| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WALSH and SHIRE OF PEPPERMINT GROVE [2009] WASAT 46 (S) MEMBER : MR J JORDAN (MEMBER) HEARD : 22 DECEMBER 2010 DELIVERED : 17 MARCH 2009 SUPPLEMENTARY
DECISION : 21 MARCH 2011 FILE NO/S : DR 265 of 2008 BETWEEN : TERENCE WILLIAM JOSEPH WALSH CHELSEA REBELLE WALSH
Applicants
AND
SHIRE OF PEPPERMINT GROVE
Respondent
RICHARD GOYDER
JANINE GOYDER
DAVID THOMAS
RACHEL THOMAS
Interveners
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Catchwords: Costs - Town planning - Development application - Local government supported earlier subdivision to create vacant lot - Local government refused application to develop single house on vacant lot - Certain neighbours granted leave to intervene in hearing to review planning refusal - Leave to intervene restricted to heritage issues - Proposed house granted conditional development approval by Tribunal on review - Application for costs against interveners - Interveners said to have pursued unreasonable arguments - Interveners said to have gone outside scope of leave to intervene - Claim for compensation for personal suffering because of actions of interveners in proceeding Legislation: Planning and Development Act 2005 (WA), s 242, s 243, s 244
Residential Design Codes of Western Australia (2008)
Shire of Peppermint Grove Town Planning Scheme No 3, cl 4.4(a), cl 6.3.2
State Administrative Tribunal Act 2004 (WA), s 3, s 25, s 26, s 27, s 37, Div 5, s 87, s 88, s 88(2) Result: The claim for costs is dismissed Category: B
Representation: Counsel:
Applicants : Self-represented
Respondent : No appearance
Interveners : Mr P McQueen
Solicitors:
Applicants : Self-represented
Respondent : No appearance
Interveners : Lavan Legal
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Case(s) referred to in decision(s):
Aydogen and Town of Cambridge [2007] WASAT 19
Boulter and City of Subiaco [2007] WASAT 71
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397
Goyder and Walsh [2009] WASAT 108
ING Development Australia and Western Australian Planning Commission [2008] WASAT 104
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] 41 SR (WA) 207; [2005] WASAT 143 (S)
Tran and Town of Vincent [2009] WASAT 123
Walsh and Shire of Peppermint Grove [2009] WASAT 46
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 In 2007, the Western Australian Planning Commission approved the subdivision of a lot on the corner of Irvine Street and Venn Street, Peppermint Grove. The subdivision had the effect of creating a vacant lot fronting Irvine Street and a lot containing a heritage house facing Venn Street. The vacant lot was previously the front yard of the heritage house. The Shire of Peppermint Grove supported the subdivision. 2 In 2008, the Shire of Peppermint Grove refused an application for development approval to build a two-storey house on the Irvine Street lot. An application for review of the refusal was lodged with the Tribunal. 3 One of the issues raised in support of the refusal was the adverse impact of the proposed house on the heritage house. The Shire of Peppermint Grove informed the Tribunal it would not be making submissions on this issue. The Tribunal considered that there was a valid heritage issue to be argued and granted interveners leave to adduce evidence and make submissions on the heritage issue. 4 The Tribunal heard the matter and determined that development approval be granted for the proposed house. 5 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. 6 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 (Page 5)
Tribunal Act 2004 (WA) did not provide a basis for a claim for compensation for personal suffering. 7 The Tribunal found that there was no basis for an award of costs in favour of the applicants and dismissed the claim for costs.
Background 8 In March 2008, Mr T Walsh and Mrs C Walsh (applicants) lodged with the Shire of Peppermint Grove (Council or respondent) an application for development approval for a twostorey single house on No 18 Irvine Street, corner Venn Street, Peppermint Grove (site). 9 The background to the creation of the site includes events set out in Walsh and Shire of Peppermint Grove [2009] WASAT 46 (Walsh and Shire of Peppermint Grove) at [16], [17] and [20]: On 11 June 2007, the Western Australian Planning Commission (Commission) approved the subdivision of what was then No 18 (Lot 42) Irvine Street, on the southeast corner of the junction of Venn Street with Irvine Street. Lot 42 had on it a single-storey house built in 1896. This house is listed on the Council's Municipal Heritage Inventory1999 (MHI). The heritage listed house has verandahs on the east, north and west sides. It was originally orientated to face north towards Irvine Street, with steps down from the northern verandah to what was the front yard between the house and Irvine Street. The subdivision applied for and approved by the Commission was to excise the front yard. The new lot became No 18 Irvine Street (Lot 1) a vacant lot of 669 square metres that is now the site of this development proposal. The remainder became No 1B (Lot 2) Venn Street, adjoining to the south, containing the heritage listed house with a frontage of 28.29 metres to Venn Street, a depth of 40.19 metres, and an area of 1173 square metres. The subdivision approval required that the front steps of the heritage house be demolished and the boundary aligned to ensure that there remained a setback of at least 900 millimetres from the house. The Council, at its meeting of 21 May 2007, resolved to recommend to the Commission that the subdivision be approved. Subsequent to the Commission's approval, the applicants had discussions with Council officers about planning controls and the development potential of the site. They purchased the site in November 2007. 10 The Council, pursuant to the provisions of the Shire of Peppermint Grove Town Planning Scheme No 3 (TPS 3), refused the application for approval to commence development of the proposed house on 24 June 2008. The reasons for refusal included reference to the impact (Page 6)
of the proposed house on the heritagelisted residence at No 1B Venn Street because of bulk and scale, and overshadowing. 11 In July 2008, the applicants filed with the Tribunal an application for review of the Council's refusal. The issues in the matter listed by the Council, as respondent, included whether the proposed house would impact on the heritage qualities of the house at No 1B Venn Street. 12 In July 2008, Lavan Legal made application on behalf of Mr Richard Goyder, Mrs Janine Goyder, Mr David Thomas and Mrs Rachel Thomas (interveners), the owners respectively of two houses diagonally opposite the site in Irvine Street, for leave to intervene and/or make submissions in respect of the proceedings pursuant to s 37 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and s 242 of the Planning and Development Act 2005 (WA) (PD Act). Walsh and Shire of Peppermint Grove at [36] and [37] relates that the respondent was not calling an expert heritage witness, and the applicants for leave to intervene proposed to adduce evidence from Mr Ronald Bodycoat, a heritage architect. Then Deputy President, Judge Chaney, issued orders which, when complete, included Order 3 that the interveners: ... have leave to intervene for the limited purpose of adducing evidence from Mr Ronald Bodycoat and making submissions on the heritage issue. 13 The final hearing in the matter was in December 2008 and in March 2009 the Tribunal handed down a decision granting development approval for the proposed house, subject to conditions. 14 The interveners then applied to the Tribunal, under s 244 of the PD Act, for a review by a judicial member of the Tribunal of the approval decision by the Tribunal, which was constituted by two nonlegally qualified members, to approve the house on the site. On 2 June 2009, the Tribunal President, Chaney J, dismissed that application: Goyder and Walsh [2009] WASAT 108 (Goyder and Walsh). 15 On 16 August 2010, the applicants filed with the Tribunal 'Submissions of the Applicants in support of an application for costs and/or compensation against the interveners in the above proceedings under sections 87 and 88 of the State Administrative Tribunal Act 2004 (WA)'. On 6 September 2010, the Council requested that it be excused from any involvement in proceedings associated with this application for costs, noting that the application was filed only against the interveners and not the respondent. The Tribunal advised the respondent on 6 September 2010 that the Council need not attend. (Page 7)
16 Submissions in the matter were then filed on behalf of the interveners and the matter was heard by the Tribunal on 22 December 2010.
Legislation 17 'Division 5 - Costs' of the SAT Act includes: 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 - (5) The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party. (Page 8)
(6) The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs. 18 During the proceeding, Mr P McQueen, counsel for the interveners, queried, but without making submissions, as to whether s 87 of the SAT Act would apply in this instance because his clients were interveners and not a party. He said that s 87(3) applied to parties but under s 243 of the PD Act a third party cannot be joined as a party to the proceeding. 19 The applicants said only that when Chaney J granted the interveners leave to intervene '[t]he interveners thereby became parties to the proceedings'. 20 The Tribunal, without ruling on the point, has proceeded on the basis that where an intervener has leave to produce expert witnesses, crossexamine other expert witnesses and make submissions, it would be appropriate that an intervener be the subject of a claim for costs from a party to the proceeding. 21 The applicants' submission set out why they considered the interveners were liable to reimburse them for 'costs and/or compensation'. These included 'because they failed to "enable and assist the decision[]maker" … '. 22 The Tribunal considers this part of the application is misconceived. Section 87(4)(a) of the SAT Act requires regard to be had to: 23 The Tribunal would comment that the Tribunal is not the 'decisionmaker' in a proper construction of s 87(4) of the SAT Act. The Council is the 'decisionmaker' and the Tribunal has to have regard to whether a party 'genuinely attempted to enable and assist the decisionmaker' (s 87(4)(a)) or whether the decision-maker 'genuinely attempted to make a decision on its merits' (s 87(4)(b) of the Act). (Page 9)
24 The Tribunal would add that 'decision-maker' is defined in s 3 of the SAT Act to mean 'a person who makes a reviewable decision' and the term is used consistently throughout the SAT Act as a reference to the original decisionmaker, for example, in s 25, s 26 and s 27. The principles of statutory interpretation require consistent application of the term throughout the Act. 25 The conduct and arguments referred to by the applicants as warranting the granting of costs against the interveners occurred during the Tribunal's hearing into the Council's refusal of the proposed house. There were no submissions before the Tribunal from the applicants that the conduct of the interveners complained of occurred at the time the decision-maker was making the decision that was subsequently the subject of review before the Tribunal. 26 The parties did not make submissions on the application of s 87(4) of the SAT Act but, in any event, the Tribunal has proceeded on the basis that s 87(4) does not limit the range of relevant considerations as to costs. It was common ground that the Tribunal is a 'no costs' jurisdiction but that the Tribunal has power under s 87(2) of the SAT Act to order the payment of the costs of the applicant. In Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246 (Citygate Properties) at [28], the Tribunal held: It is apparent from the terms of s 87(1) of the [SAT] Act that the starting proposition in this Tribunal is that parties bear their own costs in a proceeding. However, s 87(2) clearly 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 unless otherwise specified in an enabling Act. ... 27 The applicants also referred to s 88 of the SAT Act in the title of their submission and cited s 88(2) of the Act but made no further submissions specific to the section. The Tribunal would comment that s 88 of the SAT Act is not relevant to the applicants' case. In Aydogen and Town of Cambridge [2007] WASAT 19 at [20], the Tribunal stated: The application for costs under s 88(3)(a) and s 88(3)(b) of the SAT Act is misconceived. As sub-section (1) makes plain, s 88 is concerned with [']costs of, or incidental to, a proceeding of the Tribunal, other than costs of a party['] (emphasis added). Section 88(2) confers power on the Tribunal to order that a party pay all or any of these costs. In other words, s 88 enables the Tribunal to make an order requiring a party to pay the Tribunal's costs of a proceeding, not another party's costs of a proceeding. (Page 10)
Discussion 28 As noted in the background set out above, the Tribunal had determined that the interveners would assist the Tribunal. In ING Development Australia and Western Australian Planning Commission [2008] WASAT 104, it states at [16]: The purpose of review proceedings in the Tribunal is to produce the correct and preferable decision at the time of the decision upon the review - SAT Act s 27(2). The purposes of the PD Act include the provision of an efficient and effective land use planning system in the State and the promotion of the sustainable use and development of land in the State - PD Act s 3(1). It is an objective of the Tribunal to review decisions fairly and according to the substantial merits of the case - SAT Act s 9. There may be cases where those objectives might be served by allowing a nonparty to intervene in a proceeding where, to do so, might assist the Tribunal to adequately deal with the proper disposition of the review. ... 29 The interveners were granted leave in Walsh and Shire of Peppermint Grove to adduce evidence from a heritage architect, Mr Ronald Bodycoat, and make submissions in order to assist the Tribunal with determining the heritage issues raised by the respondent. 30 The applicants have pointed out that, as stated by the Tribunal in Tran and Town of Vincent [2009] WASAT 123 (S) at [29], successful costs applications are a 'rare bird … '. The applicants said, however, that costs orders are made and should be made in appropriate circumstances. It was the submission of Mr Walsh, for the applicants, that the applicants consider this to be an appropriate circumstance. The interveners, through the evidence of their heritage expert and submissions of their counsel, had failed to act 'reasonably' in a number of fundamental respects. 31 The applicants further argued that pursuant to s 87(3) of the SAT Act, they should be awarded compensation for loss and damage associated with delay, loss of enjoyment, stress and anxiety. The submissions of the applicants will now be addressed in turn.
No reasonable economic development 32 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 at [54] where Chaney J said: (Page 11)
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. 33 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'. 34 In support of his submissions, Mr Walsh referred to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 (Fountain Meats) in which Woodward J, in the context of an award for indemnity costs, found that, where an action had been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success, the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. 35 It was Mr Walsh's contention that his Honour's finding that there was 'no justification' for the interveners' argument that there should be no development on the land, was very serious and fits squarely within the Fountain Meats test of an unmeritorious argument having been advanced with wilful disregard of the established law. On the basis of his Honour's findings alone, the applicants should be entitled to recover costs, or at least that part of the costs associated with debating the unmeritorious argument, that there should be no development on the land. 36 The applicants estimated that the hearing would have been concluded in a day, and not taken a day and a half, had it not been necessary to deal with the argument that there should be no development on the site in the evidence adduced by Mr Bodycoat and in the interveners' counsel's line of crossexamination of the applicants' heritage expert. 37 Mr McQueen, for the interveners, citing Boulter and City of Subiaco [2007] WASAT 71, said that the subdivision, of itself, does not create an entitlement to a particular type of house. He also referred to comments by the heritage experts for both the applicants, and the interveners in their joint statement, dated 11 December 2008 at [6] that: (Page 12)
We are in agreement that the creation of the subject lot results in any ensuing development (this or any other proposal) potentially visually impacting on the historic house at 1B Venn Street. 38 It was the submission of Mr McQueen, at T:21, 22.12.10, that: With respect, I believe it's a jaundiced position to take that our case was built around one argument[,] and that is[,] nothing should be built there. Certainly, there was an element of that[,] as a conclusion based on everything else that had been put forward that the primary case was still [that] this house should not be approved on this site because it's inconsistent with the heritage values of the house behind. 39 It was the interveners' submission that because an argument failed it does not mean that costs should be awarded. If that were the test, every unsuccessful party would be at risk of receiving a costs order against them. There were no costs thrown away by the applicants. 40 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. 41 Mr McQueen said this was a serious matter. If neighbours of a proposed development have been granted leave to intervene and to specifically comment on a proposal, and they comply materially with the leave to intervene, they shouldn't be at risk of a later costs order. Mr McQueen said neither the Tribunal in Walsh and Shire of Peppermint Grove nor Chaney J in Goyder and Walsh found that the interveners had behaved unreasonably in the proceedings. There was no such finding and Mr McQueen said, with the greatest respect, such an inference cannot be drawn from [54] of Goyder and Walsh. 42 Reference to the transcript of Walsh and Shire of Peppermint Grove shows that Mr McQueen, for the applicants, asked Mr Bodycoat how critical it is to maintain a view of the heritage house from Irvine Street (at T:91, 16.12.08): (Page 13)
Bodycoat, Mr: I think it's crucial because that's as we say today notwithstanding the high mason wall that is there that tends to obstruct that, but it's [sic] intention originally and it's still maintained from Irvine Street at the moment, the primary view is from Irvine Street and from the corner. Now, for that reason anything you build in lot 1 is going to obstruct, obscure and certainly degrade the vision, the streetscape value, of the existing historic house. McQueen, Mr: And in terms of what could be built on lot 1 as opposed to what is proposed, what do you say? Is there an opportunity to build something which is more sympathetic to the heritage house or not? Bodycoat, Mr: If it wasn't for a drainage easement on the eastern boundary may be you could build a much smaller house in the northeast corner, in other words the eastern end of the new lot 1. But the house would be of such a small size it would not warrant building such a house on a piece of land that has been expensive to buy. 43 Under crossexamination by Mr Hardy, counsel for the applicants, about whether even a onelevel development on the site would substantially obscure the northern elevation of No 1B Venn Street, it was stated at T:92 T:93, 16.12.08: Bodycoat, Mr: It will not only obscure to a lesser degree than a twostorey 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 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. Hardy, Mr: So the end product of that is that if that objective is to be achieved there can be no development on lot 1 at all. Bodycoat, Mr: I don't see any reasonable economic development at all. 44 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 (Page 14)
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. 45 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. 46 Mr McQueen went on to discuss the variation from the acceptable development standards of the Residential Design Codes of Western Australia (2008) and to argue that the difference was so great that the discretion to allow the proposed dwelling should not be exercised, at T:29, 17.12.08: The correct and proper planning approach, in my submission, is not to endeavour to squeeze a big house into a small lot, which is going to adversely impact on the heritage building simply because the lot has been created. ... 47 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 (Page 15)
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. 48 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.
Subdivision as a relevant consideration 49 At the hearing of Walsh and Shire of Peppermint Grove the evidence was that in 2007 the Council had decided that subdivision of then No 18 Irvine Street was one way of funding restoration of the heritage house at No 1B Venn Street and had recommended approval. The subdivision that created the site was approved in 2007. Mr Walsh said that the interveners should have availed themselves of opportunities to object to, or should have taken legal action, to attempt to prevent the subdivision at that time. 50 The applicants' submission was that in the hearing of Goyder and Walsh it became clear that counsel for the interveners and Mr Bodycoat had been proceeding on the basis that the fact of subdivision was a consideration irrelevant to a development proposal for the site. The interveners had, however, argued that pursuant to cl 6.3.2 of TPS 3, amenity and orderly and proper planning were the basis of the heritage argument. The applicants pointed out that the subdivision, which was supported by the Council, was also the result of orderly and proper planning, and it was therefore unreasonable conduct for the interveners to argue in the face of such evidence that the Council's support for the subdivision was an irrelevant consideration. 51 Mr McQueen said that the primary argument advanced by the interveners was in relation to the impact of the proposed development on (Page 16)
the heritage house and comments made about the subdivision were subordinate to that. He emphasised that the argument was that 'subdivision has been approved, but that of itself does not create an entitlement to build a particular type of house'. An exercise of discretion would have been required to allow the proposed house and that discretion should not have been exercised because of the impact the interveners considered there would be on the heritage house. 52 In response to the comment by the applicants that the interveners had not taken action to prevent the creation of the site at the subdivision stage, Mr McQueen said that, whatever the merits of such action might have been and the fact that no action was initiated 'is irrelevant in the context of these proceedings and that costs should be awarded because the interveners were granted that opportunity [to intervene] and exercised the entitlement appropriately in accordance with the order made by Chaney J' [T: 22.12.10]. 53 The Tribunal notes that in Goyder and Shire of Peppermint Grove, the subdivision was referred to by both parties and the interveners. The fact of subdivision had to be a consideration because under cl 4.4(a) of TPS 3, not more than a single family detached dwelling can be developed on a residential lot coded R12.5, which includes the site and No 1B Venn Street. Without subdivision, no additional house could be considered for the original lot because the second house would have been a grouped dwelling, and that form of development is prohibited in the zone under TPS 3. 54 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. 55 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. (Page 17)
56 The Tribunal considers that the interveners playing down of the fact of subdivision as a determinative factor in what form of development might be allowed on the site did not reduce the fact of subdivision to irrelevancy. The Tribunal has concluded that the interveners' approach to the fact of the subdivision does not result in a basis for a claim for costs against the interveners.
Redevelopment plans for No 1B Venn Street 57 The witness statement of heritage expert, Ms Nerida Moredoundt, called by the applicants in Walsh and Shire of Peppermint Grove (Exhibit 12), included, at Attachment 1, copies of redevelopment plans for the heritage house at No 1B Venn Street. These plans were before the Council at the same time as the subdivision application. The applicants say that because Mr Bodycoat did not refer to these plans in his witness statement (Exhibit 15), 'his reports and findings were essentially redundant from the outset because they were discussing the impact of a proposal on a house which was always planned to be significantly different to what previously existed on the site'. 58 The applicants argued for the costs associated with engaging an expert to deal with these redundant arguments of Mr Bodycoat. 59 The Tribunal notes that in their joint witness statement (Exhibit 13), the two heritage experts did refer to previous and proposed changes to the house at No 1B Venn Street. At the hearing, the heritage experts were examined on the changes to the heritage house, changes which were evident in the viewing of the site by the Tribunal. The plans show the northern half of the existing house, closest to Irvine Street, would remain essentially unchanged, other than the removal of the steps up to the northern verandah. Both experts gave their opinions on the relationship between the proposed development, the northern section of the heritage house to be retained and the new additions to the southern side of the heritage house: Walsh and Shire of Peppermint Grove at [78] and [79]. 60 Notwithstanding the content that might have been lacking from his original witness statement, Mr Bodycoat was available for examination before the Tribunal and the effect of the redevelopment of the heritage house was addressed. The Tribunal does not consider that Mr Bodycoat's participation in this respect provides a basis for a claim for costs. (Page 18)
Claim for costs under s 87(3) of the SAT Act 61 The applicants submitted that the interveners were trying to stop any development of the site, for which the applicants had paid a significant amount of money and purchased in good faith. That put untold stress on the applicants and their family. The applicants referred to s 87(3) of the SAT Act, which entitles the Tribunal to make an order for one party to make a payment 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'. 62 Mr Walsh noted that there did not seem to be any precedent from the Tribunal confirming that the loss or damages associated with loss of enjoyment, stress or anxiety were recoverable as 'compensation' under s 87(3) of the SAT Act. He said, however, that if the drafter of the SAT Act had intended that the legislation be limited solely to costs, the drafter would have said so. 63 Mr Walsh sought a finding that s 87 of the SAT Act was not simply limited to costs. He said that in this instance, because of the interveners, the applicants had holding costs, legal costs, expert costs and, in addition, it has taken hundreds of hours of his time and caused stress and loss of enjoyment. If the Tribunal were to find in the applicants' favour in that regard, then he would be prepared to come back to the Tribunal and put the evidence he has in support of his submission. 64 Mr McQueen, for the interveners, made reference to the Tribunal's decision in Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] 41 SR (WA) 207; [2005] WASAT 143 (S) (Springmist). In that matter, the Tribunal rejected the argument that the scope of s 87 of the SAT Act went beyond costs of the proceedings. Notwithstanding the language of s 87(3) of the SAT Act, the judgment concluded that the section was in fact limited to costs in a proceeding of the Tribunal. 65 Mr McQueen's submission was that, therefore, with respect, there was no scope for the Tribunal to do anything other than award costs of the proceeding. That is, there was no opportunity to award what would, in effect, be damages or expenses that have been incurred by the applicants. Mr McQueen said that the reasons for the application to recover costs seemed, with respect, to be personal to the applicants. In his submission, matters such as stress and the extra costs associated with the proceedings were not relevant considerations. Mr McQueen went on to say at T:17, 22.12.10: (Page 19)
66 The Tribunal notes that in Springmist, 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 application to the Tribunal was 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) of the Act. In Springmist, the Tribunal considered it appropriate to make observations about the nature of losses and expenses to which s 87(3) of the Act refers. The Tribunal held at [63] - [65]: ... 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 (Page 20)
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. 67 The Tribunal, with respect, adopts the findings of the Tribunal in respect of s 87(3) of the SAT Act in Springmist. That is, s 87(3) of the Act explains that costs 'in the proceeding' can be covered, but does not extend to damages beyond the hearing[,] such as loss of enjoyment, stress experienced and inconvenience because the hearing has been commenced and includes the interveners. 68 The Tribunal finds that, consistent with the findings in Springmist, s 87(3) of the SAT Act does not provide the applicants with a basis for compensation for the personal suffering they have identified.
Conclusion 69 In Walsh and Shire of Peppermint Grove, the respondent raised as an issue: Would the Proposal adversely impact on the heritage qualities of the residence at 1B Venn Street? 70 When the respondent informed the Tribunal it would not be adducing evidence or making submissions on this issue, the Tribunal, finding that there was a valid heritage issue to be argued, granted the interveners leave to do so. 71 The applicant says that the interveners, in the arguments they raised, have acted outside the scope of the leave to intervene granted by the Tribunal. In having to engage a heritage expert and counsel for additional hearing time to address the interveners' 'unreasonable' arguments, an award of costs should be made. In addition, the applicants 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. 72 The Tribunal has formed the view that it was open to the interveners within the leave granted to them to make the submissions that were made. The Tribunal considers the submissions reasonably arose out of the interveners' view of the impact of the proposed development on the (Page 21)
heritage value of the existing house and on the contribution of the heritage house to the Irvine Street streetscape. The Tribunal has further found that s 87(3) of the SAT Act does not provide a basis for a claim for compensation for personal suffering. 73 The Tribunal, in Walsh and Shire of Peppermint Grove, ultimately, was not persuaded by the interveners' arguments and allowed the application. The Tribunal is a 'no costs' jurisdiction. The failure of the arguments to persuade the Tribunal does not, of itself, give rise to a claim for costs by the applicants. As set out in the discussion above, the Tribunal has found in this case, in respect of the particular arguments advanced by the applicants, that there is not a basis for exercising discretion and departing from the usual position that each party bear its own costs in the proceeding. The Tribunal has decided to dismiss the claim for costs.
Order 74 The claim for costs is dismissed. |