2. Each party is to bear their own costs of the appeal.

Environment and planning - Planning appeal - Application for costs

Tasmanian Civil and Administrative Tribunal Act 2020

Launceston City Council v Tasmanian Water and Sewerage Corporation Pty Ltd (No.2) [2015] TASSC 29;

J ID Constructions Pty Ltd v Northern Midlands Council (No.2) [2024] TASCAT 126;

Calderbank v Calderbank [1975] 3 WLR 586;

A and J DeCesare v Clarence City Council [2010] TASRMPAT 178;

Leichhardt Municipal Council v Green [2004] NSWCA 34;

Softmed Manufacturing Pty Ltd v Secretary, Department of Health and Aged Care (Costs) [2024] FCA 857;

Acton View Tas Pty Ltd and Ors v Clarence City Council and Ors [2021] TASRMPAT 09;

BDR21 v Australian Broadcasting Corporation (No.2) [2021] FCA 1347;

Loughhead and Ors v Hobart City Council and Anor [2015] TASRMPAT 64B

1. The appellant successfully appealed a decision by the Sorell Council to refuse a planning permit for a development application made by the appellant. The appellant has applied for an order that the Council pay its costs from the date that an offer put to the council lapsed. The application is opposed.

1. Clause 12 of Pt 8 of Sch 2 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act) provides a power to award costs in the Resource and Planning Stream of the Tribunal:

(1) Subject to this clause, each party to proceedings in relation to an appeal or application is to pay its own costs.

(2) The Tribunal may, under this clause, order a party to proceedings in relation to an appeal or application to pay all or part of the costs of another party to the proceedings if the Tribunal is satisfied that it is fair and reasonable to do so.

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

(a) whether the proceedings appear to the Tribunal to have been instituted merely to delay or obstruct;

(b) whether in the 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 Tribunal's opinion a party has unnecessarily or unreasonably prolonged the proceedings or increased the costs of them;

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

(f) whether a party has failed to comply with any relevant law or planning scheme, within the meaning of the Land Use Planning and Approvals Act 1993;

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

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

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

1. Clause 12(1) establishes a general rule that each party is to bear their own costs. That is subject to a discretion in cl 12(2) to make an order for costs if I am satisfied that it is fair and reasonable to do so. In doing so the I may take into account the matters listed in cl 12(3) but I am not confined to those matters or obliged to make findings in respect to each of them: Launceston City Council v Tasmanian Water and Sewerage Corporation Pty Ltd (No.2) [2015] TASSC 29 [27]. In JID Constructions Pty Ltd v Northern Midlands Council (No.2) [2024] TASCAT 126 at [5]- [7] I noted the following in respect to cl 12:

5. Clause 12(1) establishes a general rule that each party should pay their own costs. That is subject to a power in cl 12(2) permitting the Tribunal to make a costs order if it is satisfied that it is fair and reasonable to do so.

6. Clause 12(3) sets out matters which the Tribunal may take into account in considering whether it is fair and reasonable to make a costs order. The Tribunal is not confined to those matters and is not required to take them into account or to make specific findings in respect to them: Launceston City Council v Tasmanian Water and Sewerage Corporation Pty Ltd (No.2) [2015] TASSC 29 at [27]. It is, however, usual for parties to frame submissions in the context of some or all of the matters listed in cl 12(3).

7. The Tribunal should consider not only whether any single matter is sufficient on its own to exercise the discretion, but also the collective weight of relevant matters: 9 Sandy Bay Road Pty Ltd v Hobart City Council [2019] TASRMPAT 59B at [27]. If satisfied that it is fair and reasonable to award costs, the Tribunal has a broad discretion to make such orders as it sees fit: State of Tasmania v Anti-Discrimination Tribunal [2008] TASSC 23 at [13] and [17]-[20]. The discretion must be exercised judicially and not arbitrarily or capriciously: Summers v Repatriation Commission (No.2) [2015] FCAFC 64 at [13]- [14].

1. The Council asserted a single ground of refusal, which raised compliance with a performance criterion in the planning scheme. The performance criterion had no concomitant acceptable solution. Compliance turned on whether the proposal would compromise or distort the activity centre hierarchy.
2. On 30 July 2024, shortly after obtaining orders to amend the development application, the appellant put an offer of settlement to the Council. The offer was marked "without prejudice save as to costs" and stated that it was made in accordance with the principles set out in Calderbank v Calderbank [1975] 3 WLR 586. The offer was that the parties enter into a consent agreement that a permit be issued with no order as to costs. The letter of offer asserted that the particulars of the ground of refusal raised irrelevant matters and that the ground misconstrued the concept of an activity centre. The offer was open for seven days. It was not accepted. The appellant says that no response was given.
3. The appellant contends: that the Council's case was unmeritorious and there was a real disparity in the merits of the parties' competing claims; that the Council prolonged the proceedings and increased the costs by raising irrelevant matters; that the issues were not complex; and that the Calderbank offer was reasonable and that the outcome of the appeal was less favourable to the Council than that offer.
4. The Council says that its particulars of the ground of refusal each directly addressed an element that the Tribunal was expressly required by the standard to have regard to in determining the test in the standard. In its submissions it provided a table supporting that contention. The Council agrees that it did not respond to the offer within the seven days, but says that it provided a substantive without prejudice response shortly thereafter. It says that the parties proceeded on the basis of two different approaches to the application of the standard, and that the appellant's success alone does not entitle him to costs.
5. In respect to the offer, the Council referred to the decision of the Resource Management and Planning Appeal Tribunal (RMPAT) in A and J DeCesare v Clarence City Council [2010] TASRMPAT 178 at [8]- [10] where that Tribunal said of Calderbank offers:

8. The principle articulated in Calderbank v Calderbank [1975] 2 All E.R 333, and applied widely in litigious matters, is intended to extract a resolution on particular terms at peril of a costs order if it is ignored. It requires an explicit notification to the other party of the fact that the proposal will be brought to the attention of the court or Tribunal on the question of costs. It is a principle which will allow a departure from the normal rule that costs follow the event, in circumstances where a successful party has previously rejected an offer to settle which was more favourable than the result that party ultimately obtained. Its function, or the function of an offer to settle in the context of planning matters is more difficult to judge.

9. Clearly it is a procedure more suited to an action in damages where the quantum offered and the quantum awarded can be compared and a conclusion reached about whether a more favourable result was achieved or not. This proposition is borne out by the fact that in some jurisdictions such as Victoria, offers are restricted to actions for damages. In many planning matters, it is difficult if not impossible to quantitatively and objectively assess whether a settlement proposal made before hearing is better than or worse than the result which ultimately ensued making it difficult to reach a correct view about whether any consequence should follow from the fact that an offer was made but not accepted.

10. The Tribunal considers that the role and function of the Calderbank offer in the Tribunal is limited. Its relevance to costs lies in the extent to which the fact of the offer and its terms, and its rejection constitute conduct which unreasonably prolongs the appeal (Section 28 (3) (d)) and perhaps the outcome of the appeal (Section 28 (3) (g)) but only to the extent that it can be concluded, in an objectively defensible way, that the outcome procured at hearing is actually worse than that which was offered. Such circumstances will be infrequent.

1. Generally, a Calderbank offer is relied on in proceedings where costs follow the event to justify an award of costs on an indemnity basis. To justify the making of an award of costs in that circumstance the offer must be a genuine offer of compromise, it must be unreasonable for the other party not to accept the offer, and the offeror must achieve a better outcome in the proceedings than the offer: Leichhardt Municipal Council v Green [2004] NSWCA 34 [44]-[45]. The issue of whether non-acceptance of an offer was unreasonable is to be considered in light of the circumstances as they existed at the time the offer was made: Softmed Manufacturing Pty Ltd v Secretary, Department of Health and Aged Care (Costs) [2024] FCA 857 [7].
2. The appellant's offer was not an offer to compromise as such, but a proposal that the Council concede the appeal. A 'walk away' offer can amount to a genuine offer: Softmed Manufacturing Pty Ltd v Secretary, Department of Health and Aged Care at [6]. However, for the reasons identified in A and J DeCesare v Clarence City Council it is difficult in a matter involving the binary issue of whether a permit should or should not issue to conclude that the appellant achieved a better outcome from the determination on the appeal than the offer.
3. The ground of refusal enlivened a performance criterion which, as is the usual case, required a qualitative exercise of judgement on which reasonable minds might differ. There was no previous decision of the Tribunal or RMPAT to provide guidance as to the approach to assessment against the standard. Each party called well qualified expert planners and made cogent and persuasive submissions. At the time that the offer lapsed it could not be said that the appellant was certain or almost certain to succeed. The Council had a statutory obligation to enforce the planning scheme: Acton View Tas Pty Ltd and Ors v Clarence City Council and Ors [2021] TASRMPAT 09 [19]. Ultimately the Council was determined to be wrong but it advanced its case on a plausible basis.
4. Unreasonableness is to be determined objectively, it is a question of impression and degree and is to be assessed by reference to the particular circumstances of a given case: BDR21 v Australian Broadcasting Corporation (No.2) [2021] FCA 1347 [26]. I am not satisfied that it was unreasonable for the Council to not accept the offer.
5. As to disparity in the merits of the Parties' respective claims, in Loughhead and Ors v Hobart City Council and Anor [2015] TASRMPAT 64B at [36] RMPAT said the following, which has been applied by RMPAT and this Tribunal in subsequent cases:

In every case there will be disparity between the merits of the cases, but the relative merits may be similar. The merits of the case lead to the result "on the merits", but a costs order does not automatically follow, otherwise the result would be the test under this part, when it is not. Something more is required, and the Tribunal considers that the provision requires that there must be a real disparity in the relative merits of the competing claims, such that it can be said "the relative merits so favoured one party over the other, that it is fair and reasonable that the successful party is compensated for their costs".

1. For the same reasons as those I have expressed concerning the offer, I am not satisfied that there was a real disparity between the claims of the parties such as to warrant a departure from the rule that each party pay their own costs. I accept the Council's submission that the issues raised by it were, on their face, relevant to assessment of the proposal against the standard. The Council's conduct of the appeal did not cause any unnecessary delay or unreasonably increase costs.

1. I am not satisfied that it is fair and reasonable that the usual rule in respect to costs in cl 12(1) should be displaced. Accordingly:
   1. The appellant's application for costs is refused.
   2. Each party is to bear their own costs of the appeal.