Town planning - Development application - Deemed refusal - Competency of application - No consent by respondent in capacity as landowner - Implied consent - Tribunal on appeal having all the decisionmakers functions and discretions for the purpose of review - Consent by Tribunal operates as consent by the decisionmaker in its capacity of owner - Car parking spaces - Number required to satisfy demand generated by proposal - Application policy - Actual demand v likely demand - [2005] WASAT 143 - WASAT 2005 case summary

Town planning - Development application - Deemed refusal - Competency of application - No consent by respondent in capacity as landowner - Implied consent - Tribunal on appeal having all the decisionmakers functions and discretions for the purpose of review - Consent by Tribunal operates as consent by the decisionmaker in its capacity of owner - Car parking spaces - Number required to satisfy demand generated by proposal - Application policy - Actual demand v likely demand - [2005] WASAT 143 - WASAT 2005 case summary — Zoe

[31]

10 As a fail safe measure, the applicant, during the course of the hearing, obtained a signature to the development application from the Manager of Land Assets - South West Land Asset Management Services thereby rectifying the deficiency of the owner's consent, should MRWA be regarded as still having jurisdiction over the footpath area.

11 However, the main thrust of the applicant's argument centred on the proclamation, which the applicant contended, conferred the responsibility of the footpath associated with the Bussell Highway on the respondent. By virtue of it having care, management and control of the footpath, it is an owner pursuant to Sch 1 of TPS17. As a result of the respondent's endorsement by resolution, made at the Council meeting held on 20 December 2004, of the recommendation of the planning officer's report, the applicant argued that there was at law, an implied consent of the respondent as owner of the land comprising the footpath: St Ives Pty Ltd v City of Mandurah (2003) 31 SR (WA) 313 at [22]

12 A further remedy put forward by the applicant was that s 29 of the Tribunal Act confers power to enable the Tribunal to provide the owner's consent on behalf of the decision-maker, and that, in this instance, the Tribunal could provide the missing consent.

13 The Tribunal is of the view that the wording of the proclamation clearly establishes that the MRWA no longer has jurisdiction over the footpath associated with Bussell Highway, and therefore, that the care, management and control of the footpath lies with the decision-maker pursuant to s 27A of the Mains Roads Act 1930 and s 55(2) of the Land Administration Act 1997.

14 In so far as there maybe any doubt, the signature obtained from the Manager of Land Assets - South West Land Asset Management Services would remedy any defect. In this event, the lateness of the signature would not affect advancement of the matter as this Tribunal holds a similar view to that expressed by Hemmings J in Amacon Pty Ltd v Concord Municipal Council, Land and Environment Court 2 December 1987; unreported, where at 11 his Honour stated:

[62]

36 The respondent asserted that the starting point for calculating the required number of car parking spaces for the proposed development is TPS 17, under which a total of 32 car spaces would be required to be provided to satisfy the scheme requirements. Both Ms Boulter and Mr Logan agreed that the parking requirements of the scheme could be relaxed pursuant to cl 5.2 of TPS17 in accordance with standards and guidelines set out in Policy PE 14, which was a policy adopted by the respondent to provide the basis on which to exercise discretion in varying car parking requirements of the scheme. It was generally agreed that the respondent has consistently applied this policy and that under this policy a total of 21 car parking spaces would be required in this instance. Ms Boulter asserted that the respondent had made a further concession in that it was prepared to accept the provision of 18 car parking spaces on site on the basis that a cash-in-lieu contribution is made for the deficit in the car parking demand that would be generated by the development.

37 The applicant was at pains to point out that it did not dispute that fact that if one applied the criteria in Policy PE 14, the required number of car parking spaces equated to 21 spaces, but asserted that based on actual demand as shown in Ms Jelley's "Parking and Access Report" (refer to Exhibit 6 Annexure CABJ2), it was appropriate in this instance to exercise a further discretion to reduce the parking requirement for this development to 18 car parking spaces.

38 Mr Logan in his evidence considered the requirement of 21 car parking spaces to be reasonable, given that for a development of this nature, TPS17 required the provision of 32 car parking spaces and that if the car parking requirements of the Draft District Town Planning Scheme ("DPS 1") had been applied, 24 car parking spaces would have been required. Mr Logan held the view that 21 car parking spaces was a concession from what was otherwise required by TPS17 and to accept less would be contrary to the developed policy position of the respondent. Ms Boulter also pointed out that DPS 1 was considered to be a "seriously entertained" proposal and that planning decisions should be consistent with the principles and objectives embodied in the draft scheme. The respondent contended that any further departure from Policy PE14 would be inconsistent with the draft Scheme.

39 Although the applicant did not dispute the status of DPS1 and indeed cited Permanent Trustee v Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 as an authority, it was able to ascertain from Ms Boulter that the draft scheme contained a similar provision to cl 5.2 of TPS 17, thereby providing a general discretion to modify scheme requirements and standards.

40 Mr Logan, under cross-examination, agreed that the general principles of Policy PE 14, which incorporated standard and guidelines, were based on likely demand and that his assessment of the proposal had been based only on the likely demand that would be generated by the proposal as he had not had the opportunity to prepared a site-specific demand analysis for the development. Mr Logan also conceded that there was no evidence to undermine the demand analysis for car parking spaces in Ms Jelley's report and acknowledged that she was an expert on transport planning matters.

41 The applicant's response to the parking issue considered two aspects of the proposed development. First, the amenity impacts and second, the actual demand for parking generated by the proposal.

42 Evidence was given by Mr Callow (an experienced architect) and Mr Hall (a town planning consultant) in respect to benefits gained by the community through the provision of a pedestrian arcade within the development. Both witnesses held the view that the increased amenity gained from the pedestrian arcade, in that it provided connectivity between Bussell Highway, the rear car parking areas and Ned Higgins Lane, was worthy of consideration in terms of a concession in the required car parking spaces, particularly as its was contended that the floor area of the pedestrian arcade was equivalent to the area of the three car bay shortfall. This assertion was based on a plan, produced by Mr Callow, to illustrate that by providing the same amount of retail floor space distributed evenly across the full frontage of the site and with no arcade, the depth of the built form is reduced to the extent that three additional car parking spaces and a relocated stair to the first floor plan can be accommodated on the subject land (refer to Exhibit 1 Annexure JBC11).

43 It was Mr Hall's evidence that the proposed development was consistent with the "Margaret River Town Centre Strategy" and that the pedestrian link to Bussell Highway would have a positive impact on the movement of pedestrians within the immediate and wider context of the subject land. He considered that the provision of improved urban design and a safe pedestrian environment provides a sound justification for a reduced number in car parking spaces.

44 Mr Callow asserted that if the arcade was deleted, the amenity of the proposed development would be diminished, as access from the car parking area at the rear would be through a rear entry to the shops or via narrow access ways that presently exist in some of the adjoining development.

45 The respondent did not dispute the benefits gained by including a pedestrian arcade into the development, but maintained that this element could be retained and the required number of car parking spaces provided on site if the floor area of the development was reduced. The respondent did not consider that the inclusion of the pedestrian arcade affected the car parking requirements or demand. Therefore, its incorporation into the development was considered irrelevant to the calculation of the car parking demand.

46 To address the question of demand, the applicant commissioned Ms Jelley, who is a very experienced transportation planner and engineer, to prepare a report that examines the access and parking issues associated with the proposed development on the subject land. Ms Jelley's analysis identified that the proposed development contemplates a "shared" parking regime in which all parking can be shared and no parking is designated as dedicated. The methodology for analysing actual demand was based on:

[68]

50 It was Ms Jelley's evidence that a total of 16.4 (rounded to 17) shared parking spaces would be required at the peak period to service the parking demand generated from the proposed mixed use development. The peak period was identified as being Saturday, during the day and more specifically between 11.00 am and 3.00 pm. Ms Jelley also tested the "robustness" of the weekday occupancy figures for retail and found that the calculation was extremely robust, "with the value of 70% (refer to Table 3 above) being able to be escalated to 87% without adverse impact on the ability of the development to cater for its own needs".

51 Ms Jelley was of the opinion that her conclusions were entirely consistent with the strategies and findings of the ERM report and that in terms of the figures produced for weekday demand her figures represented an overestimation in the number of car parking spaces required to satisfy the demand.

52 No expert witness was called by the respondent to challenge the findings of Ms Jelley's report. Through cross-examination and later through closing submissions the respondent tried to discredit the assumptions and calculations made by Ms Jelley in her report by proposing different scenarios and in each case the tables withstood scrutiny. The respondent was critical of the methodology chosen by Ms Jelley and considered that the methodology utilised in the ERM report was the correct approach, as shared parking had already been taken into account in the surveys of parking usage carried out as a part of that report. The respondent pressed that these surveys provided an accurate level of sharing applicable to the Margaret River Central Business District based on the actual mix of businesses within the town centre. Ms Boulter argued that on this basis, the ratios contained in Policy PE 14 are appropriate and are reflective of share parking of multiple uses in the Shire of Augusta-Margaret River and that these ratios should be applied. Ms Jelley, in her rebuttal, pointed out that the parking rates in the ERM report were applicable for a dedicated parking regime and that the recommended rates are "in fact peak parking rates for land uses in isolation".

53 The applicant asserted that the respondent applied an inflexible approach to the application of Policy PE 14 in that it predetermined the requirement for parking generated by the development by simply applying the ratios in the policy without considering site specific factors. Such an approach would involve an error of law: Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] to [28]; Marshall v Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202 at [41].

54 The applicant further contended that a planning condition imposed on the approval of this development requiring the provision of 21 car parking spaces (or the imposition of the requirement for the payment of cash-in-lieu associated with a shortfall in the provision of 21 car parking spaces) fails the nexus test in that for the condition to be valid it must be "fairly and reasonably related to development permitted" (Newbury District Council v Secretary of State for Environment [1981] AC 578). The applicant says that in this instance such a condition does not meet the nexus test because the development clearly generates the need for 16 car parking spaces, not 21 car parking spaces. A further argument advanced by the applicant was that, even if the demand was 21 car parking spaces, the benefits obtained from the pedestrian arcade of itself more than legitimises a reduction from 21 to 18 car parking spaces.

55 It is the understanding of the Tribunal that the parties have reached a consensus that planning approval should be granted to the proposed development. The only outstanding issue is whether a condition should be imposed on the proposed development requiring the provision of 21 car parking spaces or a cash-in-lieu payment associated with a shortfall in the provision of 21 car parking spaces.

56 The Tribunal is cognizant that the car parking requirements of TSP17 require that parking be calculated on an individual-use basis in accordance with the requirements prescribed in Table 1, which would equate to the provision of 32 car parking spaces on site. It is the understanding of the Tribunal that the parking requirements as provided for in TPS17 were the subject of a review which found that given the amount of car parking generally available in the Shire, the car parking requirements under the Scheme were too prohibitive to encourage development of the Townsite. On the basis of these findings, Policy PE14 was adopted by the respondent in order to guide the exercise of discretion, pursuant to cl 5.2, in varying any car parking related development standard referred to in TPS17.

57 In determining the number of car parking spaces to be provide for individual developments, the decision-maker is to take into account the likely demand for off-street car parking generated by the development. The policy states that:

[70]

58 Both parties agreed that if the criteria for determining the number of car parking spaces as specified in Policy PE 14 were applied, then 21 car parking spaces would be required to be provided on site.

59 Policy PE 14 provides for further variation of the required rate of car parking provision. The policy properly provides for the consideration of the circumstances/individual merit of each case in relation the general principles of the policy. The policy also requires the separate calculation for different categories of uses unless it can be demonstrated that such a requirement is unwarranted on the basis of the demand generated by each use.

60 It is essential that in assessing planning applications the particular merits of each case are considered. In this instance, a convincing argument has been put forward by the applicant in support of a further variation of the required rate of car parking in respect to this particular development. The Tribunal is of the view that the applicant comprehensively demonstrated through Ms Jelley's evidence, that the actual demand generated by the proposed development would be satisfied by the provision of 16.4 shared car parking spaces. This in its self is sufficient reason for the Tribunal to support a further variation to the required rate of car parking space. However, the Tribunal is also mindful of the real contribution that the pedestrian arcade would provide in terms of connectivity between Bussell Highway and the rear parking areas, thereby improving access and increasing the use of the rear parking areas. The Tribunal is satisfied that approval of the proposed development with a reduced number of car parking spaces, that being 18 car parking spaces would meet the criteria set out under cl 5.2 of TPS17.

61 Given this position, the issue of a cash-in-lieu contribution for a shortfall in the provision of car parking spaces falls away.

62 The Tribunal notes that during the hearing the applicant foreshadowed an application for costs. Should this be the case, the matter will need to be argued at a later date. To enable this to happen, the question of costs is reserved.

63 The Tribunal is prepared to make the following orders:

[137]

1 Following the decision of the Tribunal in this matter delivered on 21 June 2005, the applicant applied for orders that the respondent and the respondent's representative pay the applicant's costs on an indemnity basis. The application for costs was not confined to legal costs and disbursements, but encompassed a range of costs, expenses and losses said to have been incurred by the applicant as a result of the delay by the respondent in processing the original application for development approval, and as a result of the respondent's approach to the proceedings before the Tribunal. The applicant quantified the costs at $388 164.33 plus certain unspecified nominal sums. It also sought recovery of the costs for preparation of, and arguing, the hearing in relation to the costs application.

2 The Shire acknowledged that the actions of Ms Boulter, its representative at the hearing, did cause some unnecessary costs to be incurred in respect of a relatively small aspect of the proceedings, but otherwise denied that it had acted in a manner that warranted it being ordered to pay the applicant's costs. It also argued that losses and expenses of the nature claimed were not recoverable under the provisions of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).

3 The Tribunal examined the conduct of the Shire from the time of the initial lodgement of the application for development approval to the institution of the application for review and then to the completion of the hearing. It decided that the Shire's conduct, other than in relation to the matter conceded by the Shire, did not warrant an order being made for the payment of the applicant's costs. The Tribunal added that many of the items of loss and expense claimed as costs would not in any event be recoverable under the provisions of the SAT Act. It concluded that s 87(3) of the SAT Act did not entitle a party to claim compensation in the nature of damages from a decision-maker on the basis that the decision-maker's conduct fell short of acceptable standards. The compensation that may be ordered must relate to the successful party's participation in the proceedings.

[149]

11 Between 20 and 22 September 2004, the development application was advertised in accordance with the requirements of the relevant town planning scheme.

12 During the first half of October 2004, there were two meetings between Mr Callow and officers of the respondent in relation to aspects of the development. On 21 October 2004 the applicant engaged Mr Simon Hall, a town planning consultant, to assist with progressing the application.

13 Under the terms of the relevant planning instrument, the application for development was deemed refused on 7 November 2004. On 10 November 2004, Mr Callow wrote to the Shire urging it to ensure that the development application was included in the November council meeting. The letter referred to advice that had apparently been given by a council officer that the item would not go forward until the December meeting. It also referred to a decision by the applicant not to lodge an appeal with the Tribunal notwithstanding the deemed refusal, but rather to endeavour to resolve the matter through the council.

14 On the same day, a planning officer of the respondent wrote by facsimile to Mr Callow advising of issues in relation to the setback, the location of a verandah over a footpath and a deficiency in the car parking requirements.

15 On 16 November, Mr Callow and Mr Hall attended the meeting with the planning officers of the respondent to discuss the issues raised in the letter of 10 November. Mr Callow followed up that meeting with a letter on 26 November 2004 responding to the issues raised in the Shire's letter of 10 November.

16 On 30 November, Mr Hall provided the Shire with a planning assessment of the development application, and three days later lodged a notice of appeal to the Town Planning Appeal Tribunal. Apparently the respondent received notice of a directions hearing from the Town Planning Appeal Tribunal by letter dated 6 December 2004, but it was not served with a copy of the notice of appeal until 15 December 2004, two days before the first directions hearing was scheduled before the former Tribunal. On 17 December 2004, the directions hearing was adjourned to 14 January 2005, apparently on the basis that the application was to go to the respondent's council meeting on 20 December 2004.

17 At the respondent's council meeting on 20 December 2004, a planning officer's report in relation to the application was tabled. That report contained a recommendation for approval of the development subject to numerous conditions. An addendum to the report prepared by Ms Boulter advised the respondent's council that:

[151]

18 Ms Boulter, in her affidavit filed in relation to the costs application, said that the addendum reflects what was then, and still is, her honest belief as to the legal position. The applicant submits that that advice does not represent the accepted legal position in relation to the capacity of a local government to consider a development application after a deemed refusal has arisen by the effluxion of time - see Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1. It is not necessary, for the purpose of this application, for us to decide whose view of the law is correct. It is sufficient that we find, as we do, that the opinion expressed by Ms Boulter was genuinely held, and not motivated by any desire merely to obstruct the application.

19 In view of the advice from Ms Boulter, the council of the Shire resolved to endorse the relevant planning officer's report, but it did not determine the development application. It was, however, clear from that point onwards that the respondent's position was that the application should be approved subject to conditions, and that it would adopt that position in the Tribunal proceedings.

20 On 1 January 2005, the functions of the former Town Planning Appeal Tribunal were assumed by the State Administrative Tribunal, and the application continued before the new Tribunal. The directions hearing of 14 January 2005 was adjourned, at the request of the applicant, until 4 February 2005. The reason given by the applicant's solicitors for requesting the adjournment was to enable them to take instructions that "will potentially facilitate the resolution in whole or part of the appeal as the council of the respondent at its meeting held on 20 December 2004 resolved to endorse a form of conditions of approval by way of a minute of consent orders". The letter advised that the proposed conditions of approval were being considered by the applicant. Those conditions had been detailed in a letter from the Shire to Mr Callow on 11 January 2005. It is clear from that letter that council contemplated that, if the conditions were agreeable, the matter would be dealt with by a minute of consent orders being lodged in the appeal.

21 On 3 February 2005, the applicant's solicitors wrote to the respondent advising that a number of the suggested conditions were acceptable, but others were not. The solicitors proposed that, at the directions hearing set for 4 February, the appeal should be adjourned for three weeks to permit the drafting of alternative conditions and consideration of those by the Shire.

22 The following day, the Tribunal conducted a directions hearing. The suggested adjournment for three weeks was not adopted, but rather the Tribunal member conducting the directions hearing adjourned it until 11 February 2005 on the basis that the parties would exchange documents identifying their positions in relation to the proposed conditions of approval. The applicant, through the affidavit of Mr Etherington, is critical of Ms Boulter's state of preparation for the directions hearing of 4 February. Notwithstanding that criticism, it appears that the directions given by the Tribunal at that hearing were designed to progress the matter more promptly than had been contemplated in the applicant's solicitors' letter of 3 February 2005. The question of mediation was also raised by the Tribunal on 4 February 2005, but the applicant resisted mediation, apparently preferring to go as quickly as possible to a hearing.

23 On 10 February 2005, Phillips Fox wrote to the Shire outlining the applicant's position in relation to the conditions that were not agreed. The following day, at the further direction hearing, the matter was listed for hearing on 21 March 2005.

24 By letter dated 17 February 2005, faxed on 18 February 2005, the respondent wrote an eight page detailed response to the applicant's solicitors' letter of 10 February 2005, setting out the respondent's position in relation to each of the conditions challenged by the applicant. That letter agreed to the deletion of one condition, partially supported the proposed amendment of another and suggested reformulation of some conditions, but otherwise generally maintained the respondent's position on the remaining disputed conditions. Explanations were provided as to why the respondent adopted the position which it did in relation to the disputed conditions.

25 On 2 March 2005, the respondent wrote to the Tribunal seeking to vacate the hearing date of 21 March, and instead to undertake a formal mediation process. It is not clear precisely how that request was dealt with, but no mediation took place, and the hearing date of 21 March was maintained. On 10 March the applicant provided witness statements to the respondent and to the Tribunal.

26 On 18 March 2005, the respondent wrote to the applicant's solicitors, referring to a "lengthy telephone conference" between them on 14 March. The letter states that it was apparent from that conference that many of the issues the subject of the appeal might be open to resolution prior to the hearing.

27 Immediately before the hearing on 21 March 2005, the parties conducted informal discussions between themselves during which all of the conditions except for conditions relating to car parking were resolved. The hearing then proceeded in relation to the car parking issues.

28 During the course of the hearing, Ms Boulter raised an issue as to the validity of the development application which had only occurred to her during her final preparation of the hearing. That issue related to the need for consent from the entity which was the effective "owner" of the road reserve adjacent to the proposed development because columns supporting the balcony of the upper level were to be located on the road reserve. Ms Boulter asserted that Main Roads Western Australia was the "owner" of that land and that its consent was required. The resolution of that issue, raised at the last moment, made further work and enquiry necessary. For reasons dealt with in detail at [5] - [22] of the Tribunal's reasons delivered on 21 June 2005, the point raised was found not to be an impediment to the grant of approval. The Tribunal, in its reasons, expressed disapproval of the fact that the matter was raised so late in the proceedings.

29 We have set out above the events occurring in the hearing in relation to Ms Jelley's evidence which have led to the respondent's concession as to some liability to meet the applicant's costs.

30 The hearing was finally completed on 23 March 2005 when closing submissions were made. In the interim, the parties had clarified the factual position in relation to the identity of the "owner" whose consent was required in relation to the part of the development on the road reserve.

31 Ms Jelley's supplementary affidavit and written submissions were delivered on 19 April 2005, and the Tribunal delivered its reasons for decision on 21 June 2005.

[163]

35 Given the intervention of the Christmas period, and the transition of jurisdiction from the Town Planning Appeal Tribunal to the State Administrative Tribunal, when looked at objectively the time between institution of the appeal and its final hearing was relatively short. At least four weeks of that period is attributable to the applicant's request to adjourn the January directions hearing essentially for reasons of convenience of the applicant.

36 It is true that, immediately before the hearing, the respondent made concessions in relation to a number of the disputed conditions. The applicant contends that those concessions should have been made earlier, and in particular, after receipt of the applicant's solicitors' letter of 10 February 2005. It is desirable that parties make appropriate concessions as early as possible in the proceedings and do not leave it to the door of the hearing room before doing so. Delay in making concessions can result in unnecessary expense to the other parties. It is a reality, however, that in the course of final preparation for a hearing, with the benefit of the exchange of witness statements, parties will undertake a re-assessment of the position they have adopted on particular issues to that time. That process often leads to last minute concessions, and frequently complete settlement of matters, just before the hearing is due to commence. The continuous assessment of a party's position on the issues in a matter is to be encouraged, even if it creates an appropriate change of position immediately before, or even during, a hearing.

37 In this case, the applicant's letter of 10 February 2005 was given detailed consideration and received a timely response by the letter of 17 February 2005. Thereafter the respondent unsuccessfully sought to arrange mediation, and endeavoured by telephone conferences during March to further discuss and resolve some issues.

38 It is not contended by the applicant that there was no justification for a hearing in relation to the parking issues.

39 In our view, it simply cannot be said that the respondent has failed to genuinely attempt to enable and assist the Tribunal to make a decision on its merits or that the respondent unreasonably drew out or delayed the determination of the proceedings. In relation to the applicant's conduct within the proceedings, apart from the matter giving rise to the necessity for supplementary evidence from Ms Jelley, the respondent did not cause the applicant to incur wasted costs. It was regrettable that the issue as to the consent of the "owner" of the road reserve was a matter raised only during the course of the hearing. That caused enquiries to be made by the applicant as to the question of care and control of the road reserve. It being a matter of jurisdiction for the Tribunal, once the issue became apparent to the respondent, it was proper for it to be raised. Had it been raised earlier, the same sorts of enquiries which ultimately became necessary would have been made, albeit at an earlier stage. The same cost and inconvenience is likely to have arisen whenever the issue was raised. The costs which were incurred were, therefore, not wasted costs, even though the issue was ultimately decided in favour of the applicant's position.

40 The applicant does not complain only of the respondent's conduct in relation to the application for review. The applicant's position is the respondent did not genuinely attempt to make a decision on the merits of the application for approval prior to the institution of the application for review on 4 December 2004. Undoubtedly the applicant was anxious to proceed with its proposed development. It, and its consultants, undoubtedly experienced frustration that the application was not brought before the council of the respondent by October 2004 or November 2004. Delays by reason of staff shortages, of which Mr Callow was warned within a week of lodgement of his application, undoubtedly played their part. No doubt the position was not helped by the original planning officer dealing with Mr Callow leaving the respondent's employment during October 2004.

41 The applicant may regret its conscious decision to delay instituting an appeal against the "deemed refusal", but rather to continue to endeavour to resolve the matter with the Shire. Nevertheless, the provisions in town planning schemes which deem an application refused are designed to provide a remedy to applicants where an application for development approval is not dealt with in a timely way. Even if s 87(3) does, as the applicant contends, give jurisdiction to the Tribunal to award compensation to an inconvenienced applicant as a result of delay by a decision-maker prior to the institution of an application for review, the Tribunal would be slow to award compensation where the applicant chooses not to exercise its right to bring the matter before the Tribunal following a deemed refusal, but rather to continue to pursue the matter with the original decision-maker.

42 Given that there was a necessity to advertise the application made to the respondent, it could not realistically be expected that the application would be dealt with by the council of the respondent earlier than its October meeting. Indeed, in his affidavit, Mr Callow asserts that, if the planning officer's report to council had been prepared more expeditiously, the development application should, in his experience, have enabled consideration by council at "either its October 2004 or November 2004 meetings".

43 During October there were communications between the applicant's representatives and the respondent's planning officers concerning issues which the respondent had identified in relation to the original application. Revised plans were lodged at the beginning of October. Meetings and correspondence continued through November and the matter was then dealt with at the council's meeting in December. We accept Mr Callow's assertion that, in the usual course, it would be reasonable to expect that the application would have been dealt with by the November meeting of council. However, the fact that it was not dealt with until the next meeting after the November meeting does not indicate inordinate delay.

44 The applicant relies, as a foundation of its application, on Mr Callow's contention that the actions of the Shire unnecessarily delayed the development by nine months. He makes that assertion based on the fact that the matter should have been dealt with at the October or November 2004 meetings of council which would have allowed documentation to proceed and a building licence to be applied for so that construction could have commenced in early January 2005. He said in his affidavit sworn 13 July 2005 that the earliest that construction could now commence is October 2005. He also asserts that if the development application had been approved at the December 2004 council meeting, he would have advised the applicant to appeal against any unacceptable conditions but otherwise to seek to progress the implementation of the development. Finally, he asserts that, based on his experience, the actions of the Shire caused the applicant to unnecessarily engage experts and incur costs that would not ordinarily be required to assess the development application of this scale.

45 A number of observations can be made about Mr Callow's assertions. The first is that there is no explanation as to why there would have been a delay of only six weeks to commence construction if approval was granted in November 2004, but there would be a delay of at least four months between the Tribunal's approval of the development in June 2005 and the commencement of construction.

46 The second is that it is clear that, whenever council had considered the matter, its approval would have included the conditions which the applicant found unacceptable, and which became the subject of the proceedings before the Tribunal. The applicant would have appealed against those conditions. It is highly likely that the appeal proceedings would have hindered the implementation of the development.

47 Given the fact that the total period from initial lodgement of the development application with the respondent to delivery of the Tribunal's reasons amounted to approximately nine months, the suggestion that the actions of the respondent caused a delay of nine months appears quite untenable.

48 Based on his personal experience with the applicant, Mr Callow deposes to the fact that the applicant has not had to engage the services of a town planner or legal consultant to gain a development approval in respect of similar developments before. Presumably, that assertion is made to support Mr Callow's proposition that the engagement of consultants in this case was necessary because of "the actions of the Shire in processing the development application". Precisely which actions Mr Callow is referring to are not specified. Presumably what is referred to are the earlier difficulties to which Mr Callow deposes in obtaining information from and generally dealing with officers of the respondent.

49 It is well known that developers frequently engage the assistance of consultants to assist in the development approval process. A decision to do so is a matter entirely within the discretion of the developer. No doubt, some local governments are more demanding than others as to requirements they impose upon applicants in the development process. In this matter, the respondent's officers did raise concerns about aspects of the proposed development in the months after the application was lodged. There was no suggestion that the concerns were baseless, and indeed the applicant revised its plans to cater for some of the concerns raised. Whatever frustrations the applicant may have felt about issues raised by the respondent, there is no basis in the evidence for concluding that the raising of those issues was in any way unreasonable.

50 Although the applicant complained that, at the meeting of 20 December 2004, the council of the respondent if properly advised, would have granted a conditional approval, rather than resolved to endorse the officer's recommendation for conditional approval, in our view, the distinction is of little substance. It was quite clear, from 20 December 2004 onwards, that the respondent was willing to approve the development subject to specified conditions. It contemplated the execution of the consent order to that effect in the Tribunal proceedings. The appeal proceeded in precisely the same manner as it would have proceeded were it an appeal against the conditions of an approval granted on 20 December 2004. In our view, the evidence does not support the proposition that the respondent did not genuinely attempt to make a decision on the merits of the application.

[173]

58 The approach taken by VCAT to the construction s 75(2) is that it enables the Tribunal to order that an applicant pay costs which go beyond the traditional notion of legal costs as explained in Cachia v Hanes & Anor. Thus, in Noonan David & Ors v Boroondara CC [ 2001] VCAT 1548, VCAT ordered the payment of the fees of a professional advocate who had appeared at the hearing on the basis that those fees fell within the expression "expense and loss" in s 75(2). A similar approach was taken in Interstructure Pty Ltd v Kaldawi & Klarica [ 2002] VCAT 1492. In Straw v Proctor [ 2004] VCAT 464, VCAT allowed the recovery of the expense of litigants in person for their "expense of understanding, researching and inconvenience of attending to a direction hearing as well as summary dismissal hearing" where the proceedings had been dismissed as vexatious.

59 Neither the Tribunal's researches, nor the researches of counsel, have identified any occasion when VCAT has construed the expression "costs, expenses, loss, inconvenience or embarrassment resulting from the proceeding" as encompassing the kind of consequential loss or damage of the nature of the items included in the second category of costs claimed by the applicant in this matter.

60 The applicant, however, relies upon the additional words contained in s 87(3) which are not included in s 75(2) of the VCAT Act, namely "an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from ... the matter because of which the proceeding was brought" (emphasis added). It has submitted that those words extend the scope of costs orders in a way which enables the Tribunal to consider the conduct of parties prior to institution of the application for review. By way of example, it is suggested that the Tribunal can take account whether one party acted unreasonably with the effect that the other party was forced to commence or continue unnecessary proceedings.

61 The applicant's submission is supported by the terms of s 87(4). That sub-section identifies, without limiting other matters that may be considered, factors to which the Tribunal is required to have regard. Where it is the decision-maker against whom a costs order is sought, the Tribunal is to have regard to whether the decision-maker genuinely attempted to make a decision on its merits. That necessarily involves an examination of the parties conduct prior to commencement of the application for review.

62 The point is illustrated by the Tribunal's decision in Leseur Investments Pty Ltd and City of Melville [2005] WASAT 90 where the Tribunal made an order for payment of costs under s 87(2) on the basis that the respondent had failed to consider the application on its merits. In reaching that conclusion, the Tribunal examined the history of the application before the original decision-maker, and in particular the factors to which it appears to have had regard in reaching its decision. Having reached its conclusion, the Tribunal ordered that the respondent pay the applicant's costs of $1500, which represented the costs of the applicant's agent in conducting the proceedings.

63 The words "or the matter because of which the proceeding was brought" do expand the range of the conduct that might be examined for the purposes of an order under s 87. That is not to say, however, that the addition of those words expands the nature of the "expenses, loss, inconvenience or embarrassment" which are properly the subject of an order. Section 87(1) establishes the general position of the Tribunal, namely that the parties bear their own "costs in a proceeding of the Tribunal". Section 87(2) then provides for a discretion for the Tribunal to make an order departing from that general rule. In empowering the Tribunal to make an order for the payment by a party "of all or any of the costs of another party" the costs being referred to are the "costs in a proceeding of the Tribunal" which would otherwise be the subject of the general rule prescribed by s 87(1). Section 87(3) extends the range of expenses that may be encompassed in an order for costs. As in s 87(2), the words "an order for the payment by a party of the costs of another party" found in s 87(3) are a reference to the other party's "costs in a proceeding of the Tribunal".

64 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.

65 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.

[175]

68 As indicated earlier, the respondent conceded that it should be liable for the reasonable costs associated with the additional affidavit of Ms Jelley. It did not concede, however, that the amount of $3725 claimed by the solicitors was reasonable.

69 It is not entirely clear how the applicant derives the figure of $3725 referred to in Mr Etherington's affidavit. His affidavit appends an account which relates to the work done between 29 March 2005 and 19 April 2005 in an amount of $3498. How the balance is made up does not appear. Nor is it clear who performed the various items of work or how much time was spent on the activities described. The product of the work was a 12 page affidavit and five pages of submissions. One of the invoices attached to Mr Etherington's affidavit reveals that the charges for professional time have been made at the rate of $500 per hour for a partner, $250 per hour for a solicitor, and $100 per hour for an articled clerk not including GST. By way of comparison, the legal practitioner's (Supreme Court)(contentious business) determination 2004, item 32 prescribes an hourly rate of $341 per hour (inclusive of GST) for a senior practitioner, and $231 per hour (inclusive of GST) for a junior practitioner. The rate for a clerk or paralegal is $165 per hour (inclusive of GST).

70 Although we accept that the respondent's conduct in raising new matter in closing and thereby causing unnecessary expense to the respondent warrants an order against it for costs, that conduct is not such as to attract an order for indemnity costs. The respondent should be ordered to pay only the reasonable costs thrown away by the conduct of the respondent. Accordingly, the Tribunal is not prepared to order the payment of legal costs calculated by reference to an hourly rate well in excess of that permitted by the scale applicable to Supreme Court proceedings.

71 The total invoice amount of $3498 includes disbursements of $445, and GST of $318. The disbursements referred to are described as "court fees" - $252, "facsimile" - $148 and "copying/print/scan" - $45. There is no explanation of the "court fees", and it is not apparent that there were any fees payable to the Tribunal in relation to the filing of the supplementary affidavit and submissions. There is no basis to allow that amount. Similarly, it is unclear what the disbursement described as "facsimile" refers to. The activity schedule setting out the work which forms the subject of the account refers to four letters being sent. It is not apparent whether they were sent by facsimile, but even if they were it is not apparent how a disbursement of $148 was incurred. That amount should also not be allowed.

72 Having considered the task undertaken, the Tribunal is of the view that a reasonable allowance for the work associated with responding to the matters raised by Ms Boulter in closing would be six hours of professional time by Mr Etherington, the solicitor with the conduct of the matter, and one hour for review by a senior practitioner. Mr Etherington comes within the definition of junior practitioner under the relevant determination. Those allowances produce a total of $1727 inclusive of GST. The Tribunal allows that amount in respect to the legal costs component of the award for costs. Added to Ms Jelley's fee of $756 plus GST, the total costs awarded, inclusive of GST, amounts to $2558.60.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (178 paragraphs)

Springmist Pty Ltd and Shire of Augusta�margaret River [2005] WASAT 143 (21 June 2005)

Parties

Legislation Cited (8)

Cases Cited (4)