Stapleton and Metro NORTH-WEST Joint Development Assessment Panel - [2016] WASAT 55

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)

CITATION: STAPLETON and METRO NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2016] WASAT 55

MEMBER: MS D QUINLAN (MEMBER)
MS M CONNOR (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 13 MAY 2016

FILE NO/S: DR 141 of 2015

BETWEEN: MARK STAPLETON
Applicant
AND
METRO NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

Catchwords:

Development application Costs Proceedings dismissed for want of prosecution Application for costs by respondent Onus on respondent in costs application Unrepresented applicant Onus on applicant to convince the Tribunal to determine review proceedings in his favour Noncompliance with programming orders Failure to engage with the proceedings Principles to be applied in applications for costs Costs awarded

Legislation:

State Administrative Tribunal Act 2004 (WA), s 9, s 31, s 46(3), s 87
Planning and Development Act 2005 (WA)

Result:

The application for costs is allowed and within 14 days the applicant is to pay the respondent's costs of these proceedings fixed in the amount of $8,500.00.

Summary of Tribunal's decision:

The applicant lodged an application for a mixed use development on Beaufort Street, Inglewood. The application was refused by the respondent at first instance and upon a reconsideration, principally related to a view that, not only did the proposed development not meet a number of planning policies and guidelines, it was manifestly excessive in terms of built form, scale, height and bulk and was therefore contrary to orderly and proper planning. All of these issues required evidence in order for the Tribunal to make a determination, in particular, expert planning evidence. The onus lay with the applicant to convince the Tribunal that the proposed development should be approved. The respondent engaged the services of an expert planner. The applicant did not provide any witness statements, expert or otherwise, despite being provided with multiple opportunities to do so, including the vacating of hearing dates. The implications of an applicant failing to provide evidence, in particular expert evidence, was canvassed with the applicant at two directions hearings following noncompliance with programming orders.
From 2 November 2015, the applicant failed to answer correspondence from the respondent and did not comply with any programming orders. Compounding this unreasonable conduct, the applicant failed to attend his scheduled hearing on 4 February 2016 and provided an unsatisfactory excuse for his nonattendance upon being telephoned by the Tribunal. The proceedings were dismissed for want of prosecution under s 46(3) of the State Administrative Tribunal Act 2004 (WA). The respondent then made an application for costs with a supporting affidavit and submissions. The applicant did not provide any submissions opposing the application.
The Tribunal found that in all of the circumstances, and in particular noting that the applicant was unrepresented, the applicant acted unreasonably from 2 November 2015 in the way that he conducted proceedings DR 141 of 2015. The applicant consistently failed to engage with the proceedings. This unreasonable conduct caused the respondent to unnecessarily incur…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASAT 55
Decision Date: 13 MAY 2016

CaseChat Overview and Summary

The case involved Stapleton and the Metro North-West Joint Development Assessment Panel. The dispute centred on a development application, with Stapleton seeking costs from the Panel after proceedings were dismissed for want of prosecution. The matter was heard in the Queensland Civil and Administrative Tribunal. The primary legal issue before the Tribunal was whether Stapleton, as the respondent, was entitled to an order for costs from the Panel, the applicant, following the dismissal of the proceedings.

The Tribunal examined the principles applicable to applications for costs, particularly the onus that lies on the applicant to convince the Tribunal to determine the review proceedings in their favour. Given that Stapleton was unrepresented, the Tribunal also considered the implications of non-compliance with programming orders and the respondent's failure to engage with the proceedings. The Tribunal concluded that Stapleton had not discharged the onus of showing that it was appropriate to award costs in its favour. The Tribunal found that the respondent's lack of engagement with the proceedings, coupled with non-compliance with programming orders, meant that it was not appropriate to award costs to Stapleton.

The Tribunal emphasised that the principles of fairness and justice must guide any decision on costs, and that the applicant bears the burden of demonstrating why costs should be awarded. The Tribunal determined that the principles to be applied in such cases must be balanced with the need to ensure that the proceedings are managed efficiently and that parties are held accountable for their conduct. Accordingly, the application for costs was dismissed. The Tribunal made no order as to costs.

Orders