[2010] TASRMPAT 100

ADDRESS: 150, 152 and 164 Upper Hilton Road, Claremont

TITLE OF TRIBUNAL: Resource Management and Planning Appeal Tribunal

HEARING DATE: Submissions were made and responded to in writing.

1. By decision dated 3 December 2009, the Tribunal made an order setting aside the decision appealed against and in substitution therefore directed the issuing of a permit subject to conditions.

2. The conditions were dealt with in a supplementary decision of 29 January 2010. That supplementary decision left open the issue of costs. By letter dated 9 February 2010, Mr and Mrs Devine sought the following order:

'That the parties joined, Horder and Butler, pay the Appellant's costs of and incidental to this appeal, such costs to be determined as nearly as practicable in accordance with 90% of the highest scale of the costs for the time being in force pursuant to the Supreme Court Rules 2000 and, if not, to be assessed by the Registrar of the Tribunal'.

3. The application for costs is expressly limited to an order against the parties joined; Mr and Mrs Devine do not seek an order for costs against the Glenorchy City Council.

4. The parties joined oppose the making of an order for costs.

5. The question of costs is dealt with in Section 28 of the Resource Management and Planning Appeal Tribunal Act 1993 (the Appeal Tribunal Act). Relevantly, that section provides as follows:-

(1) Each party to an appeal is to pay its own costs.

(2) However, the Appeal Tribunal may order a party to an appeal to pay all or part of the costs of another party to the appeal if the Appeal Tribunal is satisfied that it is fair and reasonable to do so.

(3) For the purposes of subsection (2), the Appeal Tribunal may take into account any of the following matters:

(a) whether the appeal appears to the Appeal Tribunal to have been instituted merely to delay or obstruct;

(b) whether in the Appeal Tribunal's opinion a party has raised frivolous or vexatious issues;

(c) the relative merits of the claims made by each of the parties;

(d) whether in the Appeal Tribunal's opinion a party has unnecessarily or unreasonably prolonged the appeal or increased the costs of it;

(e) whether a party has failed to comply with a direction or order of the Appeal Tribunal without reasonable excuse;

(f) whether a party has failed to comply with any relevant law or planning scheme;

(g) the nature, complexity and outcome of the appeal;

(h) the capacity of the parties to meet an order for costs;

(i) any other matter the Appeal Tribunal considers relevant.

6. It will be seen that the provision establishes a statutory presumption that, unless it is fair and reasonable to do otherwise, the parties to an appeal should pay their own costs.

Factual Background

7. Mr and Mrs Devine point to the following as justifying an order for costs:-

 The Council, despite professional planning advice, (as it was entitled so to do) made a decision to refuse Mr and Mrs Devine a permit. Mr and Mrs Devine appealed to the Tribunal.

 The Council advised the Tribunal by letter dated 30 September 2009 that was "not in a position to call expert planning evidence in support of its decision to refuse to grant a permit". At the same time, apparently, it advised that it was willing to settle this matter by consent on the basis that a permit issues subject to the conditions recommended in the officer's report that was before the Council.

 The Parties Joined made application to expand the grounds of refusal and it was these issues that were the subject of the appeal.

 In an email dated 13 October 2009, Messrs Dobson Mitchell and Allport advised that Mr Butler (one of the Parties Joined) was applying to join in his own right.

 By email dated 6 November 2009, Mr and Mrs Devine made an offer to the Parties Joined to settle this matter. The offer was expressed to be without prejudice save as to costs. In substance, the offer was to resolve the matter on the basis that if the parties joined agreed within seven days to enter into a consent agreement with the Council and the Applicants for the issue of a permit subject to conditions generally in accordance with the conditions recommended by the planning officer to the Council in the first place. No order for costs would be sought against the Parties joined.

 Self evidently, the Parties Joined did not accept that offer.

 The appeal as has already been indicated, was disposed of by the Tribunal in favour of Mr and Mrs Devine. In so doing, the Tribunal accepted the planning evidence called by Mr and Mrs Devine and, in contrast rejected evidence from a planner called by the Parties Joined.

8. Mr and Mrs Devine submit that the above facts, which are not in dispute, justify an order for costs.

Frivolous or Vexatious Issues - Section 28(3)(b)

9. It is submitted that the issue of services was raised by the Parties Joined but no evidence was produced. This submission is made out but does not lead only, in the Tribunal's view, to a conclusion that the raising of the issue was frivolous or vexatious. It was an issue traversed, as is pointed out by the Parties Joined, in cross-examination of the Council's engineering expert and in the light of what appeared to be anomalies in expert evidence called by the Developer, particularly the failure to inspect the site at all for 15 months prior to the hearing, was not an unreasonable matter to pursue.

Relative Merits - Section 28(3)(c)

10. Mr and Mrs Devine submit that they were wholly successful in relation to the appeal. Whilst this may be true the reality is, however, that in virtually all planning appeals it is necessary to a greater or lesser extent to make a decision as between the evidence called or adduced by one party as against another. The conclusion in this case was that whilst the Tribunal preferred Mr Shepherd's evidence over Mr Boardman and it follows that in relative merit terms Mr and Mrs Devine's case enjoyed more than the Parties Joined, this issue is not dispositive of the costs application. The mere fact of a win or a loss in the context of this statutory scheme does not, as it would in an "ordinary" costs regime justify a costs order.

Unnecessary or Unreasonable Prolongation of the Appeal - Section 28(3)(d)

11. There is nothing that allows for the conclusion that the Parties Joined did anything to unnecessarily or unreasonably prolong this appeal. The mere fact of seeking and being granted leave to broaden the ambit of the Tribunal's inquiry, whilst undoubtedly leading to a prolonging of the appeal, does not necessarily and does not in the circumstances of this case, lead to a conclusion that the prolonging was either unnecessary or unreasonable. In fact, the alterative conclusion is open. The conduct of Mr Horder, for example, in relation to the issue of bush fire matters and his relative early abandonment of the issue actually led to the time taken by the appeal being decreased. There is no justification for a costs order on the basis of Section 28(3)(d).

Nature, Complexity and Outcome - Section 28(3)(g)

12. Whilst it is true that this matter was not particularly complex and it is correct, as Mr and Mrs Devine submit, that the appeal could be properly resolved through the imposition of appropriate permit conditions, there is nothing about the nature of this appeal or its complexity, that points one way or the other to justifying the imposition of a costs order.

The Calderbank Offer

13. As it has already been noted above, Mr and Mrs Devine made a "Calderbank" offer. It could not have been plainer in its terms. The Council advised, and this is not contested, that "by correspondence dated 30 September 2009 [their solicitors] advised.... that [the] Council was willing to negotiate this matter by consent by agreeing that a permit should issue subject to the conditions recommended in the officer's report that was before [the] Council of 24 August 2009. This correspondence was sent via email to the Tribunal and Ms Scott (Mr and Mrs Devine's solicitor) and by post to the Parties Joined and as well as to Mr G Richardson and Mr D Kingston who had indicated at the first directions hearing that they wished to be joined as a party". Thus the Parties Joined's submission that the Tribunal should not have regard to the letter of 6 November 2009 on the basis that "there was no agreement of [the] Council in the terms alleged in that letter" is not made out. In fact it is entirely appropriate in the Tribunal's view to have regard to that letter. The letter's terms are completely clear. More to the point, this matter was resolved by the Tribunal on terms essentially indistinguishable from the basis upon which Mr and Mrs Devine offered to the Parties Joined an opportunity to resolve this matter. It was an offer that was made at a time when the Council had indicated, unequivocally, that it did not and could not support any longer, by expert evidence, the decision made by the Council against the advice of a professional planning officer to refuse this subdivision. The Parties Joined were, of course, entitled to reject the offer. But in so doing they ran a substantial risk.

Conclusion

14. In all of the circumstances, a costs order is entirely justified on and from the date of the Calderbank letter.

a) There will be an order that the Parties Joined pay the Appellant's costs of and incidental to this appeal from the 6th November 2009 in accordance with 90% of the highest scale of costs for the time being in force pursuant to the Supreme Court Rules 2000 and, if not agreed, to be assessed by the Registrar of the Appeal Tribunal.

b) That such costs are to be paid within 28 days of the date of this order.