is authority for the proposition suggested. Both concerned special orders for costs under Order 66 Rule 12 of the Rules of the Supreme Court 1971 (WA) which provides for a special order for costs by reason of the unusual complexity or importance of the case or for any other "good or sufficient reason". In Schmidt v Gilmore, it was acknowledged that the case did not involve unusual complexity or importance, but the Full Court upheld a conclusion that a good or sufficient reason had been demonstrated by a detailed affidavit identifying the necessity to carry out a large volume of work.
There is no prescribed scale in relation to work done in relation to proceedings before this Tribunal. Assessing costs for the purposes of s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) will usually require a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, possibly its urgency, and the amount of time and effort required to properly prepare and present the case. Consideration of issues of that nature may be assisted by analogy with other legal work for which a statutory scale is applicable. Scales are, however, no more than an indication of what might be thought reasonable for certain categories of work. If a scale is to be used for that purpose, it will not always be the scale applicable to Supreme Court proceedings. There will be cases where the subject matter will make the determination in relation to Magistrates Court civil proceedings more appropriate by way of analogy. The Tribunal will always strive to maintain proportionality between the subject matter of the proceedings and the costs associated with the proceedings.
In this case the applicant submits that, because of the importance of the decision to its commercial operations, analogy to the Supreme Court scale is appropriate. The respondent did not argue against that submission. In light of relative simplicity of the proceedings, we have some hesitation in accepting the applicant's submission. However, because the respondent did not urge any other approach, we are prepared, for the purposes of analogy, to utilise the Supreme Court determination. That is not to say, however, that we accept that the maximum, or claims in excess of the maximum, allowable for certain items under that scale are accepted as reasonable in the circumstances of this case.
The issue for determination is: what costs were reasonably incurred? The applicant itemised its costs, by reference to the scale as follows:

"No	Date	Description	Scale Item	Scale Max $	Special Costs $ (in bold)
1	21/12/2005	Application	1(a)	511.00	Claimed as part of No. 2, 1(b), below

2	21/12/2005	Grounds for Review	1(b)	3,410.00	9,147.60
3,921.00
incl. taking instructions, perusing and considering relevant documents, research, drawing initial correspondence to Respondent, drawing letter of advice to client, correspondence and telephone attendances with client and with Respondent, drawing Application, drawing Grounds for Review, compiling supporting documents and telephone attendances with the SAT Registry JP rate – 39.6 hours @ $231 per hour
3	Various	Getting up See: Schedule 1	16	36,300.00	49,809.10
4	03/02/06	Directions Hearing	23(a)(1)	341.00 per hour	2,328.70
incl. correspondence and telephone attendances with client and with Respondent, preparation, attendance and meeting with client JP rate – 8.9 hours @ $231 per hour; and SP rate – 0.8 hours @ $341 per hour
5	17/03/06	Directions Hearing	23(a)(2)	341.00 per hour	1,568.60 1,108.80
incl. correspondence and telephone attendances with client and with Respondent, preparation, attendance and meeting with client SP rate – 4.6 hours @ $341 per hour Counsel – 4.2 hours @ $264 per hour
6	12/04/06	Directions Hearing	23(a)(3)	341.00 per hour	669.90 686.40
incl. preparation, meeting with client, meeting with Counsel and attendance JP rate – 2.9 hours @ $231 per hour Counsel – 2.6 hours @ $264 per hour
7	09-11/06	Assessment of Costs	32(a)(1)	253.00 per hour	3,386.90 1,705.00
re: recovery of costs incl. researching relevant legislation, case law and principles re: costs assessments in the SAT, telephone attendance with client, telephone attendances and correspondence with Counsel (Ms Coulson), preparing Brief to Counsel, meeting with Counsel on 4 October 2006, correspondence with Respondent incl. Calderbank offer, providing further information to Respondent pursuant to Respondent's request and correspondence with client re: rejection of offer JP rate – 13.1 hours @ $253 per hour SP rate – 0.2 hours @ $363 per hour

Counsel's fee - $1,705.00
8.	09-10/06	Clarification of Orders	32(a)(2)	253.00 per hour	480.70
re: drawing letter to the SAT re: clarification of orders (condition 3(v)) and informing client of response from the SAT JP rate – 1.9 hours @ $253 per hour
9.	08/12/06	Directions Hearing	23(a)(4)	363.00 per hour	885.50 629.20
incl. telephone attendances with the SAT, correspondence with client, telephone attendances with Counsel (Ms Coulson), preparation and attendance JP rate – 3.5 hours @ $253 per hour Counsel's fee – 2.2 hours @ $286
10.	01-02/07	Special Costs Application	10(a)	9,306.00	1,644.50 7,000.00
incl. drawing Affidavit, Submissions and Draft Bill of Costs, preparation and attendance before SAT JP rate – 6.5 hours @ $253 per hour Counsel’s anticipated fee – $7,000
Sub-total (No. 1 to 10 above)	$55,323.00	$81,050.90
DISBURSEMENTS
11.	10/01/06	Application Fee	600.00
12.	Various	Photocopying	2,960.99
13.	Various	Facsimiles	19.80
14.	25/01/06	Courier Fee	54.71
15.	15.12.06	Hearing Fee	400.00
Sub-total (No. 11 to 15 above)	$4,035.50
TOTAL	$55,323.00	$85,086.40
Less Taxed Off	$
Remainder
Sub-total	$
Add Taxing Fee	$
TOTAL	$	"

The applicant provided an affidavit of Renae Louise Harding in support of the application for costs. She made reference to the provisions of cl 7.2.4 of the Shire of Dardanup Town Planning Scheme No 3 (TPS 3) which enumerates the factors to be taken into account in considering whether to grant planning approval. Those factors are as follows:
"(a)the provisions of the Scheme and of any other Town Planning Scheme affecting the land the subject of the application or affecting land in the vicinity;
(b)the nature of the proposed development in relation to the development of any land within the vicinity of the said land;
(c)the size, shape and character of the parcel of land to which the application relates and the nature and siting of the proposed building, the view from the building and the interruption of view likely to be caused by the proposed building;
(d)any representation which may be made by any statutory authority;
(e)the submissions received by the Council;
(f)the existing and likely future amenity of the neighbourhood, including (but without limiting the generality of the foregoing) the question of whether the proposed development is likely to cause injury to such amenity including injury due to the emission of light, noise, electrical interference, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, liquid wastes or waste products;
(g)the nature of roads giving access to the said land;
(h)whether the proposed development will cause a traffic hazard; and
(i)such other matters as the Council considers relevant."
As Ms Harding observed, at the initial directions hearing before the Tribunal on 3 February 2006, the Senior Member ordered that the respondent advertise the development application for public comment for a period of two weeks. That advertising led to approximately 60 public submissions being received. It was necessary for the applicant's representatives then to review those submissions, all of which opposed the application, and determine whether they raised matters which the applicant needed to address in the proceedings. The respondent had tabulated the submissions and annotated them with the words "upheld", "dismissed" or "noted".

Ms Harding's affidavit then asserts, by reason of the applicant's failure to identify planning issues, other than public opposition, the applicant was required to address all the planning considerations, namely those matters enumerated in cl 7.2.4 of TPS 3. The affidavit also asserts that the case was important to the applicant's business because uncertainty affected its ability to plan its future business operations and expenditure.

Unusual difficulty, complexity or importance

In our view, there is nothing in Ms Harding's affidavit which demonstrates any unusual difficulty, complexity or importance of this matter. It was a matter appropriately dealt with on the documents. That is because there were no factual issues in dispute. The only basis put forward by the respondent for opposing the application was the public opposition to it. While one of the considerations required to be considered under cl 7.2.4 was "the submissions received by Council", it was at all times made plain by the respondent that it did not assert that any other of the considerations identified under TPS 3 militated against the grant of an approval. Although, as was pointed out by Member Connor in her reasons for decision, the Tribunal was required to take into consideration all matters set out in cl 7.2.4, it being a hearing de novo, none of those matters raised any issue of any complexity in these proceedings. That is demonstrated by the fact that the evidence in relation to those matters was adduced by an officer of the applicant and was uncontested. Environmental issues which might conceivably have been complex, had already been dealt with by the renewal of the licence to accept class 3 waste by the Department of Environment.
The submissions filed in support of the application ran to some 29 pages. The first six pages comprised a recounting of the history of the site. Several pages reproduced relevant provisions of TPS 3, and the submissions then dealt with each of the respondent's reasons for refusal and each of the matters for consideration pursuant to cl 7.2.4 of TPS 3. Finally the submissions dealt with an issue as to the term of the development approval, and then the without prejudice conditions which the respondent had been required to lodge in the event that the application would be approved. The submissions referred to documents contained in a bundle of some 500 pages which had been lodged by the applicant. Much of that material was by way of background.
We were informed at the hearing that, in addition to the bundle of documents lodged for the purpose of the hearing, the applicant's solicitors were required to review more documentation. We were advised that to the best recollection of the solicitor handling the matter, there were approximately three lever arch files of documents that required review at the time initial instructions were taken, and for the purpose of preparation of the submissions.
We now turn to the items claimed by the applicant.

Items 1 and 2 - application and grounds for review

These matters have been claimed by analogy to the items applicable to a writ and statement of claim in the Supreme Court. The maximum allowable for those two items is $3921. The claim is for $9147.60. That claim is based upon a junior practitioner spending 39.6 hours on taking instructions, considering documents, providing advice, drawing the application and the grounds for review and various telephone attendances. The time claimed represents roughly a full working week by one practitioner. To the extent that time was provided providing advice to the client, it was not properly included under these items in any event. We accept that the solicitor may have had to review three lever arch files of documents. Given the grounds for refusal by the Shire, we do not accept that a detailed analysis of all those documents was required, as most of them undoubtedly were relevant to uncontentious background matters.
The application itself is a six page document which can be generated from the Tribunal's website and the boxes filled in. It is a simple document comprising mostly contact details of the various parties. The applicant's solicitors in this case have completed the document by hand. It could not reasonably take more than half an hour. An appropriate allowance for the application itself would be half an hour of a junior practitioner's time, namely $115.
The application had attached to it grounds for review. They are separately claimed by analogy to a statement of claim. The grounds for review were relatively detailed, occupying some five closely typed pages. They comprised an outline of the background to the application, which was no doubt discerned from the client's instructions and the documents reviewed. They then dealt with the expressed reasons for refusal. In our view, a fairly generous allowance for the necessary review of the documents, taking instructions and preparation of the grounds of review would be an amount of 8 hours for a junior practitioner or $1848. In making that allowance, we make the assumption that, at the end of the process, the solicitor concerned would have a good working knowledge of the case to be presented, and the documents relevant to the likely issues.

Item 4 – directions hearing 3 February 2006

As with all matters before the Tribunal, the application was listed for an initial directions hearing. That took place on 3 February 2006 when Senior Member Parry directed advertising of the proposal and made standard directions for the parties to file Statements of Issues, Facts and Contentions. The claim for costs is made by analogy to item 23(a) of the scale. That item simply allows a rate per hour for a senior practitioner. The claim is for 8.9 hours of time by a junior practitioner, and 0.8 hours of time of a senior practitioner. At the hearing of the costs argument, we were advised that that time was broken down as 2.54 hours "reviewing brief", 30 minutes reviewing the Tribunal's Practice Directions, 3 hours meeting with the client and attending the directions hearing, 12 minute telephone attendance, and 48 minutes reporting to the client. It would appear that the practitioner who attended that directions hearing was not the practitioner who prepared the application and grounds for review. That may explain why so much time was required to prepare for what is a routine and brief procedure. We can see no reasonable basis upon which the respondent should be called upon to meet costs in excess of $2300 for a routine appearance at the Tribunal which, according to the Tribunal's recording system, occupied some 28 minutes. In our view, an allowance of two hours of time to cover preparation, attendance at the hearing and a report to the client is a reasonable allowance. The work was done by a junior practitioner, and the amount allowed should therefore be $462.

Item 5 – directions hearing 17 March 2006

Before this directions hearing, the submissions received following public advertising were received by the Shire and copies provided to the Tribunal and the respondent. The respondent had, by then, filed its Statement of Issues, Facts and Contentions, and received public submissions following advertising. The Tribunal identified that the Statement of Issues, Facts and Contentions had not identified any planning issues. Accordingly the Tribunal directed that the Shire file a further Statement of Issues, Facts and Contentions identifying any environmental planning issues which it said arise in the proceeding. The matter occupied 19 minutes of hearing.
The claim in relation to that directions hearing is 4.6 hours of time by a senior practitioner, and 4.2 hours time by counsel. The total claimed is $2677.40. We were advised that the time claimed related to a meeting with counsel on 15 March 2006, for 2 hours, and a meeting with the clients for 3 hours. Counsel appeared at the directions hearing.
Again, the directions hearing was routine and simple. The conferences claimed under this item cannot reasonably have been concerned simply with the directions hearing. The time spent is probably more properly considered under the "getting up" item to which we turn shortly. We note, however, that the time spent in relation to this item involves two practitioners not, apparently, involved in the earlier conduct of the matter. To the extent that they spent time familiarising themselves with the matter, the respondent should not be called upon to meet those costs.
In our view, the same allowance of 2 hours by a junior practitioner is adequate in relation to the directions hearing of 17 March 2006.

Item 6 – directions hearing 12 April 2006

The claim in relation to this item is 2.9 hours by a junior practitioner, and 2.6 hours by counsel. Counsel again appeared on the directions hearing. At that directions hearing, orders were made for the filing of evidence and submissions in response to the reasons for refusal on the respondent's reconsideration (which were substantially a repetition of the original reasons). A direction was also made that the matter be determined on the documents. At the end of March, the Shire had made it clear that they wanted the application dealt with on the documents. It was also clear that the respondent did not propose to argue that the application should be refused on any planning ground, other than hostility from the community towards the proposal. It was obvious that the directions hearing would involve standard procedure directions. We see no reason why any different allowance should be made in relation to this directions hearing from the earlier directions hearing, and again would allow the sum of $462.

Item 3 – getting up

The amount claimed under this item is $49 809.10, against a maximum allowed by the Supreme Court scale of $36 300. The applicant provided a schedule of work claimed under this item. That schedule reads as follows:

"Schedule 1

Getting Up – Item 16

Solicitors' Fees

Work undertaken regarding getting up including, but not limited to:

1	Taking instructions and corresponding and conferring with client;
2	Telephone attendances and correspondence with Respondent;
3	Compiling: Brief to Perth Partner, GWS;
4	Perusing and considering: Brief;
5	Meeting: with client on 13 February 2006;
6	Perusing and considering: Respondent's Statement of Issues, Facts and Contentions dated 22 February 2006 and bundle of supporting documents;
7	Research: regarding conduct of local authorities;
8	Meeting: with client on 27 February 2006;
9	Perusing and considering: copies of approximately 60 public submissions received from the Respondent, on 3 March 2006;
10	Telephone attendances and correspondence with Counsel, Mr Mark Pendlebury ('Counsel');
11	Compiling: documents for Counsel;
12	Meeting: with Counsel on 15 March 2006;
13	Perusing and considering: Respondent'’s Further Statement of Issues, Facts and Contentions dated 27 March 2006;
14	Drawing: list re: contentious issues to determine evidence required for hearing;
15	Drawing: table re: analysis of public submissions;
16	Meeting: with Counsel on 4 May 2006;

17	Meeting: with Counsel and with client on 9 May 2006;
18	Drawing: Submissions dated 22 May 2006;
19	Drawing: Witness Statement of Robert Hutchinson dated 22 May 2006;
20	Perusing and considering and compiling: voluminous supporting documents;
21	Perusing and considering: Respondent's Submissions in Reply dated 30 May 2006;
22	Drawing: Submissions in Reply dated 16 June 2006;
23	Telephone attendances: with the SAT and with client re: status of decision; and
24	Perusing and considering: Reasons for Decision delivered on 14 September 2006 incl. telephone attendances and correspondence with client and with Counsel.

Fee Earners –

CLT (JP) – 5.2 hours @ $231 per hour = $1,201.20

SGT (JP) – 0.6 hours @ $231 per hour = $138.60

GWS (SP) – 31.3 hours @ $341 per hour = $10,673.30

- 0.4 hours @ $363 per hour = $145.20

RXH (JP) – 73.6 hours @ $231 per hour = $17,001.60

- 1.6 hours @ $253 per hour = $404.80

JRN (C) – 1.4 hours @ $110 per hour = $154.00

Sub-Total = $29,718.70

Counsel's Fees

Date	Details	Amount $
23/05/06	70.7 hours @ $264 per hour	18,664.80
26/06/06	5.4 hours @ $264 per hour	1,425.60
Sub-total	20,090.40

TOTAL = $49,809.10"

Some general observations can be made about that schedule. It discloses that five different solicitors worked on the matter, in addition to independent counsel. One of those solicitors spent the best part of two working weeks on the matter. A senior practitioner spent roughly four full days in addition. All of that is in addition to the week spent by a junior practitioner in taking initial instructions and preparing the grounds of review. Furthermore, counsel has spent approximately two full weeks on the matter. We note that, apparently, the submissions and witness statement were initially drafted by the solicitors, and counsel's task, presumably, was to settle those submissions. The total professional time claimed for "getting up" is 190.2 hours, or, assuming a 7.5 chargeable hour day, in excess of 25 full days work. The claim is made in relation to a matter which involved no hearing, the evidence of one witness statement, and submissions which largely drew on the evidence in the witness statement.
Viewed in that light, it is impossible to see how it could be reasonable to burden the respondent with the cost of that much time.
At the assessment hearing, counsel suggested that the significance of the matter to the applicant's commercial operations was such that the matter warranted "a team" being employed to manage these proceedings. The applicant is quite entitled, when properly informed, to elect to utilise a team to conduct the proceedings, but that does not make it reasonable to impose the consequences of that decision on the respondent. In the absence of any contest on all but one issue, it would be reasonable to assume that the matter could have been handled by one reasonably competent legal practitioner, or probably by a town planner.
In our view, the fact that an extraordinary amount of time was spent on the matter does not lead to the conclusion that the reasonable presentation of the case required that time to be spent. It becomes a difficult process to determine what time might reasonably have been spent. In our view, given that there was no hearing, an allowance of 15 hours of time by a senior practitioner would be a reasonable allowance for the preparation of the matter. That leads to an allowance for "getting up" of $5115. We are mindful that, in approaching what is reasonable for getting up, we have allowed a significant amount of time in the initial review of papers for the purpose of preparation of the grounds for review and that it is not reasonable to allow duplication of the costs of that time simply because the applicant used a different solicitor within the firm at different stages of the proceeding.

Item 8 – clarification of orders

Following the delivery of the Tribunal's reasons, the applicant's solicitors wrote to the Tribunal seeking clarification of condition (v) which had been specified by the Tribunal as a condition of approval. That condition read "Suitable and sufficient fire fighting facilities are to be jointly made available on site or in the close vicinity to the satisfaction of Council". That condition was in precisely the same terms as the existing condition on the development approval of 27 October 1999 issued by the Minister. It was, therefore, a condition to which the applicant had been subjected for some seven years. Upon that being pointed out to the solicitors, an invitation was extended to have a directions hearing before Member Connor if there were any uncertainty as to the intent of the condition. That invitation was not taken up.
We see no reason why the respondent should be burdened with an obligation to pay the costs of this enquiry, given the circumstances in which it was made.

Disbursements

The only disbursement that is contentious is the amount of $2960.99 for photocopying. We were not provided with an explanation of that claim. Presumably it is calculated at $1 per page in accordance with item 30 of the scale. The witness statement filed by the applicant had approximately 480 pages of attachments. Where large quantities of copying are done, presumably at one time, we do not consider that it is reasonable to charge a full dollar for each page. We accept that the applicant was required to produce three copies of the witness statement and its attachments. An allowance for 1500 pages of copying is appropriate. In view of the fact that the copying was capable of being undertaken at one time, we consider an allowance of fifty cents per page is reasonable. The sum of $750 is allowed for photocopying. With the other disbursements claimed, the total allowed is $1824.

Items 7, 9 and 10

These items relate to the costs of assessment of the costs, including some $8644.50 relating to what is referred to as the "special costs application".
The order made by Member Connor was that costs were to be assessed only in the event that the parties could not agree them. The applicant invited the Shire to accept costs of $65 000 in full and final settlement of the claim, and threatened indemnity costs if that offer were not accepted. At the costs hearing, counsel for the applicant was critical of the respondent for its failure to respond to that offer other than to write to the Tribunal requesting that costs be assessed. In our view, however, given the dimensions of the claim being made, the respondent was justified in assuming that a reasonable agreement would not be reached and that further costs should be avoided by having the Tribunal simply determine the matter. The costs which we consider reasonable are significantly below those which, in the Chief Executive Officer of the Shire's witness statement in relation to the assessment of costs, he indicated might be a reasonable cost. It is reasonable to assume that, if the applicant's claim was not so far in excess of what is reasonable in the circumstances, agreement would have been reached, and the process of assessment by the Tribunal would not have been necessary. In those circumstances, we are of the view that the applicant's claim for costs is so far in excess of a reasonable claim that no allowance should be made for the costs incurred on the assessment.

Conclusion

The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. The Tribunal strives to ensure that its procedures are proportionate to the nature of the matters in issue. On occasions, matters before the Tribunal are difficult and complex, sometimes involving lengthy hearings. This is not such a matter. In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceedings in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order.
In summary, we assess the costs payable by the respondent to the applicant as follows:

Application	$115
Grounds for review	$1848
Directions hearing 3 February 2006	$462

Directions hearing 17 March 2006	$462
Directions hearing 12 April 2006	$462
Preparation of the matter for determination	$5115
Disbursements	$1824
Total	$10 288

Orders

The respondent is to pay the applicant's costs fixed at $10 288.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT

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Citations

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