MYBURGH CONCEPTS PTY LTD and CITY OF STIRLING

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: MYBURGH CONCEPTS PTY LTD and CITY OF STIRLING [2010] WASAT 20

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 15 FEBRUARY 2010

FILE NO/S: DR 462 of 2009
DR 463 of 2009

BETWEEN: MYBURGH CONCEPTS PTY LTD
WAGNER PROJECTS PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Costs - Failure to give adequate reasons in relation to costs - Whether Tribunal required to afford further opportunity to parties to make submissions on costs following determination - Whether s 77 of the State Administrative Tribunal 2004 (WA) requires reasons in relation to decision on costs - Whether respondent genuinely attempted to make decision on merits

Legislation:

Planning and Development Act 2005(WA), s 244, s 244(2)
Residential Design Codes of Western Australia(2008), Pt 6.8
State Administrative Tribunal Act 2004 (WA), s 3, s 3(1), s 60(2), s 73, s 77, s 87, s 87(4), s 87(4)(b)

Result:

Application for review is dismissed

Category: B

Representation:

Counsel:

Applicant: Self-Represented
Respondent: Mr D Nicholson

Solicitors:

Applicant: Self-represented
Respondent: McLeods

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

J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282
Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90
Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 (S)
Myburgh Concepts Pty Ltd and City of Stirling [2009] WASAT 217
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants sought a review by a judicial member of a decision by a member of the Tribunal who was not legally qualified. The decision complained of was that each party should bear its own costs. A right of review is given by s 244 of the Planning and Development Act 2005 (WA) in relation to determinations involving a question of law.
The applicants, whose application was successful, contended that the City of Stirling should have been ordered to pay the applicants' costs. They contended that they had been denied procedural fairness in relation to the costs order, that inadequate reasons were given for the order, that the Tribunal misdirected itself as to the test to be applied, and that it had regard to irrelevant considerations.
On review, the President of the Tribunal accepted that the Tribunal's reasons did not adequately address a main part of the applicants' argument on costs. He rejected the other grounds of review.
Having concluded that the Tribunal had erred in law by failing to give adequate reasons on the question of costs, the President reviewed the submissions of the parties, and the documents which had been before the Tribunal in its original hearing. Having done so, he concluded that the decision on costs should be affirmed, and the application for review dismissed.

The Application

On 3 November 2009, the Tribunal, comprised by Senior Sessional member Brian Hunt, delivered reasons for decision in matters DR 254 of 2009 (DR 254) and DR 256 of 2009 (DR 256), and made the following orders disposing of the proceedings:
1.The application for review is allowed and that part of condition 1 of the development approvals DA07/2773 and DA07/2774 which relates to privacy screening is hereby deleted from the approval that was issued.
2.Each party should pay its own costs of the proceedings.
Myburgh Concepts Pty Ltd and Wagner Projects Pty Ltd were the applicants in those proceedings. They have now applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for a review by a judicial member of Order 2 made on 3 November 2009 relating to the question of costs. The Tribunal's reasons are reported as Myburgh Concepts Pty Ltd and City of Stirling [2009] WASAT 217 (the reasons).
Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT ACT). Senior Sessional Member Hunt is not a legally qualified member.

The original proceedings

The original proceedings were commenced by two applications filed on 24 June 2009. The applications each concerned an identical condition imposed upon separate development approvals which required screening of windows and balconies. At the initial directions hearing held on 10 July 2009, the Tribunal noted that the only matter in dispute between the parties was whether the condition requiring screening should be imposed. It made directions for the filing by the City of Stirling, which was the respondent in both applications, of a statement of its reasons for decision, and a bundle of relevant documents, and for the exchange of evidence and submissions. The Tribunal further directed that, subject to any further order, the matter was to be determined entirely on the documents pursuant to s 60(2) of the SAT Act.
Matter DR 256 concerned a property at 29 Nautilus Crescent, Scarborough. The decision sought in that application was:
Remove the part condition 1 of the approval to commence development requiring screening to all major openings indicated on the approved plans (copy attached).
No order for costs was sought in the application as filed.
Application DR 254 related to a property at 5 Nautilus Place, Scarborough. The decision sought in that application was:
Approve the development application as attached deemed to be refused by the City of Stirling. The City of Stirling pay the applicants [sic] costs of the application.
The attachment to the application set out the grounds for review, and in relation to the question of costs, para 15 of the attachment provided:
The normal rules as to costs should be varied in the circumstances of this case. The City should pay the applicants costs of the appeal for the following reasons -
(a)The City through its official publication of the January Development Report represented that approval had been given. At no stage has the City in writing contradicted this official minuted document or given any indication as to why the Application is noted as approved in this document when, as the City has subsequently claimed, it has not actually been approved.
(b)The communications of 2 June ('I will try and complete your DA this afternoon') of 17 March ('I'm just finishing the paperwork…') and 16 January ('I am just awaiting wording for one of the conditions to be given to me by the Coordinator and the file will then be given to her for final check and signing') are strikingly similar in representing that approval was imminent and it was just a matter of finalising details, principally conditions. At no stage was any issues highlighted. Yet despite over 5 months passing since the first representation of approval being imminent nothing has been forthcoming.
(c)The conduct of the City has been and still is totally unreasonable and inappropriate and has made it impossible for the Applicant to avoid the costs of appealing to the Tribunal.
(d)The City has failed to, and continues to fail to make any genuine attempt to assess and process the application on its merits within a reasonable timeframe. The continual failure has made it impossible for the Applicant to avoid the costs of appealing to the Tribunal.
As is apparent, the costs application was based on complaints of delay resulting in a deemed refusal. It appears that, on the date that the applications were lodged with the Tribunal, the City issued an approval to commence development in relation to 5 Nautilus Place subject to a condition relating to privacy screening. That explains why, by the time the initial directions hearing was held, the only issue in dispute in both matters concerned conditions requiring screening. In their submissions in support of their application filed pursuant to the orders of the Tribunal, the order sought by the applicants in DR 254 was reformulated in light of the City's conditional approval. The reformulation stipulated that the applicant now sought:
a)The removal of the condition on the Approval to Commence Development requiring very extensive privacy screening to all balconies, all decks, all north facing windows and the majority of west facing windows in the proposed units; and
b)Costs on the basis that the City of Stirling did not genuinely attempt to assess the visual privacy requirements of the application and the general conduct of the City of Stirling in assessing the application gave the Applicants no option but to commence proceedings.
In relation to the question of costs, the applicant's submissions in relation to 5 Nautilus Place were contained in para 105 which read:
The Applicants are also seeking costs on the basis that the City of Stirling did not make an attempt to genuinely assess the need for screening on the windows and balconies on its merits. As can be seen above, most of the windows or balconies meet acceptable development provisions or are not required to be screened as they are not over 0.5m above natural ground level or are not major openings. A genuine assessment would have readily identified these areas and would not have required screening. In only a few cases were performance provisions required for assessment and in every instance there clearly was no overlooking of active habitable spaces or outdoor living areas. In every case there was neighbour consent. A genuine assessment on the merits would readily have ascertained this and would not have imposed the screening conditions.
Although the application in DR 256 did not specify that costs were to be sought, the applicants' submissions in that matter raised a claim for costs. That claim was set out in para 52 of the written submissions which were as follows:
The Applicants are also seeking costs on the basis that the City of Stirling did not make an attempt to genuinely assess the need for screening on the balconies on its merits. Had it been properly assessed it would have been self evident that -
(a)the upper level balconies of units 3 and 4 complies with the acceptable development provisions in clause 6.8.1 A1i, ii and iii of the RD Codes;
and
(b)the ground floor balconies complies with the acceptable development provisions in clause 6.8.1 A1ii and iii and that in any event there is no overlooking of any active habitable space or outdoor living area,
and that screening is clearly not required.
In both sets of written submissions, detailed submissions were made as to whether or not the respondent had attempted to make any genuine or proper assessment of the visual privacy elements facing neighbouring properties - see para 2 para 4 of the submissions in DR 254 and para 19 para 25 of the submissions in DR 256.

Grounds for review

The applicants seek a review of the decision in relation to costs on the following grounds:
1)The Tribunal erred in law by failing to afford the Applicants natural justice in making a final determination in respect of the question of costs without giving the successful party to the proceeding the opportunity to make full submissions in respect of its entitlement to costs.
2)The Tribunal erred in law in that contrary to s.77 of the State Administrative Tribunal ('SAT') Act, the Tribunal failed to give adequate reasons for its decision in respect of costs. In particular contrary to s.77(2) the Tribunal failed to include findings on material questions of fact, failed to refer to the evidence or other material on which its findings are based.
3)The Tribunal erred in law in that the Tribunal misdirected itself as to the requirements of s.87(4)(b) of the SAT Act by applying the incorrect test in determining whether the Respondents conduct was such as to satisfy the requirements in s.87(4)(b) of the SAT Act.
4)The Tribunal erred in law in that it took into account irrelevant considerations insofar as-
(a)the Tribunal having regard to the cone of vision sketches produced by the Applicant as part of the review proceedings (at paragraph 47) and inferences drawn therefrom; and
(b)the Tribunal (at paragraph 49) having regard to the review being determined solely on documents as a reason not to award costs.

Ground 1

The applicants complain that the Tribunal erred in law by failing to provide 'the opportunity to make full submissions in respect of its entitlement to costs'. The essence of the applicants' contention is that it is only once a decision is made that issues as to costs can be adequately addressed in the light of the reasons for the decision.
In my view, there is no substance in this ground of review.
The question of costs was squarely raised as an issue for determination in the application in DR 254, and in the submissions in DR 256. Not only did the applicants have the opportunity to make submissions in relation to costs, but they availed themselves of that opportunity in both cases. There is no suggestion that the applicants sought any opportunity to make further submissions on costs in light of the Tribunal's reasons, although it would obviously have been open to the Tribunal to seek further submissions if it considered it necessary to do so. The applicant's submissions in relation to costs were predicated on the proposition that the application would succeed, as it ultimately did. The Tribunal determined the question of costs, which was squarely before it for determination, on the basis of the submissions made.
I accept the submission by the respondent that neither the rules of natural justice nor the provisions of the SAT Act require a separate hearing on the matter of costs, prior to the Tribunal exercising its discretion pursuant to s 87 of the Act. There may be cases where the Tribunal's reasons raise some matter which may bear on costs but which the parties have had no opportunity to be heard. In those cases, an opportunity for further submissions is required. This was not such a case. The Tribunal was entitled to proceed to determine the matter on the papers in accordance with the directions made on 10 July 2009, including the question of costs, particularly in the absence of any request by the applicants for an opportunity to make further submissions on costs.

Ground 2 - Section 77 of the SAT Act

Section 77 of the SAT Act provides:
(1)The Tribunal is to give its reasons for a final decision
(2)Reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.
The applicants contend that, in relation to the costs issue, the Tribunal failed to include findings on material questions of fact and failed to refer to evidence or other material on which its findings were based.
The Tribunal dealt with costs in [44] - [49] of its reasons for decision. Those paragraphs read:
44The applicants seek an order under s 87(2) of the SAT Act that the respondent should pay their costs of the proceedings as it did not make an attempt to genuinely assess the need for screening on the windows and balconies on its merits, and acted unreasonably in not raising its concerns about privacy matters at earlier meetings.
45The Tribunal's established practice, in relation to the exercise of its discretion as to costs in review proceedings, is that normally each party should bear its own costs of the proceedings: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246. The Tribunal does not consider that it should depart from its usual practice in the circumstances of this case.
46The respondent did delay a decision on the matters in anticipation of a renewed application for 19 25 Nautilus Crescent, as that could have provided them with guidance as to the development proposed. There was, however, no application submitted and eventually a decision was made.
47The applicants appear to have submitted the very detailed horizontal and vertical cone of vision sketches only as part of their review submissions, so these were not available to the respondent prior to its decision. It is considered that these would have been of assistance to the respondent.
48It is arguable that the respondent should have raised the privacy concerns at an earlier stage. However, the respondent appears to have been focused on the horizontal cone of vision only, and in that regard was anticipating clarity from the adjoining application.
49The matter was ultimately dealt with on the papers and did not involve the engagement of experts for hearings and thus no substantive costs were incurred.
The respondent argues that it is not the intention of the SAT Act to apply the requirements of s 77 to the exercise of the Tribunal's discretion in making an order for costs under s 87. It observes that the term 'final decision' which is used in s 77, is defined in s 3 of the SAT Act to mean:
final decision means a decision of the Tribunal that disposes of the matter raised in an application;
It is argued that the reference to 'the matter' in that definition is a reference to the substantive matter before the Tribunal, and not to a cost order which is more correctly characterised as an 'ancillary order' in the sense referred to in s 73 of the SAT Act.
I do not accept the respondent's submission. 'The matter' before the Tribunal included both the substantive dispute in relation to the condition of approval, and an application for costs pursuant to s 87 of the SAT Act. The orders made by the Tribunal on 3 November 2009 disposed finally of the matter before the Tribunal. The question of costs having been the subject of both application and submissions, the Tribunal was obliged to give reasons for its decision in relation to costs. Paragraphs 44 to 50 of the reasons were obviously designed to meet that obligation. The question is whether those reasons were adequate.
The applicants contend that the reasons are inadequate in that the Tribunal failed to address a key argument advanced in respect of costs, namely that the respondent did not make an attempt to genuinely assess on merit the need for screening of windows and balconies. The respondent's complain that:
(i)there is no analysis as the whether the Respondent's actions was in any way a proper, genuine and realistic consideration as to the need for screening;
(ii)there is no analysis or mention as to the Applicant's claim that the Respondent simply applied a blanket screening condition to every window, deck or balcony in any way facing the surrounding vacant blocks regardless of the merits of doing so, evidenced by screening being required to rooms at or below natural ground level, non habitable rooms such as ensuites and areas clearly setback well beyond that required by the Residential Design Codes;
(iii)there is no analysis or even mention of the Applicants Submissions in Reply addressing the admissions by the Respondent in its Statement of Reasons for Its Decision that the reason the screening conditions were imposed was the Respondent [sic] alleged inability to assess any visual privacy aspect in the absence of a valid planning approval on the neighbouring sites. This was in effect an admission by the Respondent that it did not consider the need for screening on its merits, and should have been addressed in the Tribunals reasoning.
In my view, there is substance in this ground of review.
The reasons for the requirement for the Tribunal to give reasons for its decision were explained by Martin CJ in Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 at [78] when he said:
As the Tribunal is obliged to give reasons for its decision, and there is a right of appeal from those reasons, the reasons must elucidate the process of reasoning applied by the Tribunal for at least two reasons:
(a)first, so that the unsuccessful party can evaluate the prospects of success on appeal;
and
(b)so that the court can evaluate the process of reasoning if an appeal is bought (see Mt Lawley Pty Ltd v West Australian Planning Commission 2004 29 WAR 273 at 283; Beale v Government Insurance Office (NSW) (1997) 48 NSLWR 430 at 441).

The application for costs in DR 254 was, as can be seen from the portion of the application set out above, based upon the City's delay in assessing and processing the application on its merits. That complaint was maintained in the applicants' submissions in DR 254 which relied upon 'the general conduct of the City of Stirling … [which] gave no option but to commence proceedings'. The basis for the application appears, however, to have been supplemented in the submissions filed by the applicants. In the submissions, the complaint is also made that the City did not make an attempt to genuinely assess the need for screening on the windows and balconies on its merits, and reliance was placed upon the proposition that a genuine assessment would have readily ascertained that screening was not required for the reasons elaborated upon in the submissions.
In relation to DR 256, the costs application was based upon a contention that no genuine attempt to assess the need for screening had been made because, had it been made, it would have been self-evident that certain balconies complied with acceptable development provisions of the Residential Design Codes Western Australia (2008) (R-Codes) - see para 52 of the submissions in DR 256 set out above.
It is apparent that the reasons given by the Tribunal addressed the basis of the claim for costs set out in para 15 of the application and in the submissions in DR 254, namely the assertion that the City had behaved unreasonably by its delay in assessing and processing the application. The reasons do not, however, disclose a reasoning process in relation to the claim for costs on the basis that no proper assessment was made by the City. That contention having been quite clearly made, the Tribunal was obliged to deal with it in its reasons. Its failure to do so amounted to a failure to meet the requirements of s 77 of the SAT Act, and in that respect constituted an error of law. It follows that the applicants have established that ground for review. I will deal with the consequences which flow from that conclusion after dealing with the remaining two grounds of review.

Ground 3 - Application of s 87(4)(b) of the SAT Act

The applicants contend that the Tribunal erred in law in that it misdirected itself as to the requirements of s 87(4)(b) of the SAT Act by applying the incorrect test in determining whether the respondent's conduct was such as to satisfy the requirements of that section.
Section 87(4) of the SAT Act provides:
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 decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b)whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
The substance of the applicants' contention in relation to this ground is found in para 19 of its submissions filed in support of this review. That paragraph provides:
The test applied by the Tribunal in paragraphs 46 to 48 is focussing on delay by the Respondent in making the decision as the critical element in considering whether costs should be awarded. The Tribunal seems to indicate that because a decision was eventually made that is sufficient to negate the claim for costs. This is the wrong test to apply in considering whether discretion should be exercised to award costs under s.87(4)(b). The requirements of s.87(4)(b) is not whether a decision was made but the manner in which that decision was derived at.
As already observed, the Tribunal's reasons appear to be directed to the complaint of delay which was very clearly set out as the basis of the costs order in the application in DR 254, although the criticism as to the genuiness of assessment was referred to at [44] of the reasons. I have already accepted that it is not possible to discern from the Tribunal's reasons any reasoning process in relation to the applicants' contention, no doubt based upon s 87(4)(b), that the respondent had not genuinely attempted to make a decision on its merits. Equally, it is not possible to conclude that the Tribunal misdirected itself as to the requirements of s 87(4)(b).
As the respondent observes, the considerations identified in s 87(4) of the SAT Act are not the only considerations relevant to an application for the payment of costs under s 87. The matters to which the Tribunal's reasons in relation to costs were directed were relevant considerations, and clearly related to the basis for a costs order raised in the applicants' original application. The fact that the Tribunal considered questions of delay does not suggest that it misdirected itself in relation to s 87(4)(b).

Ground 4 - Irrelevant considerations

The applicants have said that the Tribunal erred in law in that it took into account irrelevant considerations insofar as -
a)The Tribunal having regard to the cone of vision sketches produced by the applicant as part of the review proceedings (at [47]) and inferences drawn therefrom unsupported by evidence; and
b)The Tribunal (at [49]) having regard to the review being determined solely on the documents not to award costs.
In my view, there is no substance in this ground. The observation of the Tribunal concerning the submission of detailed horizontal and vertical cone of vision sketches was made in the context of consideration of the circumstances in which the respondent dealt with the application. That was a relevant matter in relation to the question of delay, following on as it does from the paragraph dealing with the anticipation of a renewed application for 19 25 Nautilus Crescent to provide guidance with the proposed development. Furthermore, although the Tribunal did not expressly deal with the question of the respondent's genuineness in assessing the application on its merits, the information provided by the applicants to the respondent during the assessment process is relevant to that question as well. It is reasonable to conclude that the Tribunal's comment in [47] of the reasons was intended as an explanation of why the respondent may have reached a different conclusion from that reached by the Tribunal, a factor relevant to consideration of the original assessment by the respondent.
The observation at [49] of the reasons, that the matter was ultimately dealt with on the papers thus reducing costs, is a matter relevant to the respondent's conduct in relation to the proceedings. All matters relating to the conduct of the parties in relation to both the initial assessment of the application, and in relation to the proceedings before the Tribunal, are potentially relevant issues in relation to questions of costs. No error of law resulted from the attention given to those matters by the Tribunal.
In their submissions, the applicants assert that, in any event, the observation in relation to the supply of cone of vision sketches involved a factual error. Even if that was so, that would not provide a basis for review under s 244 of the PD Act as it goes to the merits of the decision rather than any question of law.

Consequences of the Tribunal's error

Having concluded that ground 2 of the application for review is established, the question arises as to what order should now be made.
Section 244(2) of the PD Act provides:
244. Review by President
(2)The State Administrative Tribunal constituted by a judicial member may -
(a)affirm the direction, determination or order; or
(b)revoke the direction, determination or order and substitute another direction, determination or order that the State Administrative Tribunal could have made in relation to that matter.
The applicants have made detailed submissions in these proceedings to support their contention that the respondent did not give genuine consideration to the application on its merits. The respondent in turn has provided detailed submissions as to the basis for its rejection of that contention. With the benefit of reviewing those submissions, the Tribunal's reasons and the materials filed in DR 254 and DR 256 upon which the Tribunal based its decision, it is appropriate that I now deal with the question of whether or not an order should be made that the respondent pay the applicants' costs.
In a covering letter in relation to the proposed development at 5 Nautilus Place, the applicants sought to justify non-compliance with certain acceptable development criteria of the RCodes by reference to performance criteria. That letter included justification in relation to element 6.8 - Visual Privacy and dealt with questions of overlooking of neighbouring property. Justification was also sought in relation to that issue in respect of the application concerning 29 Nautilus Crescent.
In the approvals which were given, a condition was imposed requiring privacy screening to all major openings indicated on the approved plans.
In the proceedings in the Tribunal, the respondent provided a statement of reasons for its decision to impose the screening conditions. The reasons made reference to the requirements of the R-Codes directed at preventing overlooking of habitable spaces and outdoor living areas of other dwellings. The reasons recited that the development proposed sought variations to the acceptable development standards of the RCodes. It asserted that during the assessment of the application, 'it was evident that the cone of vision as measured from major openings and enclosed outdoor active habitable spaces of the proposed developments encroached across the common boundaries with adjoining lots'. The reasons then recited the fact that the form of development on the adjoining property was uncertain given that a development approval for the adjoining property had lapsed and, despite expectations, had not been reviewed. Accordingly, the respondent imposed the condition requiring screening. In its reasons, the Tribunal described that approach as 'suitably cautious' in respect to 29 Nautilus Crescent, although it then concluded that, on review of the vertical cone of vision sketches, the condition could not be justified on planning grounds.
In relation to 5 Nautilus Place, the Tribunal concluded that the condition requiring screening was not justified since a number of the openings concerned met acceptable development criteria or did not need privacy protection, and the remaining openings met the performance criteria.
The fact that the Tribunal reaches a different conclusion from an original decision-maker, does not, inevitably, lead to the conclusion that the original decision-maker failed to genuinely attempt to make a decision on the merits of the application. That is so even though the original decision-maker may have failed to properly or correctly apply the relevant criteria governing the exercise of its discretion.
In Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 (S) (Leseur Investments) the Tribunal ordered costs to be paid by the respondent on the basis that it failed to make a determination on the merits in relation to a single residence 'by appearing to refuse the application largely because of the size of the lot, without looking at the detail of the design itself'. In the substantive decision in relation to that matter, Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90, it is clear that the respondent's refusal of the development application in that case was substantially based upon its unhappiness with a decision by the Western Australian Planning Commission to approve the subdivision of the land upon which the development was proposed. The Tribunal noted that there was nothing in the respondent's local planning scheme or any other planning document which imposed any design control in relation to the site, and the Heritage Council considered the development proposal appropriate. The Tribunal described the respondent's taking of a contrary view as 'quite extraordinary'. The Tribunal, in its cost decision, drew an inference from the lack of any cogent basis for objection, and from its motivation based on opposition to the original subdivision, that the respondent had failed to make a determination on the merits, and ordered the payment of costs.
In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (J & P Metals), the respondent was ordered to pay the applicant's costs. That case concerned the upgrading of an existing landfill facility. The respondent had refused the application, apparently on the basis of community opposition. Its independent town planning consultant advised the respondent that 'there are no sound planning reasons why the site should not be used to its maximum capacity and the proponent be allowed to develop and operate within the environmental requirements'.
At [47], the Tribunal noted that the Council of the Shire of Dardanup (Council) had been advised that neither its staff nor its consultant could find any planning issues to support opposition to the application and that they were not in a position to comply with directions to prepare a statement of issues, facts and contentions. The Council was also advised that a member of the Tribunal had already indicated that public opposition, on its own, was not a sufficient reason to refuse the application.
Notwithstanding that advice, the respondent did not rescind its previous decision, and requested that the matter be determined entirely on the documents by the Tribunal. It led no evidence in support of its contentions. J & P Metals is a case where the Tribunal concluded, in effect, that the respondent had abrogated its responsibility to consider the matter on proper planning grounds, and on that basis had failed to genuinely attempt to make a decision on its merits.
In my view, the facts of this case are distinguishable from the position in either Leseur Investments or J & P Metals. I accept that there may be room for criticism of the respondent as to the depth of its analysis of overlooking issues, and that a more thorough assessment would have been appropriate. In this case, however, it is clear that the respondent's officers gave attention to questions of overlooking, as they were required to do for the purpose of assessing compliance with the R-Codes. The decision which they then made involved screening requirements, in some cases in relation to openings to which the relevant R-Code provisions had no application, and in other cases met the acceptable development criteria. In some cases, assessment of the performance criteria was found to render the openings acceptable without screening, particularly having regard to the vertical, rather than horizontal cone of vision. It is fair to conclude that the Tribunal's reasons demonstrate that the assessment made by the respondent which led to the imposition of condition 1 was inadequate and wrong. In my view, however, it cannot be said that the respondent failed to make a genuine attempt to assess the application. This is not a case where the respondent pressed on with opposition to the application, notwithstanding advice from its officers or representatives that its opposition lacked any foundation, as in J & P Metals. Nor is the case, as in Leseur Investments, where the motivation for the original decision was based upon factors not relevant to the planning assessment to be made. Here, the respondent made its assessment having regard to the requirements of the RCodes, albeit that it did so, on the Tribunal's findings, wrongly.
For those reasons, I agree with the conclusion ultimately reached by the member in this case, that the Tribunal should not depart from the usual position that each party should bear its own costs of the proceedings.
Accordingly the application for review of the Tribunal's decision should be dismissed, and the Tribunal's decision that each party should bear its own costs should be affirmed.

Order

The application for review is dismissed.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT

[2010] WASAT 20

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Natural Justice & Procedural Fairness

Reasons for Decision

Judicial Review