SIMIC and CITY OF BAYSWATER
[2007] WASAT 245 (S)
•19 SEPTEMBER 2007
SIMIC and CITY OF BAYSWATER [2007] WASAT 245 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 245 (S) | |
| 29/10/2007 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:175/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR J ADDERLEY (SENIOR SESSIONAL MEMBER) | 19/09/07 | |
| 29/10/07 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Applicant's application for award of costs dismissed | ||
| B | |||
| PDF Version |
| Parties: | DEJAN SIMIC CITY OF BAYSWATER |
Catchwords: | Application for costs Whether party genuinely attempted to make a decision on its merits |
Legislation: | Residential Design Codes of Western Australia (2002) (WA) State Administrative Tribunal Act 2004 (WA), s 87 |
Case References: | Nil |
Orders | The application by the applicant for the award of costs is dismissed |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SIMIC and CITY OF BAYSWATER [2007] WASAT 245 (S) MEMBER : MR J ADDERLEY (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 SEPTEMBER 2007 SUPPLEMENTARY
DECISION : 30 OCTOBER 2007 FILE NO/S : DR 175 of 2007 BETWEEN : DEJAN SIMIC
- Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Application for costs - Whether party genuinely attempted to make a decision on its merits
Legislation:
Residential Design Codes of Western Australia (2002)(WA)
(Page 2)
State Administrative Tribunal Act 2004 (WA), s 87
Result:
Applicant's application for award of costs dismissed.
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Self-represented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 An application for the award of costs was lodged by the applicant subsequent to the earlier decision of the Tribunal which upheld an application for review of the respondent's decision to impose a condition of development approval requiring the setback of a parapet wall associated with a residential development in Noranda.
2 The applicant sought costs on the basis that the respondent had given unreasonable weight to an objection of an adjoining landowner, had disregarded its own technical officer's recommendation, and had not genuinely attempted to make a decision on the merits of the proposed development.
3 The Tribunal concluded that, although the respondent had incorrectly applied relevant planning criteria in assessing an objection from the adjoining landowner to the proposed development, there was no compelling evidence that the respondent hadn't still genuinely attempted to reach a decision based on the merits of the matter as required under s 87(4)(b) of the State Administrative Tribunal Act 2004 (WA).
4 The application for the award of costs was dismissed.
Summary of the Tribunal's earlier decision of 19 September 2007
5 The respondent conditionally approved an application to construct a two-storey grouped dwelling on a residential property in Noranda, subject to a condition requiring a 1 metre setback of a parapet wall otherwise proposed to be located on the side boundary of the lot.
6 The applicant sought a review of the respondent's decision to impose a condition requiring the setback of the parapet wall on grounds that the reasons for such a condition tendered by the respondent were unsustainable and that the proposed location of the parapet wall was otherwise compliant with the relevant regulatory instruments, including the local planning scheme, town planning policies and the Residential Design Codes of Western Australia (2002) (Codes).
7 The Tribunal accepted the applicant's argument that the reasons for imposing the condition were unsustainable and allowed the application for review. Accordingly, the condition in question, requiring the 1 metre setback of the parapet wall on the side boundary, was deleted.
(Page 4)
Application for costs
8 The applicant has sought to recoup costs incurred in the course of this review on the basis that the respondent did not genuinely attempt to make a decision on the merits of the proposed development.
9 The costs sought under this application are $3475.
Powers of the Tribunal to award costs
10 The relevant provision of the State Administrative Tribunal Act 2004 (WA) (the Act), in respect of costs, is s 87. Section 87(1) provides that, unless otherwise specified, the parties should bear their own costs in Tribunal proceedings. There is a general presumption that other than in special circumstances there will not be an award of costs by the Tribunal.
11 Section 87(4) of the Act sets out particular circumstances that the Tribunal should have regard to in making an order awarding costs, including relevantly to this matter, s (4)(b) which refers to "whether the party (being the decision-maker) genuinely attempted to make a decision on its merits".
The applicant's argument
12 The applicant, in a documented submission, argued that the respondent, in making its decision to impose the condition requiring the 1.0 metre setback of the parapet wall, failed to give proper consideration to the merits of the proposal.
13 In this regard the respondent should not have given weight to the objection of the adjoining landowner because the grounds of objection were not of substance and had, indeed, been shown to be not so by the respondent's technical officers' report which had recommended approval of the proposed dwelling without a requirement for a parapet wall setback.
14 The applicant argued that there were no material planning grounds for rejection of the proposed parapet wall on the boundary and that otherwise the proposal complied with all town planning regulatory requirements.
15 The respondent's detailed reasons for upholding the adjoining landholder's objection as presented to the Tribunal were not as originally articulated by the objector and in any case were found by the Tribunal to be unsubstantiated.
(Page 5)
The respondent's argument
16 The respondent made reference to the City's Policy 2.13 "Boundary Walls in Residential Areas" and the Codes' Performance Criteria for "Buildings on the Boundary" which constituted the planning framework for the respondent's decision.
17 The respondent drew attention to the Performance Criteria which identifies the relevance of the amenity of adjoining properties and the objective for avoidance of restriction of sunlight to habitable rooms and outdoor living areas.
18 The respondent drew attention to the issue of wall height and the relatively greater visual impact on the adjoining property in comparison to the impact of a conventional fence.
19 Given that the respondent's decision was grounded on the application of its Policy and the appropriate criteria of the Codes the respondent submitted that its decision was based on its reasonable assessment of the merits of the proposal in comparison to the relevant planning criteria.
20 Analysis
21 The applicant's argument that the proposed development was not genuinely considered by the respondent on its merits is essentially based on the premise that the respondent could not reasonably have interpreted the neighbour's objection as sustainable in terms of the relevant measures under the Performance Criteria of the Residential Design Codes.
22 Whilst it was found that the reasons for the respondent's decision to impose a setback of the parapet wall were unsound, and thus the Tribunal was in agreement with the applicant as to the original application for review, there is no firm evidence arising out of this matter to demonstrate that the respondent was not still genuinely seeking to measure the application against the relevant planning criteria in making its decision.
23 The fact that the respondent set aside a technical officer recommendation and substituted an amended decision is not of itself unusual in the exercise of discretion by a responsible authority where competing interests of amenity arise. It would seem that the respondent believed, in this case, that the technical officer report did not address the issue of impact on amenity adequately.
24 The decision to impose the parapet wall setback requirement appears to the Tribunal to have been based on an understandable and legitimate
(Page 6)
- wish to protect the amenity of the adjoining neighbour, notwithstanding the incorrect assumptions made in measuring the application against the planning criteria.
Conclusion
25 The Tribunal concludes that, although demonstrably flawed in its application of relevant planning criteria, there is no compelling reason to doubt that the respondent genuinely attempted to arrive at a proper planning decision on the merits of the proposal before it.
26 There are therefore no special circumstances arising from this matter to warrant the exercise of the Tribunal's powers under s 87(2) of the Act.
Order
1. The application by the applicant for the award of costs is dismissed.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J ADDERLEY, SENIOR SESSIONAL MEMBER
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