[2]

In determining the Costs Application, I have before me the Tribunal's Orders in this matter, as well as:

OASIS @ NEWMAN PTY LTD and SHIRE OF EAST PILBARA [2025] WASAT 136 | Case summary | Zoe

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OASIS @ NEWMAN PTY LTD and SHIRE OF EAST PILBARA [2025] WASAT 136 (2 December 2025)

[2025] WASAT 136

State Administrative Tribunal (WA)|2025-12-02

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General information, not legal advice.

At a glance

Source facts

Court

State Administrative Tribunal (WA)

Decision date

2025-12-02

Source

Original judgment source is linked above.

Judgment (150 paragraphs)

[1]

This matter concerns an application for costs by Oasis @ Newman Pty Ltd (Oasis or Applicant) against the Shire of East Pilbara (Shire or Respondent), in relation to its application for a temporary occupancy permit (Application) under the Building Act 2011 (WA) (Building Act).
The Application was for what the parties refer to as Blocks 1 and 5 of the workers accommodation facility that has been constructed by the Applicant (Accommodation Facility) on its land at 44 Great Northern Highway, Newman (Land).
The Shire refused the Application on 4 December 2024 (Refusal), and, on 9 December 2025, Oasis lodged a review of the Refusal (Review).
The matter was case managed by the Tribunal with mediation programmed for 7 May 2025. However, on 6 May 2025, the parties advised the Tribunal that, in effect, an agreement had been reached that an occupancy permit would likely be issued on a further application that had been lodged with the Shire, after the Review had been commenced.
The parties filed orders requesting the mediation be vacated and the Review was withdrawn, by consent, on 27 June 2025.
Oasis claims $4,650,807.00 in costs from the Shire, comprising revenue losses totalling $4,563,372.00 as well as legal fees in the amount of $53,689.00 (Costs Application).
For the reasons that follow, the Costs Application is dismissed.

[74]

When lodging the Review on 9 December 2024, the Applicant nominated the matter be scheduled for a directions hearing on 17 January 2025.
The Respondent engaged solicitors on or around 12 December 2024. The Applicant's solicitor then attempted, on a number of occasions, to arrange a meeting with the Respondent's solicitors. By email dated 18 December 2024, the Respondent's solicitors advised that they had no instructions to attend a meeting with respect to the Review but will be in touch if so instructed.
On 16 January 2025, the parties filed a minute of consent orders seeking to vacate the directions hearing on 17 January 2025 and for the matter to be listed to a further directions hearing not before 31 January 2025. Those orders included an order that 'there is no order as to costs'. Jackson DP made orders in the terms sought by the parties and listed the matter for directions on 7 February 2025.
On 6 February 2025, the parties filed a joint minute of consent orders that required each party to file a set of issues, to be marked 'confidential - for mediation only', ahead of a mediation conference to be listed as soon as possible after 31 March 2025. The parties sought an order vacating the directions hearing on 7 February 2025 as well as an order that 'there be no order as to costs'. Orders were made in the agreed terms.
A mediation was erroneously listed (by the Tribunal) for 7 March 2025. The listing was erroneous because the mediation was listed before 31 March 2025. At the request of the Shire, the Tribunal vacated that mediation and, taking account of the parties' joint availability that had been provided, on 26 February 2025, the matter was then listed for mediation on the first mutually available date after 31 March 2025, being 31 July 2025.
On 6 March 2025, the Applicant wrote to the Tribunal requesting mediation be listed earlier than 31 July 2025. On 10 March 2025, solicitors for the Shire advised that given the nature of the matter, the CEO of the Shire needed to attend the mediation conference but was only available between 29 and 31 July 2025.
At the request of the Applicant, the matter was then called on for urgent directions on 21 March 2025, at which the Tribunal agreed with the Applicant that a mediation at the end of July was too long a delay in the circumstances. Having reached that view, the Tribunal ordered that the Shire file available dates for a mediation conference in April, May and June by 26 March 2025. The Shire complied with this order.
On 27 March 2025, the Tribunal made orders to adjust the programming set out in the orders of 6 February 2025 ahead of a mediation conference on 7 May 2025. Again, these orders included that '[t]here is no order as to costs'.
Ahead of the mediation, the Applicant filed its mediation statement on 16 April 2025, some 5 days late. The Respondent's solicitors were served at 6.43pm on 16 April 2025. 17 April 2025 was the Thursday before Easter. The next business day was 22 April 2025. The Applicant, in effect, gave the Respondent only three business days to file its mediation statement.
Ultimately, the Respondent filed its mediation statement on 1 May 2025, 6 days late. By letter dated 30 April 2025, the Respondent wrote to the Tribunal, copied to the Applicant, and apologised for the statement being filed late. The Respondent also explained that it had invited the Applicant, due to the late filing of materials by both parties, to vacate the mediation listed for 7 May 2025, however the Applicant did not agree to vacate. The Respondent did not seek to adjourn the mediation.
On 6 May 2025, the parties filed consent orders seeking to vacate the mediation on 7 May 2025 and for the Respondent to provide the Applicant with 'a list of further documents and/or information it considers it requires together with any queries it has [in relation to the Application]'. The parties also sought orders:

[102]

The Applicant submits that its profit claim is within the scope of the Tribunal's power to award costs pursuant to s 87(3) of the SAT Act.
Furthermore, while they may be informative, previous decisions of the Tribunal on the scope of s 87(3), such as Springmist Pty Ltd and Shire of Augusta-Margaret River,[14] Danni and Town of Cambridge,[15] and Bowman and Local Government Standards Panel,[16] are not binding.
In this regard, the Applicant refers to the decision of Colvin J in Cau v Victorian Building Authority,[17] as authority for the proposition that administrative tribunals must apply the law as enunciated with the appellate structure of the Courts, not other tribunal decisions.
The Applicant submits that the Costs Application does not seek general damages nor tortious compensation. Rather, the profit claim arises directly from the Respondent's conduct prior to, and during, the Review. It refused to engage with the Applicant prior to issuing the Refusal and, in its conduct of the Review, did not meaningfully engage until 6 May 2025. Thereafter, the matter was resolved with the issuing of Permit Number 6278, some 13 days later.
The Applicant's claimed losses were incurred during the Review and were a direct consequence of the Respondent's conduct. Furthermore, the Respondent was on notice as to the Applicant's significant exposure under the Contract with BHP. The Applicant's reliance on s 87(3) is not on the basis of common law damages, but rather 'economic loss' directly arising from the Applicant's need to conduct the Review.
The terms of s 87(3) are such that the Tribunal has a wide discretion to award economic losses incurred during Tribunal proceedings where such losses are closely connected to the Respondent's conduct in the course of its decision-making. The Applicant's claim is for expenses and loss suffered as a result of the Review, which it was compelled to initiate. Its losses are directly attributable to the delay caused by the Respondent's refusal to engage.
Furthermore, the class and nature of expenses and losses able to be recovered under s 87(3) of the SAT Act is not closed.

[105]

Section 87(4) is directed to the conduct of the parties in making the reviewable decision. The matters to be considered by its terms include whether: (a) an applicant genuinely attempted to assist the decision-maker in making a decision on the merits, and correspondingly, (b) whether the decision-maker genuinely attempted to make a decision on the merits.
That is to say, as the Tribunal made clear in Moore and City of Wanneroo,[18] s 87(4) is directed to the conduct of the parties prior to, in this instance, the Refusal of the Application.
The Applicant, which bears the onus in its claim for costs, has not identified any conduct by the Shire that would justify a departure from the general position that each party is to bear their own costs. That is because no such circumstances exist.
The Respondent has not acted unreasonably nor inappropriately. In the conduct of the Review, most orders were agreed by consent without the need for a final hearing. Contrary to the Applicant's Submissions, the Respondent did not act to prolong the hearing; there was no hearing. Thus, there is no 'successful' party.
Unlike in most instances where a costs order is made, the merits or otherwise of each of the parties' positions in the Review was not determined by the Tribunal. The Applicant seeks to rely on a small sample of correspondence as a basis to then, in effect, invite the Tribunal to determine the substantive merits of the Review. There is no suggestion that the Shire failed to genuinely attempt to make a decision on the merits, but there is doubt as to whether the Applicant genuinely attempted to enable and assist the Shire in determining the Application.
The reasons for the Refusal make it clear that not all of the necessary documentation was provided with the Application. After issuing the Refusal, while the Applicant labels its communications as an effort to engage, the reality is that such communications were simply the Applicant asserting that the Shire's position was 'misconceived'.
The fact that Permit 6278 was issued without delay once the Shire was satisfied that all relevant information had been received suggests that the outcome of the Application may have been different if the Shire had been provided with the relevant information.

[110]

As I explained in Danni,[20] for a costs order to be made in the Tribunal's review proceeding, it will usually flow from the conduct of a party which, in all of the circumstances, is found to be unreasonable.
In Western Australian Planning Commission v Questdale Holdings Pty Ltd,[21] the Court of Appeal explained that the legislative intent that informs s 87(2) is that the discretion to make a costs order is to be exercised if it is fair and reasonable in all the circumstances of the case to do so. The Court of Appeal also explained that the onus is on the party that seeking a costs order in its favour.[22]
While s 87(3) of the SAT Act does refer to a power to awards costs for any 'expenses, loss, inconvenience or embarrassment' resulting from the proceedings, the Tribunal has not interpreted it as a power to, in effect, award damages against a party.
For example, in Springmist,[23] the Tribunal, after examining the operation of similar legislation in the Victorian Civil and Administrative Act 1998 (Vic) stated:
1. 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 or some amount which compensates a party for the inconvenience or expense of its participation in the proceedings.
2. 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.
Section 87(3) of the SAT Act was considered by the Court of Appeal in Lee v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee,[24] in the context of an appeal against a decision of the respondent to dismiss the appellant's complaint against former lawyers in failed defamation proceedings. Mr Lee alleged breaches of contract and duty against the former lawyers and made complaints about solicitors to the Legal Profession Complaints Committee.
Although in Lee the Court found it unnecessary to attempt a definitive construction of its scope, it explained that the evident power in s 87(2) is conferred on the Tribunal in relation to the exercise of its statutory jurisdiction. Accordingly, the Tribunal has no jurisdiction to adjudicate upon general law causes of action and award damages for breach of duty. Furthermore, by the terms of s 87(3), the costs are to compensate for expenses and so on resulting from the proceeding or the matter because of which the proceeding was brought.
The Court in Lee also explained that the reference to 'proceeding' in s 87(3) is to the Tribunal proceeding. The 'matter because of which the proceeding was brought' was the decision of the regulator to dismiss Mr Lee's complaint as against his former law firm.[25] The Court further explained that the power in s 87(3) does not extend to losses in the nature complained of by Mr Lee arising from the defamation action, which were, in effect, damages (by breach of contract or negligence).
The Court of Appeal's analysis in Lee was more recently considered by Lundberg J in Lee v The State of Western Australia [No 2],[26] where his Honour explained that although the Court of Appeal in Lee did not attempt a definitive construction of the scope of s 87(3), it was nonetheless evident that the scope of the power is not so broad as to permit a party to claim compensation in the nature of damages from a decision-maker on the basis that its conduct fell short of acceptable standards.
His Honour further noted that the analysis in Lee was consistent with the basis on which the Tribunal had construed the provision in Springmist. His Honour explained that:[27]

[112]

The Applicant's submissions, to the extent that they explain that I am not bound by any previous decisions of the Tribunal as to the scope and application of s 87(3) of the SAT Act, may be accepted.
In Mustac v Medical Board of Western Australia, the Court of Appeal explained that the Tribunal is not a court,[28] and therefore the practice of judicial comity does apply.[29] Rather, the law as enunciated by the courts, at least those courts above the Tribunal in the appellate structure, must be applied by the Tribunal, however constituted. Questions of fact are to be determined by the Tribunal on the basis of the evidence and other materials adduced before it.[30]
However, in Mustac the Court also stated that while judicial comity may not apply, principles of good administration and consistency of decision may be relevant to the approach properly taken by an administrative tribunal.[31]
It follows that while I am not bound by Springmist, it is not without significance that it is a decision on the scope of and application of a key provision of the SAT Act, made by the then President of the Tribunal, Chaney P. It has also been consistently referred to, and followed, on many occasions as a basis on which the Tribunal applies s 87(3) of the SAT Act.[32] Such an approach promotes consistency, and thus public confidence, in the application of the law. Furthermore, Chaney P's reasoning in Springmist was approved by Lundberg J in Lee [No 2]. More importantly though, it is a decision that I regard as being correct, as it is faithful to the text, content and purpose of the SAT Act.
Given the statutory scheme for costs in the Tribunal provided for in Div 5 of Pt 4 of the SAT Act, it would be an extraordinary result, to my mind, to read s 87(3) so as to be, in effect, a gateway for claims akin to damages or, as the Applicant presses here, 'economic losses' running to millions of dollars, against the backdrop of a presumptive position that the Tribunal is a cost-neutral jurisdiction, in the context of a local government exercising what is purely an administrative and regulatory function.
In any event, leaving to one side decisions of the Tribunal, as is made clear in Mustac, I am bound by the law that has been enunciated by the Courts, particularly, in this instance, Lee and more recently Lee [No 2].
While it is correct that the Court of Appeal has not yet had to determine the precise scope of s 87(3), in Lee the Court did make clear that the Tribunal has no jurisdiction to adjudicate upon general law causes of action, such as, in this case, the profit claim being a claim, in the Applicant's words, a claim for 'economic loss'. Such causes of action cannot be cloaked as an application for 'expenses and loss' for the purposes of s 87(3) of the SAT Act.
Relevantly, s 87(3) provides that the power of the Tribunal to make an order for costs 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.
Drawing from the Court of Appeal's analysis in Lee, in this case, the 'proceeding' was the Review before the Tribunal. The 'matter because of which the proceeding was brought' was the Application made to the Shire for a temporary occupancy permit.
However, the Applicant's profit claim is made by reference to, and in reliance on, the terms of its Contract with BHP. The Shire is not a party to the Contract, did not consent to it nor is it bound by its terms. The Contract, and the obligations and liabilities that flow from it, is extraneous to the Application that was made to the Shire, which engaged the Respondent's jurisdiction as a permit authority under the Building Act.
Accordingly, the profit claim fails because, based on the principles enunciated in Lee, Lee [No 2] and Springmist, it sits well outside the scope of the power of the Tribunal to make an order for costs. Section 87(3) does not encompass economic losses of the kind pressed for by the Applicant. The Applicant cannot use s 87(3), as it seeks to, to make the Shire responsible for its liabilities or commercial exposure it agreed to take on under the Contract.
As to the merits of the profit claim, while it is true that the Tribunal generally takes a 'robust and broad brush'[33] approach to costs, there still needs to be a proper factual basis on which to undertake such an assessment. Here, the materials provided by the Applicant to support and evince what is a very substantial claim for lost profits are, with due respect, and with considerable restraint, 'scant'. A simple spreadsheet provided by the solicitor, assuming 100% occupancy of the Applicant's facilities at all times and with a constant profit margin of 68%, the basis of which is wholly unexplained.
Moreover, there is no actual evidence of any 'loss' sustained by the Applicant, nor is there any evidence that the Applicant would otherwise meet its obligations under the Contract. The beginning, and the end, of the Applicant's evidence is the statement by Mr Boni in the SB Affidavit that '[he has] been told by Mr Mark Keene, the director of the Applicant and verily believe that had [the Application] been approved ... then 200 rooms ... would have been available for BHP workman under the Contract'.[34]
I find there is no proper factual basis for the profit loss claim.

[113]

For the following reasons, the Applicant's claim for legal costs also fails.
As I explained in Danni, in the Tribunal's review jurisdiction, the general position is that before the discretion to make a costs order is enlivened, the Tribunal must first be satisfied that the conduct of the party against which a costs order is sought, can be said to be 'unreasonable' in all of the circumstances. Put another way, in the language of Questdale, a costs order must be found to be fair and reasonable in all of the circumstances. In the context of the Costs Application, the burden sits with the Applicant to demonstrate unreasonableness.
While the considerations that inform the discretion to make an order for costs are not limited by s 87(4), that subsection directs attention to the background to, and the making of, the reviewable decision, which necessarily includes its merits. To that end, I note that here, somewhat curiously, one factor that the Applicant has not addressed in any detail in the Review, including in its submissions in support of its Costs Application, is the merits of the Refusal.
While in its December Letter to the Shire, it asserts that the Refusal reasons are either inter alia 'misconceived because the alleged deficiencies arise from the building being incomplete', are 'not relevant' or 'not required because the various documents referenced by the Shire, are not yet required because the building works are incomplete', in pressing its case for costs, the Applicant does not address the 20 or so items that were identified in the Refusal in any detail, or at all.
The Applicant does not, in the context of the Costs Application, point the Tribunal to what the Shire got so wrong so as to be unreasonable or how its decision-making was not a genuine attempt to make a decision on the merits.
While that is not the end of the matter, in its review jurisdiction, one of the considerations the Tribunal 'is to have regard to' is, by reference to the reviewable decision, the conduct of the parties in making the reviewable decision. For applicants, the question is whether they genuinely attempted to enable and assist and, for decision-makers, whether there was a genuine attempt to make a decision on the merits.
Here, there is no factual basis on which I can reach a decision that the Shire's refusal of the Application was anything other than a genuine attempt to make a decision on its merits. I so find.
Accordingly, I turn next to consider the Shire's conduct which the Applicant submits, was unreasonable: either on the basis of the Mishandling complaint or the Unreasonable conduct complaint.

[114]

The Applicant's Submissions are, in effect, that the Shire was unreasonable in asserting 'the planning approvals were a relevant consideration in the issue of [an occupancy permit]'. The Shire was unreasonable because the Applicant's lawyers advised the Shire of the correct application of the law as it applied to temporary occupancy permits under the Building Act.
It may be accepted that the Applicant was correct to the extent that it advised the Shire that compliance with a development approval granted under the PD Act is not one of the matters that a permit authority needs to be satisfied of before a temporary occupancy permit may be granted.
However, rather than bluntly saying, as it did in the November Letter, that 'a temporary building permit lodged under s 47 is not subject to compliance with a planning condition', it may have been more helpful, if that was in fact the basis of some confusion on the part of the Shire, to point the Shire to the relevant statutory scheme.
That statutory scheme relevantly provides that, in effect, an application for an occupancy permit made under s 47 of the Building Act is to be accompanied by a certificate of construction compliance (CCC) and that, in order to issue such a permit, the permit authority does not need to be satisfied, for the purposes of s 58(1), that authorisations for the building under other prescribed written laws, including the PD Act, have been obtained and are being complied with.[35]
Rather, a permit authority must be satisfied that authorisations under prescribed written laws have been obtained for the purposes of an occupancy permit accompanied by a certificate of building compliance (CBC), not an application, such as the Application, that was accompanied instead by a CCC.
But, I find, properly understood, the Shire, by the Emails, was not conflating planning requirements into the grant of a temporary occupancy permit the subject of the Application.
Rather, what the Shire was attempting to explain to the Applicant, correctly in my view, was that some of the conditions on the Development Approvals which, by their terms, had to be satisfied 'prior to occupation', may be a problem for the purposes of LPS 4 and the PD Act.
That is, what the Shire was trying to make clear was that lawful occupation under a temporary occupancy permit granted under the Building Act, may nevertheless be contrary to the Development Approvals, and thus a breach of the PD Act.
As I recently explained in Kam Khazaly Pty Ltd and Western Australian Planning Commission,[36] once the Applicant took the step to implement a development approval, it, and any successors in title, became bound by its terms.[37] A development approval binds the world,[38] and cannot be separated from the conditions which form part of it; they are inextricably linked.[39] The point which the Shire was attempting to explain in the Emails, was that some of the conditions which the Applicant was bound to implement before the approved development could be 'occupied', had not yet been completed.
Indeed, the Applicant seemingly accepted that to be the case. For example, in the November Letter, the Applicant discussed that there were outstanding works needed for the purposes of the Development Approvals. In relation to condition 5, which was directed to what the Applicant labels 'the Southern access upgrade', the November Letter pointed out that the Applicant had a permit to carry out works 'and is currently involved in carrying out such upgrade'.
While the Applicant further asserted that 'the only reasonable reference to be drawn is that condition 5 and associated conditions [26 to 31, which the Applicant had earlier explained to the Shire it regarded as 'more of an advisory note'] have been satisfied'. It is something of a leap to go from the Applicant has a permit and is 'currently involved in carrying out' works, to then assert, as it did, that the conditions must be regarded as 'satisfied'.
Moreover, the Applicant then explained that while the development would be 'permitted and authorised by the [Shire], albeit that some of the works may be incomplete'.
However, regardless of the Applicant's position, the key point is that it was for the Shire to determine if conditions imposed on the Development Approvals were satisfied. On that issue, the clear purpose of the Emails was to advise the Applicant that the terms of the Development Approvals may well be an issue, because the Shire did not share the Applicant's view that the access conditions were, in fact, satisfied. The Emails were inviting the Applicant to engage on its planning concerns, which were quite separate to the Application that had been lodged.
The fact that the Shire's concerns were 'separate' to the Application under the Building Act is evinced by the fact that none of the reasons for the Refusal reference the Development Approvals and associated conditions.
Rather, the Emails were directed to aspects of the regulatory regime that sat outside of the Application, but which were a relevant consideration, and a concern, for the Shire not as a permit authority under the Building Act, but as a planning authority administering LPS 4.
That was made plain by the reference in the 22 November 2024 email to offences under the PD Act, not the Building Act. The Email also explains it was directed to 'planning, not building', and also made clear that:[40]

[116]

In my view, the Emails were clearly attempting to explain that the Applicant needed to be mindful of the effect of the conditions on the Development Approvals. Given that the Application was for a temporary occupancy permit, which was plainly progressed prior to the development being completed, in my view it was appropriate for the Shire to raise that as an issue. The fact that the Applicant interpreted the Emails as the Shire mistakenly conflating the planning and building regimes is the Applicant's error, not the Shire's.
The Mishandling complainant has not been made out.
Before I move on, and being mindful that I have before me far less than a full picture of the Development Approvals, and also appreciating that, from the relative perch of administrative review, some latitude may be needed in evaluating the correspondence exchanged between the parties, it is nevertheless plain that the Applicant has fundamentally misstated a number of principles of planning law.
In my view, those misconceptions should not be left to stand unclarified, lest they be interpreted as being correct. To that end, I am making the following observations.
Firstly, the Applicant's email of 21 November 2022, to the effect that 'planning approvals can [only] be enforced after the relevant notice of completion', is not correct. Buildings or structures that are 'development' for the purposes of the PD Act are either authorised, or they are not. Whether a particular structure is 'development' or not, is in effect, an evaluation as to the degree of its impact in its relevant context.[41]
In undertaking that evaluative exercise, it matters not whether a certificate of completion under the Building Act has been issued. As is the case here, if a condition of a development approval provides that a building cannot be occupied until certain conditions have been satisfied, the occupation of that building which may be regarded as lawful under the Building Act, may nevertheless be a breach of the PD Act.
Secondly, to the extent that the same email suggests, as it does, that a CCC or a CBC can operate to, in effect, alter and authorise access arrangements for Block 5 in a manner at variance with the development approval, it is also incorrect.
A development approval under LPS 4 stands on its own. Again, while a CCC or CBC may be a necessary prerequisite for an occupancy permit to be issued under the Building Act, it remains the case that 'development' that is at variance from a development approval, is 'unauthorised development' for the purposes of Pt 13 of the PD Act.
Furthermore, the activities involved in undertaking a development that has not been authorised by a development approval may constitute an offence under s 218 of the PD Act, even if approval for the product of those activities, being the resultant physical structure, is retrospectively granted development approval.[42]
Thirdly, to the extent the November Letter suggests that a subsequent development approval operates to 'delete' conditions imposed on an earlier development approval, it is also incorrect.
That misconception appears to lie at the heart of the November Letter, which implies that the Applicant was seeking to simultaneously rely on both P002/23 and P014/24 in circumstances where the Development Approvals were, inconsistent with each other. I say that because the Applicant explained that the two approvals were in 'substantially the same terms, save for the installation of the northern access in lieu of the closure of the southern access'. It would therefore appear that the access arrangements for P014/24 are different to those originally approved in P002/23.
As a matter of planning law, there is no impediment to obtaining multiple development approvals for the same land.[43] However, it is impermissible to simultaneously rely on two development approvals which, by their terms, are inconsistent with each other.[44] A subsequent development application may well operate to vary or replace a prior development approval. However, it is impermissible for a developer to have in place multiple approvals, which are at variance with each other, and seek to reply on different aspects of some, or all, of them in carrying out a development.
To do so would allow a developer to, in effect, 'cherry pick' the aspects of each development approval it wishes to rely on such that they are permitted to undertake a development which, when completed, was never considered and approved by the planning authority.
To that I would add that LPS 4, like all local planning schemes, includes the 'deemed provisions' which are set out in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).[45] Clause 77(1)(a) of the 'deemed provisions' provides that a landowner may apply to delete a condition on an approval. However, the deemed provisions do not include a corresponding power for a local government to unilaterally cancel or vary conditions of approval.
Accordingly, it is simply incorrect to assert, as the Applicant did here, that a subsequent approval operates, as matter of law, to cancel a former approval. In general terms, a development approval, once granted, endures for as long as it remains lawful to undertake the development.[46]

[118]

On the materials before me, the Applicant's complaints about the Shire's conduct in the Review are, I find, baseless. The parties worked constructively together to progress the Review, which was ultimately resolved, and thereafter withdrawn, by consent.
The Shire and its solicitors did not seek to unnecessarily prolong the Review. While it did seek a mediation date at the end of July, its instructions were that the matter needed the attention of the CEO of the Shire. Given the seemingly aggressive approach being taken by the Applicant at the point in which the Review was lodged, where costs were already being threatened, such a position is understandable. Even so, when I urgently called the matter back on 21 March 2025, and required the mediation to be scheduled earlier than July, the Shire complied with the Tribunal's order.
Moreover, ahead of the mediation scheduled for 7 May 2025, it was the Applicant who did not comply with the Tribunal's orders, such that it filed its materials only one day before the Easter break. I am satisfied, and I find, that the Respondent filed its materials as promptly as it could. While the Shire did raise the prospect of seeking an adjournment to the mediation, given the lateness of both parties, it did not press the matter given the Applicant's preference to proceed.
In any event, by this time the Applicant had lodged its further application which the Shire considered was capable of approval, once further information was provided. The Shire's building surveyor advised the Shire that all the requisite information had been provided and on 19 May 2025, issued Permit 6278.
I find there is nothing in that conduct which, in any way, provides a factual basis for a finding that that the Shire conducted the Review unreasonably or that it sought to prolong or delay its resolution.
The Applicant has prosecuted its Costs Application on the basis that, in effect, the Shire did not fully appreciate the difficult contractual situation the Applicant was in due to the time sensitive nature of BHP's needs with respect to accommodation for its workforce. The fact that the Shire did not act with the commercial haste that the Applicant would have preferred can hardly be said to be, of itself, unreasonable conduct given that it was acting in its regulatory role as a permit authority. In any event, the Refusal was issued within the statutory timeframe provided by the Building Act.
In my view, the Applicant seeks to unreasonably and opportunistically colour or tarnish the Shire's conduct through the lens of its pressing commercial obligations under the Contract. There is nothing in the conduct of the Shire as a permit authority under the Building Act, and as planning authority under the LPS 4, that can be said to be unreasonable so as to justify the making of an order for costs.

Legislation Cited (5)

Administrative Tribunal Act 2004

Government Act 1995

Development (Local Planning Schemes) Regulations 2015

Development Act 2005

Civil and Administrative Act 1998

Cases Cited (29)

OASIS @ NEWMAN PTY LTD and SHIRE OF EAST PILBARA [2025] WASAT 136 (2 December 2025)

Bowman and Local Government Standards Panel [2024] WASAT 22 (S).

Bretherton v Moonee Valley City Council [2000] VCAT 1151

Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134

Cairnes and Ventura Homes Group Pty Ltd [2024] WASAT 111 (S)

Cau v Victorian Building Authority [2022] FCA 45

Chew and Director General of the Department of Education and Training [2006] WASAT 248

Claude Neon Ltd v City of Perth [1983] WAR 147

Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111

Danni and Town of Cambridge [2023] WASAT 123

Kam Khazaly Pty Ltd and Western Australian Planning Commission [2025] WASAT 134

Lee and Pharmacy Board of Australia [2021] WASAT 132

Lee v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2023] WASCA 60

Lee v The State of Western Australia [No 2] [2023] WASC 247

Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115

Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42; (2013) 197 LGERA 35

Medical Board of Australia v Costley [2013] WASAT 2; (2013) 83 SR (WA) 1

Mills and Tanah Merah Park Pty Ltd as Trustee for the Golden Bay Trust Trading as Albany Holiday Park [2025] WASAT 14

Moore and City of Wanneroo [2017] WASAT 145 (S)

Mustac v Medical Board of Western Australia [2007] WASCA 128

Rohrlach v City of Unley [2011] SAERDC 19

Saint and Law Complaints Officer as the Delegate of The Legal Profession Complaints Committee [2023] WASAT 104

Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42

Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16

Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S); (2005) 41 SR (WA) 207

Summerville and Department of Education and Training [2006] WASAT 368 (S)

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81

(2013) 197 LGERA 35

(2016) 213 LGERA 81