43 MCGREGOR ROAD PTY LTD and PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
[2017] WASAT 127 (S)
•31 OCTOBER 2017
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| ACT | : | PLANNING AND DEVELOPMENT ACT 2005 (WA) |
| CITATION | : | 43 MCGREGOR ROAD PTY LTD and PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2017] WASAT 127 (S) |
| MEMBER | : | JUDGE D R PARRY (DEPUTY PRESIDENT) |
| HEARD | : | 11 OCTOBER 2017 |
| DELIVERED | : | 11 OCTOBER 2017 |
| PUBLISHED | : | 31 OCTOBER 2017 |
| FILE NO/S | : | DR 160 of 2017 |
| BETWEEN | : | 43 MCGREGOR ROAD PTY LTD Applicant |
| AND | ||
| PRESIDING MEMBER OF THE METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL Respondent | ||
| Catchwords: |
Practice and procedure - Town planning - Application to amend development approval by deleting condition - Application by third party for adjournment of directions hearing in order to enable third party to consider whether to make application for leave to make a submission in relation to the application under s 242 of the Planning and Development Act 2005 (WA) - Proceeding already substantially and finally determined on the documents - Tribunal determined that condition in dispute is invalid - Tribunal convened directions hearing 'in order to determine whether it is necessary to hear from the parties' as
[2017] WASAT 127 (S)
to whether condition determined by Tribunal to be invalid should be deleted or a
different decision substituted
Legislation:
Planning and Development (Development Assessment Panels) Regulations 2011
(WA) reg 17, reg 18
Planning and Development Act 2005 (WA) s 242
State Administrative Tribunal Act 2004 (WA) s 17, s 27(2), s 60(2)
Result:
Application for adjournment dismissed
Final order made
Summary of Tribunal's decision:
43 McGregor Road Pty Ltd (43 McGregor Road) sought review by the Tribunal of the decision of the Metro Central Joint Development Assessment Panel (DAP) to not delete but amend a condition of a development approval previously granted by the DAP for a major residential development. 43 McGregor Road contended that the condition is invalid and should not be imposed.
The application for review was listed for determination entirely on the documents. The Tribunal published reasons for decision in which it determined that the condition should not be imposed, because it does have a proper planning purpose and does not fairly and reasonably relate to the proposed development. However, rather than making a final order disposing of the proceeding, the member constituting the Tribunal adjourned the matter to a directions hearing in order to determine if it is necessary to hear from the parties in relation to whether the condition should be deleted or whether the decision to grant the development approval should be set aside and a different decision substituted.
At the directions hearing, 43 McGregor Road and the Presiding Member of the DAP sought a final order from the Tribunal deleting the condition. However, a third party which operated a smallgoods factory in the vicinity of the site sought an adjournment of the directions hearing to enable consideration to be given as to whether to make an application for leave to make a submission in relation to the application under s 242 of the Planning and Development Act 2005 (WA). 43 McGregor Road opposed the application for an adjournment and although the Presiding Member of the DAP did not oppose an adjournment, the Presiding Member questioned its utility, given that the merits of the matter had already been determined.
[2017] WASAT 127 (S)
The Tribunal declined to grant the third party's application for an adjournment of the directions hearing in the exercise of its discretion. The Tribunal came to this view because of the particular statutory context in which the application for review was brought (namely, a review of a decision to amend a condition of a development approval), the fact that the Tribunal had already substantially and finally determined the application for review, the parties' joint position that the condition should therefore be deleted, and McGregor Road's position that it has the benefit of an operative development approval for a major development and wishes to act on it without delay.
The Tribunal also noted that although the order adjourning the matter to the directions hearing contemplated the potential setting aside of the development approval and a different decision being made in relation to the development application, the development approval was granted by the DAP in an earlier process and the decision to grant development approval was not a reviewable decision before the Tribunal in this case.
The Tribunal made a final order setting aside the decision of the DAP to impose the condition.
Category: B
Representation:
Counsel:
| Applicant | : | Mr P Dobson |
| Respondent | : | Mr J Misso |
Solicitors:
| Applicant | : | Hotchkin Hanly |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
43 McGregor Road Pty Ltd and Presiding member of the Metro Central Joint
Development Assessment Panel [2017] WASAT 127
[2017] WASAT 127 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 Before me this morning is a directions hearing between
43 McGregor Road Pty Ltd (43 McGregor Road) and the Presiding Member of Metro Central Joint Development Assessment Panel (DAP). The directions hearing was listed by Member Lisa Eddy as a consequent order to the member's determination of the proceeding. The proceeding involves an application for review by 43 McGregor Road of the decision of the DAP made on 11 May 2017 pursuant to reg 17 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations) to not delete but amend condition 9 of a development approval previously granted by the DAP on 12 January 2017.
2 The application to the DAP under reg 17 of the DAP Regulations
was made on 17 March 2017, a little over two months after the DAP, on 12 January 2017, granted development approval, subject to conditions, for the construction at 43 and 43A McGregor Road, Palmyra (site) of a residential development comprising some 258 residential units.
Condition 9, as imposed by the DAP on 11 May 2017, pursuant to reg 17 of the DAP Regulations, states as follows:
Prior to occupation of development, a notification pursuant to section 70A of the Transfer of Land Act 1983 is required to be lodged on the relevant Certificates of Title to alert prospective buyers that the residences may be affected by transport noise and odours may occur in certain weather conditions (south-easterly winds) approximately five times a year for approximately three hours at a time during daylight hours.
4 On 16 May 2017, 43 McGregor Road sought review of the DAP's
decision to impose condition 9 in that amended form pursuant to reg 17 of the DAP Regulations. The application for review was made under reg 18 of the DAP Regulations, which enables a person who made an application under reg 17 to apply to the Tribunal for a review of the determination. The 'decision sought' by 43 McGregor Road in the application for review is 'Delete condition 9 in its entirety'.
5 At the first directions hearing on 26 May 2017, the proceeding was
listed for determination entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The only programming orders that were made were for the parties to file with the Tribunal an agreed statement of facts and an agreed bundle of documents
[2017] WASAT 127 (S)
for the determination of the matter and for the parties to each file and exchange written submissions and any decided cases on which they rely and to file and exchange written submissions in reply.
6 The application for review was determined by the Tribunal,
constituted by Member Eddy, on 28 September 2017; see 43 McGregor
Road Pty Ltd and Presiding member of the Metro Central Joint
Development Assessment Panel [2017] WASAT 127. In that decision, Member Eddy determined that condition 9 should not be imposed as a condition of development approval on the development, because condition 9 was found not to have a proper planning purpose and not to fairly and reasonably relate to the proposed development. In effect, the Tribunal determined that condition 9 is invalid.
7 Although the only issue raised in the application for review was
whether condition 9, as imposed by the DAP on 11 May 2017, was a valid condition (see [7] of Member Eddy's reasons), rather than deleting condition 9 and making final orders in relation to the application for review, Member Eddy made the following order at the conclusion of her reasons:
The proceeding is adjourned to a directions hearing on Wednesday, 11 October 2017 at 11.30 am in order to determine if it is necessary to hear from the parties in relation to whether the decision of the respondent made on 11 May 2017, and conveyed to the applicant by way of letter dated 16 May 2015 [sic], to approve the development application for 258 multiple dwellings subject to condition 9, should be varied by deletion of condition 9, or should be set aside and a different decision substituted.
8 At the commencement of the directions hearing this morning, the
parties, that is to say, 43 McGregor Road and the Presiding Member of the DAP, both represented by counsel, sought a final order from the Tribunal that the approval of the DAP made on 11 May 2017 be varied by deleting condition 9 and an order that there be no order as to costs.
9 On 9 October 2017, that is, on Monday of this week, Glen McLeod
Legal wrote to the Tribunal and copied the letter to both parties' solicitors, stating that Glen McLeod Legal acts for D'Orsogna Limited (D'Orsogna) and that the condition the subject of the proceeding, namely condition 9, was imposed to alert prospective purchasers of units in the development on the site to potential transport noise and also to potential odours emanating from nearby industrial land uses, including D'Orsogna's land use, which counsel for D'Orsogna, Mr Lochore, has indicated to me this morning is a smallgoods factory.
[2017] WASAT 127 (S)
10 The letter also indicates that prior to the commencement of this
proceeding, D'Orsogna made submissions to the DAP and to the City of Melville (City), in which local government area the site is located, regarding the potential land use conflict between the proposed residential development and the D'Orsogna factory and the lack of direct consultation or notification in relation to the development, and that by letter dated 23 March 2017, D'Orsogna requested the City to keep it informed of any application to amend the approval of the development.
11 In addition, the letter indicates that D'Orsogna made further
submissions to the City in support of condition 9, attaching an odour report that it had commissioned, and made a deputation at the meeting of the DAP on 11 May 2017 in support of condition 9.
12 The letter states that despite these submissions and that deputation,
D'Orsogna was not aware of this proceeding until after the decision of Member Eddy was published on the Tribunal's website on or around 3 October 2017. The letter asserts that this outcome 'is a serious breach of procedural fairness and unjust for the following reasons':
(a) [43 McGregor Road and the DAP] jointly accepted the Odour Report commissioned by D'Orsogna; (b) D'Orsogna was denied the opportunity to supplement or comment on its Odour Report; and (c) D'Orsogna was denied the opportunity to make submissions on the validity and purpose of Condition 9 pursuant to section 242 of the Planning and Development Act 2005 (WA).
The letter then states:
In light of the above, we respectively request the Proceedings be adjourned to a further directions hearing to enable our client to consider further its legal position. Among other things, as a final order has not been made, our client may seek leave to intervene in this matter.
Should an adjournment be granted?
14 It does not appear to me there has been any denial of procedural
fairness to D'Orsogna, given that it has no independent standing to seek
review or bring a matter to the Tribunal in relation to the approval.15 However, Mr Lochore submits that at the very least, the Tribunal
should not make the final order sought by the parties today, but should adjourn the matter for a period of time to enable consideration to be given
[2017] WASAT 127 (S)
as to whether an application for leave to make submissions under s 242 of the Planning and Development Act 2005 (WA) (PD Act) should be made. Section 242 of the PD Act states as follows:
The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.
16 Mr Lochore submits that there should be an adjournment, both in the
interests of fairness and for the Tribunal to acquire a contradictor in this matter, so that it can produce the correct and preferable decision. Mr Lochore submits that Member Eddy's reasons leave open possible outcomes, including additional conditions being added, or at least an additional condition being added to the approval. Mr Lochore also foreshadowed a potential argument that, without condition 9, development approval may not be given to the proposal at all.
17 The application for an adjournment is opposed by 43 McGregor Road. 43 McGregor Road submits that having brought the application and having been successful in its argument that condition 9 should not be imposed, it should be able to proceed now with its major residential development. It also submits that there is no need for a contradictor in this proceeding, because the parties are in agreement that condition 9 should be deleted and that is one of the outcomes contemplated in the order made by the member at the conclusion of her reasons.
18 The Presiding Member of the DAP does not oppose an adjournment,
although questioning whether there is any utility in an adjournment being granted in the particular circumstances of this case. As Mr Misso expressed the submission on behalf of the Presiding Member of the DAP, as far as the DAP is concerned, the merits of the matter have been determined by the determination on the documents, given the scope of the proceeding.
19 The proceeding falls within the Tribunal's review jurisdiction under
s 17 of the SAT Act. The purpose of the review, as stated in s 27(2) of the SAT Act, is 'to produce the correct and preferable decision at the time of the decision upon the review'.
20 The review in this case is limited by the enabling provision under
which it is brought. It is not a review of the determination of the development application, which was, as I have said, determined by the
[2017] WASAT 127 (S)
DAP in January 2017. Rather, the application for review is in relation to the DAP's decision made on 11 May 2017 under reg 17 of the DAP Regulations to not delete but amend condition 9 to read in its current form.
21 Furthermore, the sole issue raised, for the purposes of the
determination of the application, was whether condition 9 as imposed under reg 17 of the DAP Regulations on 11 May 2017 is a valid condition. The Tribunal has already finally determined that condition 9 imposed by the DAP, pursuant to reg 17 of the DAP Regulations, is not a valid condition and therefore should not be imposed.
22 Although the order made by Member Eddy on its face contemplates
that there may be submissions from the parties as to an alternative outcome to the deletion of condition 9, and in particular contemplates that the decision made on 11 May 2017 was to approve the development application for 258 multiple dwellings subject to condition 9, and therefore that there may be a setting aside of the development approval and the substitution of a different decision, in fact, the decision of the DAP made on 11 May 2017 was not to grant development approval for the 258 multiple dwellings, but rather to delete or amend the conditions of the development approval in a certain way. On 11 May 2017, the DAP deleted two conditions (conditions 2 and 6) of the development approval and amended one condition (condition 9) to read in its current form. It is only the decision to amend condition 9 to read in its current form that is the reviewable decision the subject of this proceeding.
23 Given the statutory context of the decision under review, and given
that the application for review was listed by the Tribunal for determination of the documents and was, in effect, determined by the Tribunal entirely on the documents, but subject to the final order being resolved at this directions hearing, and given the parties' positions, in my view, in all the circumstances, the application to adjourn the directions hearing should be dismissed.
24 The Tribunal has already substantially and finally determined the
application for review. It has determined that condition 9 is invalid in the circumstances of this case as it does not have a proper planning purpose and therefore that the condition cannot be imposed. Given the particular statutory context in which this application for review was made, and given the Tribunal's determination of the application for review, subject to the terms of the final order being resolved, and given the parties' joint position that the matter has been resolved by the Tribunal and that condition 9
[2017] WASAT 127 (S)
should be deleted, in my view the application for an adjournment should
be dismissed in the exercise of the Tribunal's discretion.25 I also bear in mind in exercising the discretion the submission of
43 McGregor Road that it has the benefit of an operative development approval for a major development and wishes to act on it without delay and that the matter that it brought before the Tribunal, which related solely to the issue of condition 9 and its validity, has been resolved. The applicant's position in that regard is a relevant matter for consideration.
26 I also add that given the particular statutory context in which this
application for review was brought, namely a review under reg 18 of the DAP Regulations of the determination made under reg 17 of the DAP Regulations to amend condition 9 to read as it does, and given the reasons and decision of the Tribunal published on 28 September 2017 determining that condition 9 is invalid and cannot be imposed, in all the circumstances the range of potential outcomes in this matter is limited to a consideration as to whether condition 9 should be deleted.
27 Although, as I have said, the order the Tribunal made on
28 September 2017 contemplates the setting aside of the development approval and a different decision being made in relation to the development application, the development application was approved in an earlier process and the decision to grant development approval is not a reviewable decision before the Tribunal in this case. That is, in my view, also a relevant circumstance in the exercise of discretion as to whether to grant the adjournment sought by the third party.
Conclusion
For these reasons I decline the application for an adjournment.
I am persuaded that the orders sought by the parties should be made in terms slightly different from the orders sought by the applicant.
| Orders |
Subject to hearing from the parties, I propose to make the following
orders.
1. Condition 9 of the development approval for the construction of 258 multiple dwellings at 43 and 43A McGregor Road, Palmyra, as imposed by the
[2017] WASAT 127 (S)
Metropolitan Central Joint Development Assessment
Panel on 11 May 2017, is set aside.2. There is no order as to costs.
[Final orders in these terms were made.]
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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