WALSH and GOYDER - [2011] WASAT 103

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: WALSH and GOYDER [2011] WASAT 103

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 6 JULY 2011

FILE NO/S: DR 101 of 2011

BETWEEN: TERENCE WILLIAM JOSEPH WALSH
CHELSEA REBELLE WALSH
Applicants
AND
RICHARD GOYDER
JANINE GOYDER
DAVID THOMAS
RACHEL THOMAS
First Respondents
SHIRE OF PEPPERMINT GROVE
Second Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law Practice and procedure Costs Whether Tribunal erred in law in exercise of discretion as to costs Whether Tribunal failed to have regard to relevant policy provision Whether Tribunal accepted submission for which there was no basis

Legislation:

Planning and Development Act 2005 (WA), s 242, s 244, s 252(1)
Shire of Peppermint Grove Town Planning Scheme No 3, cl 5.1.1
State Administrative Tribunal Act 2004 (WA), s 3(1), s 37(3), s 87(2), s 87(4)

Result:

Application for review of Tribunal's determination dismissed

Category: B

Representation:

Counsel:

Applicants:     Mr TWJ Walsh
First Respondents         :     Mr PJ McQueen
Second Respondent       :     N/A

Solicitors:

Applicants:     Self-represented
First Respondents         :     Lavan Legal
Second Respondent       :     N/A

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

Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84
Cassidy and City of Subiaco [2011] WASAT 63
Citygate Properties Pty Ltd and City of Bunbury [2009] WASAT 249
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Geographe Point Pty Ltd and Town of Claremont [2009] WASAT 98; (2009) 64 SR (WA) 1
Rossi and City of Bayswater [2010] WASAT 33
Tran and Town of Vincent [2009] WASAT 123 (S)
Walsh and Shire of Peppermint Grove [2009] WASAT 46 (S)
Walsh and Shire of Peppermint Grove [2009] WASAT 46; (2009) 61 SR (WA) 335
Whelans (WA) Pty Ltd and Town of Claremont [2009] WASAT 94

REASONS FOR DECISION:

Summary of judicial member's decision

Mr and Mrs Walsh sought a review by a judicial member of a determination of the Tribunal, when constituted without a legally qualified member, in which the Tribunal refused Mr and Mrs Walsh's application for a costs order against four of their neighbours who had been granted leave to intervene in a proceeding for review of the refusal of Mr and Mrs Walsh's development application for the construction of a house. The Tribunal refused the costs application because 'it was open to the interveners within the lease granted to them to make the submissions that were made'.
Mr and Mrs Walsh contended that the Tribunal erred in law in making the costs decision in two respects. The judicial member considered that the Tribunal had not made the finding upon which the first ground for review was based. However, the judicial member also determined that, assuming that the Tribunal had made the finding alleged, it would not involve an error of law that would vitiate the costs decision. The judicial member also determined that the second ground for review did not involve a question of law, but rather was, in effect, a challenge to a finding of fact.
The application for a review by a judicial member was dismissed and the decision of the Tribunal was affirmed.

Background

In June 2007, the Western Australian Planning Commission (Commission) approved the subdivision of what was then No 18 (Lot 42) Irvine Street, Peppermint Grove, on the southeastern corner of the intersection of Venn Street and Irvine Street, into two lots. Lot 42 comprised a single storey house, built in 1896, which is listed on the Shire of Peppermint Grove's (Council) Municipal Heritage Inventory 1999 (MHI). The approved subdivision excised what had been the front garden of the heritagelisted house and created a new lot which became No 18 Irvine Street, Peppermint Grove (site). The remainder of Lot 42, containing the heritagelisted house, is now known as No 1B Venn Street, Peppermint Grove.
In November 2007, Mr Terence Walsh and Mrs Chelsea Walsh (Mr and Mrs Walsh) purchased the site. In March 2008, Mr and Mrs Walsh lodged a development application with the Council for approval under the Shire of Peppermint Grove Town Planning Scheme No 3 (TPS 3 or Scheme) for the construction of a twostorey house on the site. In June 2008, the Council refused development approval for the proposed house under TPS 3. The reasons for refusal included reference to the impact of the proposal on the heritagelisted house, owing to bulk and scale and overshadowing.
In July 2008, Mr and Mrs Walsh commenced proceeding DR 265 of 2008 in the Tribunal in which they sought review, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the Council to refuse the development application. Shortly after the commencement of proceeding DR 265 of 2008, Mr Richard Goyder and Mrs Janine Goyder and Mr David Thomas and Mrs Rachel Thomas (interveners), who were, respectively, the owners of two houses diagonally opposite the site in Irvine Street, applied to the Tribunal for leave to intervene in the proceeding pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and, alternatively, to make a submission in relation to the application, pursuant to s 242 of the PD Act.
Although the Council, as the respondent to proceeding DR 265 of 2008, had raised an issue in opposition to the development as to whether the proposed house would impact on the cultural heritage qualities of the heritagelisted house, the Council indicated to the Tribunal that it would not be calling any expert evidence in relation to heritage. In contrast, the interveners proposed to call, if leave to intervene were granted, evidence from Mr Ronald Bodycoat, a heritage architect. The Tribunal, therefore, granted the interveners:
… leave [to intervene pursuant to s 37(3) of the SAT Act] for the limited purpose of producing evidence from Mr Ronald Bodycoat and making submissions on the heritage issue.
On 22 December 2008, the Tribunal, constituted by Member Mr J Jordan (presiding) and Senior Sessional Member Mr P de Villiers, conducted the final hearing in proceeding DR 265 of 2008. On 17 March 2009, the Tribunal published its decision in which it granted conditional development approval for the proposed house Walsh and Shire of Peppermint Grove [2009] WASAT 46; (2009) 61 SR (WA) 335 (DA decision).
The interveners subsequently commenced proceeding DR 140 of 2009 in which they sought a review by a judicial member, pursuant to s 244 of the PD Act, of the determination made by the Tribunal in the DA decision. On 14 May 2009, the President, Justice JA Chaney, heard the application for a review in DR 140 of 2009. On 2 June 2009, his Honour published his decision in which he dismissed the application Goyder and Walsh [2009] WASAT 108 (Section 244 decision).
On 16 August 2010, Mr and Mrs Walsh applied to the Tribunal in proceeding DR 265 of 2008 'for costs and/or compensation against the interveners'. On 22 December 2010, the Tribunal, constituted by Member Mr J Jordan, heard Mr and Mrs Walsh's application for costs and compensation against the interveners. On 21 March 2011, the Tribunal published its decision in which it dismissed Mr and Mrs Walsh's application for costs and compensation Walsh and Shire of Peppermint Grove [2009] WASAT 46 (S) (Costs decision).
At [5] of the Costs decision, the Tribunal summarised the basis of Mr and Mrs Walsh's application in the following terms:
The applicants made a claim for costs against the interveners. The applicants said that the evidence of the interveners' heritage expert and the submissions of the interveners were outside the leave granted by the Tribunal. The applicants said the interveners' arguments were based on a misconceived legal position that no development at all should be allowed on the site. It was also asserted, unreasonably, that the interveners had not considered the redevelopment plans for No 1B Venn Street and had considered the subdivision approval irrelevant. The applicants also argued that an award of compensation should be made for loss and damage associated with delay, loss of enjoyment, stress and anxiety arising to the applicants as a consequence of the interveners' involvement in the matter.
The Tribunal summarised its reasons for decision in relation to the costs application at [6] of the Costs decision in the following terms:
The Tribunal formed the view that it was open to the interveners within the leave granted to them to make the submissions that were made. The submissions reasonably arose out of the interveners' view of the impact of the proposed development on the heritage value of the existing house and on the contribution of the heritage house to the Irvine Street streetscape. The Tribunal further found that the State Administrative Tribunal Act 2004 (WA) did not provide a basis for a claim for compensation for personal suffering.

Application for a review by judicial member

On 28 March 2011, Mr and Mrs Walsh commenced the present proceeding DR 101 of 2011 in which they seek a review by a judicial member, pursuant to s 244 of the PD Act, of the determination made by the Tribunal to refuse their application for costs against the interveners in the Costs decision.
Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the SAT Act. Member Mr J Jordan, who made the determination in question, is not a legally qualified member.
In this proceeding, Mr and Mrs Walsh seek the following decisions to be made:
1.To set aside the ruling of Member Jordan made on 21 March 2011 in relation to matter DR 265 of 2008.
2.To order that [Mr and Mrs Walsh] are entitled to reimbursement for that part of their costs for legal fees and heritage expert fees incurred in proceedings DR 265 of 2008 for responding to the unmeritorious and/or unreasonable arguments (within the meaning of s 87 of the SAT Act) raised by the [interveners] (who were the intervening parties in DR 265 of 2008).
3.To order, if necessary, that the matter be referred back to Member Jordan to make an assessment of those costs.
In their application in this proceeding and in their supporting submissions, Mr and Mrs Walsh contend that, in the Costs decision:
The Tribunal erred in law in the following two respects:
1)The Tribunal erred in law in finding that it was arguable that a 'clear view of the heritage house as determinative of any development application' could reasonably be made, having regard to the fact of subdivision and the provisions of TPS 3; and
2)The Tribunal erred in law in failing to find that the Interveners had adopted a position that the fact of subdivision was an irrelevant consideration.
Mr and Mrs Walsh advanced three specific arguments in relation to their first ground, which are set out and discussed below. However, before addressing the grounds for review, it is useful to note, by way of background, the statutory basis for an application for costs in Tribunal proceedings and the Tribunal's established practice in relation to costs in review, including planning review proceedings.

Statutory basis and practice in relation to costs

In Geographe Point Pty Ltd and Town of Claremont [2009] WASAT 98; (2009) 64 SR (WA) 1 (Geographe Point), the Tribunal said the following at [14] [17]:
Section 87(1) of the SAT Act states that:
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.
The contemplation of the SAT Act is, therefore, that the Tribunal is generally a no-costs jurisdiction.
Furthermore, although s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party, the Tribunal's established practice in administrative review proceedings is that normally each party should bear its own costs: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246; Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 (Shark Bay Tuna Farms). As Justice Barker explained in Shark Bay Tuna Farms at [36], the Tribunal was established with its review jurisdiction as part of the system of public administration of the State to ensure that citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests. Consequently, an applicant should not be discouraged from seeking administrative justice by the prospect of having to pay the respondent's costs if the applicant does not succeed and, conversely, an applicant is not entitled to an award of costs simply because the applicant succeeds.
Only four awards of costs have been made in planning review proceedings since the establishment of the Tribunal almost four and a half years ago. Two of these awards were in relation to the limited costs of attending directions hearings necessitated by default in compliance with Tribunal orders (Randall and Town of Vincent [2005] WASAT 147 and Aydogan and Town of Cambridge [2006] WASAT 98) and two awards were made in circumstances where the original decisionmaker failed to genuinely attempt to make a decision on the merits of a development application (Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 (S) and J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282; (2006) 45 SR (WA) 242). In relation to the latter two awards, s 87(4)(b) of the SAT Act states that, without limiting anything else that may be considered in relation to whether to make an order for the payment by a party of the costs of another party, where the matter falls within the Tribunal's review jurisdiction, the Tribunal is required to have regard to:
whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
Since the publication of the decision in Geographe Point on 18 May 2009, there have been only two further awards of costs in planning review proceedings in the Tribunal. In Tran and Town of Vincent [2009] WASAT 123 (S) (Tran) and Rossi and City of Bayswater [2010] WASAT 33, the Tribunal made orders for costs on the basis that the respondent had acted unreasonably in refusing to grant development approval or imposing a condition of development approval when the Tribunal had, in previous proceedings, granted development approval for essentially the same development or deleted essentially the same condition, the planning framework had not changed and the circumstances had not changed in any substantial or material way since the earlier proceeding.
In Tran, the Tribunal noted at [29] that '[s]uccesful costs applications in the Tribunal are a "rare bird" indeed'. As the Tribunal recognised in Tran at [35], costs orders have only generally been made in review proceedings where a party has acted unreasonably, including where a party has failed to meet the expectation expressed in s 87(4) of the SAT Act.

Ground 1 The Tribunal erred in law in finding that it was arguable that a 'clear view of the heritage house as determinative of any development application' could reasonably be made

The Tribunal said the following at [32] [33] of the Costs decision:
The applicants said that the interveners' primary argument, advanced by the heritage architect and counsel, was that 'no reasonable economic development at all' should be allowed on the site. Mr Walsh referred to Goyder and Walsh [the Section 244 decision] at [54] where Chaney J said:
Having regard to the evidence of the heritage experts accepted by the Tribunal, the consequence of the applicants' argument in these proceedings is, in effect, that no 'reasonable economic development at all' should be allowed on this site. That argument elevates the value of a clear view of the heritage house as determinative of any development application. There is no justification for that contention having regard to the provisions of TPS 3 which I have referred to above.
Mr Walsh said that costs should automatically follow from the finding that the interveners' argument, that 'no reasonable economic development at all' should be allowed on the site, had 'no justification'.
At [47] [48] of the Costs decision, the Tribunal observed and found as follows:
In the event, the Tribunal was not persuaded by the expert evidence or the submissions advanced on behalf of the interveners and the application for review was allowed. The above extracts from the transcripts of the hearing of 16 December 2008 and 17 December 2008 lead the Tribunal to the view that Mr Bodycoat's preference was a clear view of the heritage house and the interveners did not want the proposed house approved. How this relates to 'reasonable economic development' was not explained, but the inference appears to the Tribunal to be a comparison between the house that might be built with less impact on No 1B Venn Street and the cost of the site. It is on this argument that the Tribunal agrees, with respect, with the comment of Chaney J that elevating 'the value of a clear view of the heritage house as determinative' [of the matter] had 'no justification': Goyder and Walsh at [54]. This does not lead, however, to the conclusion that the argument cannot be made in support of a position on preserving the significance of the heritage house.
The Tribunal considers that, given the context of the comments of Mr Bodycoat and the submissions of counsel for the interveners, the conclusion cannot be drawn that an award of costs should automatically follow from the findings of Chaney J at [54] of Goyder and Walsh. The Tribunal considers the submissions and evidence adduced on behalf of the interveners was consistent with the leave granted to intervene. The Tribunal has concluded that the arguments developed by the interveners on forms of development on the site and the impact that development would have on the heritage house does not provide a basis for an award of costs against the interveners.
It is not at all clear that the Tribunal made the finding alleged in Ground 1 of the grounds for review, namely, 'that it was arguable that a "clear view of the heritage house as determinative of any development application" could reasonably be made'. At [47] of the Costs decision, the Tribunal acknowledged Chaney J's statement that elevating 'the value of a clear view of the heritage house as determinative' of the development application had 'no justification', having regard to the provisions of TPS 3. However, the Tribunal found that 'given the context of the comments of Mr Bodycoat and the submissions of counsel for the interveners, the conclusion cannot be drawn that an award of costs should automatically follow from the findings of Chaney J'.
Although, as the Tribunal acknowledged at [47] of the Costs decision, 'Mr Bodycoat's preference was a clear view of the heritage house', as Mr Paul McQueen submitted on behalf of the interveners:
The case run by the interveners, consistent with the leave, was that this particular development should not be approved, because of heritage consequences, including the loss of view of the heritage house and consequential impact on the streetscape of the primary street, Venn Street.
Rather than the finding alleged in Ground 1, it appears that the Tribunal relevantly found, at [48] of the Costs decision, that an argument could reasonably be made by the interveners, in support of a position on preserving the significance of the heritagelisted house, that the proposed development should be refused consent. The Tribunal found that it was consistent with the leave to intervene, and not relevantly unreasonable for the purposes of an exercise of discretion as to costs under s 87(2) of the SAT Act, for the interveners to have presented this case, even if it was ultimately unsuccessful.

However, assuming that the Tribunal made the finding 'that it was arguable that a "clear view of the heritage house as determinative of any development application" could reasonably be made', this finding would not involve an error of law that would vitiate the Costs decision. Mr and Mrs Walsh submitted that the Tribunal fell into legal error in three specific respects in relation to Ground 1, namely:
1.It was required to but failed to have regard to clause 3.8.1 of WAPC Development Control Policy 1.1 Subdivision of Land;
2.It cited and accepted submissions by the interveners that there were specific provisions in TPS 3 which provided a basis for it; and
3.It accepted that Mr McQueen was entitled to make submissions on what Mr Bodycoat said in relation to the development potential of the land, even though the statements were not in the nature of expert evidence.
In relation to the first alleged error of law, Mr and Mrs Walsh referred to cl 3.8.1 of the Commission's Development Control Policy No 1.1 Subdivision of Land General Principles (DC 1.1) which states that:
The WAPC considers that all new lots should be physically capable of development for their intended purpose. Prospective purchasers of such lots should be reasonably assured that the lot is suitable in physical terms for development, and that there is a degree of assurance that the lot will so remain.
Mr and Mrs Walsh argued that:
A submission that a clear view of the [heritagelisted] house … was required would run contrary to this policy because the result of it is that nothing could be built on the land. … Once the lot was created, in accordance with clause 3.8.1, [Mr and Mrs Walsh] were entitled to assume that the lot was capable of development as a residential building lot, even if a construction on it would impact on the heritage value of the house next door.
The Tribunal therefore erred in law in finding that it was possible for the interveners to make a contention which was contrary to the requirements of clause 3.8.1 of [DC 1.1].
However, cl 3.8.1 of DC 1.1 contains a general statement in a planning policy that new lots should be physically capable of development. The statement does not have the effect of setting aside relevant environmental planning considerations, such as heritage conservation. Depending on the circumstances, in the exercise of planning discretion, environmental planning considerations may warrant the refusal of a particular proposed development or, indeed, may even potentially significantly restrict development potential of land, notwithstanding the statement in cl 3.8.1 of DC 1.1.
Furthermore, while a relevant planning policy 'will be expected to guide the exercise of discretion … the existence of such a "policy" is not intended to replace the discretion of the [consent authority] in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it': Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] per Barker J. The Tribunal has discussed the function of planning policy in planning assessment in a number of decisions summarised in Citygate Properties Pty Ltd and City of Bunbury [2009] WASAT 249 at [49] and [50]. As the Tribunal said in Cassidy and City of Subiaco [2011] WASAT 63 at [41]:
… The principles can be summarised in the following three propositions:
1)planning policy has to be considered as a fundamental element in or a focal point of the decision-making process;
2)the existence of a policy cannot replace the discretion of the decision-maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case; and
3)there must generally be a cogent reason to depart from a sound planning policy that has been regularly applied.
Clause 3.8.1 of DC 1.1 did not reasonably preclude the interveners from contending that the proposed development in this case should be refused consent because of its adverse impact on the cultural heritage value of the adjoining house.
It is correct that the Tribunal failed to refer to cl 3.8.1 of DC 1.1 in the Costs decision. However, in the circumstances, the lack of reference to the clause does not vitiate the decision. While Mr and Mrs Walsh noted that cl 3.8.1 of DC 1.1 was referred to in their list of authorities and in oral argument, it does not appear that the clause was a central part of their submissions to the Tribunal. As Pullin JA held in Zampatti v Western Australian Planning Commission [2010] WASCA 149 at [28], 'it is a prerequisite of jurisdiction [under s 244 of the PD Act] that the question of law identified must be really, and not colourably involved'. Furthermore, it appears that the Tribunal had regard to the planning principle reflected in cl 3.8.1 of DC 1.1. The same planning principle was referred to by the Tribunal in Boulter and City of Subiaco [2007] WASAT 71; (2007) 52 SR (WA) 84 (Boulter) at [64] [65] in the following terms:
The subdivision approval contemplates development of the site at a density of R50. As Mr Smith explained, the subdivision approval predetermines, to a considerable degree, the likely form of development of the site and creates a reasonable expectation for the approval of single dwellings of the nature proposed in the development application. The proposed southern house is a reasonable response to the size and orientation of the site and the applicable local zoning and planning controls. On the other hand, as Mr O'Neill pointed out, the southern house would have very poor solar access.
The imposition of a standard condition on the subdivision approval requiring the subdivider to obtain development approval for a house on each lot is not an adequate response to a planning application to create a constrained site. The subdivision approval, in itself, creates reasonable expectations for development of the site. The condition is redundant, because development approval for a house would be required in any case. Furthermore, the condition can be satisfied by the approval of a house which the subdivider does not intend to build. When the local government is ultimately presented by the landowner with a development application for a reasonably sized house for the locality which is reasonably responsive to the size and orientation of the site and the applicable local zoning and planning controls, the application must be assessed in the context of the expectations created by the approval of the subdivision.
At [42] of the DA decision, the Tribunal set out these paragraphs, together with the preceding and following paragraphs, from the decision in Boulter. At [41] of the DA decision, the Tribunal adopted the statements in Boulter. Furthermore, at [54] [55] of the Costs decision, the Tribunal said the following:
The difference between the applicants and the respondent appears to the Tribunal to be one of what weight the subdivision should have in determining the application for the proposed house. The interveners pressed upon the Tribunal that the subdivision did not entitle approval of the proposed house. The applicants' position is noted as being that the interveners have taken the argument to the extreme, that is, that no development should be allowed because any development would have an impact on the heritage house and in this approach the fact of the subdivision is made irrelevant.
The Tribunal has interpreted the interveners' submissions as not dismissing the subdivision as irrelevant but that the fact of subdivision should not determine that the proposed house should be allowed. In the event, the Tribunal did not agree with the interveners' arguments and allowed the development of the proposed house.
It appears, therefore, that the Tribunal, in making the Costs decision, took into account the planning principle reflected in cl 3.8.1 of DC 1.1, even though it did not expressly refer to that clause in the Costs decision.
In relation to the second alleged error of law, namely, that the Tribunal 'cited and accepted submissions by the interveners that there were specific provisions in TPS 3 which provided a basis for [the impugned finding]', Mr and Mrs Walsh referred, in particular, to [44] [45] of the Costs decision, which state as follows:
Mr McQueen referred to his closing submission in Walsh and Shire of Peppermint Grove on 17 December 2008. Reading that submission reveals that, in response to what he interpreted as the applicants' argument, because subdivision had been approved, the Tribunal must allow what the applicants wanted on their site. Mr McQueen said at T:24, 17.12.08:
...
[I]f this proposal before you met all of the standards of the scheme and the codes to which they apply, then yes, that would be an unassailable proposition, the scheme prescribes in such circumstances that the use is permissible, indeed permitting. But materially that is not the case here, the standards are not complied with.
Mr McQueen said that it was therefore up to the Tribunal to determine whether or not discretion should be exercised to approve the proposed house, and that was when considerations, including the impact on the heritage house, became relevant. That is, the myriad of planning factors, including the preservation of heritage, became enlivened. Further, at T:27, 17.12.08:
If the [T]ribunal forms the view that there will be a detrimental impact on the heritage value of the house at 1B, and I say that is a finding which is irresistible based on the heritage evidence, then it is entirely appropriate to refuse this application. If it is the case that the applicant cannot build the house it wants in conformity with the scheme provisions, then that is an outcome which is entirely consistent - that is, refusal with other decisions of the [T]ribunal.
Mr and Mrs Walsh submitted that 'the Tribunal, at paragraphs 44 and 45, has cited and appears to have had significant regard to various statements Mr McQueen made at the initial hearing'. It is not entirely clear that the Tribunal had 'significant regard' to the submissions extracted at [44] [45] of the Costs decision. Those paragraphs of the Costs decision appear to simply recount a part of the interveners' argument. However, assuming that the Tribunal did have 'significant regard' to the statements set out in those paragraphs, no error of law is disclosed in this regard.
Mr and Mrs Walsh submitted that:
… There ended up being no provisions in TPS 3 [that] could have supported the conclusion that that [sic] 'the standards are not complied with' or that a house would not be 'in conformity with the scheme provisions' if it blocked the view to the house at 1B Venn Street from Irvine Street as Mr McQueen had earlier contended. This is what led Justice Chaney to the conclusion that '[t]here was no justification for that contention having regard to the provisions of TPS 3 which I have referred to above'.
However, Chaney J did not hold in the Section 244 decision that Scheme provisions were not relevant to heritage conservation issues. While not a development 'standard', cl 5.1.1 of TPS 3, which was set out at [74] of the DA decision, is a provision of the Scheme in relation to heritage conservation upon which the interveners relied. Clause 5.1.1 of TPS 3 stated:
…
The purpose and intent of the heritage provisions are:
a)to facilitate the conservation of places of heritage value; [and]
b)to ensure as far as possible that development occurs with due regard to heritage values and in harmony with it.
As noted earlier, the adjoining house is listed on the MHI. Moreover, it has been recognised in numerous decisions of the Tribunal that 'orderly and proper planning', which is a matter for consideration under all local planning schemes (see, in particular, cl 6.3.2 of TPS 3), includes the conservation of cultural heritage: see, for example, Whelans (WA) Pty Ltd and Town of Claremont [2009] WASAT 94 at [67] [68]. Furthermore, in granting the interveners leave to intervene, the Tribunal clearly accepted that the impact of the proposed development on the adjoining heritagelisted house was a relevant matter for consideration in the assessment of whether the proposed development should be approved under TPS 3.
The third error of law alleged by Mr and Mrs Walsh, namely, that the Tribunal 'accepted that Mr McQueen was entitled to make submissions on what Mr Bodycoat said in relation to the development potential of the land, even though these statements were not in the nature of expert evidence', appears to be based on what the Tribunal said at [40] of the Costs decision. Paragraph [40] of the Costs decision is as follows:
Essentially, the argument of the interveners was that, consistent with the leave granted by the Tribunal, Mr Bodycoat was called, he gave his evidence on the heritage issues, there was crossexamination of that evidence; and then counsel for the interveners made submissions about the impact of the proposed house on the existing heritage dwelling to the rear. Mr McQueen's submission was that, if he said in closing that nothing should be developed on the site to reinforce a point, he could not see, with respect, how that, of itself, could give rise to a basis to say the interveners had behaved unreasonably when they had called an expert, the expert has given evidence, and the joint experts' statement is consistent with that evidence.
Mr and Mrs Walsh submitted that:
… it was certainly open for Mr Bodycoat to provide evidence to the effect anything that could be constructed on the site would adversely impact on the heritage value [of] the house at 1B Venn Street but any statements by him to the effect that the land was incapable of development was not expert evidence upon which Mr McQueen was entitled to draw conclusions, because the statements are on a legal question, not a question of fact.
However, it is clear from the extracts of Mr Bodycoat's evidence in the transcript set out at [42] [43] of the Costs decision that his ultimately expressed view that 'I don't see any reasonable economic development at all [for the site]', was based upon or, as Mr Michael Hardy, counsel for Mr and Mrs Walsh, put it to Mr Bodycoat in crossexamination, 'the end product of', Mr Bodycoat's evidence that:
[Even a one level development on the site] will … obscure to a lesser degree than a two-storey house, but its presence in that what I see as being an important part of the presentation of the house, the historic house on it's [sic] original lot. It will spoil that. It will degrade it and a compromise would only be a small house moved as far east as it could possibly go because then you would still see from Irvine Street the way in which the heritage values are generated because it's a large house on a large piece of land set well back from Irvine Street.
It is clear that Mr Bodycoat's evidence that he did not see 'any reasonable economic development' of the site was based upon his evidence that even a onelevel development on the site would have an unacceptable impact on the cultural heritage value of the heritagelisted house. While Mr Bodycoat's evidence was not accepted in the DA decision, he was qualified, as a heritage architect, to give the evidence that he gave, and Mr McQueen was entitled to rely upon it.

Ground 2 Failing to find that the interveners had adopted a position that the fact of subdivision was an irrelevant consideration

Mr and Mrs Walsh argued that the Tribunal erred in the Costs decision in failing to find that the interveners had adopted a position in the proceeding involving the review of the Council's refusal of the development application that the fact of subdivision of the site was an irrelevant consideration. In support of this ground, Mr and Mrs Walsh relied on the position adopted by the interveners in their application for a review by a judicial member in proceeding DR 140 of 2009 of the DA decision. As Chaney J observed at [2] of the Section 244 decision, in the application for a review by a judicial member:
The applicants contended that the Tribunal had erred in law by having regard to, or giving too much weight to, the earlier subdivision of the land.
However, Ground 2 does not involve a question of law, but rather is, in effect, a challenge to a finding of fact. Section 244 of the PD Act does not confer a right of review in relation to Ground 2.
Furthermore, Mr and Mrs Walsh's submissions in relation to Ground 2 conflate the interveners' positions in relation to (a) the application for a review by a judicial member of the DA decision and (b) the application for review of the decision of the Council to refuse approval for the development application. In the application for review of the Council's decision to refuse the development application, 'the interveners' submissions [did] not [dismiss] the subdivision as irrelevant but [contended] that the fact of subdivision should not determine that the proposed house should be allowed' (Costs decision at [55]) and that the proposed development should be refused in the exercise of planning discretion. In contrast, in the application for a review by a judicial member of the DA decision, the interveners 'contended that the Tribunal had erred in law [in the DA decision] by having regard to, or giving too much weight to, the earlier subdivision of the land' (Section 244 decision at [2]). Significantly, the application for a review by a judicial member was made in a different proceeding (proceeding DR 140 of 2009) to the application for review of the refusal by the Council to grant development approval (proceeding DR 265 of 2008). Significantly, also, the application for a review by a judicial member was commenced pursuant to a different enabling provision (s 244 of the PD Act) than was the application for review of the refusal of the development application (s 252(1) of the PD Act). Therefore, as the interveners submitted in the present matter:
… Even if it is found that the Interveners were unreasonable in relation to the [s 244 of the PD Act] review proceedings, by reference to arguments surrounding the Tribunal's reliance on the grant of subdivision approval, which is disputed, that would not found a basis for costs in relation to the Original Proceedings [that is, the proceeding involving the review of the Council's refusal of the development application culminating in the DA decision].

Conclusion

The Tribunal did not err in law, or did not err in law in a manner that would vitiate the Costs decision, as alleged by Mr and Mrs Walsh. The application for review by a judicial member in relation to the Costs decision should be dismissed and the determination of the Tribunal made in the costs decision should be affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The determination of the Tribunal in Walsh and Shire of Peppermint Grove [2009] WASAT 46 (S) is affirmed.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT