SPRINGMIST PTY LTD and SHIRE OF AUGUSTAMARGARET RIVER

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: SPRINGMIST PTY LTD and SHIRE OF AUGUSTAMARGARET RIVER [2005] WASAT 143

MEMBER: MS M CONNOR (MEMBER)

HEARD: 21 MARCH 2005
23 MARCH 2005

DELIVERED : 21 JUNE 2005

FILE NO/S: RD 299 of 2004

BETWEEN: SPRINGMIST PTY LTD
Applicant
AND
SHIRE OF AUGUSTAMARGARET RIVER
Respondent

Catchwords:

Town planning - Development application - Deemed refusal - Competency of application - No consent by respondent in capacity as landowner - Implied consent - Tribunal on appeal having all the decisionmakers functions and discretions for the purpose of review - Consent by Tribunal operates as consent by the decisionmaker in its capacity of owner - Car parking spaces - Number required to satisfy demand generated by proposal - Application policy - Actual demand v likely demand

Legislation:

Land and Environment Court Act 1979 (WA), s 39(2)

Land Administration Act 1997 (WA), s 55(2)
Main Roads Act 1930 (WA), s 27(A)(2)

State Administrative Tribunal Act 2004 (WA), s 167(4)(a), s 29

Result:

Application for review is allowed.
Planning approval granted subject to conditions.

Category: B

Representation:

Counsel:

Applicant: Mr P McQueen
Respondent: Ms S Boulter (Agent)

Solicitors:

Applicant: Phillips Fox
Respondent: Self-represented

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

Amacon Pty Ltd v Concord Municipal Council, Land and Environment Court 2 December 1987; unreported
Crowley v Hastings Municipal Council (1982) 4 APA
Newbury District Council v Secretary of State for Environment [1981] AC 578
Permanent Trustee v Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231
St Ives Pty Ltd v City of Mandurah (2003) 31 SR (WA) 313 313
Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181
Woolworths Ltd v Bathurst City Council (Unreported 24 September 1987 Cripps J)

Case(s) also cited:

Browne v Dunn (1893) 6R 67
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Executive Director of Health v Lily Creek International Pty Ltd (No 1) (2000) 22WAR 510
Hebe PTy Ltd v Metropolitan Region Planning Authority (1981) 2 APA 428
Lloyd v Robinson (1962) 107 CLR 142
Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 74
Swick Holdings Pty Ltd v State Planning Commission, unreported; WATPAT; Appeal No 7 of 1991

MS M CONNOR (MEMBER):

REASONS FOR DECISION

Introduction

The applicant made application to the Shire of Augusta‑Margaret River ("respondent") on 9 August 2004 for approval to construct a two storey building for retail, office and short stay accommodation use on Lot 27 (No 155) Bussell Highway, Margaret River ("subject land"). As no decision on the application was made within the prescribed time pursuant to cl 6.4 of the Shire of August-Margaret River Town Planning Scheme No 17 ("TPS17") and Interim Development Order 16 ("IDO16"), the applicant exercised its right to institute an appeal to the Town Planning Appeal Tribunal on the basis that there was a deemed refusal by the respondent. In December 2004, a Notice of Appeal was lodged with the Town Planning Appeal Tribunal. This matter is now to be determined as an application for review by this Tribunal in accordance with s 167(4)(a) of the State Administrative Tribunal Act 2004 (WA) ("Tribunal Act").
Notwithstanding the institution of the present proceedings, the respondent addressed the matter further at its ordinary meeting of 20 December 2004 and resolved to consent to a minute of consent orders, allowing for the approval of the proposed development, subject to 38 conditions and nine advice notes.
The applicant, in correspondence dated 10 February 2005, advised the respondent that it would consent to the imposition of 26 of the proposed conditions and two of the suggested advice notes, and provided alternatives in relation to those conditions not consented to.
On the morning of the hearing, lengthy discussions were held between the applicant and the respondent in an effort to resolve the matter. All but one planning issue was resolved between the parties. That one issue related to the number of car parking spaces required to be provided on site to service the proposed development. The hearing of this matter focused on this issue. However, in addition, a preliminary issue was raised by the respondent.

Preliminary Point

This point went to the question of competency of the application. Ms Boulter contended that all landowners had not signed the planning application, which is a requirement of the Scheme. Ms Boulter asserted that the columns supporting the balcony of the upper level of the proposed development were situating on the footpath area of the Bussell Highway road reserve, which falls under the jurisdiction of Main Road Western Australia ("MRWA"). She submitted, therefore that the signature of that government agency was required on the application. According to Ms Boulter, this had not been obtained.
The Tribunal was taken by surprise by this argument as the ground was not contained in the reasons for refusal or in the Statement by Respondent. The Tribunal can only indicate its disapproval of the practice of raising matters of substance for the first time immediately prior to or in the course of a hearing, but as the matter is one upon which the jurisdiction of the Tribunal depends, the issue must be resolved.
The applicant conceded that, by reference to cl 6.1.1 of TPS 17, read with Sch 4, the landowner's consent was required for that portion of the land where the development encroached onto the footpath area.
"Owner" is defined in Sch 1 of TPS 17 as:
"in relation to any land includes the Crown and every person who jointly or severally whether at law or in equity;
(a)is entitled to the land for an estate in fee simple in possession; or
(b)is a person to whom the Crown has lawfully contracted to grant the fee simple of the land; or
(c)is a lessor or licensee from the Crown; or
(d)is entitled to receive or is in receipt of, or if the land were let to a tenant, would be entitled to receive the rents and profits thereof, whether as a beneficial owner, trustee, mortgagee in possession or otherwise."
The applicant asserted, based on the proclamation contained in the Government Gazette of 11 August 1995, that the ownership of the footpath associated with the Bussell Highway is now with the respondent (refer to Annexure B of the Outline of Closing Submissions). Ms Boulter was unsure of the respondent's role, given that the Gazette only specified that MRWA does not have jurisdiction over the footpath. In response, the applicant contended that MRWA had given away its jurisdiction over the footpath to the respondent by virtue of the Gazette of 11 August 1995, when read together with s 27A(2) of the Main Roads Act 1930 (WA), which states:
"…that road or part shall be the responsibility of the local government of the district in which it is situated and shall be maintained by that local government."
As a fail safe measure, the applicant, during the course of the hearing, obtained a signature to the development application from the Manager of Land Assets – South West Land Asset Management Services thereby rectifying the deficiency of the owner's consent, should MRWA be regarded as still having jurisdiction over the footpath area.
However, the main thrust of the applicant's argument centred on the proclamation, which the applicant contended, conferred the responsibility of the footpath associated with the Bussell Highway on the respondent. By virtue of it having care, management and control of the footpath, it is an owner pursuant to Sch 1 of TPS17. As a result of the respondent's endorsement by resolution, made at the Council meeting held on 20 December 2004, of the recommendation of the planning officer's report, the applicant argued that there was at law, an implied consent of the respondent as owner of the land comprising the footpath: StIves Pty Ltd v City of Mandurah (2003) 31 SR (WA) 313 at [22]
A further remedy put forward by the applicant was that s 29 of the Tribunal Act confers power to enable the Tribunal to provide the owner's consent on behalf of the decision-maker, and that, in this instance, the Tribunal could provide the missing consent.
The Tribunal is of the view that the wording of the proclamation clearly establishes that the MRWA no longer has jurisdiction over the footpath associated with Bussell Highway, and therefore, that the care, management and control of the footpath lies with the decision-maker pursuant to s 27A of the Mains Roads Act 1930 and s 55(2) of the Land Administration Act 1997.
In so far as there maybe any doubt, the signature obtained from the Manager of Land Assets – South West Land Asset Management Services would remedy any defect. In this event, the lateness of the signature would not affect advancement of the matter as this Tribunal holds a similar view to that expressed by Hemmings J in Amacon Pty Ltd v Concord Municipal Council, Land and Environment Court 2 December 1987; unreported, where at 11 his Honour stated:
"However, as the lack of the owner's consent can be cured at any time up until the determination of the application (see Woolworths Ltd v Bathurst City Council (Unreported 24 September 1987 Cripps J), Crowley v Hastings Municipal Council (1982) 4 APA), I decline to make any order which would prevent the further hearing of the appeal."
The Tribunal does not agree with the argument put forwarded by the applicant relating to implied consent as articulated in the St Ives (supra) decision, as in this instance the respondent did not give planning consent to the application. Rather, its decision was to consent to the Tribunal granting approval to the application. If the respondent gives consent to a planning application, it is doing two things. First, it is consenting as owner to the making of the application. Second, it is also approving the application. As expressed in Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181:
"the first consent is necessarily implicit in the second consent … there is no such difference between the nature of the act of the council in giving its consent as owner and the nature of the giving by it of development consent to enable it to be said that the actions have nothing to do with each other."
The Tribunal is of the view that this case is distinguishable as the respondent in this instance gave consent to the Tribunal to issue planning approval to the application, but did not give approval to the application. Therefore, it cannot be said that the respondent has given its consent to the making of the application, particularly as owner's consent can be given at any time prior to the grant of approval.
The Tribunal does, however, agree with the propositions deduced from Claude Neon (supra), which were further considered in Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231, that the respondent, as owner of the road, does not have the right to arbitrarily withhold its consent as the owner of private land might do. If the proposed development is one which ought to be approved, then the respondent ought to give its consent to the lodgement of the application. Failure to give that consent, with a desire to frustrate the right of the adjoining owner to have a development application assessed on its merits would be a use of its power for an improper purpose.
As pointed out in the St Ive's (supra) decision, the Town Planning Appeal Tribunal could not provide the missing consent, unlike the Land and Environment Court in New South Wales. In Claude Neon(supra) it was held that s 39(2) of the Land and Environment Court Act1979 (NSW) invests that Court with jurisdiction to exercise the power of the council to consent to the lodging of the application. Section 39(2) provides:
"In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal."
Hope JA in Claude Neon determined that:
"giving of its consent to the making of an application for development approval is undoubtedly a function of the council, and it is a function that exercise of which is basic to its function to grant development approval in such a case. If the view which I have expressed is right, namely, that a council can give its consent to the lodging of an application by giving development approval, in my opinion s 39(2) places the Land and Environment Court, upon an appeal, in the same position as the council."
This Tribunal is of the view that these same powers have been incorporated in s 29(1) of the Tribunal Act, which provides:
"The Tribunal has, when dealing with a matter in the exercise of its review jurisdictions, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision."
In addition, s 29(5) provides that the decision of the Tribunal is deemed to be the decision of the decision-maker. The Tribunal thus, having the same powers as the decision-maker had when dealing with the application before it, is empowered to give a consent, which will operate as consent by the decision-maker in its capacity as owner of the road (footpath area) to the lodging of the application for development approval.
On this understanding of the Act, it is my opinion that the question of competence of the application falls away, and the matter is left to be dealt with on the substantial merits of the case.

The Proposal

The proposal before the Tribunal involves the construction of a two storey building, averaging 8 metres in height, comprising the following components:
•the ground floor consists of 370 square metres of retail floor space divided into three retail shops fronting Bussell Highway;
•the upper floor consists of office and short stay accommodation uses comprising of 165 square metres of office floor space fronting Bussell Highway and two single bedroom units at the rear of the building, totalling 217 square metres in area;
•A pedestrian arcade connects Bussell Highway with the rear car parking area that provides 18 common use parking spaces (including one disabled car parking space) to service the development. Access to the car parking area is provided via a right-of-way commonly known as "Ned Higgins Lane";
•A roofed balcony to the upper level extends the full width of the subject land and projects over the footpath area immediately in front of the subject land; and
•associated landscaping.

Planning Framework

The subject land falls within the scheme area as defined for TPS17 and IDO16.
Clause 1.6 of TPS17 lists the general scheme objectives. The pertinent objective in this instance is subclause (iii) which states:
"Providing development controls for the purposes of securing and maintaining the orderly and properly planned use and development of land within the scheme area;"
Clause 5.1 "Development of Land" establishes the need to apply for and obtain planning consent of the Council under the scheme.
"The subject land is zoned "Town Centre" under TPS17. The objectives of the "Town Centre" zone are stated in cl 3.2.3 of the scheme as:
"To provide for the orderly development of the Town Centre in accordance with the objectives outlined in the Town Centre Strategy adopted by Council and endorsed by the State Planning Commission in conjunction with this Scheme and other Strategy or Policy that Council from time to time may adopt as a guide for future development within the Zone."
"Table 1 – Use & Development Class" ("Table 1") of the scheme designates the use classes of "Shop" and "Office" as "AA" uses in the "Town Centre" zone. An "AA" use, as defined in the Scheme, means that the Council may, at its discretion, permit the use. "Short Stay Accommodation" is a use class not listed in Table 1 and as such falls within the discretion of decision-maker to determine whether the proposed use is consistent with the objectives and purpose of the zone.
Table 1 of the scheme also prescribes the development standards and requirements with respect to development. The only development requirement in dispute in this review is the provision of car parking.
Clause 5.16 of the scheme specifies that:
"No person or organisation shall develop or use land or erect, use or adapt any building, for a purpose indicated in Table 1, unless car parking spaces of the number specified in that Table are provided and such spaces are constructed and maintained in accordance with the provision of this scheme."
The minimum car parking requirements for the use class "Shop" is specified in Table 1 as "1 space per 15 m² G.L.A", and for the use class "Office" as "1 space/30m² G.L.A". As "Short Stay Accommodation" is a use not listed, the number of car parking spaces to be provided is to be determined having regard to the criteria listed in s 5.16.2. In determining the number of car parking spaces for a development that contains a variety of uses, such as the proposed development, s 5.16.6 requires that parking is to be calculated on an individual-use basis in accordance with the requirements prescribed in Table 1.
Clause 5.2 of the scheme provides the discretion to enable the approval of an application that is non-compliant with a prescribed standard or requirement of the Scheme subject to the Council (in this instance, the Tribunal) being satisfied that:
"(a)Approval of the proposed development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality;
(b)The non-compliance will not have any adverse affect upon the occupiers or users of the development or the inhabitants of the locality of [sic] upon the likely future development of the locality; and
(c)The spirit and purpose of the requirements or standards will not be unreasonably departed from."
Clause 5.7 of TPS17 contains specific provisions relating to development in the "Town Centre" zone and states:
"5.7.1Development proposals will be considered by Council in accordance with the Town Centre Strategy adopted by Council and endorsed by the State Planning Commission in conjunction with this scheme and any other strategy or policy that Council, from time to time, may adopt as a guide for future development within the Town Centre Zone.
5.7.2In the case of a lot being developed for both residential and some other use as may be approved in this zone, Council will ensure that the design of the development provides a level of residential amenity consistent with the standard prescribed under the residential planning codes and if the building is multi-storey restrict residential use to the upper storey.
5.7.3Any proposal for residential development in the town centre zone shall be considered by Council in terms of its compatibility or otherwise with adjoining development.
5.7.4Notwithstanding the requirements of Table No 1, Council may vary plot ratio and setback requirements where, due to particular site and design considerations, it deems appropriate to do so providing such a variation is not in conflict with the strategies outlined in clause 5.7.1."
Cl 8.6 of TPS17 empowers the respondent to prepare planning policies relating to parts or all of the scheme area on one or more of the aspects of the control of development. This clause also sets out specific procedures to be followed in the adoption of a planning policy. These policies are not binding in respect of any application or planning consent, but the provisions and the objectives of the policy are to be taken into account before determining an application.

During the course of the hearing Policy PE 14 – Car parking ("Policy PE 14") was referred to by both parties and is significant in the determination of this review. According to Mr Nicholas Logan, a planning consultant called on behalf of the respondent, Policy PE 14 was premised on the findings of a report prepared by ERM Mitchell McCotter "Parking Strategy for Margaret River Townsite" (Jan 1998) ("ERM report"), which found that given the amount of car parking generally available in the Shire, the car parking requirements contained in TPS 17 were too prohibitive to encourage development of the Townsite. Mr Logan, in his witness statement, stated that Policy PE 14 relaxed the car parking requirements per square metre of floor space, and that the Council has consistently applied the policy pursuant to cl 5.2 to vary the car parking requirements of the Scheme.

Planning Issue

The respondent asserted that the starting point for calculating the required number of car parking spaces for the proposed development is TPS 17, under which a total of 32 car spaces would be required to be provided to satisfy the scheme requirements. Both Ms Boulter and Mr Logan agreed that the parking requirements of the scheme could be relaxed pursuant to cl 5.2 of TPS17 in accordance with standards and guidelines set out in Policy PE 14, which was a policy adopted by the respondent to provide the basis on which to exercise discretion in varying car parking requirements of the scheme. It was generally agreed that the respondent has consistently applied this policy and that under this policy a total of 21 car parking spaces would be required in this instance. Ms Boulter asserted that the respondent had made a further concession in that it was prepared to accept the provision of 18 car parking spaces on site on the basis that a cash-in-lieu contribution is made for the deficit in the car parking demand that would be generated by the development.
The applicant was at pains to point out that it did not dispute that fact that if one applied the criteria in Policy PE 14, the required number of car parking spaces equated to 21 spaces, but asserted that based on actual demand as shown in Ms Jelley's "Parking and Access Report" (refer to Exhibit 6 Annexure CABJ2), it was appropriate in this instance to exercise a further discretion to reduce the parking requirement for this development to 18 car parking spaces.
Mr Logan in his evidence considered the requirement of 21 car parking spaces to be reasonable, given that for a development of this nature, TPS17 required the provision of 32 car parking spaces and that if the car parking requirements of the Draft District Town Planning Scheme ("DPS 1") had been applied, 24 car parking spaces would have been required. Mr Logan held the view that 21 car parking spaces was a concession from what was otherwise required by TPS17 and to accept less would be contrary to the developed policy position of the respondent. Ms Boulter also pointed out that DPS 1 was considered to be a "seriously entertained" proposal and that planning decisions should be consistent with the principles and objectives embodied in the draft scheme. The respondent contended that any further departure from Policy PE14 would be inconsistent with the draft Scheme.
Although the applicant did not dispute the status of DPS1 and indeed cited Permanent Trustee v Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 as an authority, it was able to ascertain from Ms Boulter that the draft scheme contained a similar provision to cl 5.2 of TPS 17, thereby providing a general discretion to modify scheme requirements and standards.
Mr Logan, under cross-examination, agreed that the general principles of Policy PE 14, which incorporated standard and guidelines, were based on likely demand and that his assessment of the proposal had been based only on the likely demand that would be generated by the proposal as he had not had the opportunity to prepared a site-specific demand analysis for the development. Mr Logan also conceded that there was no evidence to undermine the demand analysis for car parking spaces in Ms Jelley's report and acknowledged that she was an expert on transport planning matters.
The applicant's response to the parking issue considered two aspects of the proposed development. First, the amenity impacts and second, the actual demand for parking generated by the proposal.
Evidence was given by Mr Callow (an experienced architect) and Mr Hall (a town planning consultant) in respect to benefits gained by the community through the provision of a pedestrian arcade within the development. Both witnesses held the view that the increased amenity gained from the pedestrian arcade, in that it provided connectivity between Bussell Highway, the rear car parking areas and Ned Higgins Lane, was worthy of consideration in terms of a concession in the required car parking spaces, particularly as its was contended that the floor area of the pedestrian arcade was equivalent to the area of the three car bay shortfall. This assertion was based on a plan, produced by Mr Callow, to illustrate that by providing the same amount of retail floor space distributed evenly across the full frontage of the site and with no arcade, the depth of the built form is reduced to the extent that three additional car parking spaces and a relocated stair to the first floor plan can be accommodated on the subject land (refer to Exhibit 1 Annexure JBC11).
It was Mr Hall's evidence that the proposed development was consistent with the "Margaret River Town Centre Strategy" and that the pedestrian link to Bussell Highway would have a positive impact on the movement of pedestrians within the immediate and wider context of the subject land. He considered that the provision of improved urban design and a safe pedestrian environment provides a sound justification for a reduced number in car parking spaces.
Mr Callow asserted that if the arcade was deleted, the amenity of the proposed development would be diminished, as access from the car parking area at the rear would be through a rear entry to the shops or via narrow access ways that presently exist in some of the adjoining development.
The respondent did not dispute the benefits gained by including a pedestrian arcade into the development, but maintained that this element could be retained and the required number of car parking spaces provided on site if the floor area of the development was reduced. The respondent did not consider that the inclusion of the pedestrian arcade affected the car parking requirements or demand. Therefore, its incorporation into the development was considered irrelevant to the calculation of the car parking demand.
To address the question of demand, the applicant commissioned Ms Jelley, who is a very experienced transportation planner and engineer, to prepare a report that examines the access and parking issues associated with the proposed development on the subject land. Ms Jelley's analysis identified that the proposed development contemplates a "shared" parking regime in which all parking can be shared and no parking is designated as dedicated. The methodology for analysing actual demand was based on:
(i)techniques for calculation of shared parking demands outlined in "The Online TDM Encyclopaedia: Shared Parking Facilities Among Multiple Users", TDM Encyclopaedia, Victoria Transport Policy Institute, Updated June 4, 2004;
(ii)occupancy assumption for the summer holiday months as detailed in the Western Australian Tourism Commission publication "Research Brief on Tourism" September 2003; and
(iii)personal observations of the traffic characteristics of Margaret River at peak occupancy times.
The parking occupancy rate table in the TDM Encyclopaedia, together with a number of assumptions representative of the Margaret River area were used as the basis for developing an appropriate parking occupancy table for the town centre of Margaret River. These revised occupancy rates were used to estimate the total parking demand at various times of day. The relevant tables included in Ms Jelley's report are as follows:
"Table 3 – Revised parking occupancy rates for Lot 27, Margaret River."

Use	Monday to Friday			Saturday and Sunday
8 am ‑ 5 pm	6 pm ‑ 12 am	12 am - 6 am	8 am ‑ 5 pm	6 pm ‑ 12 am	12 am ‑ 6 am
Short stay residential	50 %	100 %	100 %	70 %	100 %	100 %
Office	100 %	20 %	5 %	5 %	5 %	5 %
Commercial/Retail	70 %	20 %	5 %	100 %	20 %	5 %

"Table 4 Calculated shared parking requirements for Lot 27, all time periods."

Use	Monday to Friday			Saturday and Sunday
8 am ‑ 5 pm	6 pm – 12 am	12 am ‑ 6 am	8 am ‑ 5 pm	6 pm ‑ 12 am	12 am - 6 am
Short stay residential	1.0	2.0	2.0	1.4	2.0	2.0
Office	4.1	0.8	0.2	0.2	0.2	0.2
Commercial/Retail	10.4	3.0	0.7	14.8	3.0	0.7
TOTAL PARKING NEEDED (Bays)	15.5	5.8	2.9	16.4	5.2	2.9

It was Ms Jelley's evidence that a total of 16.4 (rounded to 17) shared parking spaces would be required at the peak period to service the parking demand generated from the proposed mixed use development. The peak period was identified as being Saturday, during the day and more specifically between 11.00 am and 3.00 pm. Ms Jelley also tested the "robustness" of the weekday occupancy figures for retail and found that the calculation was extremely robust, "with the value of 70% (refer to Table 3 above) being able to be escalated to 87% without adverse impact on the ability of the development to cater for its own needs".
Ms Jelley was of the opinion that her conclusions were entirely consistent with the strategies and findings of the ERM report and that in terms of the figures produced for weekday demand her figures represented an overestimation in the number of car parking spaces required to satisfy the demand.
No expert witness was called by the respondent to challenge the findings of Ms Jelley's report. Through cross-examination and later through closing submissions the respondent tried to discredit the assumptions and calculations made by Ms Jelley in her report by proposing different scenarios and in each case the tables withstood scrutiny. The respondent was critical of the methodology chosen by Ms Jelley and considered that the methodology utilised in the ERM report was the correct approach, as shared parking had already been taken into account in the surveys of parking usage carried out as a part of that report. The respondent pressed that these surveys provided an accurate level of sharing applicable to the Margaret River Central Business District based on the actual mix of businesses within the town centre. Ms Boulter argued that on this basis, the ratios contained in Policy PE 14 are appropriate and are reflective of share parking of multiple uses in the Shire of Augusta-Margaret River and that these ratios should be applied. Ms Jelley, in her rebuttal, pointed out that the parking rates in the ERM report were applicable for a dedicated parking regime and that the recommended rates are "in fact peak parking rates for land uses in isolation".
The applicant asserted that the respondent applied an inflexible approach to the application of Policy PE 14 in that it predetermined the requirement for parking generated by the development by simply applying the ratios in the policy without considering site specific factors. Such an approach would involve an error of law: Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] to [28]; Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202 at [41].
The applicant further contended that a planning condition imposed on the approval of this development requiring the provision of 21 car parking spaces (or the imposition of the requirement for the payment of cash-in-lieu associated with a shortfall in the provision of 21 car parking spaces) fails the nexus test in that for the condition to be valid it must be "fairly and reasonably related to development permitted" (Newbury District Council v Secretary of State for Environment [1981] AC 578). The applicant says that in this instance such a condition does not meet the nexus test because the development clearly generates the need for 16 car parking spaces, not 21 car parking spaces. A further argument advanced by the applicant was that, even if the demand was 21 car parking spaces, the benefits obtained from the pedestrian arcade of itself more than legitimises a reduction from 21 to 18 car parking spaces.
It is the understanding of the Tribunal that the parties have reached a consensus that planning approval should be granted to the proposed development. The only outstanding issue is whether a condition should be imposed on the proposed development requiring the provision of 21 car parking spaces or a cash-in-lieu payment associated with a shortfall in the provision of 21 car parking spaces.
The Tribunal is cognizant that the car parking requirements of TSP17 require that parking be calculated on an individual-use basis in accordance with the requirements prescribed in Table 1, which would equate to the provision of 32 car parking spaces on site. It is the understanding of the Tribunal that the parking requirements as provided for in TPS17 were the subject of a review which found that given the amount of car parking generally available in the Shire, the car parking requirements under the Scheme were too prohibitive to encourage development of the Townsite. On the basis of these findings, Policy PE14 was adopted by the respondent in order to guide the exercise of discretion, pursuant to cl 5.2, in varying any car parking related development standard referred to in TPS17.
In determining the number of car parking spaces to be provide for individual developments, the decision-maker is to take into account the likely demand for off-street car parking generated by the development. The policy states that:
"Unless good cause can be shown why strict compliance should not be required, the Council will require off street parking to be provided for development in accordance with the required number of car parking spaces and design specification referred to in this policy."
Both parties agreed that if the criteria for determining the number of car parking spaces as specified in Policy PE 14 were applied, then 21 car parking spaces would be required to be provided on site.
Policy PE 14 provides for further variation of the required rate of car parking provision. The policy properly provides for the consideration of the circumstances/individual merit of each case in relation the general principles of the policy. The policy also requires the separate calculation for different categories of uses unless it can be demonstrated that such a requirement is unwarranted on the basis of the demand generated by each use.
It is essential that in assessing planning applications the particular merits of each case are considered. In this instance, a convincing argument has been put forward by the applicant in support of a further variation of the required rate of car parking in respect to this particular development. The Tribunal is of the view that the applicant comprehensively demonstrated through Ms Jelley's evidence, that the actual demand generated by the proposed development would be satisfied by the provision of 16.4 shared car parking spaces. This in its self is sufficient reason for the Tribunal to support a further variation to the required rate of car parking space. However, the Tribunal is also mindful of the real contribution that the pedestrian arcade would provide in terms of connectivity between Bussell Highway and the rear parking areas, thereby improving access and increasing the use of the rear parking areas. The Tribunal is satisfied that approval of the proposed development with a reduced number of car parking spaces, that being 18 car parking spaces would meet the criteria set out under cl 5.2 of TPS17.
Given this position, the issue of a cash-in-lieu contribution for a shortfall in the provision of car parking spaces falls away.
The Tribunal notes that during the hearing the applicant foreshadowed an application for costs. Should this be the case, the matter will need to be argued at a later date. To enable this to happen, the question of costs is reserved.
The Tribunal is prepared to make the following orders:
1.The application for review is allowed.
2.Planning approval is granted for the development of a two storey mixed use development on Lot 27 Bussell Highway, Margaret River, subject to the conditions in Annexure "A".
3.The question of costs is reserved. If either party wishes to make application for costs the following directions shall be complied with:
(a)any application for costs and supporting submissions shall be filed and served on the other party within two weeks of the date of this decision;
(b)the responding party shall file and provide to the other party its submission in reply within two weeks of receipt of the moving party's submissions;
(c)the moving party shall file any submissions in reply within 1 week of its receipt of the responding party's submissions; and
(d)unless either party specifically requests an oral hearing on costs, the question of costs is to be decided entirely on the written submissions.
However, the applicant proposed and the respondent appears to have consented, as there was no objection, to a further order as follows:
"The Applicant has liberty to apply generally and specifically in respect of the clearance by the Decision-maker of the conditions of the Approval."
Section 56(2) of the Tribunal Act states that the Tribunal cannot make an order, even by consent, unless it is satisfied that it would have the power to do so. As there is a serious question as to whether the Tribunal has power to make the further order sought, the matter is listed for directions in order to clarify whether the applicant wishes to press the issue.
The Tribunal makes the following order:
1.The matter is listed for a directions hearing at 2.15 pm on Thursday, 30 June 2005.
I certify that this and the preceding 19 pages comprise the reasons for decisions of the Tribunal.
_________________________________
M Connor, Member
Annexure "A" – Conditions of Approval
1.If the development, the subject of the Approval, is not substantially commenced within two (2) years from the date of the Approval, the Approval shall lapse and be of no further effect. Where an approval has lapsed, development is prohibited without further approval being sought and obtained from Council.
2.Development must be in accordance with the plans prepared by Bruce Callow & Associates Pty Ltd SK1.02 revision B, SK1.03 revision B and SK1.04 dated September 2004. However, minor variations may be approved by Council if deemed necessary and if in the accordance with the objectives of the Scheme.
3.A building licence must be applied for and issued by Council before any work commences on the site.
4.Development must be in accordance with the schedule of colours and textures of building materials detailed in Annexure 1, unless otherwise agreed in writing by the applicant and the Council as part of the building licence approval process.
5.The applicant shall submit, at the time of application for a building licence, documentation in compliance with the Building Regulations 1989 (WA) and the Building Code of Australia 2004, including in particular detailed plans and specifications for site works, including finished ground and floor levels, storm water and roof runoff disposal, existing easements, parking areas including pavement type, lighting, loading bays and refuse bulk bin areas, if applicable to the satisfaction of Council.
6.A Geotechnical Report covering the area affected by development on the lot being submitted by a professional engineer (structural) to the satisfaction of the Council before the Council is required to issue a building licence, and before the commencement or carrying out of any work or use authorised by this approval.
7.The building shall not be occupied prior to a Certificate of Classification having been issued by Council.
8.Building plans shall show building floor levels (and levels of driveways and parking areas) in relation to the crown of the road adjacent to the subject site or Australian Height Datum (AHD) or Relevant Level (RL).
9.In all dwellings approved for use as Short Stay Holiday Accommodation (Class 1B), a smoke alarm must be installed on or near the ceiling:
(a)in every bedroom; and
(b)in every corridor or hallway associated with a bedroom or, if there is no corridor or hallway, in an area between the bedrooms and the remainder of the subject dwelling(s).
10.The development shall be designed and constructed to allow access and facilities for people with disabilities in accordance with the Building Code of Australia 2004 Part D3 and AS 1428.1‑200.
11Stormwater and drainage run-off from the development shall be either contained on site or disposed off site via an approved connection to the district drainage scheme.
12.The applicant shall pay a contribution of $2024 for upgrading of the drainage system receiving stormwater from the development prior to occupation of the development.
13.The proposed development shall not be used for the preparation, manufacture, storage, processing, cooking, serving or otherwise dealing with food for subsequent sale to the public, either directly or indirectly.
14.Pedestrian ramps shall be provided at all kerb crossings, contained within the development.
15.The landowner/applicant shall implement measures to ensure that erosion and transmission of soil and sediment off-site during and after construction does not occur, to the satisfaction of Council.
16.The applicant is required in writing to notify the Council of the effective completion of the approved development and/or the fulfilment of all of the conditions of approval.
17.The applicant is required to in writing notify the Council when the approved development is complete so that a Final Inspection can be carried out.
18.All delivery/collection points and rubbish storage areas shall be designed and located to minimise noise, odour, visual intrusion and/or other factors potentially adversely affecting the character and/or amenity of residents and properties in the vicinity.
19.The building structure shall not exceed 8.0 metres in height from natural ground level, as determined by the Council, in accordance with the Scheme an/or Policy requirements.
20.The applicant shall landscape the site and replace the existing street tree(s) in accordance with the landscaping plan detailed in Annexure 2, in a position to be agreed in writing by the applicant and the Council and the applicant must maintain that landscaping thereafter.
21.Laundry facilities shall be provided in accordance with the requirements of the Health Act (Laundries and Bathroom) Regulations (WA), Building Code of Australia 2004 and Shire of Augusta Margaret River Health Local Laws 1999. Details of laundry facilities shall be submitted with the application for a building licence.
22.The premises shall comply with lighting and ventilation requirements of the Building Code of Australia 2004 (Part 3.8, Health and Amenity) and Health Act (Laundries and Bathroom) Regulations (WA). Details of lighting and ventilation shall be submitted with the application for building licence.
23.The vehicle parking access(es), access way(s) and crossover(s) shall be designed, constructed, sealed, kerbed, drained, line marked and thereafter maintained in accordance with the approved plans of the development and Australian Standard AS 2890.1‑1193. A minimum of 18 car parking spaces is to be provided.
24.Of the minimum 18 car parking spaces, at least one disabled parking space must be provided, although any disabled parking space(s) and statutory sign(s) must be located convenient to the building entrance and comprise the minimum width required by Australian Standard AS 1428.1-2001
25.Car parking spaces shall be a minimum 5.5 x 2.5 metres, with the bay width of 2.5 metres being measured from the external facing of any column, served by a 6.0 metre wide paved access way in accordance with Australian Standard AS 2890.1-1993.
26Protective rails (or buffer strip) shall be provided prior to occupation of the Approved development along hard standing car parking spaces adjoining any boundary fences(s).
27.Sanitary conveniences shall be provided for employees in accordance with the requirements of the Building Code of Australia 2004, and Sewerage (Lighting, Ventilation and Construction) Regulations 1971 (WA).
28.Satisfactory arrangements shall be made with the Water Corporation for the provision of water and sewer services to the development prior to the issue of a building licence.
29.A sign licence application including a plan or description of all signs for the proposed development (including signs painted on a building) shall be submitted and approved by the Council prior to the erection of any signage on the site/building.
30.Goods or materials shall not be stored either temporarily or permanently in the parking, driveway, or landscape areas.
31.Clearing/pruning of roadside vegetation is prohibited except in accordance with the landscape plan detailed in Annexure 2 and condition 20 above.
32.The tourist accommodation units hereby approved shall be occupied by persons undertaking short stay accommodation only. For the purpose of this approval, tourist accommodation means accommodation for persons during a single stay for a period of not more than a total of three (3) months in any one (1) twelve (12) month period.
33.An enclosure for the storage and cleaning of refuse bins of sufficient size, suitably screened and with smooth impervious hard stand shall be provided in accordance with Shire of Augusta‑Margaret River Health Local Laws 1999.
34.The applicant shall submit as part of the building licence application, a certificate from a structural engineer stating that the first floor balcony and verandah are structurally independent of the columns that are located on the footpath fronting Bussell Highway.
35.The applicant shall submit as part of the building licence application, a services search or survey of location of services that depicts the services located within the area comprising Lot 27, the footpath that is located immediately west of Lot 27 and that portion of Bussell Highway that fronts Lot 27.
36The applicant shall submit as part of the building licence application, a copy of an agreement to lease that is executed by the applicant and the Department of Planning and Infrastructure in respect of the lease of airspace above the footpath area that is located immediately to the west of Lot 27.
37.No works shall be carried out within the road reserve without prior written notice being provided to the Director of Operations.
38.Should food premises be considered within the development, a separate application is to be made through the Shire for planning approval and licensing/registration of the proposed use is required in accordance with provisions of the Health Act 1911 (WA) (as amended) prior to commencement of the us.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: SPRINGMIST PTY LTD and SHIRE OF AUGUSTAMARGARET RIVER [2005] WASAT 143 (S)

MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)

HEARD: 21 AND 23 MARCH 2005

DELIVERED : 21 JUNE 2005

SUPPLEMENTARY
DECISION :21 NOVEMBER 2005

FILE NO/S: RD 299 of 2004

BETWEEN: SPRINGMIST PTY LTD
Applicant
AND
SHIRE OF AUGUSTAMARGARET RIVER
Respondent

Catchwords:

Costs Whether respondent's conduct unreasonable or vexatious Scope of costs recoverable as expenses, loss, inconvenience and embarrassment Relevance of conduct prior to commencement of application Assessment of quantum Hourly charge rates exceeding allowance for Supreme Court proceedings

Legislation:

State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(3), s 87(4), s 87(5)

State Administrative Tribunal Rules 2004 (WA), r 40, r 42,
Supreme Court Rules 1970 (NSW), Pt 52 r 23(2)

Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 75(2), s 109

Result:

Respondent ordered to pay costs of $2558.60 but application for costs otherwise dismissed

Category: B

Representation:

Counsel:

Applicant: Mr P McQueen and Mr MA Etherington
Respondent: Ms PE Cahill

Solicitors:

Applicant: Phillips Fox
Respondent: Ms S Boulter

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

Cachia v Hanes & Anor (1994) 179 CLR 403
Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53
Interstructure Pty Ltd v Kaldawi & Klarica [2002] VCAT 1492
Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90
Nakkasoglu v Bayside CC [2000] VCAT 682
Noonan David & Ors v Boroondara CC [2001] VCAT 1548
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Straw v Proctor [2004] VCAT 464

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Following the decision of the Tribunal in this matter delivered on 21 June 2005, the applicant applied for orders that the respondent and the respondent's representative pay the applicant's costs on an indemnity basis. The application for costs was not confined to legal costs and disbursements, but encompassed a range of costs, expenses and losses said to have been incurred by the applicant as a result of the delay by the respondent in processing the original application for development approval, and as a result of the respondent's approach to the proceedings before the Tribunal. The applicant quantified the costs at $388 164.33 plus certain unspecified nominal sums. It also sought recovery of the costs for preparation of, and arguing, the hearing in relation to the costs application.
The Shire acknowledged that the actions of Ms Boulter, its representative at the hearing, did cause some unnecessary costs to be incurred in respect of a relatively small aspect of the proceedings, but otherwise denied that it had acted in a manner that warranted it being ordered to pay the applicant's costs. It also argued that losses and expenses of the nature claimed were not recoverable under the provisions of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).
The Tribunal examined the conduct of the Shire from the time of the initial lodgement of the application for development approval to the institution of the application for review and then to the completion of the hearing. It decided that the Shire's conduct, other than in relation to the matter conceded by the Shire, did not warrant an order being made for the payment of the applicant's costs. The Tribunal added that many of the items of loss and expense claimed as costs would not in any event be recoverable under the provisions of the SAT Act. It concluded that s 87(3) of the SAT Act did not entitle a party to claim compensation in the nature of damages from a decision‑maker on the basis that the decision‑maker's conduct fell short of acceptable standards. The compensation that may be ordered must relate to the successful party's participation in the proceedings.

The application for costs

The claim for costs is broken down as follows:
•Architectural costs and disbursements $26 877.15;
•Fees for Mr GR Wilkinson, for advice on the likely rental income achievable by the development $250;
•Planning consultant's fees and disbursements $8703.75;
•Car parking expert fees and disbursements $8764.80;
•Legal fees and disbursements $60 390.38 plus fees and disbursements for getting up hearing and attending hearing on costs application;
•Loss of rent $137 756.25;
•Loss arising from holding costs $58 850;
•Loss arising from increases in construction costs arising from delay $85 572;
•Loss of opportunity costs – nominal; and
•Costs for embarrassment and inconvenience – nominal.
The various amounts claimed were the subject of a number of affidavits. Many of the items of expense or loss claimed are calculated on the basis that the applicant contends that the respondent's conduct caused a nine month delay in commencement of the development. The applicant seeks recovery of what would appear to be all of its expenses or losses by reason of that delay. Thus the application seeks recovery of expenses going well beyond the traditional nature of the costs of a party that might be ordered to be paid by another party to proceedings. The claim is based upon a broad construction of the power found in s 87(3) of the SAT Act "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".
The application raises two broad issues. The first is whether the respondent's conduct was such that it should be ordered to pay any of the applicant's costs. The second is whether, on a proper construction of s 87(3) of the SAT Act, expenses and losses of the nature claimed are capable of being included in an order under s 87(2).

The respondent's concession

There is one aspect of the applicant's claim which was not contested by the respondent. The respondent accepted that it should meet the reasonable cost of the preparation of an affidavit of a traffic engineer, Ms C Jelley, prepared after closing submissions. That affidavit was necessary because of assertions made in closing submissions at the hearing of the substantive application by Ms Boulter, the in‑house solicitor for the respondent. The assertions were in the nature of expert evidence from Ms Boulter, and were ultimately not accepted by the Tribunal in its reasons for decision. Ms Jelley had been cross‑examined by Ms Boulter during the hearing, but the assertions made by Ms Boulter in closing had not been the subject of any questions during cross‑examination. Because Ms Boulter pressed the submissions during her closing address, the Tribunal made directions to enable the applicant to respond by filing a supplementary affidavit and submissions. We agree that, in the circumstances, it is appropriate that the respondent be ordered to pay the cost of preparation of that affidavit and written submissions. The respondent accepts that Ms Jelley's costs in relation to the supplementary affidavit, which amounted to $756 plus GST, are reasonable. The applicant claims $3725 for its solicitors', Phillips Fox, costs, in relation to the preparation of the supplementary affidavit and submissions. The total amount of the costs claimed is therefore $4481. While the respondent concedes that some allowance should be made for solicitors' costs, it contends that the amount claimed is excessive and unjustified. We will deal with the issue of quantum later in these reasons.

The chronology of events

In order to understand the context of the costs application, it is necessary to review the history of the applicant's application for development approval.
Mr JB Callow, an architect representing Springmist Pty Ltd, first met a planning officer of the respondent in relation to the proposed development on 14 July 2004. A week later he requested information from the respondent, but, according to Mr Callow, he received no response despite further requests over the following two weeks. Mr Callow then drove from Perth to Margaret River and lodged a formal application for development approval on 9 August 2004. While at the Shire offices on that day, Mr Callow met with the planning officer with whom he had previously spoken, and discussed the proposal. The planning officer raised some concerns about the proposed development.
On 12 August 2004 the Shire's development control unit conducted a preliminary assessment of the development application. On 16 August 2004, the respondent wrote to Mr Callow advising that the application had been the subject of a preliminary review, but would require full assessment. The letter stated:
"The Directorate is experiencing staff shortages and is actively trying to recruit staff. Consequently, customers are experiencing delays in the processing of their applications.
Council seeks your cooperation and patience while there are staff shortages."
Between 20 and 22 September 2004, the development application was advertised in accordance with the requirements of the relevant town planning scheme.
During the first half of October 2004, there were two meetings between Mr Callow and officers of the respondent in relation to aspects of the development. On 21 October 2004 the applicant engaged Mr Simon Hall, a town planning consultant, to assist with progressing the application.
Under the terms of the relevant planning instrument, the application for development was deemed refused on 7 November 2004. On 10 November 2004, Mr Callow wrote to the Shire urging it to ensure that the development application was included in the November council meeting. The letter referred to advice that had apparently been given by a council officer that the item would not go forward until the December meeting. It also referred to a decision by the applicant not to lodge an appeal with the Tribunal notwithstanding the deemed refusal, but rather to endeavour to resolve the matter through the council.
On the same day, a planning officer of the respondent wrote by facsimile to Mr Callow advising of issues in relation to the setback, the location of a verandah over a footpath and a deficiency in the car parking requirements.
On 16 November, Mr Callow and Mr Hall attended the meeting with the planning officers of the respondent to discuss the issues raised in the letter of 10 November. Mr Callow followed up that meeting with a letter on 26 November 2004 responding to the issues raised in the Shire's letter of 10 November.
On 30 November, Mr Hall provided the Shire with a planning assessment of the development application, and three days later lodged a notice of appeal to the Town Planning Appeal Tribunal. Apparently the respondent received notice of a directions hearing from the Town Planning Appeal Tribunal by letter dated 6 December 2004, but it was not served with a copy of the notice of appeal until 15 December 2004, two days before the first directions hearing was scheduled before the former Tribunal. On 17 December 2004, the directions hearing was adjourned to 14 January 2005, apparently on the basis that the application was to go to the respondent's council meeting on 20 December 2004.
At the respondent's council meeting on 20 December 2004, a planning officer's report in relation to the application was tabled. That report contained a recommendation for approval of the development subject to numerous conditions. An addendum to the report prepared by Ms Boulter advised the respondent's council that:
"Once an appeal has been lodged with the Tribunal, council does not have jurisdiction to approve or refuse an application for planning consent. This jurisdiction now rests with the Tribunal. The applicant/appellant advised the Tribunal that it does not intend to withdraw the appeal, notwithstanding the fact that the application is before the December ordinary meeting of council. There has been no notification to the shire that the appeal has been withdrawn as at the time of writing this addendum."
Ms Boulter, in her affidavit filed in relation to the costs application, said that the addendum reflects what was then, and still is, her honest belief as to the legal position. The applicant submits that that advice does not represent the accepted legal position in relation to the capacity of a local government to consider a development application after a deemed refusal has arisen by the effluxion of time – see Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1. It is not necessary, for the purpose of this application, for us to decide whose view of the law is correct. It is sufficient that we find, as we do, that the opinion expressed by Ms Boulter was genuinely held, and not motivated by any desire merely to obstruct the application.
In view of the advice from Ms Boulter, the council of the Shire resolved to endorse the relevant planning officer's report, but it did not determine the development application. It was, however, clear from that point onwards that the respondent's position was that the application should be approved subject to conditions, and that it would adopt that position in the Tribunal proceedings.
On 1 January 2005, the functions of the former Town Planning Appeal Tribunal were assumed by the State Administrative Tribunal, and the application continued before the new Tribunal. The directions hearing of 14 January 2005 was adjourned, at the request of the applicant, until 4 February 2005. The reason given by the applicant's solicitors for requesting the adjournment was to enable them to take instructions that "will potentially facilitate the resolution in whole or part of the appeal as the council of the respondent at its meeting held on 20 December 2004 resolved to endorse a form of conditions of approval by way of a minute of consent orders". The letter advised that the proposed conditions of approval were being considered by the applicant. Those conditions had been detailed in a letter from the Shire to Mr Callow on 11 January 2005. It is clear from that letter that council contemplated that, if the conditions were agreeable, the matter would be dealt with by a minute of consent orders being lodged in the appeal.
On 3 February 2005, the applicant's solicitors wrote to the respondent advising that a number of the suggested conditions were acceptable, but others were not. The solicitors proposed that, at the directions hearing set for 4 February, the appeal should be adjourned for three weeks to permit the drafting of alternative conditions and consideration of those by the Shire.
The following day, the Tribunal conducted a directions hearing. The suggested adjournment for three weeks was not adopted, but rather the Tribunal member conducting the directions hearing adjourned it until 11 February 2005 on the basis that the parties would exchange documents identifying their positions in relation to the proposed conditions of approval. The applicant, through the affidavit of Mr Etherington, is critical of Ms Boulter's state of preparation for the directions hearing of 4 February. Notwithstanding that criticism, it appears that the directions given by the Tribunal at that hearing were designed to progress the matter more promptly than had been contemplated in the applicant's solicitors' letter of 3 February 2005. The question of mediation was also raised by the Tribunal on 4 February 2005, but the applicant resisted mediation, apparently preferring to go as quickly as possible to a hearing.
On 10 February 2005, Phillips Fox wrote to the Shire outlining the applicant's position in relation to the conditions that were not agreed. The following day, at the further direction hearing, the matter was listed for hearing on 21 March 2005.
By letter dated 17 February 2005, faxed on 18 February 2005, the respondent wrote an eight page detailed response to the applicant's solicitors' letter of 10 February 2005, setting out the respondent's position in relation to each of the conditions challenged by the applicant. That letter agreed to the deletion of one condition, partially supported the proposed amendment of another and suggested reformulation of some conditions, but otherwise generally maintained the respondent's position on the remaining disputed conditions. Explanations were provided as to why the respondent adopted the position which it did in relation to the disputed conditions.
On 2 March 2005, the respondent wrote to the Tribunal seeking to vacate the hearing date of 21 March, and instead to undertake a formal mediation process. It is not clear precisely how that request was dealt with, but no mediation took place, and the hearing date of 21 March was maintained. On 10 March the applicant provided witness statements to the respondent and to the Tribunal.
On 18 March 2005, the respondent wrote to the applicant's solicitors, referring to a "lengthy telephone conference" between them on 14 March. The letter states that it was apparent from that conference that many of the issues the subject of the appeal might be open to resolution prior to the hearing.
Immediately before the hearing on 21 March 2005, the parties conducted informal discussions between themselves during which all of the conditions except for conditions relating to car parking were resolved. The hearing then proceeded in relation to the car parking issues.
During the course of the hearing, Ms Boulter raised an issue as to the validity of the development application which had only occurred to her during her final preparation of the hearing. That issue related to the need for consent from the entity which was the effective "owner" of the road reserve adjacent to the proposed development because columns supporting the balcony of the upper level were to be located on the road reserve. Ms Boulter asserted that Main Roads Western Australia was the "owner" of that land and that its consent was required. The resolution of that issue, raised at the last moment, made further work and enquiry necessary. For reasons dealt with in detail at [5] – [22] of the Tribunal's reasons delivered on 21 June 2005, the point raised was found not to be an impediment to the grant of approval. The Tribunal, in its reasons, expressed disapproval of the fact that the matter was raised so late in the proceedings.
We have set out above the events occurring in the hearing in relation to Ms Jelley's evidence which have led to the respondent's concession as to some liability to meet the applicant's costs.
The hearing was finally completed on 23 March 2005 when closing submissions were made. In the interim, the parties had clarified the factual position in relation to the identity of the "owner" whose consent was required in relation to the part of the development on the road reserve.
Ms Jelley's supplementary affidavit and written submissions were delivered on 19 April 2005, and the Tribunal delivered its reasons for decision on 21 June 2005.

Characterisation of the respondent's conduct

It is common ground between the parties that the starting position in relation to costs of parties to proceedings before the Tribunal is that the parties bear their own costs – see s 87(1) of the SAT Act; Citygate Properties Pty Ltd and City of Bunbury (2005) 38 SR (WA) 246; [2005] WASAT 53. The applicant contends that, in this matter, the respondent has acted unreasonably and/or vexatiously, has precipitated delay in the resolution of the matter and has caused embarrassment and inconvenience to the applicant and its consultants, all of which has resulted in substantial, unnecessary costs being incurred. In particular, the applicant submits that the respondent "disregarded the principles of due process and procedural fairness" in that:
"(i)it has failed to genuinely attempt to enable and assist the Tribunal to make a decision on its merits;
(ii)it has not genuinely attempted to make a decision on its merits contrary to s 87(2) [sic s 87(4)(b)] of the SAT Act;
(iii)it has unreasonably drawn out and delayed the determination of the application and the proceedings contrary to s 87(4) [sic] of the SAT Act; and
(iv)it has caused the applicant to incur wasted costs and suffer increased development costs associated with the proposed development."

In our view, the criticisms of the respondent's conduct are not made out.
The proceedings before the Tribunal took slightly in excess of four months from lodgement of the appeal to completion of the hearing. That period included:
•two weeks between lodgement of the appeal and the first directions hearing before the Town Planning Appeal Tribunal;
•almost a month between the first and second directions hearing during which the respondent's council considered and resolved to endorse a recommendation of approval subject to conditions, and during which time the Christmas/New Year break occurred;
•an adjournment for three weeks to a third directions hearing at the request of the applicant;
•a further adjournment on 4 February 2005 for one week to enable the applicant's solicitors to provide a substantive and detailed response to the proposed conditions of approval which had been communicated to the applicant on 11 January 2005; and
•a period of approximately six weeks before the final directions hearing and the substantive hearing.
Given the intervention of the Christmas period, and the transition of jurisdiction from the Town Planning Appeal Tribunal to the State Administrative Tribunal, when looked at objectively the time between institution of the appeal and its final hearing was relatively short. At least four weeks of that period is attributable to the applicant's request to adjourn the January directions hearing essentially for reasons of convenience of the applicant.
It is true that, immediately before the hearing, the respondent made concessions in relation to a number of the disputed conditions. The applicant contends that those concessions should have been made earlier, and in particular, after receipt of the applicant's solicitors' letter of 10 February 2005. It is desirable that parties make appropriate concessions as early as possible in the proceedings and do not leave it to the door of the hearing room before doing so. Delay in making concessions can result in unnecessary expense to the other parties. It is a reality, however, that in the course of final preparation for a hearing, with the benefit of the exchange of witness statements, parties will undertake a re‑assessment of the position they have adopted on particular issues to that time. That process often leads to last minute concessions, and frequently complete settlement of matters, just before the hearing is due to commence. The continuous assessment of a party's position on the issues in a matter is to be encouraged, even if it creates an appropriate change of position immediately before, or even during, a hearing.
In this case, the applicant's letter of 10 February 2005 was given detailed consideration and received a timely response by the letter of 17 February 2005. Thereafter the respondent unsuccessfully sought to arrange mediation, and endeavoured by telephone conferences during March to further discuss and resolve some issues.
It is not contended by the applicant that there was no justification for a hearing in relation to the parking issues.
In our view, it simply cannot be said that the respondent has failed to genuinely attempt to enable and assist the Tribunal to make a decision on its merits or that the respondent unreasonably drew out or delayed the determination of the proceedings. In relation to the applicant's conduct within the proceedings, apart from the matter giving rise to the necessity for supplementary evidence from Ms Jelley, the respondent did not cause the applicant to incur wasted costs. It was regrettable that the issue as to the consent of the "owner" of the road reserve was a matter raised only during the course of the hearing. That caused enquiries to be made by the applicant as to the question of care and control of the road reserve. It being a matter of jurisdiction for the Tribunal, once the issue became apparent to the respondent, it was proper for it to be raised. Had it been raised earlier, the same sorts of enquiries which ultimately became necessary would have been made, albeit at an earlier stage. The same cost and inconvenience is likely to have arisen whenever the issue was raised. The costs which were incurred were, therefore, not wasted costs, even though the issue was ultimately decided in favour of the applicant's position.
The applicant does not complain only of the respondent's conduct in relation to the application for review. The applicant's position is the respondent did not genuinely attempt to make a decision on the merits of the application for approval prior to the institution of the application for review on 4 December 2004. Undoubtedly the applicant was anxious to proceed with its proposed development. It, and its consultants, undoubtedly experienced frustration that the application was not brought before the council of the respondent by October 2004 or November 2004. Delays by reason of staff shortages, of which Mr Callow was warned within a week of lodgement of his application, undoubtedly played their part. No doubt the position was not helped by the original planning officer dealing with Mr Callow leaving the respondent's employment during October 2004.
The applicant may regret its conscious decision to delay instituting an appeal against the "deemed refusal", but rather to continue to endeavour to resolve the matter with the Shire. Nevertheless, the provisions in town planning schemes which deem an application refused are designed to provide a remedy to applicants where an application for development approval is not dealt with in a timely way. Even if s 87(3) does, as the applicant contends, give jurisdiction to the Tribunal to award compensation to an inconvenienced applicant as a result of delay by a decision‑maker prior to the institution of an application for review, the Tribunal would be slow to award compensation where the applicant chooses not to exercise its right to bring the matter before the Tribunal following a deemed refusal, but rather to continue to pursue the matter with the original decision‑maker.
Given that there was a necessity to advertise the application made to the respondent, it could not realistically be expected that the application would be dealt with by the council of the respondent earlier than its October meeting. Indeed, in his affidavit, Mr Callow asserts that, if the planning officer's report to council had been prepared more expeditiously, the development application should, in his experience, have enabled consideration by council at "either its October 2004 or November 2004 meetings".
During October there were communications between the applicant's representatives and the respondent's planning officers concerning issues which the respondent had identified in relation to the original application. Revised plans were lodged at the beginning of October. Meetings and correspondence continued through November and the matter was then dealt with at the council's meeting in December. We accept Mr Callow's assertion that, in the usual course, it would be reasonable to expect that the application would have been dealt with by the November meeting of council. However, the fact that it was not dealt with until the next meeting after the November meeting does not indicate inordinate delay.
The applicant relies, as a foundation of its application, on Mr Callow's contention that the actions of the Shire unnecessarily delayed the development by nine months. He makes that assertion based on the fact that the matter should have been dealt with at the October or November 2004 meetings of council which would have allowed documentation to proceed and a building licence to be applied for so that construction could have commenced in early January 2005. He said in his affidavit sworn 13 July 2005 that the earliest that construction could now commence is October 2005. He also asserts that if the development application had been approved at the December 2004 council meeting, he would have advised the applicant to appeal against any unacceptable conditions but otherwise to seek to progress the implementation of the development. Finally, he asserts that, based on his experience, the actions of the Shire caused the applicant to unnecessarily engage experts and incur costs that would not ordinarily be required to assess the development application of this scale.
A number of observations can be made about Mr Callow's assertions. The first is that there is no explanation as to why there would have been a delay of only six weeks to commence construction if approval was granted in November 2004, but there would be a delay of at least four months between the Tribunal's approval of the development in June 2005 and the commencement of construction.
The second is that it is clear that, whenever council had considered the matter, its approval would have included the conditions which the applicant found unacceptable, and which became the subject of the proceedings before the Tribunal. The applicant would have appealed against those conditions. It is highly likely that the appeal proceedings would have hindered the implementation of the development.
Given the fact that the total period from initial lodgement of the development application with the respondent to delivery of the Tribunal's reasons amounted to approximately nine months, the suggestion that the actions of the respondent caused a delay of nine months appears quite untenable.
Based on his personal experience with the applicant, Mr Callow deposes to the fact that the applicant has not had to engage the services of a town planner or legal consultant to gain a development approval in respect of similar developments before. Presumably, that assertion is made to support Mr Callow's proposition that the engagement of consultants in this case was necessary because of "the actions of the Shire in processing the development application". Precisely which actions Mr Callow is referring to are not specified. Presumably what is referred to are the earlier difficulties to which Mr Callow deposes in obtaining information from and generally dealing with officers of the respondent.
It is well known that developers frequently engage the assistance of consultants to assist in the development approval process. A decision to do so is a matter entirely within the discretion of the developer. No doubt, some local governments are more demanding than others as to requirements they impose upon applicants in the development process. In this matter, the respondent's officers did raise concerns about aspects of the proposed development in the months after the application was lodged. There was no suggestion that the concerns were baseless, and indeed the applicant revised its plans to cater for some of the concerns raised. Whatever frustrations the applicant may have felt about issues raised by the respondent, there is no basis in the evidence for concluding that the raising of those issues was in any way unreasonable.
Although the applicant complained that, at the meeting of 20 December 2004, the council of the respondent if properly advised, would have granted a conditional approval, rather than resolved to endorse the officer's recommendation for conditional approval, in our view, the distinction is of little substance. It was quite clear, from 20 December 2004 onwards, that the respondent was willing to approve the development subject to specified conditions. It contemplated the execution of the consent order to that effect in the Tribunal proceedings. The appeal proceeded in precisely the same manner as it would have proceeded were it an appeal against the conditions of an approval granted on 20 December 2004. In our view, the evidence does not support the proposition that the respondent did not genuinely attempt to make a decision on the merits of the application.

The scope of s 87(3)

In view of our conclusions in relation to the characterisation of the respondent's conduct, it is not necessary for us to determine whether the various losses and expenses claimed by the applicant are recoverable by way of a costs order under s 87(2). However, in view of the fact that the parties made detailed submissions, both in writing and orally, as to the construction of s 87(3), and because the applicant filed extensive affidavits concerning its expenses and losses, it is appropriate that we make some observations about the nature of losses and expenses to which s 87(3) refers.
Section 87(3) provides:
"(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 expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought."
The applicant describes its claim as falling under two broad categories. The first is the "costs resulting from the proceeding" comprising legal fees, expert fees and disbursements associated with the application for review and the application for costs. There is no doubt that the legal fees and expert fees associated with the hearing are expenses which, in an appropriate case, are capable of being the subject of a costs order under s 87 of the Act.
The second category is "costs and compensation resulting from the matter because of which the proceeding was brought" comprising:
(i)fees and disbursements of the architect and planner prior to the institution of the proceedings and in respect of the council meeting held on 20 December 2004;
(ii)loss of rent;
(iii)loss arising from holding costs;
(iv)loss arising from increases in construction costs arising from delay;
(v)loss of opportunity; and
(vi)embarrassment and inconvenience.
It was the second category of costs which was the subject of debate between the parties. The resolution of the debate turns upon the proper construction of the words "an amount to compensate the other party for any expenses, loss, inconvenience or embarrassment resulting from … the matter because of which the proceeding was brought.".
The general extent of costs awarded in litigation was discussed by the High Court in Cachia v Hanes & Anor (1994) 179 CLR 403 at 410. That matter concerned costs under P 52 r 23(2) of the Supreme Court Rules 1970 (NSW). The majority concluded that the costs there referred to were confined to money paid or liabilities incurred for professional legal services and did not include compensation for time spent by a litigant who was not a lawyer in preparing and conducting his case. That is the approach generally taken to awards of costs of litigation against an unsuccessful party. It is the approach that has generally been adopted in the Victorian Civil and Administrative Tribunal (VCAT) when dealing with the general power to award costs under s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) ‑ see Nakkasoglu v Bayside CC [2000] VCAT 682.
Section 87(3) of the SAT Act is similar to s 75(2) of the VCAT Act Section 75 of the VCAT Act provides:
"(1)At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion –
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b) is otherwise an abuse of process.
(2)If the Tribunal makes an order under sub‑section (1), it may order the applicant to pay any other party an amount to compensate that party for any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding.
…"
The approach taken by VCAT to the construction s 75(2) is that it enables the Tribunal to order that an applicant pay costs which go beyond the traditional notion of legal costs as explained in Cachia v Hanes & Anor. Thus, in Noonan David & Ors v Boroondara CC [2001] VCAT 1548, VCAT ordered the payment of the fees of a professional advocate who had appeared at the hearing on the basis that those fees fell within the expression "expense and loss" in s 75(2). A similar approach was taken in Interstructure Pty Ltd v Kaldawi & Klarica [2002] VCAT 1492. In Straw v Proctor [2004] VCAT 464, VCAT allowed the recovery of the expense of litigants in person for their "expense of understanding, researching and inconvenience of attending to a direction hearing as well as summary dismissal hearing" where the proceedings had been dismissed as vexatious.
Neither the Tribunal's researches, nor the researches of counsel, have identified any occasion when VCAT has construed the expression "costs, expenses, loss, inconvenience or embarrassment resulting from the proceeding" as encompassing the kind of consequential loss or damage of the nature of the items included in the second category of costs claimed by the applicant in this matter.
The applicant, however, relies upon the additional words contained in s 87(3) which are not included in s 75(2) of the VCAT Act, namely "an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from … the matter because of which the proceeding was brought" (emphasis added). It has submitted that those words extend the scope of costs orders in a way which enables the Tribunal to consider the conduct of parties prior to institution of the application for review. By way of example, it is suggested that the Tribunal can take account whether one party acted unreasonably with the effect that the other party was forced to commence or continue unnecessary proceedings.
The applicant's submission is supported by the terms of s 87(4). That sub‑section identifies, without limiting other matters that may be considered, factors to which the Tribunal is required to have regard. Where it is the decision‑maker against whom a costs order is sought, the Tribunal is to have regard to whether the decision‑maker genuinely attempted to make a decision on its merits. That necessarily involves an examination of the parties conduct prior to commencement of the application for review.
The point is illustrated by the Tribunal's decision in Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 where the Tribunal made an order for payment of costs under s 87(2) on the basis that the respondent had failed to consider the application on its merits. In reaching that conclusion, the Tribunal examined the history of the application before the original decision‑maker, and in particular the factors to which it appears to have had regard in reaching its decision. Having reached its conclusion, the Tribunal ordered that the respondent pay the applicant's costs of $1500, which represented the costs of the applicant's agent in conducting the proceedings.
The words "or the matter because of which the proceeding was brought" do expand the range of the conduct that might be examined for the purposes of an order under s 87. That is not to say, however, that the addition of those words expands the nature of the "expenses, loss, inconvenience or embarrassment" which are properly the subject of an order. Section 87(1) establishes the general position of the Tribunal, namely that the parties bear their own "costs in a proceeding of the Tribunal". Section 87(2) then provides for a discretion for the Tribunal to make an order departing from that general rule. In empowering the Tribunal to make an order for the payment by a party "of all or any of the costs of another party" the costs being referred to are the "costs in a proceeding of the Tribunal" which would otherwise be the subject of the general rule prescribed by s 87(1). Section 87(3) extends the range of expenses that may be encompassed in an order for costs. As in s 87(2), the words "an order for the payment by a party of the costs of another party" found in s 87(3) are a reference to the other party's "costs in a proceeding of the Tribunal".

The effect of s 87(3) 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 in connection with the conduct of the proceedings before the Tribunal. For example, the costs may include the costs of a non lawyer advocate, the expenses of a party having to travel to a hearing or some amount which compensates a party for the inconvenience or expense of its participation in the proceedings.
Section 87(3) does not provide a basis upon which compensation, in the nature of damages, can be awarded because of some negligence or failure on the part of the decision‑maker to perform its function diligently and timeously, or because a decision‑maker's conduct falls short of the usual expectations of those who seek some consent, approval or permit.

Was there an offer to settle?

Section 87(5) of the SAT Act provides that rules may deal with the effect of offers to settle and responses to such offers on the making of an order for the payment for costs by a party. Rule 40, r 41 and r 42 of the State Administrative Tribunal Rules 2004 (WA) deal with that question. Rule 42 provides that the Tribunal may take into account the fact that a party did not accept an offer more favourable than the Tribunal's ultimate order when the Tribunal determines whether to award costs. The applicant in this matter contended that its letter of 10 February 2005 should be construed as an offer to settle, and contended that the ultimate outcome of the proceedings was one not less favourable than the proposal contained in that letter. Accordingly, the applicant contended that the failure of the respondent to agree to the conditions proposed in that letter should be taken into account in accordance with r 42.
The submission by the applicant overlooks the stipulation in r 42(1) that the rule applies to a proceeding "other than a proceeding in the Tribunal's review jurisdiction". This case coming within the Tribunal's review jurisdiction, r 42 is of no assistance to the applicant.

The proper allowance for the conceded costs

As indicated earlier, the respondent conceded that it should be liable for the reasonable costs associated with the additional affidavit of Ms Jelley. It did not concede, however, that the amount of $3725 claimed by the solicitors was reasonable.
It is not entirely clear how the applicant derives the figure of $3725 referred to in Mr Etherington's affidavit. His affidavit appends an account which relates to the work done between 29 March 2005 and 19 April 2005 in an amount of $3498. How the balance is made up does not appear. Nor is it clear who performed the various items of work or how much time was spent on the activities described. The product of the work was a 12 page affidavit and five pages of submissions. One of the invoices attached to Mr Etherington's affidavit reveals that the charges for professional time have been made at the rate of $500 per hour for a partner, $250 per hour for a solicitor, and $100 per hour for an articled clerk not including GST. By way of comparison, the legal practitioner's (Supreme Court)(contentious business) determination 2004, item 32 prescribes an hourly rate of $341 per hour (inclusive of GST) for a senior practitioner, and $231 per hour (inclusive of GST) for a junior practitioner. The rate for a clerk or paralegal is $165 per hour (inclusive of GST).
Although we accept that the respondent's conduct in raising new matter in closing and thereby causing unnecessary expense to the respondent warrants an order against it for costs, that conduct is not such as to attract an order for indemnity costs. The respondent should be ordered to pay only the reasonable costs thrown away by the conduct of the respondent. Accordingly, the Tribunal is not prepared to order the payment of legal costs calculated by reference to an hourly rate well in excess of that permitted by the scale applicable to Supreme Court proceedings.
The total invoice amount of $3498 includes disbursements of $445, and GST of $318. The disbursements referred to are described as "court fees" ‑ $252, "facsimile" ‑ $148 and "copying/print/scan" ‑ $45. There is no explanation of the "court fees", and it is not apparent that there were any fees payable to the Tribunal in relation to the filing of the supplementary affidavit and submissions. There is no basis to allow that amount. Similarly, it is unclear what the disbursement described as "facsimile" refers to. The activity schedule setting out the work which forms the subject of the account refers to four letters being sent. It is not apparent whether they were sent by facsimile, but even if they were it is not apparent how a disbursement of $148 was incurred. That amount should also not be allowed.
Having considered the task undertaken, the Tribunal is of the view that a reasonable allowance for the work associated with responding to the matters raised by Ms Boulter in closing would be six hours of professional time by Mr Etherington, the solicitor with the conduct of the matter, and one hour for review by a senior practitioner. Mr Etherington comes within the definition of junior practitioner under the relevant determination. Those allowances produce a total of $1727 inclusive of GST. The Tribunal allows that amount in respect to the legal costs component of the award for costs. Added to Ms Jelley's fee of $756 plus GST, the total costs awarded, inclusive of GST, amounts to $2558.60.

Orders

For the reasons above the Tribunal orders:
(1)The respondent to pay to the applicant costs in the sum of $2558.60.
(2)The applicant's application for costs is otherwise dismissed.
I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT
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SPRINGMIST PTY LTD and SHIRE OF AUGUSTA­MARGARET RIVER

[2005] WASAT 143

21 JUNE 2005