Practice and procedure ­ Costs ­ Directions hearing necessitated by respondent's failure to comply with orders ­ Prejudice to applicant in preparation for hearing ­ Lack of satisfactory explanation for default ­ Respondent ordered to pay applicant's costs of directions hearing in fixed amount ­ Request for reasons ­ Town planning - Development approval must be final and certain ­ Conditions imposed by respondent resulted in development approval not being final and/or certain ­ Directions for speedy and fair conduct of proceedings ­ Tribunal directed respondent to re­draft conditions in advance of hearing ­ Tribunal directed respondent to provide s 24 documents

State Administrative Tribunal Act 2004 (WA)

s 9, s 24, s 29, s 30, s 34, s 77, s 78, s 87

In accordance with s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent shall pay the applicant's costs of the directions hearing on 8 April 2005 in the amount of $275.

Aznavour Pty Ltd v City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173

Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53

Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329

Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 79 ALJR 298

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) [1999] NSWCA 196; (1999) 46 NSWLR 598

Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508

1 On 8 April 2005, I made orders including the following:

"In accordance with s 87(2) of the State Administrative Tribunal Act 2004, the respondent shall within 28 days pay the applicant [his] costs of the directions hearing on 8 April 2005 in the amount of $275."

2 In a letter to the President of the Tribunal, the Hon Justice ML Barker, which was received by facsimile on 4 May 2005, the Town of Vincent ("the respondent") advised that, on 26 April 2005, it had resolved as follows:

"REQUESTS SAT to reconsider and delete its Order of 8 April 2005 to order the Town to pay its [sic] cost ($275.00) of the Directions hearing, and to provide the Town with its reasons for its Order of such costs, as the Town has genuinely attempted to make a decision on this matter, however was of a view that the decision had to be made by the Council rather than at Officer level."

3 In a letter to the Chief Executive Officer of the respondent dated 17 May 2005, the President of the Tribunal advised that the Tribunal had "treated [the] request [in the respondent's resolution] as being one made pursuant to s 78 of the State Administrative Tribunal Act 2004". That section provides as follows:

(1) If the Tribunal makes a decision, whether or not a final decision, without having reserved it decision and does not give its reasons for the decision in writing, a party may, within the period of 28 days after the day on which the decision is given, request that the Tribunal give its reasons in writing.

(2) The Tribunal is to give written reasons that a party requests under subsection (1) within the period of 90 days after the day on which it receives the request or within an extension of that period given by the President."

4 These are the written reasons for my decision to make the costs order referred to at [1] above.

5 On 24 September 2003, Mr DN Randall ("the applicant") lodged a development application with the respondent for consent to an increase in the maximum number of patrons permitted at existing licensed premises from 400 to 600 ("the DA"). The premises are known as the Paddington Alehouse which is located at 141 Scarborough Beach Road, Mount Hawthorn.

6 Having deferred the DA on two occasions, the respondent purported to grant development approval to it in accordance with the Town of Vincent Town Planning Scheme No 1 ("TPS1") and the Metropolitan Region Scheme ("MRS"), subject to eight conditions, including the following:

"(a) a CONDITIONAL INCREASE of seventy (70) additional patrons to the existing 400 to a maximum 470, subject to review and support from the Chief Executive Officer, a two week consultation period and a report to Council after six months and 12 months performance assessment of the number of formal complaints and other relevant information regarding community impact;"

"(b) compliance with the Management Plans detailed under clause (iv);"

"(d) ongoing compliance with all relevant Environmental Health, Engineering and Building requirements;"

"(g) prior to the additional 70 patrons being approved by the Director of Liquor Licensing, the applicant/owner shall pay a cash­in­lieu contribution of $25,200 for shortfall of 10.08 car bays based on the cost of $2,500 per bay as set out in the Town's 2004/2005 Budget;"

7 On 23 February 2005, the applicant commenced these proceedings for review of the determination of the DA.

8 At the initial directions hearing, which took place before me on 11 March 2005, the applicant's solicitor, Mr AD Wilson, clarified that the applicant sought review of conditions (a) and (g). Mr Wilson and Mr SJ Bain, who represented the respondent, each indicated that the matter was unlikely to be advanced through mediation and requested that it be listed for hearing.

9 I made the following orders:

"1. The matter is listed for hearing to commence at 10 am on 20 April 2005.

2. By 24 March 2005, the respondent shall file and give to the applicant a re­draft of conditions (a), (b) and (d) which is both final and certain.

3. By 24 March 2005, the respondent shall file two copies and give one copy to the applicant of a statement of reasons for conditions (a) and (g), including a concise statement of the issues for determination in the appeal, and all documents and material relevant to the Tribunal's review of the decision to impose those conditions to the extent not already provided including full copies of any relevant planning provision or policy.

4. No less than 2 two weeks before the hearing date each party shall file 2 copies and give to the other party one copy of any statement of evidence on which it proposes to rely."

10 I made these orders having regard to several provisions of the State Administrative Tribunal Act 2004 (WA) ("the Tribunal Act"). Section 24 of the Tribunal Act provides as follows:

"24. Provision of documents and material by decision­maker

If a proceeding for the review of a decision is commenced, the decision­maker is to provide the following to the Tribunal in accordance with the rules ­

(b) other documents and other material in the decision-maker's possession or under the decision­maker's control and relevant to the Tribunal's review of the decision."

11 Section 27(2) of the Tribunal Act provides that "the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review". Section 29(1) provides that the Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, "functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision". Section 29(5) states that the decision­maker's decision, as affirmed or varied by the Tribunal, or a decision that the Tribunal substitutes for the decision­maker's decision, "is to be regarded as, and given effect as, a decision of the decision­maker" and "is to be regarded as ... having had effect, from the time when the decision reviewed ... would have had effect".

12 Section 30 of the Tribunal Act is in the following terms:

"30. Decision­maker to assist Tribunal

In a proceeding for the review of a reviewable decision, the best endeavours of the decision­maker are to be used to assist the Tribunal to make its decision on the review."

13 Finally, s 34 of the Tribunal Act provides, in part, as follows:

(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.

(2) The Tribunal's power to give directions is exercisable by:

(3) The Tribunal may give directions on its own initiative or at the request of a party.

(4) A directions hearing conducted or presided over by a legally qualified member may be held for the purposes of this section before any other hearing in the proceeding.

(5) The Tribunal may give a direction requiring a party to produce a document or other material, or provide information, to the Tribunal or another party despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents. ... "

14 Before making the orders set out at [9] above, I indicated to Mr Bain that conditions (a), (b) and (d), as imposed by the respondent, appeared to have had the effect that the development approval lacked finality and/or certainty, such that the Tribunal could not, irrespective of the merits of the argument between the parties, lawfully impose conditions in that form. I had in mind the decision of the New South Wales Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 ("Mison"). In Mison, Clarke JA (with whom Meagher JA agreed) held at 740 as follows:

"The principle that a valid consent must be final and certain is established and was accepted by the parties. The point was expressed by Wells J in terms which, with respect, I find persuasive in Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; 49 LGRA 65 at 68. His Honour said:

' ... For this purpose it is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application: the consent must be either refused, or granted unconditionally, or granted subject to conditions. A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect.'

In my opinion what is said in that passage applies to s 91 of the Environmental Planning and Assessment Act 1979 (the Act) under which a development application must be granted, either conditionally or unconditionally, or refused. Although s 91(3) specifies those conditions which may be imposed this subsection does not have the effect of qualifying the principle that a consent must be both final and certain.

Where a consent has been granted in terms which leave open for later decision a particular aspect of the planned development the question may arise whether the consent is final. ...

Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final."

15 In relation to this latter principle, Priestley JA (with whom Meagher JA also agreed) said at 737 as follows:

"Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made."

(See also Aznavour Pty Ltd v City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173 at 178 ­ 179; 185 ­ 188; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) [1999] NSWCA 196; (1999) 46 NSWLR 598 at 629 ­ 630.)

16 What was said by Wells J in the passage quoted with approval by Clarke JA is equally applicable in relation to the determination of a development application under TPS1 and the MRS, which confer a discretion on the respondent, as the responsible authority (under TPS1) and as the delegate of the Western Australian Planning Commission (under the MRS), to refuse its approval or to grant its approval subject to such conditions as it "considers to be appropriate" (TPS1 cl 38(7)) or "may deem fit" (MRS cl 30(1)).

17 It appeared to me that condition (a), as imposed by the respondent, resulted in the consent not being certain or final. What was meant by "review and support from the Chief Executive Officer"? What was meant by "a two week consultation period"? What was meant by "performance assessment of the number of formal complaints and other relevant information regarding community impact"? Moreover, the intention of condition (a) appeared to be that approval of the application was not final, as it was subject to review, support, consultation and performance assessments after six months and twelve months.

18 The meaning of condition (b) was also uncertain, because "clause (iv)" did not form part of the development approval. It appears that when the formal instrument of approval was prepared, the titles of the management plans detailed in "clause (iv)" of a report to the respondent were not written into the consent. Although the respondent appears to have been aware of which management plans it required compliance with, the applicant and subsequent holders of the consent would not necessarily have known. In this regard, it is important to bear in mind the nature and function of a development approval. As Spigelman CJ observed in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [4], in a passage quoted with approval by Kirby J in Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 79 ALJR 298 at [89]:

"A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has ... an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions."

19 Condition (d), which required "ongoing compliance with all relevant Environmental Health, Engineering and Building requirements", was uncertain in both meaning and scope. It did not circumscribe "with reasonable particularity the acts of land use to which the authority or tribunal has given its consent" (to borrow Wells J's words in the passage quoted at [14] above). Moreover, given that use of land otherwise than in compliance with any condition imposed on the grant of development approval constitutes a criminal offence (TPS1 cl 53; Metropolitan Region Town Planning Scheme Act 1959 (WA) s 42), it is essential that conditions of development approval are stated with particularity so that those who act on them do not inadvertently commit an offence.

20 In this context, I made order 2 "for the speedy and fair conduct of the proceeding" (Tribunal Act, s 34(1)), so that the parties could address, in their evidence and submissions, conditions capable of lawful imposition, and so that the Tribunal would have such conditions before it at the final hearing of the proceedings in order to determine whether, on the merits, they ought to be imposed. As noted earlier, s 34(3) of the Tribunal Act permits the Tribunal to make directions under that section on its own initiative.

21 The applicant sought to challenge conditions (a) and (g) only, and did not dispute conditions (b) and (d). However, in determining whether to exercise the statutory discretion conferred by TPS1 and the MRS to grant conditional development approval, the Tribunal is required to be satisfied that it has power to impose proposed conditions, even if the conditions are not opposed; cf Tribunal Act, s 56(2).

22 It was not appropriate to list the proceedings for final hearing without addressing the lack of finality and certainty first, as that would have resulted in a waste of private and public resources in preparing for a hearing in relation to conditions which were incapable of imposition. The hearing might also have had to be adjourned to enable alternative conditions to be drafted. Although, under s 29(1) of the Tribunal Act, the Tribunal could have re-drafted the conditions itself, procedural fairness required that the respondent be given an opportunity to re­draft the conditions and the applicant be given an opportunity to address the re­drafted conditions.

23 On 29 March 2005, the solicitors for the applicant advised the Tribunal by facsimile that the respondent had not complied with orders 2 and 3 made by the Tribunal on 11 March 2005. The solicitors also indicated that the applicant would be overseas until 26 April 2005, and requested that the hearing date be vacated and re-listed after 26 April 2005.

24 In order to avoid the parties having to incur the expense of a further directions hearing, I instructed an officer of the Tribunal to telephone the respondent and indicate that the Tribunal expected the documents, which were required by orders 2 and 3 to be filed and given to the applicant by 24 March 2005, to be filed and given to the applicant by the close of business on Monday, 4 April 2005. According to the file note prepared by the Tribunal officer on 1 April 2005, Mr Rasiah, an officer of the respondent, said that he would fax the documents on that day or on 4 April 2005 and send the originals by courier. The Tribunal officer then spoke to a secretary at the applicant's solicitors' office and informed her of what Mr Rasiah had said. At my request, the officer also spoke to the representatives of both parties and advised them that the hearing date had been changed from 20 April 2005 to 2 May 2005. According to the file note, both parties were agreeable to this change of date.

25 On 4 April 2005, the respondent faxed a letter to the Tribunal which stated that, as the conditions required to be re-drafted by order 2 made on 11 March 2005 were determined at a meeting of the respondent, "if [those] conditions are to be reconsidered and amended/redrafted by the Town, this matter is required to be referred back to Council for consideration at an Ordinary Meeting of Council". The letter also set out some very brief reasons for the two conditions in dispute, but did not include "a concise statement of the issues for determination in the appeal". The respondent did not provide the s 24 documents which were required by order 3.

26 In consequence of the respondent's default in compliance with orders 2 and 3 made on 11 March 2005, notwithstanding the statement by its officer that compliance would occur by 4 April 2005, I arranged for the matter to be listed for a further directions hearing on 8 April 2005.

27 At the directions hearing on 8 April 2005, Mr Wilson appeared for the applicant. By prior arrangement, Mr Bain appeared for the respondent by telephone. Mr Wilson said that his client was prejudiced by the respondent's failure to provide the s 24 documents and that he could not properly prepare for the hearing which was to take place in three weeks' time.

28 Mr Bain indicated that the respondent's officers did not believe that they could comply with order 2 without resolution of the Council. He did not, however, explain why such a resolution had not been sought, why the respondent had failed to apply, over a period of four weeks, to the Tribunal to vary or vacate order 2, or why it had failed to fully comply with order 3.

29 I indicated to Mr Bain that the application was now the subject of review proceedings before the Tribunal. I referred to the respondent's obligation under s 30 of the Tribunal Act to exercise its best endeavours to assist the Tribunal. I confirmed the hearing date of 2 May 2005, made orders 2 and 3 again, allowing the respondent until 12 April 2005 to comply, and directed (with the agreement of both representatives) that witness statements be filed and served one week (rather than the usually required two weeks) before the hearing.

30 Section 87 of the Tribunal Act provides, in part, as follows:

(1) 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.

(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party ...

(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to ­

(a) whether the party (when bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;

(b) whether the party (being the decision­maker) genuinely attempted to make a decision on its merits."

31 As the Tribunal recognised in Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53 at [28], it is apparent from the terms of s 87(1) of the Tribunal Act that the starting proposition is that parties bear their own costs in a proceeding. However, s 87(2) clearly 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, unless otherwise specified in an enabling Act. In Citygate Properties Pty Ltd and City of Bunbury (supra), the Tribunal referred at [30] to the statement in the Western Australian Civil and Administrative Review Tribunal Taskforce Report on the Establishment of the State Administrative Tribunal (May 2002) that "normally, in relation to an administrative review matter, each party should bear its own costs of the proceeding". At [31], the Tribunal observed that this statement was consistent with the "well­recognised position that, in a merits based administrative review of a decision of a local government or other body where the review tribunal is required to exercise the powers of the original decision­maker, it is appropriate that the discretion as to costs be usually exercised such that each party bears its own costs of the merit review". However, on the facts of that case, the Tribunal determined that it was appropriate for the Tribunal's discretion in relation to costs under s 87(2) of the Tribunal Act to be exercised so as to compensate an applicant for having commenced and prosecuted proceedings which were futile and which were invited, and arguably induced, by the respondent.

32 In relation to costs of the directions hearing, Mr Bain said again that his client's officers had thought that they could not comply with order 2 without referral to a meeting of the elected Council. He did not explain why, if the officers laboured under such a misapprehension, they did not seek to have the matter referred to a meeting of the respondent in order to comply with order 2, why the respondent had not applied to the Tribunal to vary or vacate order 2, nor why order 3 had not been fully complied with.

33 I determined that it was appropriate for the Tribunal's discretion in relation to costs under s 87(2) of the Tribunal Act to be exercised so as to compensate the applicant for the professional costs of having had his solicitor attend the directions hearing. I did so, because:

(a) the directions hearing was necessitated by the respondent's default in compliance with the orders of the Tribunal;

(b) the respondent's default had prejudiced the applicant's preparation for a hearing which was imminent, and in relation to which he was obligated to prepare, file and serve evidence within 10 days (as the orders stood prior to the directions hearing);

(c) the respondent had failed to provide an adequate explanation for its lack of full compliance with order 3, and in particular for its failure to provide all of the documents required by s 24 of the Tribunal Act; and

(d) the explanation which was offered for the failure to comply with order 2 was misconceived, and no explanation was given as to why, if the respondent's officers had such a misapprehension, they did not seek to either bring the matter before a meeting of the elected Council or bring the matter back before the Tribunal to vary or vacate the order.

34 The explanation for the failure to comply with order 2 was misconceived, because the respondent, having purported to determine the DA by the grant of conditional approval, was no longer relevantly the decision­maker. Rather, it was the Tribunal, exercising the functions and discretions of the respondent, that was the decision­maker in relation to the DA. Order 2 was directed at the respondent in its capacity as a party to proceedings before the Tribunal, not as a decision­maker. It did not require the respondent to reconsider its decision in relation to the DA, but rather to assist the Tribunal to come to its own decision in relation to the DA; cf Tribunal Act, s 29(3)(c)(ii). Order 2 did not, therefore, necessitate referral back to the elected Council for consideration. As subsequently occurred, the respondent, acting through its officers, was able, and indeed obliged, to comply with the order.

35 In considering whether to make an order for costs, I had regard to the mandatory consideration under s 87(4)(b) of the Tribunal Act, where a proceeding comes within the Tribunal's review jurisdiction, namely whether the respondent genuinely attempted to make a decision on its merits. Insofar as this was relevant, I was satisfied that the respondent did genuinely attempt to make a decision in relation to the application the subject of the review on its merits. However, as s 87(4) makes plain, and as the Tribunal recognised in Citygate Properties and City of Bunbury (supra) at [32], the prescribed consideration does "not limit the range of relevant considerations as to costs".

36 I asked Mr Wilson to quantify his costs of attending the directions hearing. He said that the costs were "$275". Mr Bain agreed that that was a reasonable amount. I, therefore, made the order in the terms set out at [1] of these reasons.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MR D R PARRY, SENIOR MEMBER