Lombardi Investments (WA) Pty Ltd and City Of Cockburn - [2009] WASAT 65

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1960 (WA)

CITATION: LOMBARDI INVESTMENTS (WA) PTY LTD and CITY OF COCKBURN [2009] WASAT 65

MEMBER: MR P McNAB (MEMBER)

HEARD: 16 MAY 2008, 16 OCTOBER 2008 AND 4 NOVEMBER 2008

DELIVERED : 13 FEBRUARY 2009

FILE NO/S: DR 117 of 2008
CC 1623 of 2007

BETWEEN: LOMBARDI INVESTMENTS (WA) PTY LTD
Applicant
AND
CITY OF COCKBURN
Respondent

FILE NO/S :CC 1623 of 2007

BETWEEN :LOMBARDI INVESTMENTS (WA) PTY LTD
First Applicant
NORTHDRIVE NOMINEES PTY LTD
Second Applicant
AND
CITY OF COCKBURN
Respondent

Catchwords:

Local government Fire safety Building Building licence Town planning Corresponding planning application Building Code of Australia (BCA) Parties reaching substantial agreement on planning and building issues except as to Fire Safety Engineering Report (FSER) Fulfilment of outstanding condition relating to the FSER Refusal by local authority to accept applicant's amended FSER Refusal by local authority to accept expertise of FSER's author Whether applicant's expert recognised and qualified as expert Expert evidence Resolving conflict as to experts' opinions Whether respondent's expert relevantly impartial Applicant's expert offering alternative building solution based upon expert judgment under BCA Status of corresponding deemed to satisfy provisions of BCA Tribunal accepted standing of FSER author Condition fulfilled Application successful Costs application in respect of delays in granting planning approval Costs application unsuccessful

Legislation:

Building Code of Australia (2008 ed), Vol 1 s C, s D, s E, Pt A0, cl A0.5, cl A0.9, Pt A1
Local Government (Miscellaneous Provisions) Act 1960, s 374
Residential Design Codes of Western Australia (2008)
State Administrative Tribunal Act 2004 (WA), s 9, s 87(1)

Result:

Application successful
Costs application refused

Category: B

Representation:

DR 117 of 2008

CC 1623 of 2007

Counsel:

Applicant: Prof LH Stein and Mr G Dean
Respondent: Mr M Handcock

Solicitors:

Applicant: Dean & Rowick Barristers & Solicitors
Respondent: Downings Legal

CC 1623 of 2007

Counsel:

First Applicant               :     Prof LH Stein and Mr G Dean
Second Applicant          :     Prof LH Stein and Mr G Dean
Respondent:     Mr M Handcock

Solicitors:

First Applicant               :     Dean & Rowick Barristers & Solicitors
Second Applicant          :     Dean & Rowick Barristers & Solicitors
Respondent:     Downings Legal

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

Cornish and Repatriation Commission [2001] AATA 138
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Snedden v Town of Victoria Park [2009] WASAT 18
Widen and Military Rehabilitation and Compensation Commission [2005] AATA 362

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Lombardi Investments (WA) Pty Ltd proposed extensions to its fabrication workshop in Bibra Lake, in the municipality of the City of Cockburn, by the addition of additional fabrication workshops, a specialised store, an office, a trade service centre and a wash bay.
There were significant differences between the parties regarding the applicant's Fire Safety Engineering Report, a document produced in purported compliance with a condition of the building licence regulatory process. This obligation, in turn, arose out of the need to comply with the Building Code of Australia (2008 ed). This regulatory process was administered by the City of Cockburn.
The differences led to delays in issuing both planning approval and a building licence. Many matters were eventually resolved between the parties, leaving the Tribunal with one main issue: was the applicant's fire safety expert's Fire Safety Engineering Report of a sufficient standard to meet the relevant condition under the building licence?
The Tribunal held that it was.
The Tribunal discussed the differences in approach between the competing fire safety experts, noting that the applicant's expert was appropriately recognised, experienced, and well-qualified to offer an 'expert judgment' under the Building Code of Australia. Indeed, in other respects his work on the report had apparently been accepted by the City of Cockburn. In any event, both experts had engaged in a long process of negotiation over the contents of the report.
The Tribunal did not accept that the process of obtaining an alternative solution by the use of expert judgment, as was provided for under the Building Code of Australia, was in any way less satisfactory than the 'deemed‑to‑satisfy' provisions of the Building Code of Australia. The Tribunal discussed the parallel issues that have arisen (in other matters in the Tribunal) involving the Residential Design Codes of Western Australia.
Further, the Tribunal found, with respect to the City of Cockburn's expert, that he was partly motivated in his standard-setting in this case by the higher professional standards that he wished to see imposed upon his industry generally. His stand caused the Tribunal to question his impartiality in the proceedings, given his involvement in, and advocacy of, such standards. There was no suggestion, however, that this stance was other than well‑intentioned and made in good faith.
The Tribunal also discussed the difficulties in dealing with conflicts between experts' evidence, noting that the courts had, at least to some degree, accepted that, in the end, the choice between conflicting experts 'may have to be a matter of judgment and not of detailed reasoning'.
A costs application, in respect of the planning approval issue, was refused, as the Tribunal found that there was nothing as regards the respondent's conduct which could be said to displace the ordinary presumption under s 87(1) of the State Administrative Tribunal Act 2004 (WA) that each party bear their own costs.
What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.

Fire Safety Engineering Report: Proceeding CC 1623 of 2008

The first matter dealt with a review of the City of Cockburn's refusal to approve 'plans and specifications' under s 374 of the Local Government (Miscellaneous Provisions) Act 1960 (WA). In effect, a building licence would not issue until certain questions had been resolved in relation to fire‑rating, in connection with the standards required by the Building Code of Australia (2008 ed) (BCA). As appears from the procedural history set out below, the issue turns upon the suitability of the Fire Safety Engineering Report (FSER) prepared by Schwanke Consulting. Thus, the orders set out below, from 16 October 2008, refer, in effect, to an inquiry into the suitability of the following condition:
BC006 Fire Engineering Report ‑ The deemed to satisfy provisions of the Building Code of Australia are varied to the extent defined in the Fire Safety Engineering Report prepared by Schwanke Consulting dated 2 September 2008 ("the FSER"). All other aspects of the design of the building are to comply with the BCA deemed to satisfy provisions.
I have concluded that the review should be allowed and the applicant's proposals as regards fire-rating should be accepted.
Therefore, the decision under review will be varied by the 'satisfaction' of any conditional requirement of the building licence in relation to a FSER being met by the provision to the City of Cockburn (City or respondent) of the Schwanke Consulting Report Version 4, suitably amended to reflect the concessions that the applicant made in the Tribunal on 4 November 2008. Liberty to apply in respect of these orders will be reserved for 21 days.
The reasons for reaching this decision are as follows.
First, regard should be had to the procedural history of the matter, which may be found in the orders of the Tribunal from 16 May 2008, 16 October 2008 and 6 November 2008. These orders set out the arrangements adopted for the hearing (which, by consent, became a mediation), certain consent orders, including an interim arrangement reached in respect of the building licence and related matters. Given the history of this complex matter, I reproduce those orders as follows (emphasis added):
16 May 2008
1.By consent, both proceeding CC 1623 of 2007 [dealing with the Fire Safety Engineering Report] and proceeding DR 117 of 2008 [dealing with planning approval], which are being heard and determined together, are adjourned into mediation.
2.Subject to the question of costs in proceeding DR 117 of 2008, the matters have been fully settled between the parties in accordance with these orders.
3.In proceedings CC 1623 of 2007, by consent, the review is allowed and the decision under review is set aside and in substitution for that decision, there will be a decision, in effect, to grant a building licence in accordance with these orders.
4.The building licence is subject to the following conditions:
(a)that the parties shall enter into an agreement the effect of which is to obligate the applicant to notify prospective purchasers of certain matters, a draft of the said agreement being tabled in mediation.
(b)the applicant agrees to display two plaques as to fire rating or safety (one of which is to be located in the administrative offices on the subject land), to be modelled, in principle, upon the City of Perth's sign design for similar plaques.
(c)the building licence shall be subject to the limitations contained in the Fire Safety Report, to be finalised between the parties within 28 days.
5.The applicant consents to the notification that an alternative solution as regards fire rating or safety exists which may be noted upon the Certificate of Classification issued by the respondent.
6.By consent, in proceeding DR 117 of 2008, the review is allowed and the decision under review is set aside and in substitution for that decision, there will be a decision that planning approval is granted in respect of the subject land in terms similar to that previously granted, with the additional limitation that use of the subject land is limited to the manufacture and repair of truck trailers, machinery associated with the transport industry and associated parts which utilises materials commonly used in that industry predominantly involving steel and aluminium fabrication and includes the application of surface treatments, paints and other finishes to products manufactured.
7.The respondent may issue any administrative instrument replacing any instrument set aside by these orders, provided that the replacement instrument is not inconsistent with these orders.
8.On the question of costs, if any, in DR 117 of 2008, the Tribunal is to be reconstituted to deal with an application for costs.
9.The question of costs is to be determined upon the documents in accordance with the following paragraphs of this order.
10.The applicant shall file and serve by 20 May 2008 its short submissions in the matter seeking costs.
11.The respondent shall file and serve such submissions as it may wish to make in reply by 27 May 2008.
12.The question of costs shall become a reserved decision of the Tribunal from the date that the last document is received from the parties in accordance with these orders.
13.The parties have liberty to apply in respect of any matter that arises out of the making of these orders.
16 October 2008
1.By consent, paragraph 4(c) of the orders of Member Peter McNab and Sessional Member Darren Mouchemore made on 16 May 2008 is corrected by deleting the words 'within 28 days'.
2.By consent, the outstanding issue to be determined by the Tribunal at the scheduled further hearing on 4 November 2008 is whether a condition in the following terms should form part of the conditions of the building licence granted by the decision of the Tribunal on 16 May 2008:
'BC006 Fire Engineering Report ‑ The deemed to satisfy provisions of the Building Code of Australia are varied to the extent defined in the Fire Safety Engineering Report prepared by Schwanke Consulting dated 2 September 2008 ("the FSER"). All other aspects of the design of the building are to comply with the BCA deemed to satisfy provisions.'
3.By 4 pm on 17 October 2008, the respondent shall file and serve a detailed schedule setting out any objections it has to the FSER and the basis for any objection.
4.By 4 pm on 24 October 2008, the applicant shall file and serve its response to the schedule of objections.
5.Subject to any further order, the evidence of the expert witnesses must be given concurrently at the hearing. They will be:
5.1.1called to give evidence together;
5.1.2asked questions by the Tribunal;
5.1.3given an opportunity by the Tribunal to ask each other any questions which they consider might assist the Tribunal; and
5.1.4asked questions by the parties or their representative.
6.The parties are to advise the Tribunal whether there are any prospects for further mediation, say, immediately prior to the scheduled further hearing on 4 November 2008.
6 November 2008
1.The applicants applying to the Tribunal for the orders in substance appearing below, and the respondent neither consenting to nor opposing the same, and the Tribunal having the power to make any ancillary order or direction that the Tribunal considers appropriate for achieving the purpose for which it has exercised its primary power of making the orders in the proceeding (that is to say, the orders made on 16 May 2008 and 16 October 2008), the Tribunal makes the following orders.
2.Subject to paragraph three of these orders, the following condition of the building licence to be issued by the respondent shall be deemed to be fulfilled in respect of the construction of the building the subject of planning approval given by the Tribunal on 16 May 2008:
'BC006 Fire Engineering Report ‑ The deemed to satisfy provisions of the Building Code of Australia (BCA) are varied to the extent defined in the Fire Safety Engineering Report prepared by Schwanke Consulting dated 2 September 2008 ("the FSER"). All other aspects of the design of the building are to comply with the BCA deemed to satisfy provisions.'
3.In the event that the Tribunal does not determine that the FSER of 2 September 2008, being the proceeding in the Tribunal heard on 4 November 2008, fulfils the condition of the building licence, the applicants shall lodge with the Tribunal any further FSER amended to accord, as the case requires, with the Tribunal's reasons (the 'revised FSER').
4.The applicants have liberty to apply generally, including liberty to apply to the Tribunal to have any revised FSER substituted for the FSER in the condition referred to in paragraph 2 of these orders.
5.The matter is otherwise a reserved decision of the Tribunal on and from 6 November 2008.

Subject land and proposals

The subject land in this review is No 134 (Lot 20), Barrington Street, Bibra Lake, in the municipality of the City. The proposal that led to the review was a development to increase a fabrication workshop from approximately 4,200 square metres to approximately 12,300 square metres by the addition of additional fabrication workshops, a specialised store, an office, a trade service centre and a wash bay.
For the component parts of the proposal as regards the subject land, I refer to page 3 of the FSER, and the plans shown on Exhibit 3 and Exhibit 4. It is unnecessary to reproduce this material in these reasons.
The use of the land is primarily, as Professor LH Stein (counsel for the applicant) pointed out, on more than one occasion, to be considered as governed (and therefore confined) by the scope of the development approval, an approval ultimately issuing by way of consent orders made by this Tribunal, following an earlier approval from 2006 by the respondent (see above, orders of the Tribunal from 16 May 2008).

Tribunal's jurisdiction

I should first mention something as regards the Tribunal's jurisdiction and the practices adopted in this review.
The procedure adopted in, and the scope of, the review is collectively reflected in the orders of the Tribunal set out above. In some ways, the review was an unusual exercise of jurisdiction, particularly as regards the interim solution offered by the orders of 6 November 2008. In short, a combination of steps taken to achieve the Tribunal's statutory objectives (s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), its administrative role (as 'standing in the shoes' of the respondent), and the wide nature of the review arising out of the consent of the parties, based upon mediated outcome largely resolving the matters, are the basis of the review.
Although mere consent cannot, of course, give the Tribunal jurisdiction, the way in which the review developed and was conducted reflected the need to resolve the real differences between the parties as to the fulfilment of one outstanding condition ‑ and one alone ‑ on the grant of a building licence.

The Fire Safety Engineering Report

The principal issue is, in effect, the 'clearance' of the FSER, a process which is an usual requirement of the grant of a building licence. It, in turn, indirectly comes out of the requirements of the BCA. (Although the parties used an earlier version of the BCA in the review, the newer edition, for 2008, has not materially altered matters so far as this review is concerned.)
The main provisions of the BCA relevant to this review relate to Vol 1, Pt A0 and the associated definitions in Pt A1, particularly as they refer to 'performance requirements' and building solutions in relation thereto being satisfied by either a 'deemed‑to‑satisfy' standard (DTS) or by 'alternative solutions' with assessment methods, including 'expert judgment' (or a combination of both): see, in particular, cl A0.5 and cl A0.9.
As mentioned, the FSER is in furtherance of applicable standards which are common ground and unnecessary to reproduce in these reasons, but may be found principally in the following parts of the BCA: Vol 1, s C, 'fire resistance'; Vol 1 s D, 'access and egress'; and Vol 1 s E, 'services and equipment'.
For present purposes, it is sufficient to summarise that, for each required obligation or standard, the BCA provides a mechanism for a DTS result, and the possibility of a, in effect, performance‑based assessment, that is, an alternative solution based upon expert judgment.

Alternative solutions based upon expert judgment

Perhaps it is important in this review to establish first the proper relationship between DTS and the expert judgment alternative criteria.
Recently, I have had occasion to look at a similar issue in relation to the state's Residential Design Codes of Western Australia (2008) (Codes): see Snedden v Town of Victoria Park [2009] WASAT 18 (Snedden). As is well known, the Codes adopt an overarching performance criteria with an acceptable development (deemed to comply) criteria as well. Broadly speaking, the BCA, so far as is relevant to this case, adopts a similar regulatory and standard-setting model.
In Snedden, I drew attention to the obvious connection between the two criteria, but noted the authorities which have cautioned against using the acceptable development criteria as the only yardstick of residential design. I said, at [32] - [36]:
[We] are reminded by such cases as Sweetland and Town of Cambridge [2005] WASAT 278 (Sweetland) and Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 (cf Willicombe and City of Gosnells [2006] WASAT 13; (2006) 41 SR (WA) 283 and Keating and City of Nedlands [2006] WASAT 329) that the acceptable development provisions of the R‑Codes (and any local equivalent) are only one way of achieving the objective of the relevant element. That objective can also be met by satisfaction of the performance criteria. In Sweetland at [36] it was said:
[W]here there is non‑compliance with the Acceptable Development provisions, it is not appropriate then to test the matter by reference to the departure from those requirements. Rather[,] the test is whether the particular application meets the Performance Criteria, thereby satisfying the objective ... [T]he focus should not be [on] the number of variations sought or the extent to which the variations differ from those set out in the Acceptable Development provisions. However, it is incumbent upon the applicant to demonstrate that the Performance Criteria have been satisfied and that the proposed development meets the General Objectives of the [R‑Codes].
Notwithstanding these observations, it is clear that the performance criteria and the acceptable development criteria, while in a sense being independent from each another, do in fact have a direct relationship with one another and cannot be compartmentalised as if they were completely separate entities. After all, they flow from the same pen and are issued simultaneously in pursuit of the same object. Moreover, by their very nature, performance criteria tend to be extremely generalised, pithily expressed and 'open‑textured' in comparison to the relative minutiae found, as here, in the accompanying acceptable development criteria. In Forrest and Town of Cottesloe [2005] WASAT 311, the following observation was made concerning the R‑Codes (as previously in force), at [38]:
Although these [certain terms dealing with aged care needs, found in the performance criteria] are not defined, guidance as to their meaning and effect is provided by the acceptable development provision in par A2 and by the explanatory text. In this regard, cl 1.1.3 of the Codes states that '[i]n preparing and assessing applications where Performance Criteria are invoked, the explanatory text and the Acceptable Development provisions will together provide useful guidance' (page 4). Similarly, cl 1.5.2 states that the acceptable development provisions in the Codes 'perform a dual role, firstly by providing a straightforward pathway to assessment and approval, and secondly by providing guidance as to the level of response to a Performance Criterion that might be acceptable' (page 13).
The Codes' Explanatory Guidelines (Pt 1, at 4) now caution as follows (emphasis added):
Given that the acceptable development provisions illustrate only one way of satisfactorily meeting the corresponding performance criterion, the use of an acceptable development provision as a yardstick or evaluation standard during a performance criteria assessment is generally not appropriate.
Nevertheless, it is only natural to assume that such detail as may be found in the acceptable development criteria has a rational basis for meeting the performance criteria, and is at least indicative, perhaps in some cases strongly so, of a desirable standard. That standard should inform the debate; it might even be considered as a possible starting point in any consideration of what is alternatively produced in alleged satisfaction of the performance criteria …
The full extent of the relationship between performance criteria and acceptable development criteria remains to be finally and authoritatively determined as a matter of planning principle and, even then, might vary significantly from case to case. For the moment, however, it is sufficient to remind ourselves that the goal of meeting performance criteria cannot be adjudged, it seems, solely in the sense of the degree of departure or variation from the acceptable development criteria.

I then went on to observe, at [37]:
Having said this, I recognise the strength of the opposing argument that permitting any reference at all to such matters (for example, the degree of departure from the acceptable development criteria) might well tend to both undermine the performance‑based intent of the R‑Codes and to lead to a misinterpretation of the function of acceptable development criteria. Whether these fears ‑ which are valid ‑ are met by a denial of the connection advanced above (and, say, a consequential rejection of the tender of any evidence seeking to do the same), or are to be borne uppermost in mind whenever the issue is presented, will, no doubt, be determined in an appropriate future case.
I am of the view that this line of reasoning is also generally applicable here. Further, I would understand that Professor Stein's submissions are consistent with this position. Moreover, what was said in Snedden seems more explicitly borne out in the BCA at cl A0.5 and cl A0.9.
Here however, at several points, Mr Handcock, counsel for the respondent, appeared to suggest that a performance-based assessment - an alternative expert solution as offered by, in this case, Mr H Schwanke ‑ was, as he put it, 'a relaxation of standards (T:79); a 'lesser standard' (T:83) and also 'significantly less than the DTS' (T:85).
I note, however, that at another point in the proceedings, he spoke of it being, 'overly simplistic to say [that] we just have to have blind faith in the DTS standards' (T:81).
Mr Handcock in his final address did appear to resile from the 'lesser standard' formulation and, with respect, focused more on the alleged failures of methodology on the part of Mr Schwanke.
But in any event, he described the applicant's overall effort in this case as 'lowering the bar'.
In my view, it seems to be an error, as Mr Schwanke was at pains to point out when he gave evidence, to label an alternative solution as somehow inferior because it does not meet the DTS. To the extent that that approach is reflected in any part of the respondent's case, I think that it materially weakens its case.
I turn to the issues of difference as regards the FSER.
Originally the matter proceeded upon a lengthy schedule of objections to the then version of the FSER as filed by the respondent on 20 October 2008, and based presumably upon the respondent expert, Mr R Welsh's, advice to the respondent. However, the review must proceed in the context of the two main concessions made by the applicant about the location of certain trucks and certain additional doors: see, for example, the summary (at T:114) recording, in effect, certain undertakings to further amend or clarify the FSER. Any order of the Tribunal, if the review is successful, must, as I have already indicated, contain a mechanism to pick up such concessions for amendment of the FSER.
It emerged during the hearing, taking into account, as I have said, some clarifications and concessions by the applicant, that the respondent was principally concerned with the alternative expert's solution offered by Mr Schwanke in respect of the service centre, workshop and office fire scenarios, taken as a whole. Hence, for example, this exchange, (at T:80):
Mr Handcock: … and if I understand your position, you are saying that you were saying the model that has been put up doesn't ‑ you are not saying that Mr Schwanke's solution doesn't work, but you fear that it may not, in part because the modelling doesn't justify it?
Mr Welsh: That's correct.
Q: And that is because the modelling is on some assumptions that you don't fully agree with?
A: Correct.
Q: Such as in the service centre [having all of the doors] open ‑
A: That's right.
Specifically on what became known as the 'office fire separation issue', (at T:93), Mr Welsh says:
Yes, as I was saying before, I am concerned with the office fire separation, because we are looking at a worse credible fire scenario in the office, being a post‑flashover fire scenario, a worst credible fire scenario in the service centre, being a 50 megawatt fire, and there's just no fire separation between the two. There's a window and that's it. In terms of also getting people out, we don't know, if there is a ventilation controlled fire in the office breaking through the windows, if tenability can be maintained in the service centre to get those people out either. We just don't know because it hasn't been assessed.

Principles relevant to resolving a conflict of expert evidence

I turn now to the relevant principles dealing with the conflict in the expert evidence. In Widen and Military Rehabilitation and Compensation Commission [2005] AATA 362, the Administrative Appeals Tribunal said, at [29]:
The Tribunal is faced with the not uncommon dilemma of having to choose between experts.
Likewise, in Cornish and Repatriation Commission [2001] AATA 138, the Tribunal commented, at [73]:
The members of this Tribunal are not epidemiologists [that is, the area of expertise there under review] and it would be inappropriate for them to embark on detailed scientific analysis of the methodology and verisimilitude of the many research papers and other primary source documents cited in this case. That is the responsibility of the expert witnesses whose evidence the Tribunal must assess. (Emphasis added)
So it is here, but with perhaps one subtle difference. The choice is not so much a choice between experts per se, but whether the review leads to doubt about the opinion proffered by one of the experts, that opinion being part of a regulatory standard the expert is otherwise engaged in. This may ultimately turn out to be a distinction without a difference, but it is a point that, I think, is worth highlighting.
How is such evidence to be assessed in a tribunal? In the oft‑quoted Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 (Tatmar) , Hutley JA said, at [381]:
The choice between conflicting experts may have to be a matter of judgment and not of detailed reasoning.
Tatmar, and related cases were, so far as is relevant, decided in the context of the adequacy of the reasoning process, but I think that they nevertheless draw attention to the task confronting any tribunal in first assessing, and then delivering, reasons on resolving the differences between experts, or as to which expert's evidence is to be preferred over the other.
Finally, on the question of the relevant standards for evaluating expert evidence, I mention the Australian Law Reform Commission (ALRC)'s Background Paper 6 ‑ Experts (1999), which suggests that (emphasis added):
Expert opinion evidence is needed to enable decision‑makers to understand evidence before them and to make their decisions about disputed facts. Judges and tribunal members need to be able to understand the expert evidence and be confident about relying upon it. Decision‑makers need to look for touchstones of reliability, the indicia being impartiality, pertinent prior experience, a disinclination by the expert to step beyond their limits of expertise, and familiarity with the facts. In short, the decision[‑]maker needs to feel secure that the application of expert opinion to the facts in dispute is truly fair and reasonable.
The concept of impartiality has been emphasised in that quote. I will return to this matter in a moment.
I turn then to the question of which expert opinion is to be 'preferred'. I have already cautioned that this is not a case of simply choosing between the two experts. Rather, it seems to me that the task of the Tribunal is, in effect, to rule on the adequacy of the FSER prepared by one expert in the light of certain criticisms made by, or the observations of, another expert.
In the exercise of that judgment, I have assumed that if a material defect on the part of the proposed FSER is established, then it necessarily invalidates the whole of the document, at least so far as these proceedings are concerned. And, as I understand the respondent's case, there is sufficient doubt about the underlying models and assumptions of key parts of the FSER such that the whole of it fails to meet the relevant condition imposed by the building licence.
However, in my opinion, the proffered FSER, in its amended form, meets or will meet the relevant condition for the following reasons.
First, I am satisfied that, having regard to both Mr Schwanke's qualifications (listed in the FSER) and his evidence generally, he is a relevantly experienced and qualified fire engineer, even if Mr Welsh's proposed national scheme of accreditation (see T:97, discussed further below) ‑ might not accept him as such. In other words, I am satisfied that Mr Schwanke meets the criteria, for example, identified in the ALRC publication that I have just referred to.
Mr Welsh disagreed with Mr Schwanke as to certain of his assumptions, methodologies and solutions on certain specific issues, as he was entitled and qualified so to do. He would be, of course, a relevant expert for the purposes of the BCA. But so is Mr Schwanke, who has post‑graduate qualifications in fire safety engineering and has been engaged in this type of work for eight years. At the time of the hearing, Mr Schwanke was also the fire safety engineering representative on the State's Administrative Building Regulations Advisory Committee. It is Mr Schwanke who has signed off on the BCA assessment as a recognised expert.
I consequently accept Mr Schwanke's opinion that the FSER in its modified form adequately assesses questions of fire safety. This is so, even allowing for some speculative areas, such as the assumptions to be used as to, for example, the number of roller doors that are open or shut at any point in time. In my view, Mr Schwanke is a relevant expert as is contemplated by the BCA. Such assumptions are questions of judgment for him and in my view he has the requisite skills, knowledge and experience to make such judgments.
Further, he has not resiled from any such exercises of judgment in these proceedings, despite extensive examination by both the respondent's counsel and his expert, Mr Welsh (the latter testing occurring in their joint evidence session). Once it is accepted that Mr Schwanke is such an expert, then there is a practical onus on the respondent to show why he should lose that status. That onus, in my opinion, has not been discharged in this review.
Hence, having regard to his status, unsurprisingly, parts of his other work on what amounts to de facto certification of the fire standards of this project, is not directly challenged by the respondent. This is so, albeit in some matters, this is the product of negotiation between the parties; that is, he and the applicant have been persuaded at various points to amend the FSER to accommodate the useful points made by the respondent and its expert, Mr Welsh.
I should add that this process of negotiation has been undertaken over a long period of time, both within and without the Tribunal, and it reflects, if I might say so, a sensible and almost certainly usual process of local government that achieves a practical regulatory outcome. Nor, as between experts, is this in any way unusual. It does not point to any weakness in either Mr Schwanke's status or approach. Rather, it confirms the recognition of him as an expert in relevant matters and, in addition, that he had an understanding of the normal regulatory process. This is hardly surprising.
I regret to add that, in any event, in my opinion, Mr Welsh's evidence is weakened to some degree ‑ and I say this with great respect to him ‑ because he saw himself as, in effect, setting a new, perhaps a more exacting and more professional standard. This is quite apart from the respondent's approach that some departures from DTS 'lower[s] the bar', a position that I do not agree with.
This telling exchange between the Tribunal is apposite (at T:97):
[The Tribunal:] … but do you accept [that Mr Schwanke] is qualified as an expert to produce a report such as the one we are looking at?
Mr Welsh: No, not under the requirements of the Society of Fire Safety. It's only a draft report at this stage, but it does state that [National Professional Engineers] registered engineers are required to undertake this level of fire engineered solution.
Mr Welsh's implicit failure to acknowledge Mr Schwanke's established status is perhaps disappointing and in any case leads to the possibility of Mr Welsh's evidence being weakened for a perceived loss of impartiality or even the promotion of ‑ and I also say this with respect to him ‑ apparent self‑interest in the sense of advancing his own professional interests. I do not wish to linger on this topic for any longer than is necessary, but I should say that it is possible that the Tribunal has been invited, perhaps indirectly at least, to endorse Mr Welsh's vision of the future in terms of the profession of fire‑rating engineering. However desirable such a goal is, it is manifestly not the Tribunal's role to take part, even indirectly, in such a debate. Even if no such endorsement had been sought intentionally, such matters would still lead the Tribunal to conclude, unfortunately, that there is an element of self‑interest that could reasonably be seen to weaken Mr Welsh's impartiality.
This is not to say for one moment that Mr Welsh's opinions have been offered in other than good faith. Rather, his motivation, however laudable, suggests that Mr Schwanke was being opposed, at least in part, because he could not meet registration under a proposed new scheme, driven in part by Mr Welsh and the organisations with which he is associated. I pass no comment on these apparent motivations, except to observe that, in the long run, higher professional standards for everybody, be they lawyers, engineers or even tribunal members, is no bad thing in principle.
If I am found to be wrong in the making of these observations, then I regret that, but they do not affect my findings otherwise reached as regards Mr Schwanke's suitability as an expert for these proceedings to propose alternative solutions, nor, of course, do these observations reflect in any way on Mr Welsh's professional standing. They only relate to a narrow point, the weight to be afforded to Mr Welsh's evidence upon this review.

Conclusions on the FSER issue

It is for all of these reasons that the Tribunal concludes that the review in proceeding CC 1623 of 2007 should be allowed in the applicant's favour. Orders will be made reflecting the concessions made at the earlier hearing, with liberty to apply.

Planning approval: Application for costs in proceeding DR 117 of 2008

This proceeding dealt with planning approval for the subject land (see above for a description of the subject land and the building proposed for it). Save as to costs, the matter was settled between the parties as appears in the consent orders of the Tribunal from 16 May 2008, as are reproduced above. The applicant received the development approval that it had contended for.
In the matter of costs, which was reserved in the proceeding, for the reasons that I am about to give, the order of the Tribunal will be that the application for costs is refused.
I have had regard to the submissions of both parties which were filed in the matter: the applicant's dated 20 May 2008 and the respondent's dated 29 May 2008. These were filed pursuant to orders of the Tribunal of 16 May 2009. A ruling on costs was deferred until the whole of the proceedings were finally disposed of.
The relevant principles for costs are set out in State Administrative Tribunal (WA) Law, Practice and Procedure (Michael Hardy (ed), Presidian Legal Publications, 2008) at [2 ‑ 2669] and following (pages 80 ‑ 89). The authorities discussed there are broadly consistent with those cited in the submissions of the applicant. The learned authors write, at [2 ‑ 2669] (emphasis added):
The approach taken by the Tribunal to the award of costs in its review jurisdiction is that there must be some exceptional reason for ordering that one party must pay the costs of another. Usually, an exceptional reason will be in the nature of the matters referred to in s 87(4) or that one party has conducted itself unreasonably in some respect so that the other party has been put to unnecessary expense. If there is no such unreasonable conduct, costs will not generally be awarded.
I have also had regard to the specific authorities summarised in that work in the planning area, which appear at [2 ‑ 2864] and following (pages 85 ‑ 86).
In this matter, there is in my view nothing 'unreasonable' (as that expression emerges from the authorities discussed immediately above) in regard to either the time frame covering the respondent's actions or the general conduct of the respondent. They were clearly motivated in good faith as regards their concerns in relation to the FSER (see above) and, in any event, in a reasonably short time frame, they consented to a development approval being issued in the applicant's favour.
There is nothing in my opinion as regards their conduct which could be said to displace the ordinary presumption under s 87(1) of the SAT Act that each party bear their own costs.
For these reasons I have dismissed the costs application.

Orders

CC 1623/2007 Lombardi Investments (WA) Pty Ltd and City of Cockburn

1.The application for review is allowed.
2.The decision under review is varied by the satisfaction of any condition or requirement of the building licence (or equivalent authority found in the orders of the Tribunal) in relation to a Fire Safety Engineering Report being met by the provision to the City of Cockburn of the Schwanke Consulting Report version 4 amended to reflect the concessions of the applicant made in the Tribunal on 4 November 2008.
3.Liberty to apply is reserved for 21 days, including liberty for the respondent to request such variations of any previous order of the Tribunal reflecting the full terms and conditions of any building licence (or equivalent authority found in the orders of the Tribunal).

DR 117/2008 Lombardi Investments (WA) Pty Ltd and City of Cockburn

1.The applicant's application for costs is refused.

I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER