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[2011] WASAT 105
General information, not legal advice.
State Administrative Tribunal (WA)
2011-07-08
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : HUMPHRYS and CITY OF STIRLING [2011] WASAT 105
Practice and procedure Costs Whether original decision-maker genuinely attempted to make a decision on its merits Town planning Development application Grouped dwelling Identical proposal approved by original decisionmaker two years earlier Earlier development approval lapsed No change in planning framework or in circumstances in the interim
City of Stirling Local Planning Scheme No 3, cl 6.6.3
Respondent ordered to pay applicant's costs assessed in the amount of $3,754.90
Respondent : Ms PA Di Perna (Public Sector Employee)
Geographe Point Pty Ltd and Town of Claremont [2009] WASAT 98; (2009) 64 SR (WA) 1
Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71
Rossi and City of Bayswater [2010] WASAT 33
Tran and Town of Vincent [2009] WASAT 123 (S)
1 Mr Ross Humphrys applied to the Tribunal for an order that the City of Stirling should pay his costs of the proceeding in the amount of $4,645.90. The proceeding involved an application for review of the City's decision to refuse a development application for a second grouped dwelling. The City had, a little over two years before the lodgement of the development application, approved an essentially identical development, but that approval had lapsed. The City refused the subsequent development application because the proposed development included a zincalume roof whereas the Character Retention Guidelines said that 'zincalume may be considered where it is in keeping with the architectural style of the dwelling, surrounding roofing materials, and the objectives of these guidelines' and the City's heritage assessment said that 'Zincalume roofing is questionable in an immediate context of clay time roofs' and '[a] tiled roof that matches adjoining properties would be more appropriate'.
2 At the first directions hearing in the proceeding, it appears that the City refused to participate in mediation and the matter was listed for final hearing. After the parties had filed their statements of issues, facts and contentions and Mr Humphrys had filed an expert town planning witness statement, the City requested that the hearing date be vacated and that it be invited by the Tribunal to reconsider its decision. The Council then reconsidered its decision and granted conditional development approval. Mr Humphrys withdrew the application for review and sought an award of costs.
3 The Tribunal determined that the City's failure to have regard to its approval of the earlier development application and the principle of consistency in planning assessment in deciding to refuse the subsequent development application meant that it did not genuinely attempt to make a decision on the merits of the development application and acted unreasonably. While it was appropriate for the City to obtain the heritage assessment and to take the recommendations of the heritage assessment into account in determining the development application, it could not reasonably base its decision on the Guidelines and the heritage assessment while ignoring its earlier approval and the principle of consistency. The proper exercise of its planning functions required the Council to balance all of these considerations in the exercise of planning discretion.
4 It was unnecessary for the Tribunal to decide an interesting question raised by Mr Humphrys as to whether the refusal by the City to participate in mediation constituted unreasonable conduct for the purposes of the exercise of discretion as to costs. This question warrants full argument and assessment if and when the issue next arises.
5 The Tribunal ordered the City to pay Mr Humphrys' costs assessed in the amount of $3,754.90. This amount excluded architect's fees apparently incurred in consequence of Mr Humphrys' decision to amend the rear sunshade structures.
6 Mr Ross Humphrys has made an application to the Tribunal for an order, pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), that the City of Stirling (City or Council) should pay Mr Humphrys' costs of the proceeding in the amount of $4,654.90. The proceeding, which was commenced by Mr Humphrys on 27 August 2010, involves an application for review, pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the City's decision to refuse Mr Humphrys' development application for an additional grouped dwelling at No 137A Tenth Avenue, Inglewood (site) under the City of Stirling Local Planning Scheme No 3 (LPS 3) and the Metropolitan Region Scheme.
7 During the proceeding, Mr Humphrys submitted amended plans that redesigned sunshade awnings at the rear of the proposed dwelling and the Council was invited by the Tribunal to reconsider its decision pursuant to s 31(1) of the SAT Act. In accordance with the Tribunal's invitation, the Council reconsidered its decision and granted conditional development approval.
8 As Mr Humphrys was content with the substituted decision, he subsequently sought, and was granted, leave to withdraw the proceeding, pursuant to s 46(1) of the SAT Act. However, shortly after the withdrawal, Mr Humphrys made the application for costs.
9 On 12 October 2007, Mr Humphrys lodged a development application with the City for approval for an additional grouped dwelling on the site. On 13 March 2008, the Council granted conditional development approval and required that the approved development must be substantially commenced within two years. As the development was not substantially commenced, the development approval lapsed on 14 March 2010.
10 On 20 April 2010, Mr Humphrys lodged a development application with the City for an essentially identical development to that which had previously been approved on the site. It is common ground that the only changes between the development approved on 13 March 2008 and the development proposed on 20 April 2010 related to the driveway, front fence and privacy screening.
11 On 12 August 2010, the Council refused to grant development approval for the proposed development for the following two reasons:
12 The site is located in the City's Heritage Protection Area Special Control Area in which its Character Retention Guidelines (Guidelines) apply. However, it is to be noted that the Guidelines were adopted by the Council on 18 July 2006, that is, before the approval of the earlier development application on 13 March 2008. It is also to be noted that, although LPS 3 replaced the City of Stirling District Planning Scheme No 2 (DPS 2) following the approval of the earlier development application on 13 March 2008 and shortly before the refusal of the subsequent development application on 12 August 2010, there is no material difference between DPS 2 and LPS 3 in relation to the proposed development.
13 On 27 August 2010, Mr Humphrys commenced this proceeding for review, pursuant to s 252(1) of the PD Act, of the Council's decision to refuse the subsequent development application. At the first directions hearing, which took place on 15 September 2010, it appears that the City refused to participate in mediation, and the matter was listed for a final hearing on 23 November 2010 with programming orders for statements of issues, facts and contentions and witness statements. However, the Tribunal also made the following order:
The respondent may on or before 22 September 2010 request a mediation be listed. Any such mediation will be held before the date for final hearing but will not alter the dates for compliance for any of the previous orders.
14 It appears that the City did not request that a mediation be listed. In accordance with the programming orders made on 15 September 2010, the parties filed and exchanged statements of issues, facts and contentions on 29 September 2010 and 14 October 2010. Mr Humphrys' statement of issues, facts and contentions was prepared by Mr Peter Webb, a consultant town planner, who Mr Humphrys retained to represent him and to give expert planning evidence in the proceeding after the directions hearing on 15 September 2010. In accordance with the programming orders for the final hearing, on 2 November 2010, Mr Webb filed a witness statement prepared by himself on behalf of Mr Humphrys.
15 On 2 November 2010, the City requested the Tribunal to vacate the final hearing date and to invite the Council to reconsider its decision pursuant to s 31 of the SAT Act. On 3 November 2010, Mr Webb wrote to the Tribunal indicating Mr Humphrys' consent to the vacation of the final hearing date and invitation to the Council to reconsider its decision.
16 On 5 November 2010, Mr Humphrys and Mr Webb met with officers of the City to discuss the matter. On Mr Webb's recommendation, and in order to attempt to achieve a mediated outcome, Mr Humphrys agreed during this meeting to have his architect redesign the sunshade awnings at the rear of the proposed dwelling. At additional cost, Mr Humphrys engaged his architect to redesign the rear sunshade structures and submitted the revised plans to the City so that the officers could prepare a report to be submitted to the Planning Committee meeting scheduled for 7 December 2010. The amended proposal was endorsed by the Planning Committee and was subsequently approved by the Council, subject to conditions, on 14 December 2010.
17 On 6 January 2011, Mr Humphrys sought leave to withdraw the proceeding, pursuant to s 46(1) of the SAT Act, because 'after mediation between the parties the ... matter has been resolved and the applicant's development application was granted by a full Council meeting on 14 December 2010'. On 7 January 2011, the Tribunal granted leave to Mr Humphrys to withdraw the proceeding and the proceeding was withdrawn.
18 On 11 January 2011, Mr Humphrys applied to the Tribunal for an order that the City should pay his costs of the proceeding.
19 Mr Humphrys submitted that the City was unreasonable in its conduct in the following two respects:
The [Council] rejected a Development Application in April 2010 which was identical to one that was approved by it two years previous[ly]. This action indicates a lack of consistency in the [Council]'s decision[-]making process. ...
The [City] refused ample opportunity offered by SAT ... during a Directions Hearing on 15 September 2010 to attend an onsite mediation meeting. Because of the [City]'s absolute refusal to participate in the Mediation process the Tribunal was required to schedule the Matter for a Hearing.
20 In his submissions, Mr Humphrys sought to refer to and rely upon what were plainly 'without prejudice' communications between the parties. These communications are subject to a joint privilege and may not be referred to in the proceeding: see Justice JD Heydon, Cross on Evidence (LexisNexis Australia, looseleaf) [25350] [25355] and cases referred to there. I have not taken into account the parts of Mr Humphrys' submissions in which he has sought to refer to and rely upon 'without prejudice' communications.
21 Mr Humphrys quantified the costs for which he sought reimbursement from the City. The costs sought by Mr Humphrys are as follows:
22 In its submissions, the City referred to cl 6.6.3 of LPS 3 which relevantly requires development to conform with the Guidelines. In relation to roofing materials, the Guidelines states:
Roofs shall be constructed with tiles in red and orange hues. Alternatively, corrugated iron or Colorbond in red, orange, terracotta or beige (not white) or Zincalume may be considered where it is in keeping with the architectural style of the dwelling, surrounding roofing materials[,] and the objectives of these guidelines.
23 The City also noted that, consistently with its procedures, the development application was referred to its heritage consultant, Hocking Planning and Architecture, which prepared a heritage assessment of the proposal. The heritage assessment stated that 'the proposed house does not unduly impact upon the streetscape of this section of Tenth Avenue' and 'the overall form of the house is acceptable in this position'. However, the heritage assessment also stated as follows:
The use of an extensive unrelieved area of Zincalume roofing is questionable in an immediate context of clay tile roofs. This material is reflective and is likely to cause a nuisance to drivers on Clifton Crescent at some times of the year. A tiled roof that matches adjoining properties would be more appropriate.
24 The City submitted that its decision in this case was 'grounded on the application of the property being located within the Heritage Protection Area Special Control Area and the application of its Policy' and that, in particular, its:
... refusal of the subject application was based on the fact that the proposed zincalume roofing material was not suitable in an area where tiled roofs were the predominant material.
The Tribunal's established practice in relation to costs in planning review proceedings
25 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 nocosts 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 decision-maker 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.
26 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.
27 In Tran, the Tribunal noted, at [29], that '[s]uccessful 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, including planning 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.
28 In my opinion, in the circumstances of this case, the City failed to genuinely attempt to make a decision on the merits of the development application for the purposes of s 87(4)(b) of the SAT Act, because it failed to have regard to its approval of the earlier development application in March 2008 and the fact that the planning framework and the circumstances had not changed in any material respect. In Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 (Hanson), the Tribunal said, at [54]:
In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistent way.
29 It does not appear that the Council had regard to the planning principle referred to in Hanson in making its decision to refuse the development application which is the subject of this proceeding. The Council's failure to have regard to its approval of the earlier development application and the principle of consistency in planning assessment referred to in Hanson means that it did not genuinely attempt to make a decision on the merits of the development application and acted unreasonably. While it was appropriate for the City to obtain the heritage assessment and to take the recommendations of the heritage assessment into account in determining the development application, it could not reasonably base its decision on the Guidelines and heritage assessment while ignoring its earlier approval and the principle of consistency. The proper exercise of its planning functions requires the Council to balance all of these considerations in the exercise of planning discretion.
30 In light of the finding in the preceding paragraphs, it is unnecessary to decide the interesting question of whether the refusal by the City to participate in mediation constituted unreasonable conduct for the purposes of the exercise of discretion as to costs. This question warrants full argument and assessment if and when the issue next arises.
31 The costs sought by Mr Humphrys appear to be reasonable. In particular, Mr Webb's fees appear to be reasonable for the amount of work involved in representing Mr Humphrys and in preparing the witness statement. However, I do not consider that the City should be responsible for the architect's fees of $891 which appear to have been incurred in consequence of Mr Humphrys' decision, based on Mr Webb's advice, to amend the rear sunshade structures.
32 As the City did not genuinely attempt to make a decision on the merits of the development application for the purposes of s 87(4)(b) of the SAT Act, and therefore acted unreasonably, it is appropriate to exercise the Tribunal's discretion as to costs under s 87(2) of the SAT Act in the circumstances of this case to order the City to pay Mr Humphrys' costs in the amount of $3,754.90.
Pursuant to section 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent is to pay the applicant's costs of this proceeding assessed in the amount of $3,754.90 within 28 days of the date of this order.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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