MOORE and CITY OF WANNEROO
[2017] WASAT 145 (S)
•15 FEBRUARY 2018
MOORE and CITY OF WANNEROO [2017] WASAT 145 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 145 (S) | |
| 08/03/2018 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:198/2017 | 15 FEBRUARY 2018 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 15/02/18 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Applicant's application for costs of proceeding dismissed Applicant ordered to pay respondent's costs of costs application assessed in the sum of $7,806.70 | ||
| B | |||
| PDF Version |
| Parties: | JOHN CHARLES MOORE CITY OF WANNEROO |
Catchwords: | Practice and procedure Costs Planning review proceeding Development application Remedial massage centre Review application successful Applicant seeking costs of proceeding from respondent Whether respondent genuinely attempted to make a decision on the merits in relation to development application Whether respondent acted unreasonably in proceeding Respondent seeking costs of costs application from applicant Whether making application for costs of proceeding unreasonable Whether proceeding involved genuine dispute as to planning merit |
Legislation: | City of Wanneroo Town Planning Scheme No 2 Freedom of Information Act 1992 (WA) Legal Profession (State Administration Tribunal) Determination 2016 (WA) State Administrative Tribunal Act 2004 (WA), s 31, s 87, s 87(1), s 87(2), s 87(4), s 87(4)(a), s 87(4)(b) |
Case References: | Aydogan and Town of Cambridge & Anor [2007] WASAT 19; (2007) 48 SR (WA) 239 Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 Moore and City of Wanneroo [2017] WASAT 145 Pearce and City of Wanneroo [2010] WASAT 77 Pearce and Germain [2007] WASAT 291 (S) Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206 |
Summary | Mr John Moore made an application for the payment by the City of Wanneroo of his costs of planning review proceedings in which he successfully sought review of the City's refusal of a development application. Mr Moore submitted that the City should be ordered to pay his costs of the proceedings, because the City had failed to genuinely attempt to make a decision on the merits in relation to the development application and had acted unreasonably in the conduct of the proceedings.,The Tribunal determined that the City did genuinely attempt to make a decision on the merits in relation to the development application. The assessment sheet by the officer who made the reviewable decision under delegation provided a comprehensive analysis of the matters that were raised by the development application and indicated that the officer understood that the proposed use is an innominate or unlisted use under the local planning scheme and that the City was required to consider whether the proposed use is, is not, or may be consistent with the objectives and purposes of the zone. The officer formed the view that the proposed use is not consistent with the objectives and purposes of the zone. Although the Tribunal ultimately disagreed with the City's decision, it was a matter about which reasonable minds could differ and the decision upon review was made on the basis of the evidence given at the hearing. The planning analysis of the officer was legitimate and reasonable. There was also no basis for a submission that the officer did not act objectively.,The Tribunal also determined that the City did not act unreasonably in the conduct of the proceedings, other than arguably in one minor respect which did not extend the hearing in any way. Although the Tribunal did not accept the City's legal and planning arguments, those arguments were reasonable and arguable. The City sought to minimise the length of the hearing and made reasonable concessions.,The City sought its costs incurred in defending Mr Moore's application for costs. ,The Tribunal observed that this matter involved 'a typical planning review proceeding in which there was a genuine dispute as to planning merit'. Furthermore, the evidence presented at the hearing was material to the result. ,The Tribunal determined that the making of the costs application in a planning review proceeding concerning a genuine dispute as to planning merit was unreasonable in a generally costs-free jurisdiction. The Tribunal therefore ordered Mr Moore to pay the City's costs of the costs application assessed in the sum of $7,806.70 within 28 days. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MOORE and CITY OF WANNEROO [2017] WASAT 145 (S) MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 15 FEBRUARY 2018 DELIVERED : 15 FEBRUARY 2018 PUBLISHED : 8 MARCH 2018 FILE NO/S : DR 198 of 2017 BETWEEN : JOHN CHARLES MOORE
- Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Practice and procedure - Costs - Planning review proceeding - Development application - Remedial massage centre - Review application successful - Applicant seeking costs of proceeding from respondent - Whether respondent genuinely attempted to make a decision on the merits in relation to development application - Whether respondent acted unreasonably in proceeding - Respondent seeking costs of costs application from applicant - Whether making application for costs of proceeding unreasonable - Whether proceeding involved genuine dispute as to planning merit
Legislation:
City of Wanneroo Town Planning Scheme No 2
Freedom of Information Act 1992 (WA)
Legal Profession (State Administration Tribunal) Determination 2016 (WA)
State Administrative Tribunal Act 2004 (WA), s 31, s 87, s 87(1), s 87(2), s 87(4), s 87(4)(a), s 87(4)(b)
Result:
Applicant's application for costs of proceeding dismissed
Applicant ordered to pay respondent's costs of costs application assessed in the sum of $7,806.70
Summary of Tribunal's decision:
Mr John Moore made an application for the payment by the City of Wanneroo of his costs of planning review proceedings in which he successfully sought review of the City's refusal of a development application. Mr Moore submitted that the City should be ordered to pay his costs of the proceedings, because the City had failed to genuinely attempt to make a decision on the merits in relation to the development application and had acted unreasonably in the conduct of the proceedings.
The Tribunal determined that the City did genuinely attempt to make a decision on the merits in relation to the development application. The assessment sheet by the officer who made the reviewable decision under delegation provided a comprehensive analysis of the matters that were raised by the development application and indicated that the officer understood that the proposed use is an innominate or unlisted use under the local planning scheme and that the City was required to consider whether the proposed use is, is not, or may be consistent with the objectives and purposes of the zone. The officer formed the view that the proposed use is not consistent with the objectives and purposes of the zone. Although the Tribunal ultimately disagreed with the City's decision, it was a matter about which reasonable minds could differ and the decision upon review was made on the basis of the evidence given at the hearing. The planning analysis of the officer was legitimate and reasonable. There was also no basis for a submission that the officer did not act objectively.
The Tribunal also determined that the City did not act unreasonably in the conduct of the proceedings, other than arguably in one minor respect which did not extend the hearing in any way. Although the Tribunal did not accept the City's legal and planning arguments, those arguments were reasonable and arguable. The City sought to minimise the length of the hearing and made reasonable concessions.
The City sought its costs incurred in defending Mr Moore's application for costs.
The Tribunal observed that this matter involved 'a typical planning review proceeding in which there was a genuine dispute as to planning merit'. Furthermore, the evidence presented at the hearing was material to the result.
The Tribunal determined that the making of the costs application in a planning review proceeding concerning a genuine dispute as to planning merit was unreasonable in a generally costs-free jurisdiction. The Tribunal therefore ordered Mr Moore to pay the City's costs of the costs application assessed in the sum of $7,806.70 within 28 days.
Category: B
Representation:
Counsel:
Applicant : Mr T Cockman
Respondent : Mr M Gregory
Solicitors:
Applicant : Justice Legal Pty Ltd
Respondent : Castledine Gregory
Case(s) referred to in decision(s):
Aydogan and Town of Cambridge & Anor [2007] WASAT 19; (2007) 48 SR (WA) 239
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44
Moore and City of Wanneroo [2017] WASAT 145
Pearce and City of Wanneroo [2010] WASAT 77
Pearce and Germain [2007] WASAT 291 (S)
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206
Introduction
1 Mr John Moore seeks his costs of a planning review proceeding in which he sought review of the refusal of a development application for a remedial massage centre on land in Wangara zoned 'Special Industrial' under the City of Wanneroo Town Planning Scheme No. 2 (DPS 2 or Scheme). Mr Moore was successful in the application for review and obtained conditional development approval from the Tribunal. See Moore and City of Wanneroo [2017] WASAT 145 which I will refer to as my earlier reasons.
Determination of planning review proceeding
2 As I indicated in my earlier reasons, Mr Moore and his wife, Ms Chan, had conducted a remedial massage business from nearby premises in a different zone (the Business zone) under the Scheme for some period of time and applied to the City of Wanneroo (City or Council) for change of use to enable them to move to the proposed site. The Council refused Mr Moore's development application for the following reason, which I set out in my earlier reasons [8]:
The proposed Unlisted Use (Massage Parlour) is not consistent with the objectives and purposes of the Service Industrial zone stated in Clause 3.12 of District Planning Scheme No. 2 and therefore, is not permitted in accordance [with] Clause 3.3 of District Planning Scheme No. 2.
3 Although I did not refer to it in my earlier reasons, that decision was made under delegation by a planning officer of the Council. The evidence before the Tribunal included the assessment sheet setting out the officer's consideration of the matter. I will refer to that document later in these reasons. However, I observe that it is a comprehensive analysis of the matters that were raised by the development application.
4 As I said in my earlier reasons [10]:
The principal issue for determination in this review is whether the proposed remedial massage centre use:
• (as the City contends), 'is not consistent with the objectives and purposes of the [Service Industrial] zone and is therefore not permitted' (cl 3.3(c) of DPS 2), that is, it is a use which must be refused consent under the scheme and there further at (cf cl 3.2.2 and cl 6.2.4 of DPS 2, "X" Uses'); or
• (as Mr Moore contends) 'is consistent with the objectives and purposes of the [Service Industrial] zone and is therefore permitted' (cl 3.3(a) of DPS 2), that is, it is a use which may not be refused consent by reason of the unsuitability of the use, but may be conditioned under the Scheme (cf cl 3.2.2 and clause 6.2.1 of DPS 2 "P" Uses), or 'may be consistent with the objectives and purposes of the [Service Industrial] zone' (cl 3.3(b) of DPS 2), in which case it is a use which may be approved or refused in the exercise of planning discretion under the Scheme (cf cl 3.2.2 and cl 6.2.2 "D" Uses).
5 For the reasons set out in my earlier reasons, I came to the view that the proposed remedial massage centre use may be consistent with the objectives and purposes of the Service Industrial zone and is therefore a use which may be approved or refused in the exercise of planning discretion under the Scheme. The City did not raise any substantive planning issue against development approval being granted. In the circumstances of the case, I determined that the correct and preferable decision on review was to grant conditional development approval.
6 There was a dispute in relation to one condition of development approval relating to the hours of operation. I determined that the hours of operation proposed by Mr Moore should be imposed, particularly given the lack of evidence by the City on the question of hours of operation.
7 During the course of my earlier reasons, I addressed and rejected two submissions put by the City as to why it contended the proposed development is not consistent with the objectives and purposes of the Service Industrial zone. I set out the objectives and purposes of the zone in my earlier reasons [14]. I summarised ([15][20] and [35]) and rejected the City's submissions for the reasons set out in my earlier reasons ([22][35] and [36][71]). However, the arguments put by the City were certainly reasonably arguable.
8 I also rejected most of the submissions made on behalf of Mr Moore ([62][63] and [78][80]) and, as mentioned at [62][63] and [82][83] of my earlier reasons, I did not derive any great assistance from the town planning expert called by Mr Moore.
9 However, I determined that the proposed development may be consistent with the objectives and purposes of the Service Industrial zone for the following reasons [71]:
On the basis of Mr Moore's evidence, and having regard to the nature and purpose of remedial massage discussed earlier, I find that the proposed remedial massage centre use is a business land use providing a service which forms a complement to or completes the land uses of martial arts centres, gyms and dance centres in the zone. As Mr Dawson said, martial arts centres, gyms and dance centres fall within the land use class 'recreation centre' under DPS 2. These uses are also 'recreational activities' according to the ordinary meaning of those words for the purposes of cl 3.12.2(a) of DPS 2. A remedial massage centre use provides a service which forms a complement to or completes uses such as martial arts centres, gyms and dance centres, because participation in those recreational activities may give rise to muscle strains and other musculoskeletal injuries necessitating treatment by remedial massage in order to cure, relieve or heal physical defects.
Application for costs
10 Following the publication of my earlier reasons granting conditional development approval, Mr Moore made an application for costs under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), in an amount exceeding $60,000.
Applicable legislation and principles
11 Section 87 of the SAT Act states, in part, as follows:
(1) 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.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
…
(4) 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
(a) whether the party (in bringing or conducting the proceeding before the decisionmaker in which the decision under review was made) genuinely attempted to enable and assist the decisionmaker to make a decision on its merits;
(b) whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
…
12 The principles in relation to an application for costs in SAT proceedings in general, and in planning review proceedings in particular, are not in dispute and can be shortly stated.
13 It has been recognised in Tribunal decisions and decisions of the Court of Appeal that it is apparent from the terms of s 87(1) of the SAT Act that the starting proposition in the Tribunal is that parties bear their own costs of proceedings. Although s 87(2) confers on the Tribunal a broad and unconfined discretion to make an order for the payment by a party of all or any of the costs of another party, unless otherwise specified in the enabling Act, as the Tribunal observed in Pearce and Germain [2007] WASAT 291 (S) (Pearce) [17], s 87(1) and s 87(2) of the SAT Act together indicate that there is a presumption that there will not be an award of costs in the Tribunal except in special circumstances. As the Tribunal said in Pearce [17], this presumption is desirable because it promotes access to civil and administrative justice through the Tribunal.
14 SAT can therefore be characterised and neither Mr Moore nor the City contest this characterisation as a generally 'no costs' or 'costsneutral' jurisdiction.
15 Furthermore, the Tribunal's established practice in relation to the exercise of its broad and unconfined discretion as to costs under s 87(2) of the SAT Act in review proceedings, including planning review proceedings, is that, normally, each party should bear its own costs of the proceedings.
16 As the Tribunal's inaugural President Barker J observed in Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206 [36]:
… [T]he State Administrative Tribunal has been established by the Parliament of the State with its review jurisdiction as part of the system of public administration of the State to ensure that the citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. The starting out position is that, absent other relevant factors, an applicant should be able to obtain review without being obliged to meet the decision-maker's costs if they do not succeed; and similarly, the decision-maker is not ordinarily entitled to recover costs from the applicant in the event the review application is unsuccessful.
17 Section 87(4) of the SAT Act requires the Tribunal, without limiting anything else which may be considered in the making of an order for the payment by a party of the costs of another party in review proceedings, to have regard to, in par (b), whether the party, being the decisionmaker, genuinely attempted to make a decision on its merits. Section 87(4)(a) requires the Tribunal to consider in a review proceeding whether the party, in bringing or conducting the proceeding before the decisionmaker in which the decision under review was made, genuinely attempted to enable and assist the decisionmaker to make a decision on its merits.
18 As will be seen below, the principal argument presented by Mr Moore in his application for costs is that, in his submission, under s 87(4)(b) of the SAT Act, the City did not genuinely attempt to make a decision on its merits.
19 Mr Cockman also submits on behalf of Mr Moore that the City did not genuinely attempt to enable and assist the Tribunal to make a decision on its merits in its conduct of the review proceeding. Mr Cockman submits that that argument is put under s 87(4)(a) of the SAT Act.
20 I note that this submission involves a misunderstanding of s 87(4)(a). That provision is clearly directed to the conduct of an applicant for approval (not the respondent) at the time when the original decisionmaker was in the process of considering the applicant's application and making its decision which ultimately becomes the subject of an application for review (not during the review proceeding before SAT). Nevertheless, I take the submissions made by Mr Cockman about the conduct of the City in the proceeding to be an argument that the City acted unreasonably in the conduct of the SAT proceeding. That is a relevant matter for consideration in relation to costs.
21 The cases referred to by the parties indicate that costs orders are only generally made in review proceedings, including, relevantly, planning review proceedings, where a party has acted unreasonably, including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act.
Consideration of application for costs
22 The principal submission made on behalf of Mr Moore is that the City failed to genuinely attempt to make a decision on its merits in relation to his application, contrary to the expectation in s 87(4)(b) of the SAT Act. This is because, Mr Moore submits, the City has approved remedial massage centres or uses in the Business and Commercial zones of the Scheme on the basis of a legal error that they constitute a 'consulting room' or 'medical centre' and that that is 'in apparent defiance of the legal authority of Pearce', referring to my decision in Pearce and City of Wanneroo [2010] WASAT 77 (Pearce and City of Wanneroo).
23 Mr Moore submits that the City 'then relied on the approval in the Business and Commercial zones to refuse the applicant's proposal in the Service Industrial zone'. In other words, the applicant submits that the City did not genuinely attempt to make a decision on the merits of his application, on the basis of legal errors that it has made in relation to other applications in other zones.
24 The applicant obtained documents under Freedom of Information Act 1992 (WA) relating to other applications and approvals of the City. Those documents indicate that in one case, in the year after the decision of Pearce and City of Wanneroo, the City did assess an application for a massage use in the Commercial zone as a 'medical centre' and, in that regard, the City made an error of law. The other approvals referred to or decisions referred to by Mr Cockman on behalf of Mr Moore that postdate that decision in 2011 do not indicate any error of law on the part of the City in its classification of the proposed use. It is clear from the other documents that the City well understood, in light of the decision in Pearce and City of Wanneroo, that a massage use is an innominate or unlisted use in the Scheme area.
25 Furthermore, and in any case, even if the City had made an error of law in another decision to deal with another application in another zone, that is entirely and utterly irrelevant to the question of whether it made, or it genuinely attempted to make, a decision on the merits in relation to this application.
26 The evidence before me in relation to the decisionmaking in relation to this application, that is, a report authored by Ms Rana Murad, an officer of the City, dated 4 May 2017, indicates that the City well understood that the proposed use is an innominate or unlisted use under its Scheme and that the City was required to consider whether the proposed use is, is not, or may be consistent with the objectives and purposes of the Service Industrial zone.
27 The report refers to information provided by Mr Moore, in part, as a result of a request for further information made by the City to him and then provides an assessment of whether the proposed use is or is not consistent or may be consistent with the objectives and purposes of the zone. The officer formed the view that the proposal is not consistent with the objectives and purposes of the zone. In part, she did so, seeking to derive assistance from the use classes expressly referred to in the Zoning Table which are identified as 'not permitted', that is, 'X' uses in the zone. The officer considered that the proposed massage centre use is similar to certain uses that are 'X' uses and, on that basis, reasoned, in part, that the proposed use is not consistent or compatible with the Service Industrial zone.
28 During the proceeding, the City called Ms Amanda Butterworth, an independent consultant town planning expert witness, to give evidence. Ms Butterworth supported the City's decision and, in part, reasoned in the same way by reference to uses that are prohibited in the zone that the proposed use is in some way similar to those uses, and that that sheds light on the question of whether the proposed use is, is not, or may be consistent with the purposes and objectives of the zone. As I observed in the course of my earlier reasons [76], referring to the decision of Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44 [96]:
… [G]uidance can be obtained as to the objectives and purposes of the zone from the land uses which are permitted and not permitted. …
29 The analysis by the officer, and by the City's witness in the proceeding, which sought to obtain guidance as to the objectives and purposes of the zone from the land uses which are permitted and not permitted, including uses that are permitted and not permitted in other zones, was perfectly legitimate and reasonable for an expert town planner. It does not demonstrate, in my view, that the City did not genuinely attempt to make a decision on the merits of the application.
30 Mr Moore also submits that the City did not genuinely attempt to make a decision on the merits of the application essentially because the officer, or officers of the City, somehow understood that the City was opposed to this type of development in the subject zone, and therefore the staff of the City did not act objectively. It was suggested, on behalf of Mr Moore, that there has been a pattern of such activity or behaviour on the part of the City. There is simply no basis for such a conspiratorial submission.
31 The report in relation to this application by Ms Murad indicates that she turned her mind to the merits of the application and came to a certain view. Although I disagreed, ultimately, with that view, and with the opinion expressed by Ms Butterworth, the City's expert witness, it was a matter about which reasonable minds can differ, and my decision, importantly, was based on the evidence presented at the hearing. As I said earlier, I referred particularly at [71] of my earlier reasons to the evidence of Mr Moore. That was evidence given at the hearing, and obviously not information prior to the hearing.
32 The second basis of the application for costs, as I said earlier, is premised in form on a misunderstanding of s 87(4)(a) of the SAT Act. However, I take that argument to be, in effect, that the City acted unreasonably in the conduct of the litigation, which is an argument certainly open in relation to an application for costs. However, I do not consider that the City acted unreasonably in the conduct of the proceeding.
33 To the contrary, I consider that the City sought to minimise the length of the hearing, and made reasonable concessions during the course of the hearing. In particular, as I noted in my earlier reasons ([88]), as a result of discussions with counsel for the City, the City withdrew a submission that the proposed development is not consistent with orderly and proper planning in terms of consistency of decisionmaking, given that the earlier decisions referred to involved an assessment that the proposed use, or a use similar to the proposed use, was not consistent with the objectives and purposes of the zone.
34 Furthermore, although Ms Butterworth raised a potential concern about car parking, or the adequacy of car parking for the use, no submission was directed in relation to that matter, reflecting a reasonable approach to the conduct of the litigation on behalf of the City.
35 The applicant submitted that, in the same way as the City failed, he contended, to genuinely attempt to make a decision on the merits, because of the reference to other land uses that are expressly not permitted in the zone, so too the City acted unreasonably, or did not genuinely attempt to assist the Tribunal to come to the correct and preferable decision, by referring to such other uses.
36 In particular, the applicant refers to Ms Butterworth's opinion that the use is akin to a personal service, and that other uses which are prohibited in the zone indicate that personal services are not consistent with the objectives and purposes of the zone. As I have said, that was a perfectly legitimate planning analysis. Although ultimately I did not accept it, it was reasonable and arguable.
37 The applicant also submits that there was a failure by the City, both at the stage of the reviewable decision and in the proceeding, to properly consider whether the proposed use was a 'complementary business service'.
38 As far as the City's decision is concerned, it is clear from the report of Ms Murad that she did consider whether the proposed use is a 'complementary business service'. It is true that she did not consider expressly whether it is a complementary business service to recreational uses in the zone, as I found it to be. However, my assessment was based on the evidence presented at the hearing, which included the evidence of Mr Moore.
39 The general topic of whether the proposed use is a complementary business service to other uses was considered, and the officer considered that it was not. In my view, that was a reasonable position to take on the material before the Council at the time it made its decision.
40 The applicant also submits that there were examples of other unreasonable conduct in the proceeding. First, that the Council did not reconsider its decision in circumstances where there was discussion at a directions hearing about the Pearce and City of Wanneroo decision and whether it was on all fours with this matter.
41 There was no order made in this proceeding under s 31 of the SAT Act inviting the Council to reconsider its decision. There was, therefore, no unreasonable conduct in failing to reconsider the decision. Furthermore, it appears that in comments made by Senior Member Spillane at a directions hearing, in which the senior member said words to the effect that the City should consider whether its position is consistent with earlier decisions of the Tribunal, that the senior member was not fully informed of the circumstances of the ultimate decision in Pearce and City of Wanneroo.
42 It seems from an extract from the transcript before me that the senior member was under the impression that the development application in Pearce and City of Wanneroo was ultimately approved, whereas the Council did not approve that application. My decision in Pearce and City of Wanneroo was that that development application was capable of approval as an innominate use; not that it should be approved in the exercise of planning discretion. The City refused that application, and there was no application for review in relation to it. Therefore, it appears to me that the observations made by the senior member were not fully informed in relation to the circumstances.
43 The applicant submits that there was unreasonable conduct in one minor respect, and that is arguable. That relates to an argument about trading hours. The City originally proposed without prejudice conditions that followed the current trading hours of Mr Moore. The City then withdrew that condition and proposed more restricted hours. I came to the view that the condition proposed by Mr Moore reflecting his current trading hours should be imposed. In the course of that assessment, I observed that the City indicated why it proposed the more restricted hours, namely, that, as Mr Dawson, an officer, explained in evidence, if the proposed use is (as the Tribunal indeed found) a complementary business service to other uses in the zone, then it should be restricted to the same trading hours as the other uses in the zone.
44 However, as I said in my earlier reasons [97]:
The City put forward little evidence to support its contention that other businesses in the area are restricted to the hours of operation proposed in amended condition 3 or indeed restricted in terms of hours of operation or other uses in the area. …
(Emphasis added)
45 Perhaps I was being a little generous to the City; there was no evidence put forward by the City in support of that contention. The maintenance of its condition 3 at the end of the hearing may be regarded as somewhat unreasonable. However, the hearing was not extended in any way as a result of the pressing of that condition by the City, ultimately without any real evidence to support it.
46 With the exception of that minor issue in the proceeding, in my view, the City acted reasonably in the conduct of the proceeding.
47 This matter involved a typical planning review proceeding in which there was a genuine dispute as to planning merit. Furthermore, the evidence presented at the hearing was material to the outcome. It was not a case, contrary to a submission put in passing in the written submissions for Mr Moore, where the result was a forgone conclusion.
48 The City's defence of its decision was reasonable, and the arguments that it presented were reasonably arguable, notwithstanding that they were ultimately not accepted by the Tribunal. Such determinations occur routinely in planning review proceedings in this Tribunal.
49 There was also, I should add, criticism by Mr Moore as to the City's decision to obtain independent planning advice and evidence at a time which Mr Moore considers to be late in the process.
50 The City instructed Ms Butterworth once the matter was listed for hearing in the Tribunal. There was nothing unusual or unreasonable in that, although in this case the decision was made under delegation to refuse the application by a Council officer, and therefore there was no conflict between the professional staff's view and the decision of the City. So it was perfectly reasonable for the City to seek an independent planner. And indeed, the fact that an independent planner supported the Council decision adds to the view that the Council's participation in the proceeding was reasonable.
51 For these reasons, in my view, the City did genuinely attempt to make a decision on the merits of the application, and did not act unreasonably in the conduct of this proceeding.
52 I certainly understand that Mr Moore is unhappy that he had to take the matter to the Tribunal for review of the City's decision. However, he did so in the understanding that this is a costsneutral jurisdiction in which, generally, each party pays its own costs, and mere success in the proceeding is not sufficient for an order for costs to be made.
53 I am satisfied that the City participated in the proceeding in a reasonable way. I am also satisfied that it genuinely attempted to make a decision on the merits of the application. For these reasons, I reject the application for costs.
Respondent's application for costs of costs application
54 The City seeks its costs of the application for costs. It does so on the basis that the proceeding involved a typical planning review matter and that there was a genuine contest of planning considerations and legal arguments. It submits that this case was a case involving a genuine dispute as to planning merit of the nature discussed in the Tribunal's decision in Aydogan and Town of Cambridge & Anor [2007] WASAT 19; (2007) 48 SR (WA) 239. In that decision, Member Connor and I said the following [47][48]:
As noted earlier, both the starting proposition in the Tribunal, under s 87(1) of the SAT Act and the established practice of the Tribunal in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act is that, normally, each party in review proceedings should bear its own costs. The Tribunal, in its review jurisdiction, is a generally costsfree forum.
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 applicants for costs compensate the other party or parties for having had to defend the application. The applicants were advised of the Tribunal's practice in relation to costs, but nevertheless persisted with their application, thereby putting the Council to expense in defending it. The applicants' conduct in making and pursuing the costs application was unreasonable in a generally costs-free jurisdiction.
55 In this case, the City did not expressly put Mr Moore on notice about the Tribunal's practice. However, the extensive written submissions presented on his behalf clearly demonstrate an understanding and awareness by his solicitor of the Tribunal's practice, and of the nature of planning review proceedings. In my view, this was a case of a genuine dispute as to planning merit and the making of a costs application in a case of a genuine dispute as to planning merit was unreasonable.
56 In my view, under s 87(2) of the SAT Act, it is appropriate in the exercise of the Tribunal's discretion to compensate the City for its costs of having had to defend what is an unreasonable application for costs in a generally costsfree jurisdiction. Furthermore, in this case the City was put to considerable expense because of the Freedom of Information Act application and the documents produced as a result of it, which had to be assessed.
57 The Council seeks costs, and has provided a schedule of the costs that it seeks, generally relating to legal fees of Mr Gregory, who is a senior practitioner, and also including a restricted practitioner. The costs, inclusive of GST, that are sought are in the amount of $7,806.70. The hourly rates sought, and apparently charged to the City, are in accordance with the Legal Profession (State Administrative Tribunal) Determination 2016 (WA), under which, in the absence of an agreement as to costs, the maximum amount that may be charged, for a senior practitioner, is an hourly rate of $407 including GST and, for a restricted practitioner, an hourly rate of $231 including GST. Those hourly rates are reasonable in the circumstances of Mr Moore's costs application.
58 The matters on account of which costs are sought, that is to say the services provided to the City, are set out in detail in attachment 6 to the City's submissions. I have read those matters and they are all, in my view, reasonable steps to have taken in responding to the applicant's submissions in relation to costs, and in preparing and presenting the respondent's submissions in relation to costs. The schedule includes only one hour for hearing of the costs application.
59 In all the circumstances, the amount sought by the City for its costs of the costs application, in my view, is reasonable.
Orders
60 For these reasons I make the following orders:
1. The application by the applicant for costs of the proceeding to be paid by the respondent is dismissed.
2. The applicant is to pay the respondent's costs of the costs application assessed in the sum of $7,806.70 within 28 days.
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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