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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
