SPARTALIS and CITY OF STIRLING
[2017] WASAT 125
•22 SEPTEMBER 2017
SPARTALIS and CITY OF STIRLING [2017] WASAT 125
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 125 | |
| 22/09/2017 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:300/2016 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS C WALLACE (SENIOR MEMBER) | 20/09/17 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Applicant's application for costs allowed and fixed in the amount of $20,000 | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL SPARTALIS CITY OF STIRLING |
Catchwords: | Town planning Costs application Deemed refusal of development applications seeking retrospective approval Development approval granted days before final hearing Whether costs unnecessarily incurred Whether decision-maker genuinely attempted to make a decision in a timely manner Whether decision-maker acted unreasonably Whether decision-maker acted cognisant of the Tribunal's statutory objectives Whether non-legal advocate costs are recoverable Relevant factors to exercising discretion to award costs |
Legislation: | Legal Profession Act 2008 (WA), s 5 Planning and Development Act 2005 (WA), s 252(1), s 253 State Administrative Tribunal Act 2004 (WA), s 9, s 9(b), s 24, s 30, s 31, s 39(1), s 39(1)(f), s 39(2), s 87, State Administrative Tribunal Rules 2004 (WA), r 63(2) |
Case References: | Chew and Director General of the Department Education and Training [2006] WASAT 248 Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125(S) Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 Springmist Pty Ltd and Shire of Augusta Margaret River (2005) 42 SR (WA) 2007; [2005] WASAT 143(S) Western Australia Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 |
Summary | The applicant made an application pursuant to s 252(1) of the Planning and Development Act 2005 (WA) seeking review of a deemed refusal by the respondent in respect of two applications seeking retrospective planning approval of existing works at 951 Beaufort Street, Inglewood. The matter was listed for final hearing on 31 May 2017. A few days before the final hearing the Tribunal received proposed consent orders from the parties on the basis that the respondent gave approval to the applicant and the final hearing be vacated, but reserving the applicant's right to seek a costs order in his favour. The Tribunal found that it was fair and reasonable to make a costs order given the conduct of the proceeding by the respondent. In particular the Tribunal found that the respondent had acted unreasonably in unnecessarily delaying granting retrospective approval which led to the applicant incurring unnecessary costs preparing for a final hearing. The Tribunal also found that the respondent failed to genuinely make a decision on the merits in a timely fashion. The Tribunal did not accept the submissions made by the respondent that the costs application ought to be dismissed because it had not been made in a formal manner and the costs incurred were not able to be recovered because the applicant's representative was not a legal practitioner within the meaning of s 5 of the Legal Profession Act 2008 (WA). The Tribunal found that a costs application supported by a sworn affidavit was unnecessary. The Tribunal also found that the effect of s 87(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is that expenses may be recovered not limited to the notion of legal costs. The Tribunal therefore fixed costs pursuant to s 87(2) of the SAT Act in the amount of $20,000. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SPARTALIS and CITY OF STIRLING [2017] WASAT 125 MEMBER : MS C WALLACE (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 20 SEPTEMBER 2017 PUBLISHED : 22 SEPTEMBER 2017 FILE NO/S : DR 300 of 2016 BETWEEN : MICHAEL SPARTALIS
- Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Costs application Deemed refusal of development applications seeking retrospective approval Development approval granted days before final hearing Whether costs unnecessarily incurred Whether decision-maker genuinely attempted to make a decision in a timely manner Whether decision-maker acted unreasonably Whether decision-maker acted cognisant of the Tribunal's statutory objectives Whether non-legal advocate costs are recoverable Relevant factors to exercising discretion to award costs
Legislation:
Legal Profession Act 2008 (WA), s 5
Planning and Development Act 2005 (WA), s 252(1), s 253
State Administrative Tribunal Act 2004 (WA), s 9, s 9(b), s 24, s 30, s 31, s 39(1), s 39(1)(f), s 39(2), s 87,
State Administrative Tribunal Rules 2004 (WA), r 63(2)
Result:
Applicant's application for costs allowed and fixed in the amount of $20,000
Summary of Tribunal's decision:
The applicant made an application pursuant to s 252(1) of the Planning and Development Act 2005 (WA) seeking review of a deemed refusal by the respondent in respect of two applications seeking retrospective planning approval of existing works at 951 Beaufort Street, Inglewood. The matter was listed for final hearing on 31 May 2017. A few days before the final hearing the Tribunal received proposed consent orders from the parties on the basis that the respondent gave approval to the applicant and the final hearing be vacated, but reserving the applicant's right to seek a costs order in his favour. The Tribunal found that it was fair and reasonable to make a costs order given the conduct of the proceeding by the respondent. In particular the Tribunal found that the respondent had acted unreasonably in unnecessarily delaying granting retrospective approval which led to the applicant incurring unnecessary costs preparing for a final hearing. The Tribunal also found that the respondent failed to genuinely make a decision on the merits in a timely fashion. The Tribunal did not accept the submissions made by the respondent that the costs application ought to be dismissed because it had not been made in a formal manner and the costs incurred were not able to be recovered because the applicant's representative was not a legal practitioner within the meaning of s 5 of the Legal Profession Act 2008 (WA). The Tribunal found that a costs application supported by a sworn affidavit was unnecessary. The Tribunal also found that the effect of s 87(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is that expenses may be recovered not limited to the notion of legal costs. The Tribunal therefore fixed costs pursuant to s 87(2) of the SAT Act in the amount of $20,000.
Category: B
Representation:
Counsel:
Applicant : Mr Daniel Hollingworth
Respondent : Mr Brenton Oakley
Solicitors:
Applicant : Rowe Group (Acting as Agent)
Respondent : Kott Gunning Lawyers
Case(s) referred to in decision(s):
Chew and Director General of the Department Education and Training [2006] WASAT 248
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125(S)
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302
Springmist Pty Ltd and Shire of Augusta Margaret River (2005) 42 SR (WA) 2007; [2005] WASAT 143(S)
Western Australia Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Application for costs
1 On 25 May 2017, six days before the final hearing in this matter was to take place, the Tribunal received a proposed Minute of Consent Orders executed on behalf of the parties, Mr Michael Spartalis (applicant) and the City of Stirling (respondent), effectively disposing of the matter and seeking to vacate the hearing date but reserving the applicant's right to seek costs.
2 The proceeding was listed for a directions hearing on 2 June 2017 at which time orders were made programming a costs application by the applicant to be determined on the documents.
3 The Tribunal received the applicant's costs application on 23 June 2017 together with a supporting witness statement of Mr Daniel Hollingworth, the person with the conduct of the matter retained on behalf of the applicant, dated 23 June 2017. The respondent filed its responsive submissions in respect of the costs application on 28 July 2017. A brief submission in reply was filed on behalf of the applicant on 9 August 2017. The decision was reserved as of that date.
Background facts to costs application
4 On 4 October 2016 the applicant lodged an application pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of a decision of the respondent. The decision under review was a deemed refusal of applications made by the applicant on 15 April and 28 April 2016 seeking retrospective approval in respect of existing works at Lot 1 (No 951) Beaufort Street, Inglewood as follows:
15 April 2016
a) a patio constructed above the approved staff parking bays;
b) a fence constructed along Beaufort Street to the front of the office building;
c) decking constructed to the front of the office building.
28 April 2016
d) slate grey Colorbond fence located along the rear and southwest boundaries;
e) outbuilding located in the lot's northern rear corner; and
f) green Colorbond fence located along the lot's northeast boundary front Crawford Road.
(being development application DA16/0786).
28 April 2016
g) a new fence located along Crawford Road frontage;
h) the crossover on Crawford Road; and
i) resurfacing and line marking for parking at the rear of the site.
(being development application DA16/1350)
5 The retrospective development approval applications were deemed refused as at 23 September 2016 pursuant to s 253 of the PD Act.
6 The proceeding was listed for a directions hearing on 28 October 2016 at which time the Tribunal sought from the respondent a list of items which needed to be addressed by the parties for the purposes of mediation which was listed to take place onsite on 16 November 2016. The respondent did not comply with the order of the Tribunal and no list of issues was filed prior to mediation. However, the mediation did take place and orders were made at that time for the applicant to file with the Tribunal and give to the respondent by 30 November 2016 revised proposals for the development and the respondent was then invited to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on or before 21 December 2016 and the proceeding was otherwise adjourned to a further directions hearing in January 2017.
7 The effect of the applicant providing an amended application for planning approval with revised plans was to provide the front fence to Beaufort Street on one application (DA 16/0786) with the balance of the application for retrospective approval being a separate application (DA 16/1350).
8 The applicant provided amended development plans to the respondent and to the Tribunal and the matter was listed for further directions on 27 January 2017. The respondent had not yet reconsidered its decision and was afforded additional time to 3 February 2017 to provide any development approval it intended to issue. The parties were also required to identify and file with the Tribunal any outstanding issues by 13 February 2017. Standard orders were also made requiring the parties to file all relevant documents, submissions and witness statements by 17 February 2017. The matter was also listed for a substantive decision to be made on the documents.
9 The respondent informed the Tribunal on 13 February 2017 that it intended issuing a development approval and that the only outstanding issue was in respect of the retrospective approval sought in relation to the fence (DA 16/0786). The respondent also filed with the Tribunal its s 24 bundle of documents on 13 February 2017, however no submissions or witness statements from the parties was forthcoming at this time. To produce such documents was of course difficult in circumstances where, although anticipated, no development approval had been granted by the respondent, which would have given clarity as to what remained in issue to be determined by the Tribunal.
10 In addition, the s 24 bundle of documents filed by the respondent, presumably in compliance with s 24 of the SAT Act which requires the original decisionmaker to provide all documents in its possession or control relevant to the Tribunal's review, included documents relevant to all of the matters set out in [4] above rather than limited to the issue of the front fence.
11 At a further directions hearing on 21 April 2017 the Tribunal listed the matter for final hearing on 31 May 2017. All parties were represented at this directions hearing and thus aware of the programming of the matter.
12 The matter was listed for a further directions hearing on 28 April 2017. On this day the Tribunal received the respondent's statement of issues, facts and contentions and witness statement. The programming orders made on this occasion reflected that the Tribunal and parties expected planning approvals to be granted well prior to the hearing listed on 31 May 2017 (which date was confirmed by way of order) and therefore the parties were given an opportunity to file submissions and evidence in respect to any contentious conditions imposed on the anticipated approvals prior to the final hearing.
13 The applicant filed witness statements in preparation for the hearing including a witness statement of Sean Fairfoul dated 17 May 2017 and a witness statement of Flavia Kiperman also dated 17 May 2017. As at 18 May 2017 no development approvals had yet been granted by the respondent.
14 On 25 May 2017, six days before the final hearing, the Tribunal received proposed consent orders from the parties on the basis that the respondent had granted approval to both DA 16/1350 and DA 16/0786 and seeking that the final hearing be vacated but reserving the applicant's right to seek costs.
15 The matter was back before the Tribunal for a directions hearing on 2 June 2017 where the applicant's cost application was programmed to be determined entirely on the documents. As already noted previously the parties filed submissions in respect to the costs application as well as the applicant filing a witness statement.
Legal principles in costs applications in the Tribunal
16 The SAT Act confers a discretion on the Tribunal to award costs. The relevant provision is set out below:
87. Costs of parties and others
(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.
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(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.
17 Some of the factors relevant in exercising the discretion to award costs pursuant s 87 of the SAT Act were identified in Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85]:
[T]he Tribunal should not generally make an award for costs unless 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. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
18 More recently the Court of Appeal in Western Australia Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) gave consideration to the operation of s 87(1) of the SAT Act and the exercise of the discretion conferred on the Tribunal by s 87(2) of the SAT Act. The following relevant principles were found to apply when considering a costs application:
1) The discretionary power is to be exercised judicially; that is not arbitrarily, capriciously or so as to frustrate the legislative intent; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [48];
2) Although not expressly stated in s 87 (2) of the SAT Act that the power is to be exercised if it is fair and reasonable in all the circumstances to do so, the 'judicial nature' of the exercise of the power and the scheme of the SAT Act supports that legislative intention; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [49];
3) The onus is on the party seeking an order in their favour to persuade the Tribunal that an order should be made; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [51];
4) All parties to proceedings before the Tribunal are taken to be aware of the statutory objectives of the Tribunal set out in s 9 of the SAT Act; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54];
5) Following on from point four above, the Tribunal needs to consider whether the other party's conduct in the proceeding has interfered with the Tribunal's ability to satisfy its statutory objectives of ensuring that the proceeding is determined fairly and in accordance with the substantial merits of the case, to act speedily and with as little formality and technicality as is practicable and in a way which minimises the costs of the parties; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54].
19 Therefore although the starting position is that each party bears its own costs, the Tribunal has a clear discretion to award costs in an appropriate matter. The Tribunal in its consideration needs to determine if it is fair and reasonable for a party to be reimbursed for costs incurred, not simply because that party has been ultimately successful, but by considering the other party's conduct particularly whether that conduct has impaired the Tribunal's ability to meet its statutory objectives of dealing with matters speedily and cost effectively.
20 In addition, s 87(4) of the SAT Act identifies matters to which the Tribunal is to have regard in proceedings arising in its review jurisdiction when exercising its discretion. In particular s 87(4)(b) of the SAT Act, requires the Tribunal to consider whether the original decisionmaker has genuinely attempted to make a decision on its merits. It is also relevant when considering this issue, the stage of the proceeding at which the original decisionmaker makes any such genuine consideration.
21 If the Tribunal exercises its discretion to award costs, it approaches the task of fixing costs in a broad and relatively robust fashion; Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 (Perth Central) at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125(S) at [49]. In addition, the power to make a costs order includes the power under s 87(3) of the SAT Actto make an order for the payment of an amount to compensate a party for any expenses resulting from the proceeding. The effect of this provision is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss incurred in connection with the conduct of the proceeding: Springmist Pty Ltd and Shire of Augusta Margaret River (2005) 42 SR (WA) 2007; [2005] WASAT 143(S) (Springmist) at [64].
The applicant's submissions
22In summary form the applicant submits that he should be entitled to costs on the basis that the respondent:
a) did not genuinely seek to decide the application on its merits, in particular, did not seek advice from an expert heritage planner or architect at any stage of the review proceedings;
b) unreasonably prolonged the proceeding of the matter in particular by delays in filing documents and failing to make a s 31 reconsideration when invited to do so by the Tribunal;
c) conducted itself unreasonably in the proceeding which resulted in an increase in costs to the applicant particularly by unnecessarily preparing for the final hearing and expending costs on experts at the behest of the respondent; and
d) effectively maintained a position that was unsubstantiated and without merit which resulted in the applicant's application ultimately being conceded at a late stage.
The respondent's submissions
23 The respondent submits that the applicant ought not be awarded his costs for the following reasons:
a) the applicant did not provide his costs application 'in proper form';
b) there is no evidence that the applicant incurred the costs or expenses the subject of the costs application;
c) the costs claimed appear to be costs for legal work which cannot be lawfully claimed on the basis that the representative of the applicant is not a legal practitioner;
d) the respondent genuinely attempted to make a decision on the merits and avoided a hearing in doing so; and
e) the respondent has not acted unreasonably or inappropriately or with capricious or vexatious behaviour and to award costs the Tribunal would need to find that the respondent had a 'personal interest' and 'the ability and intention to waste significant resources of the City's finite budget' which has not been established.
Consideration
24 The Tribunal will first deal with the submissions made by the respondent that the costs application has not been made in a proper form and should therefore be dismissed. It appears that the main criticisms in this regard are that the applicant has not provided what would ordinarily be required from a legal practitioner, that is, a bill of costs, which sets out an itemised account of work performed on a particular date, how much time was spent on the relevant task and the charge out rate applicable to the relevant practitioner. The applicant is also criticised for not providing the chronology of facts by way of a sworn or affirmed affidavit.
25 It is not the Tribunal's practice to require a formal bill of costs to be filed when a costs application is made. There are no provisions in either the SAT Act nor the accompanying regulations and rules that require costs applications to be made in that format. In addition, Tribunal members do not tax costs as the courts do but rather fix costs, which involves a broad brush approach: Perth Central at [67]. Thus as long as the costing information is sufficient to enable the Tribunal to be satisfied that the costs incurred are reasonable and not excessive, the format of providing that information is not specifically dictated in the manner suggested by the respondent in its submissions.
26 The respondent in so far as it asserts that facts ought to be sworn or affirmed by affidavit is also incorrect. It is common practice for parties to provide agreed statements of facts, outlines of facts, chronologies of events and so forth in fairly informal formats supported by either signed witness statements or in some cases, by way of summaries of evidence. It is in rare circumstances that the Tribunal requires sworn or affirmed affidavits. Indeed it is worthy of noting that no sworn affidavits were provided in the substantive proceeding itself.
27 As has been noted earlier, one of the statutory objectives of the Tribunal is to act with as little formality and technicality as practicable and to minimise the cost to parties (s 9(b) of the SAT Act).To require costs applications to be made in such a formal manner would defeat not only this statutory objective but also the purpose and intent of making the costs application itself, that is, to recover costs. To require formal applications to be supported by sworn affidavits would compound the relevant parties' position by requiring them to incur even more potentially unrecoverable costs in making the application itself and possibly dissuade parties from making such an application, depending on what quantum of costs is being sought to be recovered.
28 In addition, whilst criticising the applicant in respect of the form of the costs application, the Tribunal notes that the respondent itself did not provide sworn affidavits and instead sought to provide factual matters in a document entitled 'Response to costs application matter DR 300 of 2016 prepared by the City of Stirling'. Not only does that document not constitute either a sworn affidavit, a signed witness statement or anything remotely in close connection with such a document, the author of the document is not disclosed. Yet the respondent expects the Tribunal to take that material into consideration and no doubt make a determination reliant upon it.
29 Whilst the Tribunal has taken into account the written submissions made on behalf of both parties, parties need to be aware that when considering a costs application the Tribunal is well versed with the relevant facts which primarily relate to the parties conduct in the proceeding usually evidenced by the progression or lack thereof of the proceeding itself, the length of time of the proceeding, the orders made and whether they are complied with, whether issues were able to be narrowed at an early stage of the proceeding, whether evidence material to the Tribunal's determination was filed and whether issues were conceded at a late stage. In any event, the Tribunal will not ordinarily dismiss a costs application simply because of the form in which it has been made.
30 Secondly the respondent alleges that given that the representative of the applicant is not a legal practitioner, the applicant cannot lawfully make an application to recover costs. In this regard they rely on s 39(2) of the SAT Act which provides that a person who could not otherwise lawfully demand or receive any fee or reward for representing a party is not authorised by that section to demand or receive any such fee or reward. It is submitted by the respondent that the costs being claimed are costs for representation in the proceeding which cannot be claimed because the representative is not a legal practitioner within the meaning of s 5 of the Legal Profession Act 2008 (WA).
31 However, the respondent has simply misunderstood the position in this regard. Section 39(1) of the SAT Actprovides that a party in a proceeding cannot be represented by a person other than a legal practitioner unless the representative falls within a category listed in s 39(1). Section 39(1)(f) provides an exception if 'the regulations or the rules authorise it'. Rule 63(2) of the State Administrative Tribunal Rules 2004 (WA) allows an agent to represent a party in relation to reviews by the Tribunal under the PD Act. Additionally in Springmist the Tribunal noted the effect of s 87(3) of the SAT Act is that the legislation contemplates that expenses may be recovered that are not limited to the traditional notion of legal costs but can include other expenses and loss in connection with the conduct of a proceeding before the Tribunal including the costs of a nonlawyer advocate (at [64]). Thus this submission made on behalf of the respondent is not supported.
32 The respondent also asserts that the applicant has not personally incurred costs given that the invoices provided as part of the costs application are addressed to an entity known as 'Conspar'. The applicant clarified the position in his responsive submission of 9 August 2017. Those submissions clarify that 'Conspar' is a family owned company of which the applicant is employed as General Manager, and which has agreed to pay consultant costs on the applicant's behalf. The applicant submits that the agreement of his family's company to pay the fees incurred is not a relevant consideration as to whether a reimbursement of costs ought to be paid. The Tribunal agrees with this position. If a person or corporate entity agrees to fund a party's litigation costs, that arrangement does not deny that party of the opportunity to seek to recover costs in an appropriate case. To find otherwise would effectively remove the Tribunal's discretion to award costs in every case where it is established that the party themselves are not directly responsible for payment. This Tribunal is not aware of any authority to support such a proposition and notes that the respondent has not provided any supporting authority. The position is simply without merit.
33 Lastly the respondent submitted that it genuinely made a decision on the merits of the matter and did not act unreasonably or inappropriately or capriciously or vexatiously. Further the respondent submitted that in order for the Tribunal to find that it has acted unreasonably, inappropriately, capriciously or vexatiously the Tribunal must find that the respondent is 'emotionally involved' with the matter and/or has a 'personal interest' and/or had an 'intention to waste significant resources' of the respondent's 'finite budget'. The respondent has not identified any legal precedent to support this submission. The Tribunal is unaware of any legal precedent to the effect that in order to find that a party has acted unreasonably or inappropriately that the Tribunal must find a personal interest or intent to deliberately waste resources.
34 It is possible for a local government authority to disadvantage a party in a proceeding by failing to act as speedily as practicable. A finding of intent is not required. Delay on the part of a local government authority could arise as a result of a number of possibilities, some which have been identified by the respondent itself in its submissions and which include 'finite resources'.
35 In the Tribunal's view an award of costs is fair and reasonable in the circumstances of this matter. It appears given the conduct of the proceeding set out above at [9]-[14] that the respondent did not act in a manner cognisant of the objectives of the Tribunal as set out in s 9 of the SAT Act. As noted in Questdale, every party to proceedings before the Tribunal is taken to be well aware of those statutory objectives and is expected to assist the Tribunal in satisfying them. It is also worthy of noting that s 30 of the SAT Act requires a decisionmaker in review proceedings to use their best endeavours to assist the Tribunal. The respondent also appears not to have acted in a manner cognisant of that provision.
36 It is clear from the documentation filed with the Tribunal by the respondent that by, at the very latest, 13 February 2017, the respondent had expressed an intent to issue a development approval and therefore presumably the only outstanding matter was the existing unauthorised timber street fence. However, there was over three months delay before any development application was approved. This is despite the respondent being invited to reconsider its decision, on the first occasion, on or before 21 December 2016.
37 Although the matter was originally listed for a decision on the documents, at a directions hearing on 21 April 2017 the matter was listed for a final hearing on 31 May 2017 for the duration on one day. The respondent was represented at that directions hearing by Mr Penheiro and Mr CardellOliver. The matter had a further directions hearing on 28 April 2017. The respondent was represented by the same representatives as previously and the first order made on that occasion was that the matter remain listed for final hearing on 31 May 2017. The respondent was well aware by this late stage that both the Tribunal and the applicant needed to ascertain the position in respect to whether a development approval was going to be granted and if so any conditions of such approval well before the hearing date. In addition, the respondent was clearly aware that the matter was set down for a hearing and the date of that hearing and was heard in respect of that listing.
38 Nevertheless only six days before the hearing did the respondent grant any development approvals to the applicant. By that stage the applicant had filed all of his evidence and expended significant costs in preparing for the hearing. In all of the circumstances the Tribunal finds it very concerning that the reason provided by the respondent for eventually granting development approval in respect to all matters, including the contentious fence, was that 'the City'ssenior planning officerheritage was not aware of the SAT order for a final hearing set for 31 May 2017. The SAT order was requested by the applicant without full opportunity to check the City's only witness' (page 12 of the respondent's response to the costs application) and 'the City resolved to issue the development approval for the unauthorised fence due to the unavailability of its main witness Ms Hanna for the hearing and the significant cost to involve heritage consultant at the last minute' (page 15 of the respondent's response to the costs application). Such a submission is simply not supported by the facts. The respondent clearly knew that the matter was listed for a substantive hearing and that the parties were required to file evidence in respect of it (refer to [11] above). At no time did the respondent notify the Tribunal that the hearing date was not convenient for its expert witness or to seek an alternative hearing date. The submissions filed by the respondent also fail to identify the reason for the witnesses 'unavailability'.
39 This Tribunal finds that the respondent did not genuinely attempt to make a decision on its merits at the stage of the proceeding at which such a decision ought to have been made. Although the Tribunal accepts that the respondent acted reasonably during late 2016 and early 2017 in negotiations with the applicant and through their attendance at the mediation, from midFebruary 2017 there were clear delays in the progression of the matter on the respondent's part both in filing documents for the hearing and in failing to reconsider its decision in a timely manner. It is also inexcusable in the Tribunal's view to concede the entirety of the matter only six days before the final hearing when all costs associated with the hearing had by then been incurred. The reason afforded is simply unacceptable. The position must be either one of the respondent only very belatedly genuinely turning its mind to the merits of the outstanding issue, or, as submitted by it, due to the unavailability of its key witness on a particular day (which matter was never raised with the Tribunal) it simply arbitrarily decided to grant approval to save costs of retaining an external expert witness. In either circumstance the conduct is inappropriate and has contributed to costs being incurred by the applicant unnecessarily.
40 The applicant has claimed costs in the amount of $29,479.29. As mentioned, this Tribunal is of the view that costs ought to be awarded from mid-February until the matter was finalised. The Tribunal will not award the costs of making the costs application itself. The Tribunal has considered the tax invoices issued by the representative to the applicant and finds that the work undertaken and the costs claimed are reasonable and not excessive. The Tribunal therefore has decided to fix costs pursuant to s 87(2) of the SAT Act in the amount of $20,000.
Orders
1. The applicant is granted leave to withdraw his application and it is hereby withdrawn.
2. The respondent is to pay the costs of the applicant fixed in the amount of $20,000 within 30 days of the date of this order.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS C WALLACE, SENIOR MEMBER
2
5
4