VODAFONE HUTCHISON AUSTRALIA PTY LTD and CITY OF BAYSWATER
[2017] WASAT 130 (S)
•18 JANUARY 2018
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | VODAFONE HUTCHISON AUSTRALIA PTY LTD and CITY OF BAYSWATER [2017] WASAT 130 (S) |
| MEMBER | : | MR P DE VILLIERS (MEMBER) |
| HEARD | : | DETERMINED ON THE DOCUMENTS |
| DELIVERED | : | 18 JANUARY 2018 |
| FILE NO/S | : | DR 336 of 2016 |
| BETWEEN | : | VODAFONE HUTCHISON AUSTRALIA PTY LTD Applicant |
| AND | ||
| CITY OF BAYSWATER Respondent | ||
| Catchwords: |
Town planning - Costs application - Refusal of development application - Relevant factors to exercising discretion to award costs - Whether respondent genuinely attempted to make decision on merits - Whether respondent maintained an unsubstantiated and untenable position - Whether respondent acted unreasonably - Parties bear their own costs
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015
(WA), s 88(2), s 88(3)
Sch 2, cl 67(c), cl 67(g), cl 67(n)(iii), cl 67(y),
[2017] WASAT 130 (S)
Result:
Each party to pay its own costs
Summary of Tribunal's decision:
In May 2016 an application was made to the City of Bayswater seeking development approval for a telecommunications facility at Crimea Reserve, McCarthy Street, Morley. In October 2016 the respondent resolved to refuse to grant planning approval for the proposed development and in November 2016 the applicant made application to the Tribunal seeking to have that decision reviewed.
In October 2017 the Tribunal determined that the application for review should be allowed and the question of costs should be reserved. Following the receipt of submissions from the parties, and as neither party sought an oral hearing, the matter of costs was determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The applicant submitted that it should be entitled to an order for its costs on the basis that the respondent:
a) failed to make a genuine attempt to make a decision on the applicant's proposal on its merits; b) maintained a position that was unsubstantiated and was proven to be untenable during the course of the hearing, which resulted in the applicant's application being successful; and c) conducted itself unreasonably in the proceedings by refusing to agree to a mediation conference and by making no attempt at negotiation during the compulsory conference, which necessitated in the parties proceeding to a hearing.
The Tribunal however found that there was no evidentiary basis to find that the respondent did not genuinely attempt to make a decision on its merits. In addition the Tribunal found that the respondent's position could not, on the evidence before it, be regarded as untenable. Finally, while its case may not have been strong, and the Tribunal ultimately found against it, this did not substantiate the applicant's contention that the respondent was maintaining an untenable position which meant that its conduct was unreasonable.
In the context of those findings the Tribunal was not persuaded that there was a basis upon which it should depart from the usual principle in planning review cases that each party should bear its own costs and the applicant's application was therefore dismissed.
[2017] WASAT 130 (S)
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Boulter and Shire of Augusta - Margaret River [2006] WASAT 334
Chew and Director General of the Department of Education and Training
[2006] WASAT 248
Ezekiel-Hart v Law Society of the Australian Capital Territory
(No 2) [2012] ACTSC 135
Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920
Halsey v Milton Keynes General NHS Trust [2004] EWCA CIV 576
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20
Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S)
Spartalis and City of Stirling [2017] WASAT 125
Telstra Corporation Limited and City of Wanneroo [2011] WASAT 77
Tran and Town of Vincent [2009] WASAT 123 (S)
[2017] WASAT 130 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Background
1 In May 2016 Planning Solutions, on behalf of Service Stream Mobile
Communications for its client Vodafone Hutchison Australia Pty Ltd (applicant), made application to the City of Bayswater (respondent, Council or City) seeking development approval for a telecommunications facility at Crimea Reserve, Lot 9087 (No 2) McCarthy Street, Morley (subject land, Crimea Reserve or Reserve).
2 The respondent, at its meeting of 4 October 2016, resolved to refuse
to grant planning approval for a 'Proposed Telecommunication Infrastructure to Recreational Facility (Crimea Reserve)' for the following reasons:
(a) The proposal does not comply with clauses A (iv) and A (vi) of the City of Bayswater local planning policy relating to Telecommunications Towers and Associated Facilities which stipulate that telecommunication facilities may not be located within 250m of land zoned or developed for residential purposes. (b) The proposal does not comply with the State Planning Policy 5.2 relating to telecommunications infrastructure in that it is not sited to minimise visual impact (i.e, not located where it will not be prominently visible from recreation sites and not sympathetic to the surrounding landscapes). (c) The proposal is considered to have an undue impact on the amenity of the area. (d) The proposal is considered to be inconsistent with the orderly and proper planning of the locality.
On 1 November 2016 the applicant made an application to the Tribunal seeking to have that decision reviewed.
4 On the 6 October 2017 the Tribunal determined that the application
for review should be allowed and the determination of the respondent set aside and a decision substituted that planning approval is granted subject to conditions.
5 In making that determination the Tribunal noted that during the
hearing the applicant foreshadowed an application for costs and determined that should this be the case, the matter would need to be argued at a later date. To enable this to happen, the question of costs was reserved.
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6 On 23 October 2017 the Tribunal received the applicant's
submissions in support of its application for costs. The respondent provided a submission on costs on 3 November 2017 and the applicant's submission in reply was received on 13 November 2017.
7 As neither party sought an oral hearing on costs the matter is to be
| determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) |
| Issue |
The SAT Act confers a discretion on the Tribunal to award costs. The relevant provision is set out below:
87. Costs of parties and others
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -
(a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits; (b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits. …
[2017] WASAT 130 (S)
88. Costs of proceeding
(1) In this section -
costs of a proceeding means costs of, or incidental to, a proceeding
of the Tribunal, other than costs of a party.(2) The Tribunal may order that all or any of the costs of a proceeding
be paid by a party.(3) If the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal cannot make an order under this section against a party unless -
(a) the party brought or conducted the proceeding frivolously or vexatiously; or (b) section 87(4) applies to the party; or (c) circumstances have arisen in which the Tribunal could make an order under section 46, 47 or 48.
9 Some of the factors relevant in exercising the discretion to award
costs pursuant to s 87 of the SAT Act were identified in Spartalis and City of Stirling [2017] WASAT 125 (Spartalis) where the Tribunal referred to Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85]:
[T]he Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
In Spartalis the Tribunal also addressed a recent decision of the Court of Appeal at [18] as follows:
More recently the Court of Appeal in Western Australia Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) gave consideration to the operation of s 87(1) of the SAT Act and the exercise of the discretion conferred on the Tribunal by s 87(2) of the SAT Act. The following relevant principles were found to apply when considering a costs application:
1) The discretionary power is to be exercised judicially; that is not arbitrarily, capriciously or so as to frustrate the legislative intent; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [48];
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2) Although not expressly stated in s 87(2) of the SAT Act that the power is to be exercised if it is fair and reasonable in all the circumstances to do so, the 'judicial nature' of the exercise of the power and the scheme of the SAT Act supports that legislative intention; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [49];
3) The onus is on the party seeking an order in their favour to persuade the Tribunal that an order should be made; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [51];
4) All parties to proceedings before the Tribunal are taken to be aware of the statutory objectives of the Tribunal set out in s 9 of the SAT Act; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54];
5) Following on from point four above, the Tribunal needs to consider whether the other party's conduct in the proceeding has interfered with the Tribunal's ability to satisfy its statutory objectives of ensuring that the proceeding is determined fairly and in accordance with the substantial merits of the case, to act speedily and with as little formality and technicality as is practicable and in a way which minimises the costs of the parties; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54].
The Spartalis decision went on to set out the principles to be applied by the Tribunal in dealing with cost applications at [19] - [21]:
Therefore although the starting position is that each party bears its own costs, the Tribunal has a clear discretion to award costs in an appropriate matter. The Tribunal in its consideration needs to determine if it is fair and reasonable for a party to be reimbursed for costs incurred, not simply because that party has been ultimately successful, but by considering the other party's conduct particularly whether that conduct has impaired the Tribunal's ability to meet its statutory objectives of dealing with matters speedily and cost effectively.
In addition, s 87(4) of the SAT Act identifies matters to which the Tribunal is to have regard in proceedings arising in its review jurisdiction when exercising its discretion. In particular s 87(4)(b) of the SAT Act, requires the Tribunal to consider whether the original decision-maker has genuinely attempted to make a decision on its merits. It is also relevant when considering this issue, the stage of the proceeding at which the original decision-maker makes any such genuine consideration.
If the Tribunal exercises its discretion to award costs, it approaches the task of fixing costs in a broad and relatively robust fashion; Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 (Perth Central) at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125(S) at [49]. In addition, the power to
[2017] WASAT 130 (S)
make a costs order includes the power under s 87(3) of the SAT Act to make an order for the payment of an amount to compensate a party for any expenses resulting from the proceeding. The effect of this provision is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss incurred in connection with the conduct of the proceeding: Springmist Pty Ltd and Shire of Augusta Margaret River (2005) 42 SR (WA) 2007; [2005] WASAT 143(S) (Springmist) at [64].
The applicant's submissions
The applicant submits that it is entitled to an order for its costs on the basis that the respondent:
(a) failed to make a genuine attempt to make a decision on the applicant's proposal on its merit; (b) maintained a position that was unsubstantiated and was proven to be untenable during the course of the hearing, which resulted in the applicant's application being successful; and (c) conducted itself unreasonably in the proceedings by refusing to agree to a mediation conference and by making no attempt at negotiation during the compulsory conference, which necessitated in the parties proceeding to a hearing.
13 In regard to the first ground (lack of a genuine attempt to make
a decision on the merits) the applicant submitted that the respondent, in seeking to apply a 250 metre buffer knew that there was a community need for the facility and compliance with the buffer zone terms of the
Telecommunication Towers and other Associated Activities Policy
(Council 'Towers' Policy) was impossible.
14 This the applicant argued ran counter to a previous Tribunal
determination that buffer zone provisions and local planning policies are not binding and developments should be approved with lesser setbacks where there is a demonstrated need (Telstra Corporation Limited and City of Wanneroo [2011] WASAT 77). This the applicant submits was unreasonable conduct on the part of the respondent indicating a lack of a genuine attempt to consider the proposed development on its merits.
In addition the applicant raises issues identified in the respondent's refusal that in its view do not comply with State Planning Policy 5.2 'Telecommunications Policy' in that the respondent argued that the facility 'is not sited to minimise visual impact' and that the proposal had an 'undue impact on the visual amenity of the area'. The applicant submits that the Telecommunications Policy recognises that telecommunications
[2017] WASAT 130 (S)
infrastructure may have visual impacts and it is therefore necessary to balance the need for effective telecommunications services with the visual impact on the surrounding area.
16 In addition the applicant submits that as the respondent ultimately
conceded there was no alternative site or design for the facility the only decision properly open to the respondent had it genuinely attempted to make a decision on the merits of the proposal was to conclude that the proposed development complied with the Telecommunications Policy.
17 In regard to the second ground (maintaining an untenable position)
the applicant submits that the respondent's position at the hearing became untenable as a consequence of concessions made in the statement of agreed facts and the course of evidence of Mr Michael Robson.
These included in the applicant's view the following:
•
Mr Robson conceded that 19 out of the 20 bases of objection were irrelevant or not substantiated in fact.
•
While the respondent maintained the applicant's proposal was a permanent commercial use incongruent with public recreation nature of the reserve the respondent had previously allowed commercial activities, both incidental and non-incidental, to operate on the reserve.
•
Mr Robson conceded that the visual impact of the applicant's proposal in and of itself 'is not sufficient to justify refusing the application'.
•
The respondent's reliance on a petition received from the community was inappropriate.
•
The respondent maintained that there was an element of uncertainty in respect of the replacement lighting notwithstanding the fact the applicant made it clear from the outset that it intended to provide the equivalent replacement lighting.
•
The respondent relied on the fact that there is a potential for further co-location to support its refusal despite the fact that co-location is consistent with the respondent's own council policy.
[2017] WASAT 130 (S)
19 In regard to the third ground (unreasonable conduct prior to the
hearing) the applicant submits that the respondent conducted itself unreasonably in the proceedings prior to the hearing. This was based on a contention that the respondent refused to participate in mediation or engage with any attempts to settle during a compulsory conference held on 20 March 2017.
20 Essentially the applicant submits that the respondent adopted the
attitude that it would rather let the Tribunal take responsibility than answer to its ratepayers for the council making the decision to approve the proposal. This, the applicant submits, is an abrogation of the respondent's statutory duties in determining planning and development application and warrants a cost order.
Finally the applicant submitted a schedule of its solicitor-client costs of the preceding which totalled $112,125.13.
The respondent's submissions
22 In its response to the applicant's submissions the respondent submits
in regard to ground one (lack of a genuine attempt to make a decision on the merits) that it has a statutory obligation under cl 67(n)(iii) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) to have due regard to the amenity of the locality.
23 In fulfilling this statutory obligation the respondent argues the
Council decision needs to be read against the background of the officer's report and recommendation which does not indicate a 'strict' or unreasonable application of Council policy. The report by the Council officer, while conceding that the proposed development complies with many of the more detailed development requirements, concluded at the location in the middle of an established residential area without an adequate buffer zone resulted in an undue impact on the amenity of the area.
24 The respondent submits that the benefits of the tower do not
automatically trump all other factors. The task of balancing the known, but generalised, benefits of improved telecommunications against the visual impact of the facility calls for value judgements about which minds can reasonably differ.
In regard to the second ground (maintaining an untenable position) the respondent submits the following:
[2017] WASAT 130 (S)
• In regard to the 20 bases of objection a fair reading of Mr Robson's witness statement and the report to Council would suggest that the objector's submissions were considered relevant and given weight only to the extent that they reflected concerns about the amenity impact of the proposed tower. • The commercial use of the reserve was an issue contested at the hearing and the Tribunal's determination does not mean the respondent's position was untenable. • The fact that Mr Robson felt the negative visual impact of the tower, only of itself, was not sufficient to justify refusal does not mean the respondent's position was untenable. • The fact that the Tribunal gave no weight to the petition does not mean the respondent's position was untenable. • The applicant's submissions in regard to issues of uncertainty and future co-location likewise does not establish the respondent's position was untenable.
26 In regard to ground three (unreasonable conduct prior to the hearing)
the respondent submits that it does not accept the applicant's characterisation of what occurred at the compulsory conference but is prevented from responding in any meaningful way by s 55 of the SAT Act.
27 In regard to the respondent's decision not to agree to mediation the
respondent submits that it is not unreasonable to oppose an order for mediation in circumstances where a party does not believe mediation is likely to achieve a resolution of the matter or reduce the issues in dispute.
The applicant's submissions in reply
28 In regard to the first ground (lack of a genuine attempt to make
a decision on the merits) the applicant submits that the respondent's submissions virtually ignore the first (and primary) reason for refusal being the application of the zoning and buffer zone provisions of Council 'Towers' Policy and the asserted non-compliance with the Telecommunications Policy.
29 The applicant also, relying on the transcript of the final hearing,
submits that Mr Robson's evidence amounts to a clear concession that the
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proposed location and design of the facility caused minimum visual impact. On this basis the applicant argues that the respondent looked selectively at the evidence in order to attempt to justify the refusal decision and that any reasonable Council considering the whole of the evidence and properly applying the Telecommunications Policy could not have reached a decision to refuse approval.
30 In regard to the second ground (maintaining an untenable position)
the applicant submits, relying again on the transcript of the hearing, that the present and expected mobile telecommunications coverage and the lack of alternative suitable sites were known to the respondent at the time it made the decision. The applicant submits that had the respondent given proper consideration to these matters the decision should not have been made in the first place, or should have been reconsidered and overturned before the hearing.
31 In regard to ground three (unreasonable conduct prior to the hearing)
the applicant submits it is now generally accepted that an unreasonable refusal to participate in mediation (and, by extension, a compulsory conference) may lead to an adverse cost order and cites a number of examples of case law in other jurisdictions.
32 By reference to Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920 (Halsey) and Ezekiel-Hart v Law Society of the Australian Capital Territory (No 2) [2012] ACTSC 135 (Ezekiel) at [26]-[37] the applicant submits that the respondent's refusal to engage in mediation and its conduct in the compulsory conference in this case was unreasonable.
Tribunal considerations
These proceedings fall within the Tribunal's jurisdiction under s 87 of the SAT Act. Without limiting anything else that may be considered the Tribunal is under s 87(4) to have regard to:
(a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits; (b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
The Tribunal will deal with each of the three issues the subject of submissions by the parties in turn.
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Lack of a genuine attempt to make a decision on the merits
35 The essence of the submissions of the applicant are that that the
manner in which the respondent applied both state and local policy and its reliance on a petition from objectors meant that it did not make a genuine attempt to determine the application on its merits.
36 Orderly and proper planning requires that individual development
applications are assessed against the existing statutory and policy planning framework (Marshall v Metropolitan Redevelopment Authority [2015] WASC 226).
37 Clause 67 of the LPS Regulations sets out matters to which a
local government is to have due regard in considering an application for
development approval. These include:…
(c) any approved State planning policy; … (g) any local planning policy for the Scheme area; … (y) any submissions received on the application; …
38 The report provided by council officers to the respondent for its
Ordinary Council Meeting of 4 October 2016 (report) makes explicit reference to these factors. Thus the issue is whether, in considering these matters, the respondent failed to make a genuine attempt to address the merits of the application before it.
The report comprises 16 pages with a number of attachments. This report identified the following key issues:
• impact on the amenity of the area; • non-compliance with the Council 'Towers' Policy; • submissions and a petition; and • the City's management order on the property.
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40 The body of the report addresses lease options, provides a response
to submissions received, and in the analysis of the proposal addresses in
some detail both location and design.41 The attachments included a two page addendum of further
information addressing the height of the existing tower, examples of existing phone towers on other reserves, buffer zones, search area and discounted candidate report and further submissions by Telstra.
42 The fact that the report of the Council officer conceded that the
proposed development complied with many of the more detailed development requirements of Council 'Towers' Policy suggests that the proposal was assessed in an orderly manner against the relevant provisions of the policy.
43 The applicant submits the respondent's reliance on a petition received
from the community was inappropriate. Given that cl 67(y) of the LPS Regulations applies the question goes to whether the weight given to the petition by the respondent undermined a genuine attempt to assess the merits of the proposal.
44 The respondent suggests that the objectors' submissions were
considered relevant and given weight only to the extent that they reflected concerns about the amenity impact of the proposed tower. This contention was supported by the evidence of Mr Robson in what the applicant argues were concessions made in his evidence at the hearing.
45 In regard to the Telecommunications Policy the applicant submits
that it is necessary to balance the need for effective telecommunications services with the visual impact on the surrounding area and, given the lack of an identified alternative site, the respondent should have supported the proposed development. While the balancing of these aspects is a clear principle of the Telecommunications Policy the exercise of discretion will inevitably involve a judgement. While the applicant challenges the outcome of that judgement, and the Tribunal subsequently found for the applicant on this question, this does not establish that the respondent failed to genuinely assess the proposal on its merits.
46 The evidence before the Tribunal suggests that, while the applicant
clearly contested the outcome, the respondent did attempt to assess the
proposed development on its merits for the following reasons:
•
The report on which the respondent relied addressed the relevant provisions of the planning framework; City of
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Bayswater District Town Planning Scheme No. 24, the Telecommunications Policy, Council Policy and the LPS Regulations;
• The report explicitly set out a number of key issues arising from the application; • The report provided extensive coverage of the issues identified; • An addendum provided further information following the Councillor Briefing Session held on 27 September 2016 prior to the decision on the 4 October 2016; and • While in Tran and Town of Vincent [2009] WASAT 123 (S) (Tran) the Tribunal was critical of a decision-maker for ignoring the advice of its technical officers in this case the Elected Members endorsed the advice of their technical officers.
47 The fact that the Tribunal reached a different conclusion from the
respondent does not, of itself, inevitably lead to a conclusion that the respondent failed to genuinely attempt to make a decision on its merits: Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20 (Myburgh).
48 The Tribunal therefore finds there is no evidentiary basis to find that
the respondent did not genuinely attempt to make a decision on its merits. This finding accords with the principles established in previous Tribunal determinations.
In Myburgh at [50] the Tribunal found:
The fact that the Tribunal reaches a different conclusion from an original decision-maker, does not, inevitably, lead to the conclusion that the original decision-maker failed to genuinely attempt to make a decision on the merits of the application. That is so even though the original decision-maker may have failed to properly or correctly apply the relevant criteria governing the exercise of its discretion.
In addition in Boulter and Shire of Augusta - Margaret River [2006] WASAT 334 at [21] the Tribunal found:
Even if, as the applicant contends, the reasons for refusal ultimately proved not to be sustainable, that does not mean that the Council did not endeavour to determine the matter on its merits. Failure to genuinely
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attempt to determine a matter on its merits is quite different from making an error as to the merits. In my view, the applicant's submissions go no further than suggesting that the Council erred in its deliberations.
Maintaining an untenable position
51 The applicant submits that the respondent's position at the hearing
became untenable as a consequence of alleged concessions made in the
statement of agreed facts and the course of evidence of Mr Robson.52 The Tribunal's rules state that an expert who attends a mediation,
a compulsory conference or a conferral of experts directed by the Tribunal or who gives evidence at a hearing has the following obligations to the Tribunal:
(a) an overriding duty to assist the Tribunal impartially on matters relevant to their area of expertise; (b) a paramount duty to the Tribunal and not to the party who engaged them; and (c) a responsibility to convey their expert opinion to the Tribunal and not to act as an advocate for the party who engaged them.
53 The respondent submits that the fact that Mr Robson felt the negative
visual impact of the tower, only of itself, was not sufficient to justify refusal does not mean the respondent's position was untenable. While accepting this submission more generally the Tribunal is of the view that any alleged concessions made by Mr Robson in giving evidence suggest he was seeking to assist the Tribunal impartially on matters relevant to his area of expertise. In addition while his evidence may well have weakened the respondent's case he could not be regarded as impairing the Tribunal's ability to meet its statutory objectives.
54 The fact that Mr Robson's views shifted from the position taken in
the report submitted to the Council, while it suggests the respondent demonstrated some flexibility in running its case, cannot substantiate an inference that the respondent's position was untenable particularly in the context of the Tribunal finding that the respondent did genuinely attempt to make a decision on its merits.
55 For the reasons above the Tribunal finds that the respondent's
position cannot be regarded as untenable, and more particularly
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Mr Robson in giving expert evidence, genuinely attempted to enable and assist the Tribunal to make a decision on its merits
Unreasonable conduct prior to the hearing
56 The applicant submits that the respondent's refusal to engage in
mediation and its conduct at the compulsory conference in this case was
unreasonable and relies on Halsey and Ezekiel.57 The Tribunal does not accept this submission. The Halsey decision was made in the Milton Keynes County Court. In any event is to be noted that the England and Wales Court of Appeal subsequently upheld the decision of the county court in Halsey by not finding against the respondent for failing to engage in mediation (Halsey v Milton Keynes General NHS Trust [2004] EWCA CIV 576 (11 May 2004)). The Ezekiel decision was made in a jurisdiction where the Supreme Court of the Australian Capital Territory relies on substantively different statutory provisions to those set out in the SAT Act in relation to costs. These cases do not therefore assist the Tribunal in the current matter.
58 Further, the applicant submits that the respondent adopted the
attitude that it would rather let the Tribunal take responsibility than answer to its ratepayers for the council making the decision to approve the proposal and that this is an abrogation of the respondent's statutory duties in determining the development application and warrants a cost order. Had that in fact been the position taken by the respondent the Tribunal would consider such an approach to be an abrogation of the statutory duty of the responsible authority.
59 There is however no direct evidence before the Tribunal to
substantiate the assertion that the respondent abrogated its statutory duty
and therefore no basis for the Tribunal to make a finding in that regard.60 In the context where the respondent refused to approve the proposed
development in accordance with the recommendation of its technical officers it cannot be regarded as unreasonable for it to seek to defend its decision by resisting mediation or in its conduct in any subsequent compulsory conference.
61 In addition the fact that the respondent participated with the applicant
in May 2017 in developing a statement of agreed facts undermines a
contention of unreasonable conduct.
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Furthermore, the respondent appropriately presented its case in that it engaged Counsel and adduced expert evidence in support of its position.
63 While its case may not have been strong, and was clearly further
undermined in evidence at the hearing, the issues raised in its case were clearly open to it in exercising its statutory responsibilities; and in balancing visual amenity and community benefit the respondent considered the visual amenity impacts outweighed the community benefit.
64 While the Tribunal found against the respondent this does not
substantiate a contention that the respondent was maintaining an
untenable position which meant that its conduct was unreasonable.
For these reasons the Tribunal finds the respondent did not conduct itself in an unreasonable manner prior to the hearing.
The Tribunal has sought to consistently apply the provisions of s 87 of the SAT Act and this has generally seen the application of the principle set out in s 87(1) that the Tribunal is a no cost jurisdiction. In Tran the Tribunal noted that successful costs applications in the Tribunal are a 'rare bird' indeed. However, the Tribunal has in a limited number of cases made findings as to costs.
In Tran at [35] - [36] the Tribunal found:
In this matter, there is in my view conduct on the part of the Town which can be objectively considered relevantly 'unreasonable' (as that expression emerges from the authorities referred to above) warranting a costs award in the applicants' favour.
Although I do not doubt for one moment that the respondent's actions were undertaken other than in good faith it is important for the process of orderly public sector decision-making that original decision-makers pay careful attention to consistency in that decision-making process; that they also pay regard to the advice of their professional officers; and that they avoid the need for the rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval had been given.
In Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S) (Ransberg) at [40] - [41] the Tribunal found:
It was apparent to the Tribunal from the way the Council consistently dealt with the matter and the final reasons given by the respondent on 22 September 2015, that the respondent took the view that it would always oppose a concrete batching plant at the subject site regardless of any professional advice or previous decisions of the Tribunal.
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Whilst the respondent may oppose a concrete batching plant at the subject site, the respondent is still obliged to consider the proposal on its merits, to apply the relevant provisions of the planning framework and to be cognisant of its legal obligations as a decision-maker which includes consistency in decision-making in the interests of orderly and proper planning (see Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [178] to [183]).
In Spartalis the Tribunal found at [39]:
This Tribunal finds that the respondent did not genuinely attempt to make a decision on its merits at the stage of the proceeding at which such a decision ought to have been made. Although the Tribunal accepts that the respondent acted reasonably during late 2016 and early 2017 in negotiations with the applicant and through their attendance at the mediation, from mid-February 2017 there were clear delays in the progression of the matter on the respondent's part both in filing documents for the hearing and in failing to reconsider its decision in a timely manner. It is also inexcusable in the Tribunal's view to concede the entirety of the matter only six days before the final hearing when all costs associated with the hearing had by then been incurred. The reason afforded is simply unacceptable. The position must be either one of the respondent only very belatedly genuinely turning its mind to the merits of the outstanding issue, or, as submitted by it, due to the unavailability of its key witness on a particular day (which matter was never raised with the Tribunal) it simply arbitrarily decided to grant approval to save costs of retaining an external expert witness. In either circumstance the conduct is inappropriate and has contributed to costs being incurred by the applicant unnecessarily.
It is clear that the findings in each of these cases can be differentiated from the findings in this matter for the following reasons:
• In Tran the respondent was inconsistent in its decision-making process and disregarded the advice of their professional officers; • In Ransberg the respondent took a position that disregarded both professional advice and previous decisions of the Tribunal; and • In Spartalis the respondent conceded the entirety of the matter only six days before the final hearing when all costs associated with the hearing had by then been incurred.
71 None of the exceptional circumstances informing these decisions
apply in the current case. In this matter the respondent considered the
[2017] WASAT 130 (S)
visual amenity impacts of the proposed development outweighed the community benefit. Visual impact is a relevant issue which the Telecommunications Policy acknowledges. While the Tribunal ultimately found for the applicant the evidence before the Tribunal does not establish that the respondent did not genuinely attempt to assess the proposal on its merits, maintained an untenable position or conducted itself unreasonably in the proceedings.
72 The Tribunal is not therefore persuaded that there is a basis upon
which the Tribunal should depart from the usual principle in planning review cases that each party should bear its own costs. The applicant's application that the respondent pay costs is therefore dismissed.
| Orders |
1. For the reasons set out above the Tribunal orders that each party is to pay its own costs of the proceedings.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, MEMBER
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