(iii) Access to the site is to be via Ferguson Road, Depiazzi Road, Banksia Road but shall not be via Dillion Road or Crooked Brook Road.

(iv) The operation of the site shall be restricted to the hours between 7.00 am to 9.00 pm.

(v) Suitable and sufficient fire fighting facilities are to be jointly made available on site or in the close vicinity to the satisfaction of Council.

(vi) All disposal activities are to take place within the cell areas.

1. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Shire of Dardanup must pay the applicant's reasonable professional costs and disbursements incurred arising from the application for review, as agreed or, failing agreement, as assessed by a member of the Tribunal nominated by the President on application by either party in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA).

I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION : J & P METALS PTY LTD and SHIRE OF DARDANUP [2006] WASAT 282 (S)

Costs ­ Assessment of reasonable costs ­ Substantive matters decided on documents ­ Respondent raising no planning objections to proposal ­ Whether matter complex ­ Relevance of importance of matter to applicant to determination of whether costs reasonable ­ Appropriate measure as to costs

Legal Practice Act 2003 (WA), s 215

Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006

Legal Practitioners (Supreme Court)(Contentious Business) Determination 2004

Rules of the Supreme Court 1971(WA), Order 66 Rule 12

Shire of Dardanup Town Planning Scheme No 3, cl 7.2.4

State Administrative Tribunal Act 2004 (WA), s 9, s 87

Respondent : Mr ML Chester, Mr D Stuart and Mr R Quinn (Acting as Agents)

1 On 14 September 2006, the Tribunal, then constituted by Member Ms M Connor, allowed an application by J & P Metals Pty Ltd for review of a refusal by the Shire of Dardanup to grant approval for the upgrade of an existing landfill facility from class 2 to class 3 subject to certain conditions. Member Connor also made an order that the Shire of Dardanup pay the applicant's reasonable professional costs and disbursements arising from the application for review on the basis that the Shire had failed to genuinely attempt to make a decision on the merits of the application.

2 The parties were unable to agree the quantum of costs, and in accordance with Member Connor's order, the costs were to be assessed by the Tribunal. The President of the Tribunal appointed the Deputy President, Judge Chaney, and Ms Connor to constitute the Tribunal for the purpose of assessing the appropriate amount of costs.

3 The applicant claimed recovery of a total in excess of $85 000, some $15 000 of which constituted costs said to have been incurred in relation to the assessment of costs. The respondent contended that the costs claimed were excessive and thus unreasonable. The Tribunal agreed with the respondent. It concluded that the matter was not complex, that the time said to have been spent on the matter was not adequately explained, and it would be unreasonable to require the Shire to pay costs anything like the amount claimed. It considered that an appropriate recovery of costs was $10 288. In view of the unreasonableness of the claim for costs, the Tribunal declined to allow recovery of any of the applicant's costs related to the assessment of costs.

4 On 14 September 2006, Member Ms M Connor delivered a decision, determined on the documents, allowing the application by J & P Metals Pty Ltd for a review of a refusal of development approval by the Shire of Dardanup - see J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282. For reasons which were fully canvassed in the published reasons for decision, Ms Connor determined that the respondent had failed to genuinely attempt to make the decision under review on its merits, and consequently made an order in the following terms:

"Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Shire of Dardanup must pay the applicant's reasonable professional costs and disbursements incurred arising from the application for review, as agreed or, failing agreement, as assessed by a member of the Tribunal nominated by the President on application by either party in accordance with r 43 of the State Administrative Tribunal Rules 2004 (WA)."

5 On 11 October 2006, the solicitors for the applicant, Sparke Helmore, wrote to the Chief Executive of the respondent. They advised that their client had incurred legal costs and disbursements in excess of $91 000. An offer was made to accept the sum of $65 000 in full and final settlement of the claim for costs on the basis that if not accepted, indemnity costs would be sought in relation to the applicant's costs of the assessment by the Tribunal. Upon receipt of that offer, and consideration of it by the Council of the respondent, the respondent rejected the claim and sought to have the President assess the costs payable.

6 On 8 December 2006, the Tribunal conducted a directions hearing at which time the applicant was ordered to file and serve a detailed bill of costs, any evidence in support of its claim and an outline of submissions on the question of costs. The respondent was ordered to file submissions in response. The matter was listed for argument.

7 Adopting the approach which had been sanctioned by the Tribunal in other cases, the applicant prepared its bill of costs by reference to scale of costs prescribed by the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006. On the basis of s 215 of the Legal Practice Act 2003 (WA), the applicant sought to uplift certain items in the scale on the basis that the matter involved "unusual difficulty, complexity or importance". It was submitted that "the sheer volume of work undertaken can demonstrate unusual difficulty and/or complexity for the purposes of s 215". Authority for that proposition is cited in Alpine Holdings Pty Ltd & Ors v Warwick Entertainment Centre Pty Ltd & Ors [2003] WASC 53(S2) and Schmidt v Gilmour [1988] WAR 219.

8 Neither of those cases is authority for the proposition suggested. Both concerned special orders for costs under Order 66 Rule 12 of the Rules of the Supreme Court 1971 (WA) which provides for a special order for costs by reason of the unusual complexity or importance of the case or for any other "good or sufficient reason". In Schmidt v Gilmore, it was acknowledged that the case did not involve unusual complexity or importance, but the Full Court upheld a conclusion that a good or sufficient reason had been demonstrated by a detailed affidavit identifying the necessity to carry out a large volume of work.

9 There is no prescribed scale in relation to work done in relation to proceedings before this Tribunal. Assessing costs for the purposes of s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) will usually require a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, possibly its urgency, and the amount of time and effort required to properly prepare and present the case. Consideration of issues of that nature may be assisted by analogy with other legal work for which a statutory scale is applicable. Scales are, however, no more than an indication of what might be thought reasonable for certain categories of work. If a scale is to be used for that purpose, it will not always be the scale applicable to Supreme Court proceedings. There will be cases where the subject matter will make the determination in relation to Magistrates Court civil proceedings more appropriate by way of analogy. The Tribunal will always strive to maintain proportionality between the subject matter of the proceedings and the costs associated with the proceedings.

10 In this case the applicant submits that, because of the importance of the decision to its commercial operations, analogy to the Supreme Court scale is appropriate. The respondent did not argue against that submission. In light of relative simplicity of the proceedings, we have some hesitation in accepting the applicant's submission. However, because the respondent did not urge any other approach, we are prepared, for the purposes of analogy, to utilise the Supreme Court determination. That is not to say, however, that we accept that the maximum, or claims in excess of the maximum, allowable for certain items under that scale are accepted as reasonable in the circumstances of this case.

11 The issue for determination is: what costs were reasonably incurred? The applicant itemised its costs, by reference to the scale as follows:

i_ncl. taking instructions, perusing and considering relevant documents, research, drawing initial correspondence to Respondent, drawing letter of advice to client, correspondence and telephone attendances with client and with Respondent, drawing Application, drawing Grounds for Review, compiling supporting documents and telephone attendances with the SAT Registry_

incl. correspondence and telephone attendances with client and with Respondent, preparation, attendance and meeting with client

incl. correspondence and telephone attendances with client and with Respondent, preparation, attendance and meeting with client

incl. preparation, meeting with client, meeting with Counsel and attendance

re: recovery of costs incl. researching relevant legislation, case law and principles re: costs assessments in the SAT, telephone attendance with client, telephone attendances and correspondence with Counsel (Ms Coulson), preparing Brief to Counsel, meeting with Counsel on 4 October 2006, correspondence with Respondent incl. Calderbank offer, providing further information to Respondent pursuant to Respondent's request and correspondence with client re: rejection of offer

re: drawing letter to the SAT re: clarification of orders (condition 3(v)) and informing client of response from the SAT

incl. telephone attendances with the SAT, correspondence with client, telephone attendances with Counsel (Ms Coulson), preparation and attendance

incl. drawing Affidavit, Submissions and Draft Bill of Costs, preparation and attendance before SAT

12 The applicant provided an affidavit of Renae Louise Harding in support of the application for costs. She made reference to the provisions of cl 7.2.4 of the Shire of Dardanup Town Planning Scheme No 3 (TPS 3) which enumerates the factors to be taken into account in considering whether to grant planning approval. Those factors are as follows:

the provisions of the Scheme and of any other Town Planning Scheme affecting the land the subject of the application or affecting land in the vicinity;

the nature of the proposed development in relation to the development of any land within the vicinity of the said land;the size, shape and character of the parcel of land to which the application relates and the nature and siting of the proposed building, the view from the building and the interruption of view likely to be caused by the proposed building;any representation which may be made by any statutory authority;the submissions received by the Council;the existing and likely future amenity of the neighbourhood, including (but without limiting the generality of the foregoing) the question of whether the proposed development is likely to cause injury to such amenity including injury due to the emission of light, noise, electrical interference, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, liquid wastes or waste products;the nature of roads giving access to the said land;whether the proposed development will cause a traffic hazard; andsuch other matters as the Council considers relevant."

13 As Ms Harding observed, at the initial directions hearing before the Tribunal on 3 February 2006, the Senior Member ordered that the respondent advertise the development application for public comment for a period of two weeks. That advertising led to approximately 60 public submissions being received. It was necessary for the applicant's representatives then to review those submissions, all of which opposed the application, and determine whether they raised matters which the applicant needed to address in the proceedings. The respondent had tabulated the submissions and annotated them with the words "upheld", "dismissed" or "noted".

14 Ms Harding's affidavit then asserts, by reason of the applicant's failure to identify planning issues, other than public opposition, the applicant was required to address all the planning considerations, namely those matters enumerated in cl 7.2.4 of TPS 3. The affidavit also asserts that the case was important to the applicant's business because uncertainty affected its ability to plan its future business operations and expenditure.

15 In our view, there is nothing in Ms Harding's affidavit which demonstrates any unusual difficulty, complexity or importance of this matter. It was a matter appropriately dealt with on the documents. That is because there were no factual issues in dispute. The only basis put forward by the respondent for opposing the application was the public opposition to it. While one of the considerations required to be considered under cl 7.2.4 was "the submissions received by Council", it was at all times made plain by the respondent that it did not assert that any other of the considerations identified under TPS 3 militated against the grant of an approval. Although, as was pointed out by Member Connor in her reasons for decision, the Tribunal was required to take into consideration all matters set out in cl 7.2.4, it being a hearing de novo, none of those matters raised any issue of any complexity in these proceedings. That is demonstrated by the fact that the evidence in relation to those matters was adduced by an officer of the applicant and was uncontested. Environmental issues which might conceivably have been complex, had already been dealt with by the renewal of the licence to accept class 3 waste by the Department of Environment.

16 The submissions filed in support of the application ran to some 29 pages. The first six pages comprised a recounting of the history of the site. Several pages reproduced relevant provisions of TPS 3, and the submissions then dealt with each of the respondent's reasons for refusal and each of the matters for consideration pursuant to cl 7.2.4 of TPS 3. Finally the submissions dealt with an issue as to the term of the development approval, and then the without prejudice conditions which the respondent had been required to lodge in the event that the application would be approved. The submissions referred to documents contained in a bundle of some 500 pages which had been lodged by the applicant. Much of that material was by way of background.

17 We were informed at the hearing that, in addition to the bundle of documents lodged for the purpose of the hearing, the applicant's solicitors were required to review more documentation. We were advised that to the best recollection of the solicitor handling the matter, there were approximately three lever arch files of documents that required review at the time initial instructions were taken, and for the purpose of preparation of the submissions.

18 We now turn to the items claimed by the applicant.

19 These matters have been claimed by analogy to the items applicable to a writ and statement of claim in the Supreme Court. The maximum allowable for those two items is $3921. The claim is for $9147.60. That claim is based upon a junior practitioner spending 39.6 hours on taking instructions, considering documents, providing advice, drawing the application and the grounds for review and various telephone attendances. The time claimed represents roughly a full working week by one practitioner. To the extent that time was provided providing advice to the client, it was not properly included under these items in any event. We accept that the solicitor may have had to review three lever arch files of documents. Given the grounds for refusal by the Shire, we do not accept that a detailed analysis of all those documents was required, as most of them undoubtedly were relevant to uncontentious background matters.

20 The application itself is a six page document which can be generated from the Tribunal's website and the boxes filled in. It is a simple document comprising mostly contact details of the various parties. The applicant's solicitors in this case have completed the document by hand. It could not reasonably take more than half an hour. An appropriate allowance for the application itself would be half an hour of a junior practitioner's time, namely $115.

21 The application had attached to it grounds for review. They are separately claimed by analogy to a statement of claim. The grounds for review were relatively detailed, occupying some five closely typed pages. They comprised an outline of the background to the application, which was no doubt discerned from the client's instructions and the documents reviewed. They then dealt with the expressed reasons for refusal. In our view, a fairly generous allowance for the necessary review of the documents, taking instructions and preparation of the grounds of review would be an amount of 8 hours for a junior practitioner or $1848. In making that allowance, we make the assumption that, at the end of the process, the solicitor concerned would have a good working knowledge of the case to be presented, and the documents relevant to the likely issues.

22 As with all matters before the Tribunal, the application was listed for an initial directions hearing. That took place on 3 February 2006 when Senior Member Parry directed advertising of the proposal and made standard directions for the parties to file Statements of Issues, Facts and Contentions. The claim for costs is made by analogy to item 23(a) of the scale. That item simply allows a rate per hour for a senior practitioner. The claim is for 8.9 hours of time by a junior practitioner, and 0.8 hours of time of a senior practitioner. At the hearing of the costs argument, we were advised that that time was broken down as 2.54 hours "reviewing brief", 30 minutes reviewing the Tribunal's Practice Directions, 3 hours meeting with the client and attending the directions hearing, 12 minute telephone attendance, and 48 minutes reporting to the client. It would appear that the practitioner who attended that directions hearing was not the practitioner who prepared the application and grounds for review. That may explain why so much time was required to prepare for what is a routine and brief procedure. We can see no reasonable basis upon which the respondent should be called upon to meet costs in excess of $2300 for a routine appearance at the Tribunal which, according to the Tribunal's recording system, occupied some 28 minutes. In our view, an allowance of two hours of time to cover preparation, attendance at the hearing and a report to the client is a reasonable allowance. The work was done by a junior practitioner, and the amount allowed should therefore be $462.

23 Before this directions hearing, the submissions received following public advertising were received by the Shire and copies provided to the Tribunal and the respondent. The respondent had, by then, filed its Statement of Issues, Facts and Contentions, and received public submissions following advertising. The Tribunal identified that the Statement of Issues, Facts and Contentions had not identified any planning issues. Accordingly the Tribunal directed that the Shire file a further Statement of Issues, Facts and Contentions identifying any environmental planning issues which it said arise in the proceeding. The matter occupied 19 minutes of hearing.

24 The claim in relation to that directions hearing is 4.6 hours of time by a senior practitioner, and 4.2 hours time by counsel. The total claimed is $2677.40. We were advised that the time claimed related to a meeting with counsel on 15 March 2006, for 2 hours, and a meeting with the clients for 3 hours. Counsel appeared at the directions hearing.

25 Again, the directions hearing was routine and simple. The conferences claimed under this item cannot reasonably have been concerned simply with the directions hearing. The time spent is probably more properly considered under the "getting up" item to which we turn shortly. We note, however, that the time spent in relation to this item involves two practitioners not, apparently, involved in the earlier conduct of the matter. To the extent that they spent time familiarising themselves with the matter, the respondent should not be called upon to meet those costs.

26 In our view, the same allowance of 2 hours by a junior practitioner is adequate in relation to the directions hearing of 17 March 2006.

27 The claim in relation to this item is 2.9 hours by a junior practitioner, and 2.6 hours by counsel. Counsel again appeared on the directions hearing. At that directions hearing, orders were made for the filing of evidence and submissions in response to the reasons for refusal on the respondent's reconsideration (which were substantially a repetition of the original reasons). A direction was also made that the matter be determined on the documents. At the end of March, the Shire had made it clear that they wanted the application dealt with on the documents. It was also clear that the respondent did not propose to argue that the application should be refused on any planning ground, other than hostility from the community towards the proposal. It was obvious that the directions hearing would involve standard procedure directions. We see no reason why any different allowance should be made in relation to this directions hearing from the earlier directions hearing, and again would allow the sum of $462.

28 The amount claimed under this item is $49 809.10, against a maximum allowed by the Supreme Court scale of $36 300. The applicant provided a schedule of work claimed under this item. That schedule reads as follows:

Work undertaken regarding getting up including, but not limited to:

Taking instructions and corresponding and conferring with client;

Telephone attendances and correspondence with Respondent;

Perusing and considering: Respondent's Statement of Issues, Facts and Contentions dated 22 February 2006 and bundle of supporting documents;

Perusing and considering: copies of approximately 60 public submissions received from the Respondent, on 3 March 2006;

Telephone attendances and correspondence with Counsel, Mr Mark Pendlebury ('Counsel');

Perusing and considering: Respondent''s Further Statement of Issues, Facts and Contentions dated 27 March 2006;

Drawing: list re: contentious issues to determine evidence required for hearing;

Meeting: with Counsel and with client on 9 May 2006;

Drawing: Witness Statement of Robert Hutchinson dated 22 May 2006;

Perusing and considering and compiling: voluminous supporting documents;

Perusing and considering: Respondent's Submissions in Reply dated 30 May 2006;

Telephone attendances: with the SAT and with client re: status of decision; and

Perusing and considering: Reasons for Decision delivered on 14 September 2006 incl. telephone attendances and correspondence with client and with Counsel.

29 Some general observations can be made about that schedule. It discloses that five different solicitors worked on the matter, in addition to independent counsel. One of those solicitors spent the best part of two working weeks on the matter. A senior practitioner spent roughly four full days in addition. All of that is in addition to the week spent by a junior practitioner in taking initial instructions and preparing the grounds of review. Furthermore, counsel has spent approximately two full weeks on the matter. We note that, apparently, the submissions and witness statement were initially drafted by the solicitors, and counsel's task, presumably, was to settle those submissions. The total professional time claimed for "getting up" is 190.2 hours, or, assuming a 7.5 chargeable hour day, in excess of 25 full days work. The claim is made in relation to a matter which involved no hearing, the evidence of one witness statement, and submissions which largely drew on the evidence in the witness statement.

30 Viewed in that light, it is impossible to see how it could be reasonable to burden the respondent with the cost of that much time.

31 At the assessment hearing, counsel suggested that the significance of the matter to the applicant's commercial operations was such that the matter warranted "a team" being employed to manage these proceedings. The applicant is quite entitled, when properly informed, to elect to utilise a team to conduct the proceedings, but that does not make it reasonable to impose the consequences of that decision on the respondent. In the absence of any contest on all but one issue, it would be reasonable to assume that the matter could have been handled by one reasonably competent legal practitioner, or probably by a town planner.

32 In our view, the fact that an extraordinary amount of time was spent on the matter does not lead to the conclusion that the reasonable presentation of the case required that time to be spent. It becomes a difficult process to determine what time might reasonably have been spent. In our view, given that there was no hearing, an allowance of 15 hours of time by a senior practitioner would be a reasonable allowance for the preparation of the matter. That leads to an allowance for "getting up" of $5115. We are mindful that, in approaching what is reasonable for getting up, we have allowed a significant amount of time in the initial review of papers for the purpose of preparation of the grounds for review and that it is not reasonable to allow duplication of the costs of that time simply because the applicant used a different solicitor within the firm at different stages of the proceeding.

33 Following the delivery of the Tribunal's reasons, the applicant's solicitors wrote to the Tribunal seeking clarification of condition (v) which had been specified by the Tribunal as a condition of approval. That condition read "Suitable and sufficient fire fighting facilities are to be jointly made available on site or in the close vicinity to the satisfaction of Council". That condition was in precisely the same terms as the existing condition on the development approval of 27 October 1999 issued by the Minister. It was, therefore, a condition to which the applicant had been subjected for some seven years. Upon that being pointed out to the solicitors, an invitation was extended to have a directions hearing before Member Connor if there were any uncertainty as to the intent of the condition. That invitation was not taken up.

34 We see no reason why the respondent should be burdened with an obligation to pay the costs of this enquiry, given the circumstances in which it was made.

35 The only disbursement that is contentious is the amount of $2960.99 for photocopying. We were not provided with an explanation of that claim. Presumably it is calculated at $1 per page in accordance with item 30 of the scale. The witness statement filed by the applicant had approximately 480 pages of attachments. Where large quantities of copying are done, presumably at one time, we do not consider that it is reasonable to charge a full dollar for each page. We accept that the applicant was required to produce three copies of the witness statement and its attachments. An allowance for 1500 pages of copying is appropriate. In view of the fact that the copying was capable of being undertaken at one time, we consider an allowance of fifty cents per page is reasonable. The sum of $750 is allowed for photocopying. With the other disbursements claimed, the total allowed is $1824.

36 These items relate to the costs of assessment of the costs, including some $8644.50 relating to what is referred to as the "special costs application".

37 The order made by Member Connor was that costs were to be assessed only in the event that the parties could not agree them. The applicant invited the Shire to accept costs of $65 000 in full and final settlement of the claim, and threatened indemnity costs if that offer were not accepted. At the costs hearing, counsel for the applicant was critical of the respondent for its failure to respond to that offer other than to write to the Tribunal requesting that costs be assessed. In our view, however, given the dimensions of the claim being made, the respondent was justified in assuming that a reasonable agreement would not be reached and that further costs should be avoided by having the Tribunal simply determine the matter. The costs which we consider reasonable are significantly below those which, in the Chief Executive Officer of the Shire's witness statement in relation to the assessment of costs, he indicated might be a reasonable cost. It is reasonable to assume that, if the applicant's claim was not so far in excess of what is reasonable in the circumstances, agreement would have been reached, and the process of assessment by the Tribunal would not have been necessary. In those circumstances, we are of the view that the applicant's claim for costs is so far in excess of a reasonable claim that no allowance should be made for the costs incurred on the assessment.

38 The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. The Tribunal strives to ensure that its procedures are proportionate to the nature of the matters in issue. On occasions, matters before the Tribunal are difficult and complex, sometimes involving lengthy hearings. This is not such a matter. In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceedings in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order.

39 In summary, we assess the costs payable by the respondent to the applicant as follows:

40 The respondent is to pay the applicant's costs fixed at $10 288.

I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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