3 KILPA CRT CITY BEACH PTY LTD and TOWN OF CAMBRIDGE
[2025] WASAT 102
•22 SEPTEMBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: 3 KILPA CRT CITY BEACH PTY LTD and TOWN OF CAMBRIDGE [2025] WASAT 102
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 22 SEPTEMBER 2025
FILE NO/S: DR 84 of 2025
BETWEEN: 3 KILPA CRT CITY BEACH PTY LTD
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
AND
ANTHONY RALPH
Proposed Intervener
Catchwords:
Planning and Development - Refusal of a development application - Third Party application to intervene in a proceeding - Third party application to make submissions - 'Sufficient interest' in a matter
Legislation:
Local Government (Model Code of Conduct) Regulations 2021 (WA)
Planning and Development Act 2005 (WA), s 242, s 257B
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Pt 4, Pt 9, Sch 2, cl 14, cl 22, cl 60, cl 61, cl 67(2)
State Administrative Tribunal Act 2004 (WA), s 37(3)
Town of Cambridge Local Planning Scheme No 1
Town Planning and Development Act 1928 (WA), s 62
Result:
Application to intervene dismissed
Application to make submissions dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
| Proposed Intervener | : | N/A |
Solicitors:
| Applicant | : | Lavan |
| Respondent | : | McLeods |
| Proposed Intervener | : | N/A |
Case(s) referred to in decision(s):
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493
Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239
Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River [2004] WASCA 8; (2004) 137 LGERA 129
ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184
Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27
Pitt v Environment, Resources and Development Court (1995) 66 SASR 274
Rpoint Land Pty Ltd and Western Australian Planning Commission [2020] WASAT 92
Satterley Property Group Pty Ltd and Western Australian Planning Commission [2025] WASAT 17; (2025) 117 SR (WA) 86
Shire of Augusta-Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55
WA Plantation Resources Pty Ltd and City of Bunbury [2005] WASAT 194
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29
REASONS FOR DECISION OF THE TRIBUNAL:
In March 2025, the Western Australian Planning Commission (WAPC) approved a 23-storey mixed use development (Tower Development) on Lot 241, Brompton Road, City Beach (Subject Land) proposed by 3 Kilpa Crt City Beach Pty Ltd (Applicant).
The Subject Land currently forms part of the Ocean Village Neighbourhood Centre (Ocean Village) which is proposed to be redeveloped as part of the Tower Development. No review has been lodged in relation to WAPC's decision to approve the Tower Development.
On 17 January 2025, the Applicant lodged plans for a 10-storey temporary viewing tower on the Subject Land. The viewing tower is, in effect, a marketing device to enable prospective purchasers of the apartments in the Tower Development to appreciate and experience the views to facilitate 'off the plan' sales (Viewing Tower Proposal).
The Town of Cambridge (Town or Respondent) refused the Viewing Tower Proposal on 24 June 2025. The Applicant has sought a review of the Town's decision, and the matter has been programmed to a final hearing in November 2025 (Review).
On 18 August 2025, Mr Anthony Ralph applied to intervene in the Review pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and/or to make submissions pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act) (Application).
Mr Ralph does not live near the Subject Land but instead lives over 4 kilometres away in the suburb of Floreat, close to the Floreat Forum Shopping Centre (Floreat Forum).
For the reasons that follow, I am not satisfied that Mr Ralph has a sufficient interest in the Viewing Tower Proposal for either the purposes of s 37(3) of the SAT Act or s 242 of the PD Act. The Application should be dismissed.
Background to, and submissions in support of, the Application
In support of the Application, Mr Ralph submits he has a sufficient interest in the Viewing Tower Proposal, as he is a long-term resident and ratepayer in the Town. He says his interest is 'not abstract or general'; but is instead 'direct and personal'.[1] He is a landowner living nearby Floreat Forum. He describes his interest as arising:[2]
… from the material effect of inconsistent decision-making that has specifically impacted my property and those of other landowners within the Floreat Activity Centre Frame, as defined by the Town's Local Planning Strategy 2021 and draft Precinct Structure Plan.
[1] Mr Ralph's submissions, 9 September 2025, para 5 (Mr Ralph's submissions).
[2] Mr Ralph's submissions, para 9.
In making the Application, Mr Ralph submits that the WAPC's decision to approve the Tower Development represents a 'significant departure' from the Town's planning framework, including the endorsed Local Planning Strategy as well as planning policies applying to activity centres at both Ocean Village and Floreat Forum. He also submits that there has been inadequate public consultation with key stakeholders. In addition, Mr Ralph has lodged a complaint under the Local Government (Model Code of Conduct) Regulations 2021 (WA).[3]
[3] Application, page 1.
It is apparent that Mr Ralph's key complaint is not the Viewing Tower Proposal per se, rather it was, as at the relevant time the Application was made, the recommendation of the Town's professional staff, on reconsideration, that the Viewing Tower Proposal be approved.
That is, Mr Ralph was concerned the Town's planning staff were recommending approval to the Viewing Tower Proposal which, in his view, would constitute a significant departure from the applicable planning framework. Mr Ralph is concerned that such an approach may then influence any future decision as to the planning for the Floreat Forum, for which competing draft 'precinct structure plans'[4] (structure plans) are being assessed by the Department of Planning, Lands and Heritage, before consideration by the WAPC under Pt 4 of the deemed provisions. Mr Ralph advises that the WAPC is expected to make a decision on the structure plans by 5 November 2025.[5] He articulates his concern as follows:
… my specific concerns [are] in relation to the precedent for departing from the local planning framework for future development within the Floreat Activity Centre will not be fully represented by the existing parties.
[4] As that term is defined in cl 14 of the deemed provisions, being the provisions contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions).
[5] Letter from Mr Ralph dated 15 September 2025.
Ultimately, the Town Council refused the Viewing Tower Proposal. However, even then, Mr Ralph maintains that the Town's approach was procedurally flawed and took account of irrelevant considerations.
Mr Ralph explains that his interest arises by the 'material effect of inconsistent decision-making that has specifically impacted' his property and that of others near the Floreat Forum. He expresses concern that the planning processes involved in structure planning for the Floreat Forum as he considers there has been a lack of meaningful participation for landowners.
Mr Ralph cites the recent decision of Jackson DP in Satterley Property Group Pty Ltd and Western Australian Planning Commission (Satterley)[6] in support of his application.
[6] Satterley Property Group Pty Ltd and Western Australian Planning Commission [2025] WASAT 17; (2025) 117 SR (WA) 86.
Applicable principles
The principles that apply to applications to intervene under the SAT Act, and to make submissions pursuant to the PD Act, were extensively canvassed by Jackson DP in Satterley at [15] to [65]. I gratefully adopt, without repeating, his Honour's analysis therein. A summary of those principles follows.
An important aspect of an application to intervene under the SAT Act, and to make submissions under the PD Act, is that the person applying must demonstrate a 'sufficient interest'.
In this regard, the decision of the High Court in Australian Conservation Foundation Inc v Commonwealth of Australia (ACF)[7] on the question of standing, and demonstrating a 'special interest', has been the lodestar by which courts and tribunals in this State have evaluated the question of 'sufficient interest' for the purposes of assessing applications by third parties to participate in town planning matters.[8] That is, in order to have a 'sufficient interest', a person must be able to demonstrate, at least, an interest sufficient to meet the test for standing identified in ACF.
[7] Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493.
[8] Satterley [39].
Demonstrating a 'sufficient interest' is therefore, in effect, a threshold test before any discretion to allow intervention or to make submissions is enlivened.
In Wattleup Road Development Company and Western Australian Planning Commission (Wattleup Road),[9] Parry DP identified that demonstrating a 'sufficient interest' as being one of the two 'principal elements' that arise for consideration in the context of applications to intervene under the SAT Act. The other being that the proposed intervener will generally need to demonstrate that intervention is necessary to enable the Tribunal to meet the objectives set out in the SAT Act and, relevantly, the PD Act.
[9] Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29 [11].
Nevertheless, as was also made clear by then Chaney DP in ING Development Australia Pty Ltd v WAPC (ING),[10] demonstrating a sufficient interest does not, of itself, enliven a right to intervene.
[10] ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184 [28].
In ING, in applying the test for standing arising from ACF, Chaney DP referred to the decision of the Court of Appeal in Shire of Augusta‑Margaret River v Gray (Gray),[11] where, in the context of an application for joinder under the (then) Town Planning and Development Act 1928 (WA) (TPD Act), Pullin JA (Le Miere J agreeing) adopted various passages from the decision of Doyle CJ in Pitt v Environment, Resources and Development Court (Pitt)[12] where his Honour stated, in the context of an equivalent South Australian provision:
… It appears to me that his Honour … envisaged joinder only in exceptional cases. For the reasons which I have indicated that is not the correct approach. As I have already explained, it would be equally wrong to make an order for joinder simply on the basis of an interest which would give standing for judicial review or an interest which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493.
[11] Shire of Augusta-Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55 [131].
[12] Pitt v Environment, Resources and Development Court (1995) 66 SASR 274, 276.
On this basis, the test for intervention under the SAT Act has been regarded as 'at least' as onerous as that for joinder.[13] In Satterley, Jackson DP agreed that the test for 'sufficient interest' should be stricter for applications to intervene as against applications to make submissions.[14]
[13] ING [27], [28(i)]; Satterley [22].
[14] Satterley [28] - [29].
In Gray, in the context of the entitlement to make submissions under s 62 of the then TPD Act, which is now reflected in s 242 of the PD Act, Pullin JA set out that:
In my opinion, the expression 'sufficient interest' in s 62 means that the Tribunal must be satisfied that the applicant had an interest which would give standing for judicial review and which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v Commonwealth (supra). That must be shown before the Tribunal's discretion is enlivened under s 62.[15]
[15] Gray [139].
The principle that flows from this brief review of the authorities is, consistent with ACF, in order to demonstrate that Mr Ralph has a 'sufficient interest' in the subject matter of the application, he must satisfy me that his interest is beyond that of, or greater than, any other member of the public.[16] That is to say, he must have an opportunity to take advantage, or be liable to suffer some disadvantage, from the action itself (being the Viewing Tower Proposal).[17] However, it is unnecessary for Mr Ralph to demonstrate that he is uniquely affected.[18]
[16] ACF (526) (Gibbs J), (537) (Stephen J), (547) (Mason J).
[17] ACF, (Gibbs J).
[18] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 74 (Brennan J) (Onus).
Disposition
The Application to either intervene under the SAT Act and/or to make submissions under the PD Act is dismissed.
Mr Ralph has not satisfied me that his interest in the Proposed Tower Development is beyond that of any other member of the public. The gravamen of his concern is that he considers the Viewing Tower Proposal constitutes a substantial variation from the applicable planning framework the result of which may, in the future, affect the decision that the WAPC may ultimately make in relation to the structure planning at the Floreat Forum that is currently in progress.
Mr Ralph lives approximately 4 kilometres from the Subject Land, in an entirely different suburb. The materials he puts forward expresses no association with the Subject Land and the Viewing Tower Proposal, other than he lives in the same municipal district and is subject to the same applicable planning framework.
However, the Viewing Tower Proposal is not comparable to the structure planning for the Floreat Forum.
The Viewing Tower Proposal is an application for 'development approval' made under Pt 7 of the deemed provisions, which form part of the Town of Cambridge Local Planning Scheme No 1 (LPS 1),[19] and which will ultimately be determined under Pt 9 of the deemed provisions. In the exercise of discretion on the Viewing Tower Proposal, the Town, and the Tribunal on review, are required to give 'due regard' to the range of matters set out in cl 67(2) of the deemed provisions.
[19] Perforce of s 257B of the PD Act.
On the other hand, and I as I have already noted, the proposed structure plans for the Floreat Forum arise under Pt 4 of the deemed provisions. The considerations that will inform the decision to be made by the WAPC on a structure plan under cl 22 of the deemed provisions make no reference to the considerations identified at cl 67(2) of the deemed provisions.
Furthermore, as was noted by Jackson DP in Satterley, development applications and structure plans are very different. A structure plan is a strategic instrument that is forward looking and aspirational in nature.[20] A structure plan does not determine, in any final sense, the development rights that will ultimately attach to land.[21] In WA Plantation Resources and City of Bunbury,[22] the Tribunal (then SM Parry) explained:
The consideration and adoption of a structure plan involves a process of strategic planning which is conceptually and temporally distinct from the process of development assessment.
[20] Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River [2004] WASCA 8; (2004) 137 LGERA 129 [15] (Heenan J); Rpoint Land Pty Ltd and Western Australian Planning Commission [2020] WASAT 92 [60] (Rpoint).
[21] Rpoint [60] - [61]; Satterley [59].
[22] WA Plantation Resources Pty Ltd and City of Bunbury [2005] WASAT 194 [50].
On the other hand, the effect a development approval, if granted, would be to overcome the general prohibition on development contained in cl 60 of the deemed provisions, so as to authorise the Viewing Tower Proposal to proceed, subject to compliance with the terms of the development approval, including any conditions.
The point being the statutory process involved in the consideration of the Viewing Tower Proposal is centred on making the 'correct and preferable decision' in the circumstances having regard to the applicable planning framework, namely the matters identified in cl 67(2) of the deemed provisions. That task is materially distinct from that involved in the structure planning, which is strategic in nature, being undertaken at the Floreat Forum. A decision made on the Viewing Tower Proposal is not at all relevant to any decision that will come to be made in relation to a structure plan for the Floreat Forum environs.
It is plain that Mr Ralph is concerned about the administration of the Town's planning framework. However, the case authorities, which I earlier canvassed, make it clear that a mere intellectual or emotional concern is not a 'special interest'.[23] Nor does a belief, however strongly felt, as to, in this instance, the general manner in which the Town's planning framework ought to be administered give rise to a 'special interest'. The fact that Mr Ralph has made submissions on the Viewing Tower Proposal does not, of itself, equate to a 'special interest', although that will be relevant in the overall assessment of whether the threshold point of 'sufficient interest' has been met.[24]
[23] ACF (539) (Stephen J); Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239 [85] (Pritchard J).
[24] ACF (539) (Gibbs J); Onus (74) (Brennan J).
In Onus, Brennan J stated that:
[An applicant for third party participation] must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner.[25]
[25] Onus (74) (Brennan J).
Beyond being an interested member of the public in the Town's planning affairs, I find that Mr Ralph has no special interest in the Viewing Tower Proposal. The fact that he is also concerned about the adequacy of the public participation in the planning for the Floreat Forum does not change the result. He will not be impacted by any decision on the Viewing Tower Proposal to any greater degree than any other member of the public.
While I agree with Mr Ralph that the parties to the Viewing Tower Proposal will not be looking at the matter through the lens of future structure planning at the Floreat Forum, that is because the two decisions that are to be made bear no relationship to each other. The decision that is made in the context of the Viewing Tower Proposal will simply not be a relevant consideration in relation to any decision the WAPC, or the Tribunal on review, may make in relation to the structure plans being progressed for the Floreat Forum.
Accordingly, Mr Ralph's application is dismissed.
Orders
The Tribunal orders:
1.The application to intervene pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) is dismissed.
2.The application to make submissions pursuant to s 242 of the Planning and Development Act 2005 (WA) is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
22 SEPTEMBER 2025
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