MCDONALD'S AUSTRALIA LIMITED and CITY OF BELMONT
[2012] WASAT 42 (S)
•7 SEPTEMBER 2012
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : | DEVELOPMENT & RESOURCES |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | MCDONALD'S AUSTRALIA LIMITED and CITY OF BELMONT [2012] WASAT 42 (S) |
| MEMBER | : | MR P McNAB (SENIOR MEMBER) |
| HEARD | : | 8 MAY 2012 |
| DELIVERED | : | 7 SEPTEMBER 2012 |
| PUBLISHED | : | 15 APRIL 2013 |
| FILE NO/S | : | DR 265 of 2011 |
| BETWEEN | : MCDONALD'S AUSTRALIA LIMITED |
Applicant
AND
CITY OF BELMONT
Respondent
Catchwords:
| Costs - Town planning - Development application - Application for costs by successful applicant - Fast food outlet on major highway - Amenity concerns of local objectors - Local government vigorously contesting matter in Tribunal - Whether local government's conduct reasonable - Applicant had strong case on zoning and other matters -Whether local government's conduct in not settling matter reasonable - Whether local government's conduct in testing amenity issues (litter, traffic and alleged anti-social behaviour) reasonable - Whether local government's officers lacked impartiality - Tribunal finding no unreasonable behaviour by local government - Weak case insufficient to attract costs order - Tribunal declining to permit rearguing of matters dealt with in review under guise of costs application - Criticism by Tribunal of length of hearing - Criticism by Tribunal of applicant's relentless cross-examination of some witnesses - Discussion by Tribunal of nature of planning reviews - Costs application refused | [2012] WASAT 42 (S) |
| Legislation: |
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(4)(b)
Result:
Applicant's costs application refused
Summary of Tribunal's decision:
The successful applicant in the principal case (McDonald's Australia Ltd and City of Belmont [2012] WASAT 42) sought costs from the respondent City mainly on the basis that, having regard to the strength of the applicant's case, the respondent had failed to deal with the matter in an objective and rational way (including failing to accept certain offers made in mediation).
In particular, it was alleged that the respondent City of Belmont had allowed itself to be overly influenced by certain objectors who lived in the locality of the proposed fast food outlet. The respondent also alleged that the City of Belmont's expert witnesses had not been impartial.
The Tribunal agreed with the applicant that the respondent had a generally weak case given matters such as the zoning, the existence of other fast food outlets on the relevant highway, and the distance from the highway to where the main objectors lived. However, the particular matters raised by the City of Belmont as amenity concerns were nevertheless considered by the Tribunal in the review; it could not be said that they were devoid of any substance.
In any case, the Tribunal declined to go behind, reopen or revisit matters decided by the Tribunal in the principal case noting that, in respect of the City of Belmont's experts, they were not the subject of any relevant discussion by the senior sessional member who heard the matter; still less did the Tribunal make any adverse findings against these witnesses.
| The Tribunal was critical of both the length of the hearing, given the actual issues involved, and the 'sometimes relentless forensic cross-examination' of some of the witnesses by the applicant's counsel. Such conduct was unnecessary in these types of cases and was to be 'firmly discouraged' in what was 'a relatively straightforward, if strongly fought, planning case'. Accordingly, this conduct was a further basis for declining the application for costs. | [2012] WASAT 42 (S) |
The Tribunal gave its reasons for decision orally.
Category: B
Representation:
Counsel:
| Applicant | : | Mr M Zilko SC with Ms L Rowley |
| Respondent | : | Mr D McLeod |
Solicitors:
| Applicant | : | Norton Rose Australia |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
McDonald's Australia Ltd and City of Belmont [2012] WASAT 42
Medical Board and Kyi [2009] WASAT 22
[2012] WASAT 42 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is a costs application brought by the successful applicant in McDonald's Australia Ltd and City of Belmont [2012] WASAT 42 (McDonald's) where the Tribunal gave conditional approval for a fast food outlet, notwithstanding apparently significant community opposition on various amenity grounds - opposition which was in turn, at least in part, reflected in the City's rejection of the proposal.
2 The principal basis for the costs application is the respondent's
alleged failure to objectively assess the applicant's case on planning grounds and to respond appropriately to related offers to settle made by the applicant. The claim for costs has been strongly resisted by the respondent. Both parties have been legally represented, by senior counsel in the case of the applicant.
3 These reasons should be read, of course, consistently with the
principal reasons of Senior Sessional Member Mr Patric de Villiers in
McDonald's.4 I have had the benefit of both written submissions and extensive oral
argument on the issues relating to costs; however, the factual framework for the making of costs orders (if any) must, in large measure, be governed by the comprehensive and extensive reasons of the senior sessional member in the principal case.
For the reasons that follow, the Tribunal has refused the applicant's application for costs.
6 The Tribunal gave its reasons for decision orally. What follows is
taken from the transcript of those reasons and has been formally revised
and edited for publication.
Applicant's case for costs
The applicant's case for costs is brought under three broad headings:
1)
It is alleged that the respondent failed to arrive at a 'reasonable, objective' decision, based on town planning principles.
[2012] WASAT 42 (S)
2) It is also alleged that the respondent, in effect, unreasonably failed to respond to compromise offers made by the applicant.
3) It is also alleged that the respondent's experts failed to present, in effect, impartial expert evidence.
8 As I understand the applicant's case, if these matters are established
either singly or collectively then they, or any of them, would warrant a costs order in the applicant's favour. I will return to consider these and other arguments, below.
Costs principles
9 The starting point in respect of costs is, of course, s 87(1) of the
State Administrative Tribunal Act 2004 (WA) (SAT Act), which provides as follows:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
10 The enabling Act, the Planning and Development Act 2005 (WA), does not prescribe any other costs regime. Also relevant is s 87(4)(b) of the SAT Act, which provides as follows:
Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -
…
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
11 With gratitude, I rely on the recently published authoritative
commentary by Judge David Parry and Dr Bertus de Villiers of this Tribunal entitled Guide to Proceedings in the Western Australian State Administrative Tribunal (Lawbook Co Thomson Reuters, 2012) (Guide to Proceedings): see chapter 17, which deals with costs.
The Guide to Proceedings, at para 1701, says:
Section 87(1) of the SAT Act provides that, unless otherwise specified in that Act, the enabling Act or an order of the Tribunal under s 87, parties bear their own costs in Tribunal proceedings. It is apparent from the terms
[2012] WASAT 42 (S)
of this section that the starting proposition in the Tribunal is that parties bear their own costs in proceedings. However, s 87(2) of the SAT Act confers discretion … Sections 87(1) and 87(2) of the SAT Act together indicate there is a presumption that there will not be an award of costs in the Tribunal except in special circumstances. This presumption is desirable because it promotes access to civil and administrative justice through the Tribunal. SAT can therefore be characterised as a generally 'no costs' or 'cost neutral' jurisdiction.
13 The other publication dealing with the practice and procedure of the
Tribunal (The State Administrative Tribunal of WA Law Practice and Procedure edited by Mr Michael Hardy and published by Presidian in 2008) describes the cost position in similar terms, but summarises the situation for a successful award of costs as needing 'exceptional' circumstances. Thus, at para 2-2669, the learned authors say:
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 the party pay the costs of another.
The Guide to Proceedings, at para 1701, endorses the following quote from Medical Board and Kyi [2009] WASAT 22:
If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful.
Further, at para 1702, the Guide to Proceedings says:
The making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct warranting an order that the applicant for costs compensate the other party or parties for having had to defend the costs application.
Finally, at para 1712, the Guide to Proceedings notes that:
While not expressly recognised by the SAT Rules, an offer to settle review proceedings may be relevant to the exercise of discretion as to costs. For example, an offer to settle 'may bear on the general question of whether the decision-maker "genuinely attempted" to make a decision on its merits or unreasonably maintained its position in review proceedings having regard to the substantial merits of the case as it may have developed'.
[2012] WASAT 42 (S)
The principal reasons
15 Senior Sessional Member de Villiers conducted, in my view, a very
thorough and detailed review of the issues in this case, resulting in a 32-page decision covering the three days of the hearing in the matter. The length of the hearing is a matter to which I will return below.
16 The issues included the 'catchment' area of the locality; how the
existing amenity of the relevant locality was to be determined, and how traffic and litter problems were to be dealt with. I should record that traffic flows and their impact occupied many pages of analysis by the Tribunal. In addition, some of the amenity concerns raised had an objective basis in broadly analogous matters; for example, traffic flows from both past and present nearby fast food outlets.
17 Although the applicant was overwhelmingly successful in the
review, there were at least three specific observations by the senior sessional member which are worth noting, as they support, in part, the respondent's opposition to both the development and consequently they are also relevant to the costs application.
At [107], Senior Sessional Member de Villiers said, referring to
traffic flows:
Clearly they also represent substantial changes in terms of percentage increases over the existing flows which are generally very low.
At [118], talking about antisocial behaviour, the senior sessional member said:
In addition, it is not unreasonable for residents to express concerns in regard to the current application based upon issues associated with the McDonald's family restaurant facility in Lyall Street.
Relatedly, at [141], in terms of potential traffic impacts, the senior sessional member observed:
In addition, it is possible that such increased traffic flows could potentially result in occasional incidents of antisocial behaviour that have occurred in the area in the past.
Of course, none of these things, when the senior sessional member considered the case as a whole, warranted refusal of the applicant's development. And, I make it clear that I do not intend going behind, revisiting or 'deconstructing' these findings or observations.
[2012] WASAT 42 (S)
19 Turning generally to the nature of the case, I should say that, in my
view, this case resembles dozens of other cases in the Tribunal where significant community opposition has, unsurprisingly, when ventilated and tested, been found wanting in a more formal setting than a local government council chamber. It is also true that, generally speaking, some neighbours tend to unconsciously exaggerate amenity and safety concerns, as the Police evidence in the case discussed by the senior sessional member suggests. But this case was, as I have indicated, more than just these concerns.
20 Importantly, in Senior Sessional Member de Villiers' careful
consideration of the matter, there is not the slightest suggestion by him that the respondent's case was, either on an individual point or collectively, so lacking in purpose, evidence or substance as to warrant special attention, observation or criticism by him.
Discussion of the applicant's case for costs
21 The gravamen of the first charge is that the respondent allowed itself
to be diverted from the objectively reasonable case the applicant was presenting by focusing unnecessarily on the nearby Belgravia residential estate, to the disadvantage of the applicant.
22 The respondent denies this, saying that it acknowledged its officers'
reports which, in any case, were properly premised on Belgravia's status; alleged problems elsewhere with McDonald's stores on Great Eastern Highway, and significant community opposition to the development. These matters essentially relate to the nature of the planning case before the Tribunal and I will return to that matter in more detail below.
23 On the second charge, respecting the alleged failure to properly
respond to offers to compromise, the respondent says that it participated in mediation and says that it was the first party to offer a settlement based upon restricted hours of operation. In the event, the applicant was more successful than what has been suggested by either party, as the Tribunal did not impose any limitation of trading hours: see McDonald's, at [143]. As has been seen, costs principles in the Tribunal may extend to consideration of offers to settle.
24 It seems to me that the trading hours restrictions, including the issue
of whether they should be imposed at all, could have significantly impacted upon other alleged amenity issues in the case. Thus, having regard to the nature of the case argued and to the issues and concerns
[2012] WASAT 42 (S)
addressed by the senior sessional member, the respondent's position on restricting trading hours could not be said, in my view, to have been unreasonable conduct or to have been wantonly pursued. I include in this finding the rejection of counter-offers made by the applicant.
25 I entirely agree that every effort should be made, in planning cases in
particular, to reach a compromise and to settle matters both within and without mediation. However, a respondent local government should not be at risk of an adverse costs order for ultimately maintaining its position where an argument (here, on trading hours) is both central to its amenity case and where it turns out to be a matter closely connected with other issues in the case.
26 The third charge levelled by the applicant against the respondent,
which the applicant says warrants a costs order in its favour, refers to alleged bias and the allegedly deliberate modification of, or collusion with respect to, the evidence of certain expert officers of the respondent, namely, Mr Tan and Ms Gillan. Extensive cross-examination of these officers took place in the hearing and I was taken to some of that material. The arguments were revisited at length in the costs hearing before me.
27 Again, I am not attracted to conducting a forensic examination,
or perhaps a forensic re-examination, of these issues in the context of, or under the guise of, a costs application. For a start, they were not the subject of any discussion by the senior sessional member. Still less did Mr de Villiers make any adverse findings against these witnesses. At its simplest - and perhaps this is speaking very broadly - they were disagreements of opinion, emphasis and explanation, and the issues were resolved in the review in the normal manner after the senior sessional member heard all of the evidence from all of the experts.
28 Having read something about these exchanges from the case and
having also read the accompanying correspondence, I have to say that, in my experience, such intense exchanges are, thankfully, relatively rare in review matters involving planning issues. I will return in a moment to the nature of review proceedings generally and how review proceedings are usually conducted in the Tribunal.
Relative strengths of the parties' cases
29 It is appropriate, I think, that I say something about the relative
strengths and weaknesses of the respective cases. Generally speaking, I think the respondent's case was weak. This is so for the following reasons.
[2012] WASAT 42 (S)
30 First, this type of development was a permitted or possible use with
approval. Secondly, there was the nature of the highway environment, including the existence of the other fast food outlets in the locality. Thirdly, there was the relatively lengthy distance from the proposed outlet to where the majority of the objecting neighbours resided. Accordingly, I accept Mr Zilko's submission that the applicant had a reasonably strong case for an approval.
31 However, such characterisations do not, of themselves, justify
departure from the statutory position that, in the ordinary course, parties bear their own costs. Much more would be needed to justify a departure from that position.
32 The relative strength of the applicant's case makes my next
observations all the more telling. I have to say that the flavour of some of the cross-examination by senior counsel for the applicant seems to me to run counter to the nature of review proceedings in an administrative tribunal such as this Tribunal. No doubt the applicant has to run its case as it sees fit, but the sometimes relentless forensic cross-examination of some witnesses (see, for example, T:52-54; 17.01.12) is, I think, to be firmly discouraged for what is, in truth, a relatively straightforward, if strongly fought, planning case.
33 These are not original proceedings in the Tribunal; they are de novo
review proceedings. There is no jury to convince. The proceedings require main attention to matters of planning law, planning principle and planning practice.
34 Witnesses in such matters are rarely sworn in and the points of
disagreement about alleged misconceptions or errors such as the witnesses might have made in their observations, practices or opinions should, in my view, be dealt with expeditiously. Thus, I think a three-day hearing, having regard to all of the material, seems to me to have been out of proportion to the actual issues involved.
35 I make these very general observations about the course of
proceedings because I believe they are relevant in themselves and also to the exercise of any discretion as to costs, particularly in a 'costs neutral' forum that has statutory objectives requiring attention, amongst other matters, to the efficient despatch and determination of planning and other review matters. Minimising costs to the State and to the parties can be said to be an unstated premise of the Tribunal's exercise of jurisdiction. Accordingly, even if I were minded to award costs against the respondent
[2012] WASAT 42 (S)
(which I am not, for the reasons that I have already advanced), I would balance that conduct against the applicant's conduct in the proceedings. It is unnecessary to say any more on this topic.
Conclusions
36 Although the respondent would, it seems to me, always have had a
difficult task in justifying a refusal in a mixed area with a proposed use of this nature (and where development was on a very busy highway and where residential amenity impact was always likely to be based more, perhaps, on perception rather than reality), none of these conclusions mean that the respondent's vigorous opposition to the proposed development could be said to be unreasonable or relevantly disproportionate to the proper advocacy of the amenity interests of the ratepayers such as would be sufficient to attract a costs order against the local authority.
37 And, even if some of the respondent's evidence was found to be
wanting, there is nothing to suggest that it was given other than in good faith and for the purposes of advancing what was ultimately still a planning case about amenity impacts, however weak that case ultimately turned out to be.
38 On the authorities that I have referred to above and in the
| circumstances outlined, there is no proper basis to award costs against the respondent local government. Costs will therefore be refused. |
| Orders |
For the reasons given above, the orders of the Tribunal are:
1. The applicant's application for costs is refused. 2. Subject to paragraph 3 of these orders, there is no order as to costs. 3. The operation of paragraph 2 of these orders is suspended for seven days.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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