Adams v City of Melville - [2022] WASC 173

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ADAMS -v- CITY OF MELVILLE [2022] WASC 173
CORAM:   MCGRATH J
HEARD:   31 MARCH 2021
DELIVERED          :   18 MAY 2022
PUBLISHED           :   18 MAY 2022
FILE NO/S:   GDA 1 of 2019
BETWEEN:   PETER ADAMS
Appellant
AND
CITY OF MELVILLE
Respondent

Catchwords:

Administrative law - Local Government - Appeal from State Administrative Tribunal - Whether Tribunal had jurisdiction to review decision of local government to not permit removal of verge tree - Whether decision by local government not to permit removal of verge tree is a decision under s 9.7 of Local Government Act 1995 (WA) - Whether removal of verge tree is public or private works on local government property under r 32A of Local Government (Functions and General) Regulations 1996 (WA) - Whether appellant afforded natural justice

Legislation:

Interpretation Act 1984 (WA) s 44
Local Government Act 1995 (WA) s 9, pt 9 div 1
State Administrative Tribunal Act 2004 (WA) s 13, s 17, s 32, s 105
Activities in Thoroughfares, Public Places and Trading Local Law 2014 (WA) cl 2.1
Local Government (Functions and General) Regulations 1996 (WA) r 32A

Result:

Leave to appeal refused on grounds 1, 2, 3 and 4
Appeal dismissed

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	No appearance

Solicitors:

Appellant	:	In Person
Respondent	:	No appearance

Case(s) referred to in decision(s):

Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Saeed v Minister for Immigration and Citizenship [2010] HCA 23
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145

MCGRATH J:

Background

Mr Adams appeals a decision of a Member of the State Administrative Tribunal (the Tribunal). The respondent determined not take part in the appeal and therefore made no appearance.[1]
[1] Notice of respondent's intention dated 28 March 2019.
Mr Adams is a resident of the City of Melville. Mr Adams requested that the respondent grant him approval to remove an oak tree situated on the verge of his residential property and that he be permitted to plant a jacaranda tree on the same verge. Mr Adams was concerned about the health and safety of the oak tree. The respondent determined that the tree was healthy and, therefore, declined to grant approval to Mr Adams to the remove the oak tree from the verge and replace it with a jacaranda tree.
Mr Adams commenced proceedings in the Tribunal seeking review of the respondent's decision not to permit the removal of the oak tree and the planting of the jacaranda tree. The presiding learned Member determined that the Tribunal did not have jurisdiction to review the decision of the respondent.
Mr Adams appeals the decision of the learned Member, contending that he erred in law in finding that the Tribunal did not have jurisdiction. Further, Mr Adams contends that the learned Member did not afford him procedural fairness during the hearing at which the issue of jurisdiction was determined.
At the hearing of the appeal, Mr Adams informed the court that on 10 June 2020 the respondent removed the oak tree. That is, the tree that was the subject of Mr Adams' proceedings in the Tribunal has now been removed. During the hearing of the appeal, I asked Mr Adams whether he had now achieved the very outcome that he sought. He agreed that he was successful in having the tree removed but requested that the appeal be determined on its merits and that if the appeal was allowed, that the matter should be remitted to the Tribunal to decide whether the respondent should pay his costs. Mr Adams submitted that he had incurred costs in the amount of $13,156.95 in engaging experts in preparation for a hearing before the Tribunal.[2]
[2] Mr Adams' written submissions filed 7 April 2021.
Given that the tree has been removed, this appeal may be regarded as an exercise in futility. The respondent has undertaken the very act that Mr Adams requested. However, in the circumstances of this case and especially given the expenditure incurred by Mr Adams on experts before jurisdiction was determined, it is appropriate to explain why the appeal must fail in any event.
The primary issue to be determined in this appeal is the proper construction of ss 9.1 and 9.7 of the Local Government Act 1995 (WA) (LG Act). Specifically, the question is whether the decision of the respondent not to grant Mr Adams approval to remove the oak tree and to plant a jacaranda tree was a decision that was reviewable by the Tribunal.
For the following reasons, I have determined that Mr Adams was afforded procedural fairness and that the learned Member did not err in finding that the Tribunal did not have jurisdiction. Accordingly, leave to appeal is refused.

Extension of time

Mr Adams brings this appeal under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Mr Adams requires leave to appeal.[3] An appeal may only be brought on a question of law.[4] The application for leave to appeal must be made within 28 days after the Tribunal's decision is given or the date on which it provides written reasons at the request of the applicant.[5] An extension of time in which to appeal is required. Mr Adams filed his appeal 42 days late. In support of an application for an extension of time in which to appeal, Mr Adams relies upon his affidavit sworn on 11 June 2019.[6] Mr Adams deposes that the delay in filing his appeal was due to his inability to access the eCourts Portal.[7] As soon as Mr Adams was able to access the eCourts Portal he filed his appeal. I am satisfied that there should be a grant of an extension of time in which to appeal.
[3] State Administrative Tribunal Act 2004 (WA), s 105(1).
[4] State Administrative Tribunal Act2004 (WA), s 105(2).
[5] State Administrative Tribunal Act 2004 (WA), s 105(2).
[6] Affidavit of Mr Adams sworn on 11 June 2019.
[7] Affidavit of Mr Adams sworn on 11 June 2019.

Procedural history

By way of letter to the respondent dated 6 February 2018, Mr Adams requested 'approval to remove the oak tree' situated on the verge of his property and approval for him to plant a jacaranda tree on the verge in its place.[8] Mr Adams outlined in that letter the reasons why, in his opinion, the tree should be removed. Mr Adams contended that the oak tree was damaging his driveway and fence and was a hazard to vehicles exiting his property as it obscured vision of the road.[9] Mr Adams forwarded a letter to the respondent, signed by various residents who expressed support for the removal of the oak tree.[10]
[8] Letter from Mr Adams to the City of Melville dated 6 February 2018
[9] Letter from Mr Adams to the City of Melville dated 6 February 2018.
[10] Letter from residents to the City of Melville undated.
In a written response to Mr Adams dated 21 February 2018, the respondent declined to remove the tree, stating that, after inspection of the tree, it was assessed to be healthy and that it improved the appearance of the street. The respondent stated that street trees were: [11]
'community assets which enhance the environment and contribute to the visual amenity and functionality of streets. It is for this reason that street trees are only removed under 'exceptional circumstances', for example, if they are dead, dying, diseased or dangerous.'
[11] Letter from the City of Melville to Mr Adams dated 21 February 2018.
On 16 March 2018, Mr Adams requested that the respondent reconsider the decision.[12] Mr Adams contended that the respondent had given inadequate consideration to the damage the tree was causing to his property, the hazards to the safety of persons, his willingness to replace the oak tree with a jacaranda tree and the support of his neighbours.[13] On 7 May 2018, the respondent refused to give Mr Adams permission to remove the oak tree and to plant the jacaranda tree (the Decision). It was this decision that Mr Adams sought to have reviewed by the Tribunal. Mr Adams maintains that the respondent did not inspect the oak tree prior to the making of the Decision.
[12] Letter from Mr Adams to the City of Melville dated 16 March 2018.
[13] Letter from Mr Adams to the City of Melville dated 16 March 2018.
On 14 June 2018, Mr Adams filed an application in the Tribunal seeking a review of the Decision under s 9.7(1)(a) of the LG Act. Mr Adams particularised the decision that he wished the Tribunal to make as 'an order from the State Administrative Tribunal that authorises me to remove the oak tree from the verge of [relevant address].'[14] Accordingly, the Decision sought to be reviewed by Mr Adams in the Tribunal was the decision of the respondent made on 7 May 2018 (and previously made on 21 February 2018) refusing Mr Adams' request for approval to remove the oak tree from the verge and to plant a jacaranda plant on the verge.
[14] Application to the State Administrative Tribunal filed 14 June 2018.
At a directions hearing on 2 July 2018, the matter was referred to mediation to be conducted on 25 July 2018 and 10 August 2018. The mediation did not resolve the matter.
At a directions hearing on 3 September 2018 the presiding Member invited oral submissions concerning whether the Tribunal had jurisdiction to review the Decision.[15] The Member ordered that if the respondent wished to raise any contention regarding the issue of jurisdiction then that contention was to be filed by 14 September 2018. Further, if the question of jurisdiction was raised by the respondent, then each party was ordered to file written submissions addressing that issue.
[15] ts 2 - 7 (03/09/2018).
By email, sent on 10 September 2018, the respondent confirmed that it 'will not raise a jurisdictional issue in this matter.'
In preparation for the substantive hearing of the review in the Tribunal, Mr Adams engaged a road safety engineer and a civil engineer to provide reports to be relied upon as evidence at the hearing. At the hearing of this appeal Mr Adams submitted that he paid in excess of $13,000 for the expert reports to be prepared.
On 11 December 2018, the matter came before the Tribunal for a further directions hearing. The presiding Member Mr Carey raised the issue of jurisdiction. The learned Member expressed concern as to whether the Tribunal had jurisdiction. Both Mr Adams and an officer of the respondent made oral submissions during discourse with the learned Member. The learned Member ordered that Mr Adams file submissions outlining why the Tribunal had jurisdiction. Both Mr Adams and the respondent filed submissions. Mr Adams contended in his written submissions that the Tribunal had jurisdiction. The respondent in its written submissions, submitted that the Tribunal did not have jurisdiction.
On 24 January 2019, at a hearing before Member Carey, both Mr Adams and a representative of the respondent made oral submissions addressing the issue of jurisdiction. The respondent submitted that the Tribunal did not have jurisdiction. At the conclusion of the hearing, the learned Member gave oral reasons, finding that the Tribunal did not have jurisdiction. Therefore, the learned Member, after considering the construction of the applicable legislative provisions, dismissed Mr Adams' application for review of the Decision.

Reasoning of the learned Member

The learned Member stated that the decision to be reviewed was the respondent's refusal of Mr Adams request for approval to remove the oak tree on the verge and to replace it with a jacaranda tree.
The learned Member determined that the application by Mr Adams was not concerned with a decision which could properly be the subject of an application for review under s 9.7 of the LG Act. The learned Member stated that under s 9.1(1)(a) of the LG Act a decision that may be reviewed includes a decision made by a local government 'as to whether it will…grant a person an authorisation under any local law.' An 'authorisation' is relevantly defined in s 9.2 of the LG Act to mean an approval, or other means of authorising a person to do anything, other than one that has been excluded by regulations.
Mr Adams had sought approval to remove the oak tree and replace it with the jacaranda tree pursuant to cl 2.1 of the Activities in the Thoroughfares, Public Places and Trading Local Law 2014 (TPPT Local Law) which provides that a person shall not remove a tree unless the removal is authorised in writing by the local government.
The learned Member determined that the approval or authorisation sought by Mr Adams was excluded by r 32A of the Local Government (Functions and General) Regulations 1996 (WA) (LG Regulations), which relevantly provides that an authorisation to carry out private works on local government property is excluded from being an authorisation under s 9.2 of the LG Act.
In his written submission in support of this appeal, Mr Adams correctly observed that the question as to whether Tribunal had jurisdiction rested on the meaning of 'authority to carry out private works on local government property' in r 32A(1) of the LG Regulations.

Grounds of Appeal

Mr Adams relies upon four grounds of appeal in the following terms:[16]
(1)The applicant was denied natural justice when Member Carey interpreted 'private works' differently to that submitted by the respondent and the applicant; and Member Carey did not provide adequate time for the applicant to provide a response to that interpretation.
(2)Member Carey applied his own interpretation of 'private works'. However, this term is used in a Western Australia statute and its meaning is different to Member Carey's interpretation.
(3)Member Carey did not provide any justification for his finding that r 32A(2) of the LG Regulations did not apply. His finding is not supported by evidence. The applicant was denied natural justice when Member Carey did not consider the applicant's 24 January 2019 submission.
(4)Member Carey did not provide any justification for his finding that Mr Adams is not an affected person. His finding is not supported by evidence.
[16] Amended Notice of Appeal dated 26 March 2019 read with Mr Adams' written submissions filed 27 March 2019.
The gravamen of the appeal may be distilled into two issues. First, Mr Adams contends that the Member erred in finding that the Tribunal did not have jurisdiction to determine the application. Second, Mr Adams contends that the learned Member did not afford him natural justice in the hearing by failing to provide notice of his alternative interpretation of the relevant statutory framework.

Ground 1 - procedural fairness

The question of whether procedural fairness applies to proceedings before an administrative tribunal, as well as the content of the requirement to afford procedural fairness, depends upon the statute under which the proceedings are conducted and the circumstances of the particular case. The implication of the rules of procedural fairness in a statute is arrived at by a process of construction.
Section 32 of the SAT Act provides that the 'Tribunal is bound by the rules of natural justice, except to the extent that the Act or the enabling Act authorises, whether expressly or by implications, a departure from those rules.' Further, s 32(6)(c) of the SAT Act requires the Tribunal to take measures that are reasonably practicable to ensure that parties have the opportunity in a proceeding, to call or give evidence, examine witnesses and be heard or have their submissions considered.
Procedural fairness is concerned with procedures rather than outcomes.[17] If observance of the rules of procedural fairness is a condition of the grant of statutory power, and governs the exercise of the power, a failure to comply with the rules will render any decision made, in a purported exercise of that power, invalid.[18]
[17] Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 [55].
[18] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252.
The Tribunal was obliged to afford procedural fairness to Mr Adams. Procedural fairness is not only concerned with whether a decision-maker is obliged to afford procedural fairness, but also with what is necessary, in the circumstances of the particular case, for there to be appropriate compliance with the obligation to give procedural fairness, and with whether, in the circumstances of the case, the obligation to give procedural fairness has been met.
What is required to accord with procedural fairness is variable and will depend on the circumstances and requirements of each case.[19] The content of procedural fairness is not fixed or rigid. The concern, ultimately, is to avoid practical injustice.[20]
[19] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 612 (Brennan J).
[20] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.
A fair hearing requires that the parties to the hearing are properly informed of the critical issues or factors on which the decision maker's decision is likely to turn, so that each party has an opportunity to address those issues or factors.[21] It is necessary that a party is able to participate fairly and appropriately in the decision‑making process. The terms of the prior notice, and the nature and extent of the participation, that are fair and appropriate depend upon the circumstances of the particular case, including the applicable statutory framework.[22]
[21] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [81] (McHugh & Gummow JJ).
[22] Western Australian Planning Commission v The Board of Valuers [2018] WASCA 145 [112] (Buss P).
I am of the view that Mr Adams was afforded procedural fairness by the learned Member. It is clear that the issue of jurisdiction was an issue that required the parties, and Mr Adams in particular, to consider. On 3 September 2018, at the first directions hearing, another Member specifically raised the issue of whether the Tribunal had jurisdiction.[23] The learned Member ordered that the respondent confirm within 14 days whether the issue of jurisdiction was being relied upon. On 10 September 2018, the respondent confirmed, via email, that the issue of jurisdiction would not be raised.
[23] ts 2 (03/09/2018).
On 11 December 2018, the learned Member raised the question of the Tribunal's jurisdiction during a directions hearing. The appellant was present, representing himself. The learned Member observed that the decisions or authorisations under the LG Act that were subject to review by the Tribunal were limited. The learned Member observed that as he was the presiding member at the final hearing he had to be satisfied that the proposed review of the Decision came within the jurisdiction of the Tribunal. The learned Member stated that he had concerns as to whether it did.[24] The learned Member invited the appellant to identify the provision or provisions which conferred jurisdiction on the Tribunal to review the Decision.[25] The learned Member engaged in discourse with both the appellant and the respondent's representative. The learned Member observed that the type of authorisation referred to by the appellant was highly unlikely to enliven the review powers of the Tribunal.[26] Further, the learned Member informed the appellant that 'the Tribunal always has to be satisfied that it has jurisdiction, whether or not the parties take the point.'[27]
[24] ts 4 (11/12/2018).
[25] ts 4 (11/12/2018).
[26] ts 10 (11/12/2018).
[27] ts 12 (11/12/2018).
At the conclusion of the directions hearing on 11 December 2018, the learned Member ordered that the appellant 'file and serve a memorandum directed at the issue of the Tribunal's jurisdiction' by 8 December 2018 and that the respondent file and serve a memorandum in reply by 8 January 2019.[28] Mr Adams filed a written outline of submissions as to jurisdiction on 18 December 2018. The respondent filed written submissions on 7 January 2019.
[28] ts 19 (11/12/2018).

On 24 January 2019, a hearing was held at which time the learned Member invited oral submissions concerning the issue of jurisdiction. At the commencement of his oral submissions, Mr Adams provided the learned Member and respondent with a written outline replying to the respondent's written submissions filed on 7 January 2019. The learned Member received the written reply.[29] Mr Adams then made extensive oral submissions. The learned Member engaged Mr Adams in discourse. The respondent's representative made oral submissions in the presence of Mr Adams.
[29] ts 2 - 3 (24/01/2019).
During discourse, the learned Member engaged both Mr Adams and the respondent's representative in respect of the proper construction of the relevant provisions of the LG Act and the LG Regulations. The learned Member specifically asked Mr Adams to address one alternative interpretation of the relevant statutory provisions that may determine whether the removal of the oak tree was public or private namely, whether the local authority undertook the works or whether a resident does so.[30] Mr Adams addressed that proposition in his oral submissions with clarity and maintained that the proper construction of the provisions was outlined in his written submissions.[31]
[30] ts 3 - 4 (24/01/2019).
[31] ts 4 (24/01/2019).
The learned Member then delivered oral reasons for decision in which he concluded the Tribunal did not have jurisdiction to review the Decision.
Mr Adams was afforded procedural fairness in relation to the question of jurisdiction. The issue of jurisdiction was raised by the learned Member and submissions sought from the parties both in writing and orally. Mr Adams was given notice of the respondent's argument. The learned Member properly raised alternative interpretations of the relevant statutory provisions. There is no doubt that Mr Adams was aware of and had a fulsome opportunity to address the issue of whether the Tribunal had jurisdiction and to the points of construction raised against him.
I therefore find that Mr Adams' complaint that he was not afforded procedural fairness is without merit.

Grounds 1, 2 and 3 - jurisdiction

I now turn to the issue of whether the Tribunal had jurisdiction to review the Decision.
Section 13 of the SAT Act provides that the Tribunal's jurisdiction lies in the provisions of the SAT Act or in an enabling Act. The Tribunal does not have inherent jurisdiction. The Tribunal has original jurisdiction and review jurisdiction. Section 17 of the SAT Act provides that if an enabling Act gives the Tribunal jurisdiction to deal with a matter that expressly or necessarily involves a review of a decision, then the matter comes within the Tribunal's review decision.
It is common ground that the Decision was made under cl 2.1(d) of the TPPT Local Law which provides:
A person shall not-
(d)damage a tree or remove a tree or part of a tree irrespective of whether the tree was planted by the owner or occupier of the lot abutting the street or by the local government, unless-
(i)the removal of the tree is authorised by the local government in writing; or
(ii) the person is acting under authority of a written law.
It is implicit in that provision that the trees referred to are trees located on street verges and adjacent streets.
Mr Adams contends that the LG Act is the relevant enabling Act that gives the Tribunal jurisdiction to review the Decision.
Division 1, pt 9 of the LG Act contains provisions concerning objections and reviews.
Section 9.7 of the LG Act gives the Tribunal jurisdiction to review a decision under that Act. It provides:
Review
(1) An affected person may apply to the State Administrative Tribunal for a review of a decision if the person -
(a)has not lodged an objection to the decision; or
(b)has lodged an objection but, at the expiration of 35 days after it was lodged, has not been given notice in writing of how it has been decided to dispose of the objection.
(2)If the person lodged an objection and has been given notice in writing of how it has been decided to dispose of the objection, the person may apply to the State Administrative Tribunal for a review of the decision on the objection.
(3)The application is to be made within 42 days after the right to make it arose [i.e. -
within 42 days after the original decision, for an application under subsection (1)(a); or
more than 35 days, but within 77 days, after the objection was lodged, for an application under subsection (1)(b); or
within 42 days after the objection was decided, for an application under subsection (2)].
It was common ground at the hearing before the learned Member that Mr Adams satisfied the requirements of s 9.7(1) of the LG Act and that the application to the Tribunal was made within 42 days after the right to make the application arose.[32]
[32]Reasons of Tribunal delivered 24 January 2019, 3.
The word 'decision' in s 9.7 is defined in s 9.2 of the LG Act to mean 'a decision or notice that, in accordance with s 9.1 causes this Division to apply.' The question then is whether the Decision is a decision to which s 9.7(1) applies. Section 9.1 of the LG Act sets out when div 1 (which deals with reviews) applies. It provides:
When this Division applies
(1) This Division applies when a local government makes a decision under this Act as to whether it will -
(a) grant a person an authorisation under Part 3 or under any local law or regulation that is to operate as if it were a local law; or
(b)renew, vary, or cancel an authorisation that a person has under any of those provisions.
(2) This Division also applies whenever a local government gives a person a notice under section 3.25, and for the purposes of this Division the giving of a notice under that section is to be regarded as the making of a decision.
(3)This Division also applies whenever a local law, or regulation that is to operate as if it were a local law, states that a decision under it is one to which this Division applies and that a person specified in it is an affected person for the purposes of this Division.
The respondent's decision to refuse Mr Adams' request for approval to remove the oak tree and replace it with the jacaranda tree was a decision under a local law, namely cl 2.1(d) of the TPPT Local Law and therefore was decision under the LG Act.
The Decision was not the subject of a notice under s 3.25 of the LG Act nor did the TPPT Local Law state that the Decision was one to which div 1, pt 9 of the LG Act applied. Therefore, whether the Decision was a decision amenable to review under s 9.7 depended on whether it fell within s 9.1(a) of the LG Act. The term 'authorisation' is defined in s 9.2 of the LG Act to mean:
a licence, permit, approval, or other means of authorising a person to do anything, other than one that has been excluded by regulations from being an authorisation for the purposes of this definition.
The learned Member stated that any written authorisation given to Mr Adams under s 2.1(a) and (d) of the TPPT Local Law for him to remove the oak tree and replace it with a jacaranda tree would constitute 'a means of authorising [Mr Adams] to do anything' for the purpose of the definition of 'authorisation' in s 9.2 of the LG Act. In my view, that was correct. However, that is not the end of the matter. The Decision could only be an 'authorisation' if it was not excluded by regulations from being an authorisation for the purposes of this definition.
Regulation 32A of the LG Regulations provides:
Excluded authorisations (Act s. 9.2)
(1)The following are excluded from being authorisations for the purposes of the definition of authorisation in section 9.2 of the Act -
(a)an authority to carry out private works on local government property;
(b)an authority allowing the use of local government land or premises, or the use of local government goods or equipment.
(2)Despite subregulation (1), an authority set out in paragraph (a) or (b) of that subregulation is to be regarded as an authorisation under section 9.2 of the Act if -
(a) a local law, or regulation that is to operate as if it were a local law, states that a decision in relation to that authority is one to which Division 9 of the Act applies and that a person specified in it is an affected person for the purposes of that Division; or
(b) a person has -
(i)by virtue of that authority, a reasonable expectation of the enjoyment (or the continued enjoyment) of a right or interest conferred by that authority; or
(ii)by virtue of the usual circumstances surrounding the grant of an authority of that type, a reasonable expectation of successfully applying for the right or interest conferred by that authority.
The learned Member determined that the approval sought by Mr Adams constituted 'an authority to carry out private works on local government property' and that the exceptions under r 32A(2) had no application. Further, the learned Member determined that the authority to plant the jacaranda tree would be 'an authority allowing the use of local government land.'[33] The learned Member stated that the language of r 32A(2) was 'less amenable' to a finding that the removal of the oak tree would constitute the use of local government land. Consequently, the learned Member concluded that the Decision concerned an authorisation which was excluded by r 32A of the LG Regulations and was therefore not a decision to which the right of review in s 9.7 of the LG Act applied.
[33] Reasons of Tribunal delivered 24 January 2019, 6.
I understand that Mr Adams contends that the learned Member erred in three ways. First, he contends the learned Member erred in finding that the removal of the oak tree and replacing it with a jacaranda tree constituted the 'carrying out of private works' under r 32A(1) and in finding that the planting of a jacaranda tree (after removing the oak tree) constituted 'an authority allowing the use of local government land.' Second, Mr Adams contends that the learned Member erred in finding that the proposed works were to be undertaken on 'local government property'. Third, Mr Adams contends that the learned Member erred in finding that, if the proposed works were private works on government property, that sub regulation r 32A(2) (which excludes r 32A(1)) did not apply.
In determining that the proposed works were private works, the learned Member observed that the authorisations excluded by r 32A(1) showed Parliament's intention 'that, to the extent that a Local Government Authority is called upon to consider an indulgence to allow such works or use, the actual or potential beneficiary is denied any right to seek a review under s 9.7 of the LG Act.'[34]
[34] Reasons of Tribunal delivered 24 January 2019, 4.
The learned Member concluded that the question of whether works being carried out on government property are private works is determined by who will undertake the works. That is, an assessment must be made as to whether the relevant Local Government Authority will complete the proposed works or the person requesting the authorisation will undertake the works.
Mr Adams maintained that whether the works being carried out are private should be determined by an assessment as to who will benefit from the works. Mr Adams submitted that the proposed works (the removal of the oak tree and its replacement with a jacaranda tree) would benefit the public and, therefore, are not private works.
The learned Member determined that, had the respondent authorised the proposed works, then the works would have been for Mr Adams, not the respondent, to perform.[35] Accordingly, the proposed works were private works for the purposes of r 32A.
[35] Reasons of Tribunal delivered 24 January 2019, 5.
Mr Adams contended that the removal of the oak tree from the verge was not properly characterised as 'carrying out private works' because other members of the public would benefit from the removal.[36] He submitted the benefits to the public comprised, in part, the fact that residents in the immediate location would benefit from a safer area with less debris and less risk to vehicles, that visitors would be able to depart his driveway without their vision being impaired by the oak tree and that this would reduce the risk of colliding with the oak tree or a pedestrian.[37]
[36] Mr Adams' written submissions before the Tribunal dated 18 December 2018 [12].
[37] Mr Adams' written submissions before the Tribunal dated 18 December 2018 [12].
The term 'private works' is not defined in the LG Regulations. The word 'private' is an adjective which means, amongst other things, 'belonging to some particular person or persons; belonging to oneself, being one's own: [as in] private property'; 'not of an official or particular character' and 'relating to or affecting a particular person or small group of persons; individual; personal'.[38]
[38] Macquarie Dictionary (Second edition, 1991), 1404.
The words 'work' and 'works' means, among other things, 'the result of exertion, labour or activity' and when used in the plural can mean 'a building, wall, trench or the like' and 'an engineering structure, as a building, bridge, dock or the like'.[39] The composite phrase 'private works' thus refers to a construction, or an activity involving exertion and labour, which relates to or affects a particular person or small group of persons and which is not of an official or public character.
[39] Macquarie Dictionary (Second edition, 1991), 2016.
The proposed removal of the oak tree from the verge outside Mr Adams' house and the planting of the jacaranda tree were, in my view, private works. They affected Mr Adams, members of his household or visitors entering or exiting his property. The works did not form part of a wider program of improvements to all verges in the area. They did not have a public or official character. They would be undertaken or organised by Mr Adams himself.
The learned Member did not err in determining that the works proposed to be undertaken by Mr Adams constituted private works and therefore r 32A(1) applied.
I turn, next, to the second issue, namely whether the private works were being conducted on 'local government property'. Mr Adams contended that r 32A(1)(a) of the LG Regulations has no application for the reason that the oak tree was part of the thoroughfare and is therefore excluded from the definition of 'local government property' in the TPPT Local Law. Clause 1.5 of the TPPT Local Law defines 'local government property' as meaning anything, except a thoroughfare, which belongs to the local government or of which the local government is the management body under the Land Administration Act1997 (WA) or which is an 'otherwise uninvested facility' within s 3.53 of the LG Act.
In my view, the definition of 'local government property' in the TPPT Local Law is not determinative of the meaning of that paragraph in the LG Regulations. As the learned member observed, s 44 of the Interpretation Act 1984 (WA) provides that the meaning of a term in subsidiary legislation is to have the same meaning as in the governing Act. Accordingly, the relevant definition of 'local government property' in r 32A(1)(a) is that provided by s 1.4 of the LG Act. Section 1.4 defines 'local government property' as 'anything, whether land or not, that belongs to or is vested in or under the care, control or management of the local government.' I did not understand there to be any dispute between the parties as to the fact that the verge adjacent to the road which abutted Mr Adams' property and the oak tree planted on it (which had, as I understand it, been planted by the local government at some stage) were under the care, control and management of the respondent as the relevant local government authority. Indeed, that much is clear from the existence of the TPPT Local Law, which restricts and controls the activities which may be undertaken on verges by individuals (see for example, cl 2.1, cl 2.2, cl 2.9, cl 2.10) and confers power on the respondent to issue permits for such activities.
In my view, the learned Member correctly determined that the verge and the oak tree were local government property for the purposes of r 32A(1)(a) of the LG Regulations.
Accordingly, the learned Member did not err in finding that the removal of the oak tree was properly characterised as works to be carried out on local government property.
I now turn to the third issue being, whether the learned Member erred in finding that, if the proposed works were private works on government property, then r 32A(2) did not apply and therefore did not exclude the application of r 32A(1). The learned Member stated that 'having regard to the language of that sub regulation [r 32A(2)] it is patent that no circumstance arising in the regulation applies.'[40] Mr Adams contended that r 32A(2)(i) and (ii) applied and therefore r 32A(1) was excluded. In his written reply provided to the Tribunal during the hearing, Mr Adams stated that r 32A(b)(i) applied for the reason that having a safe driveway and preventing a tree on the verge damaging property is a right and constitutes a reasonable expectation within the community.[41] Further, Mr Adams submitted that he would benefit from the removal of the tree. Mr Adams contended that r 32A(b)(ii) applies for the reason that it is reasonable to expect that the respondent would apply policy and to assess the request for removal on its merits including an assessment as to whether the tree was a hazard and whether its removal had wider community benefit.[42]
[40] Reasons of Tribunal delivered 24 January 2019, 4
[41] Mr Adams' reply to respondent's submissions dated 24 January 2019 [32].
[42] Mr Adams' reply to respondent's submissions dated 24 January 2019 [33] - [36].
I am unable to accept any of these contentions. Mr Adams did not identify any local law or regulation that was to operate as a local law which stated that a decision in relation to the authority to remove a tree from a verge is one to which pt 9 of the LG Act applied. Clause 7.1 of the TPPT Local Law provides for the application of div 1, pt 9 of the LG Act but that only applies in relation to decisions under cl 6.2(1) or decisions in relation to permits. Therefore, cl 7.1 does not assist. Sub regulation 32A(2)(a) is therefore not engaged.
Further, as Mr Adams had not been given any authority by the respondent, he could not have had any reasonable expectation of the enjoyment or continued enjoyment of that authority. Sub regulation 32A(2)(b)(i) therefore did not apply.
Finally, Mr Adams did not establish that by virtue of the 'usual circumstances' surrounding a grant of authority, of the kind which he sought, that he had a reasonable expectation of successfully applying for the right or interest conferred by that authority. On the contrary, the only evidence as to the usual circumstances surrounding the removal of the verge tree was in the respondent's written response to Mr Adams' request for approval dated 21 February 2018. That response made clear that the street trees would only be removed 'under exceptional circumstances', for example if they are dead, dying, diseased or dangerous.
Mr Adams therefore did not provide a basis for concluding that he had a reasonable expectation of successfully applying for authority to remove the oak tree. Regulation 32A(2)(b)(ii) was therefore not engaged and thus r 32A(1) was not excluded.

Conclusion

Accordingly, I have determined that grounds of appeal are without merit and leave to appeal is not granted. Therefore, the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice McGrath
18 MAY 2022