Australia: SAT – Costs application in review proceedings dismissed

The State Administrative Tribunal (SAT) has recently dismissed an application for costs by an applicant who was successful in a review proceeding against a planning decision of the City of Wanneroo (City).

In addition the City was successful when it sought its costs of defending the application for costs.

The decision made by the Deputy President, Judge Parry, is Moore and City of Wanneroo [2017] WASAT 145 (S) published on 8 March 2018.

Background

The Applicant, Mr Moore, initiated review proceedings in SAT with regard to a decision made by the City to refuse development approval for a remedial massage centre on land in Wangara zoned "Special Industrial" under the City's Town Planning Scheme 2 (the Scheme).

Mr Moore was successful in the application for review, and SAT consequently granted him conditional approval.

Application for Costs

Following the grant of conditional planning approval by SAT Mr Moore made an application for costs pursuant to section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Legal Principles

Judge Parry summarised the principles in relation to an application for costs in SAT in planning review proceedings as follows:

  • The starting position is that the parties bear their own costs of proceedings;
  • There is a presumption that there will not be an award of costs in SAT except in special circumstances;
  • SAT can be characterised as a generally "no costs" or "costs-neutral " jurisdiction;
  • SAT's established practice as to costs under section 87 (2) of the SAT Act in review (including planning review) proceedings, is that, normally, each party should bear its own costs of the proceedings;
  • Without limiting anything else that may be considered in making an order for the payment of costs, section 87 (4) of the SAT Act requires SAT to have regard to whether the decision maker (ie the local government) genuinely attempted to make a decision on its merits; and
  • Costs orders are only generally made in review proceedings, including, relevantly, planning review proceedings, where a party has acted unreasonably.

Submissions and Considerations

The Principal Submission

The principal submission made by Mr Moore was that the City failed to genuinely attempt to make a decision on its merits because the City had previously approved remedial massage uses in the Business and Commercial zones on the basis of a legal error that they were "consulting room" or "medical centre" and consequently relied on these approvals to refuse approval in the Service Industrial Zone.

The submission or argument then was that the City did not genuinely attempt to make a decision on the merits because of legal errors the City had made in relation to other applications in other zones.

Judge Parry concluded from the evidence that the City well understood that a massage use was an innominate or unlisted use in the Scheme area and that they were required to consider whether the proposed use is, is not, or may be consistent with the objectives and purposes of the Service Industrial Zone.

Judge Parry also found that the decision making officer of the City had formed a reasoned view that the proposal was not consistent with certain "not permitted" "X" uses in the zone and on that basis, in part, that the proposed use was not consistent or compatible with the Service Industrial Zone. The Judge considered that this reasoning was perfectly legitimate and did not demonstrate that the City did not genuinely attempt to make a decision on its merits.

There was also a submission made by Mr Moore that City staff did not act objectively as the City was generally opposed to this type of development in the subject zone and consequently did not make a decision based on merit. The judge found there to be no basis for such a conspiratorial submission.

Judge Parry's view was that the City officer, in her report, had turned her mind to the merits of the application and came to a certain view. Although he disagreed with the officer's view the Judge thought that it was a matter about which reasonable minds could differ.

The Secondary Submission

The second basis for the application for costs ran on various submissions that the City had acted unreasonably in the conduct of the proceedings. Judge Parry did not agree and considered that the City had acted reasonably throughout the proceedings. In particular he found that –

  • the City had taken appropriate steps to seek to minimise the length of the hearing ;
  • it was not unreasonable for the City to have not decided to reconsider its decision as there had been no order under section 31 of the SAT Act inviting the Council to reconsider its decision; and
  • it was perfectly reasonable for the City to seek an independent planner...and indeed the fact that an independent planner supported the Council decision added to the view that the Council's participation in the proceeding was reasonable.

The Costs Application

Judge Parry said that in his view it was a case of a genuine dispute as to planning merit and that the making of a costs application in a case of a genuine dispute as to planning merit was unreasonable.

In conclusion Judge Parry stated that it was appropriate to compensate the City for its costs of having to defend what was an unreasonable application for costs in a generally costs-free jurisdiction. He also noted that in this case the City was put to considerable expense because of the Freedom of Information Act application and the documents produced as a result of it, which had to be assessed.

Costs of $7,806.70 were awarded to the City for defending the application for costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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