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					CITATION:                        A & J De Cesare v. Clarence City Council and
                                 K & S Towns [2007] TASRMPAT 219

PARTIES:                         Appellants – A & J De Cesare

                                 Respondents – Clarence City Council
                                               and K & S Towns

ADDRESS:                         63 Tranmere Road, Howrah

TITLE OF TRIBUNAL: Resource Management and Planning Appeal Tribunal

JURISDICTION:                    Planning Appeal

FILE NO/S:                       50/07 P

DELIVERED ON:                    21 September 2007

DELIVERED AT:                    Hobart

HEARING DATE:                    Submissions were made and responded to in writing.

DECISION OF:                     AF Cunningham, Presiding Member

CATCHWORDS:                      Costs
Application of the Appellants that the professional costs incurred by them with respect to the appeal be
paid by the Council.

REASONS FOR DECISION:

1.      The Appellants appealed Council’s decision to grant a permit for a single
        dwelling on Lot 2, 63 Tranmere Road, Tranmere. The appeal was upheld by
        the Tribunal and Council’s decision to approve the permit was replaced with a
        refusal.

2.      In the circumstances the Appellants have made an application for costs.

3.      The first of the Appellants’ grounds of appeal contended that the proposed site
        coverage for the multi-storey dwelling of 39.93 %is above the permissible
        Scheme standard and almost at the maximum allowed (40 %).

4.      The site coverage could only be achieved by amending the lot boundary to
        increase the size of Lot 2 by 84m2 and reduce the size of Lot 1 by the same
        amount. Council determined to allow such amendment by imposing a
        condition to the permit which required the Applicant to obtain a minor
        amendment reflecting the proposed lot boundaries on the approved plan.

5.      This condition was the subject of a jurisdictional ruling prior to the appeal
        hearing. The Tribunal rejected the submission that the condition was void for
         uncertainty but did not rule as to whether or not the proposed lot boundary
         adjustment constituted a minor amendment within the meaning of Section 56
         of the Act.

6.       This issue was not addressed by the Appellants at the hearing of the appeal.
         At the conclusion of the evidence the Tribunal invited the parties to seek legal
         advice with respect to this issue and provide written submissions.

7.       The Tribunal ultimately determined that the proposed amendment did not
         constitute a minor amendment as required by the provision of Section 56 and
         further that there was uncertainty as to whether the lot size adjustment would
         be made.

8.       The Appellants represented themselves at the hearing of the appeal and only
         sought legal advice at the suggestion of the Tribunal. They now seek an order
         with respect to the professional costs incurred in the obtaining of this advice
         which the Tribunal ultimately accepted.

9.       The Appellants further contend that Council erred in imposing the subject
         condition and failed to comply with the provisions of the Scheme by
         approving a development application for a dwelling that exceeded the 40% site
         cover.

10.      The application for costs is opposed by Council who contend that Council did
         not contribute to the costs incurred by the Appellants and that it is not fair or
         reasonable to require Council to pay the Appellants’ costs.

11.      The jurisdiction of the Tribunal to award costs arises from section 28 of the
         Resource Management and Planning Appeals Tribunal Act 1993, which reads
         as follows

                   "Costs

                   28

                   (1)      Each party to an appeal is to pay its own costs.

                   (2)      However, the Appeal Tribunal may order a party to
                            an appeal to pay all or part of the costs of another
                            party to the appeal if the Appeal Tribunal is satisfied
                            that it is fair and reasonable to do so.

                   (3)      For the purposes of subsection (2), the Appeal
                            Tribunal may take into account any of the following
                            matters:

                            (a)    whether the appeal appears to the Appeal
                                   Tribunal to have been instituted merely to
                                   delay or obstruct;



File No: 50/07 P                               Page 2                          J No. 219-2007
                         (b)     whether in the Appeal Tribunal's opinion a
                                party has raised frivolous or vexatious issues;

                         (c)    the relative merits of the claims made by each
                                of the parties;

                         (d)     whether in the Appeal Tribunal's opinion a
                                party has unnecessarily or unreasonably
                                prolonged the appeal or increased the costs of
                                it;

                         (e)    whether a party has failed to comply with a
                                direction or order of the Appeal Tribunal
                                without reasonable excuse;

                         (f)     whether a party has failed to comply with any
                                relevant law or planning scheme;

                         (g)     the nature, complexity and outcome of the
                                appeal;

                         (h)     the capacity of the parties to meet an order
                                for costs;

                         (i)     any other matter the Appeal Tribunal
                                considers relevant.

                   (4)   If the Appeal Tribunal makes an order for costs under
                         subsection (2), it –

                         (a)    is to specify the time within which those costs
                                are to be paid; and

                         (b)    may, by a further order, extend the time if it
                                considers it reasonable in the circumstances.

                   (5)   If the Appeal Tribunal makes an order for costs
                         before the end of any proceedings, it may require that
                         the order be complied with before it continues with
                         the proceedings.

                   (6)   An order for costs under this section may be
                         registered in a court having jurisdiction for the
                         recovery of debts of the amount ordered to be paid by
                         or under the order.

                   (7)   Proceedings for the enforcement of an order for costs
                         under this section may be taken as if the order were a
                         judgment of the court in which the order is
                         registered."


File No: 50/07 P                            Page 3                        J No. 219-2007
12.      Application of the individual provisions of the above section in the
         circumstances of the present costs application is as follows.

                   "Costs

                   28

                   (1)      Each party to an appeal is to pay its own costs.

                   (2)      However, the Appeal Tribunal may order a party to
                            an appeal to pay all or part of the costs of another
                            party to the appeal if the Appeal Tribunal is satisfied
                            that it is fair and reasonable to do so.

13.      Subsection (1) provides the rule which is to apply if the Tribunal does not
         exercise its discretion under subsection (2). Subsection (2) grants a discretion
         to be exercised, to be determined according to whether it is fair and
         reasonable, taking into account the matters specified in subsection (3).

                   "(3)     For the purposes of subsection (2), the Appeal
                            Tribunal may take into account any of the following
                            matters:”

14.      Those matters are conveniently considered under the individual provisions of
         the subsection.

15.      The first matter is "(a) whether the appeal appears to the Appeal Tribunal to
         have been instituted merely to delay or obstruct;". This criterion is not relevant
         for the appeal was instituted by the Applicants for costs.

16.      The next matter is "(b) whether in the Appeal Tribunal's opinion a party has
         raised frivolous or vexatious issues;". No submissions were made with
         respect to this criterion.

17.      The next matter for consideration is “(c) the relative merits of the claims made
         by each of the parties;".

18.      The Appellants did not address this criterion. Their application for costs does
         not arise out of issues raised by Council in association with the Appeal except
         to the extent that Council maintained the validity of the subject condition. The
         issue as to whether or not the proposed amendment would constitute a minor
         amendment under the Act was not raised by the Appellants but by the Tribunal
         in the course of the hearing.

19.      The next matter for consideration is "(d) whether in the Appeal Tribunal's
         opinion a party has unnecessarily or unreasonably prolonged the appeal or
         increased the costs of it;" It was not contended that Council had unnecessarily
         or unreasonably prolonged the appeal or increased the costs.



File No: 50/07 P                               Page 4                          J No. 219-2007
20.      The next matter for consideration is "(e) whether a party has failed to comply
         with a direction or order of the Appeal Tribunal without reasonable excuse;"
         The Appellants did not address this criterion. It was submitted by Council that
         this may be relevant insofar as the Appellants were under an obligation to seek
         legal advice. The suggestion that the parties seek legal advice with respect to
         the issue raised by the Tribunal was not however in the nature of an order or a
         direction but of an advisory nature.

21.      The next matter for consideration is "(f) whether a party has failed to comply
         with any relevant law or planning scheme;" The Tribunal does not accept that
         Council’s assessment that the proposed amendment to the lot sizes as minor,
         constitutes a failure to comply with any relevant law or planning scheme.

22.      The next matter for consideration is "(g) the nature, complexity and outcome
         of the appeal;" The outcome of the appeal was that the Appellants were
         ultimately successful in having Council’s decision set aside, but it was not
         upon the basis of the issues raised by the Appellants.

23.      The next matter for consideration is "(h) the capacity of the parties to meet an
         order for costs;" The Tribunal accepts that Council has the capacity to meet
         an order for costs.

24.      The next matter for consideration is "(i) any other matter the Appeal Tribunal
         considers relevant." All relevant matters have been considered above.

25.      For the above reasons the Tribunal does not consider that the circumstances
         justify a departure from the primary position that each party to the appeal is to
         pay their own costs.

26.      Accordingly the order of the Tribunal is:

                   1.   That each party to the appeal pay its own costs.

                                Dated 21 September 2007


                                  AF Cunningham
                                  Presiding Member




File No: 50/07 P                           Page 5                          J No. 219-2007

				
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