AUSCON PTY LTD and TOWN OF CAMBRIDGE
[2021] WASAT 116
•2 SEPTEMBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AUSCON PTY LTD and TOWN OF CAMBRIDGE [2021] WASAT 116
MEMBER: DR S WILLEY, SENIOR MEMBER
MR R POVEY, MEMBER
HEARD: 1 AND 2 JUNE 2021
DELIVERED : 2 SEPTEMBER 2021
PUBLISHED : 2 SEPTEMBER 2021
FILE NO/S: DR 203 of 2020
BETWEEN: AUSCON PTY LTD
Applicant
AND
TOWN OF CAMBRIDGE
Respondent
Catchwords:
Building - Building permit - Town planning - Development application - Building permit extension - Relevant considerations in considering application to extend building permit - Substantial commencement - Works - Estoppel
Legislation:
Building Act 2011 (WA), Pt 2, s 9, Div 2, s 16, s 20, s 20(1) s 21, s 22, s 22(1), s 22(2), s 22(2)(a), s23, s 24, Div 3, s 25, s 27, s 29, Div 4, s 32, s 32(3), s 76, s 119
Building Regulations 2012 (WA), Pt 3, reg 18(2)(b), reg 23, reg 24, reg 24(1), reg 24(2), reg 25
Fish Resources Management Act 1994 (WA)
Interpretation Act 1984 (WA), s 43(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 61(1)(a), cl 61(1)(b), cl 77(2)(b), cl 77(1)(d)
Planning and Development Act 2005 (WA), s 4, s 4(1)
State Administrative Tribunal Act 2004 (WA), s 27, s 91(2)
Town of Cambridge Local Planning Scheme No 1, cl 33(1)(d), cl 42(2)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr D Stanley |
| Respondent | : | Mr C Slarke |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Adams v Executive Director, Fisheries WA [2000] WASC 34
Attorney-General v Mayor of Bournemouth [1902] 2 Ch 714
Auburn Municipal Council v FN Eckold Pty Ltd (1974) LGRA 101
Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289
Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350
Enoka v Shire of Northampton (1996) 15 WAR 483
Fazio v City of Fremantle (unreported, WASC, Library No 920584, 16 August 1996)
Gnech Building Co and Town of Claremont [2018] WASAT 77
Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231
Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416; (2002) 68 ALD 365
London County Council v Marks and Spencer Ltd [1952] 1 Ch 549
Miller and City of Melville [2012] WASAT 156
Milson Gardens Pty Ltd v North Sydney Municipal Council [1964] NSWR 926; (1963) 9 LGRA 308
Minister for Agriculture and Fisheries and Hulkin (unreported, Court of Appeal, 1948)
Minister for Agriculture and Fisheries v Matthews [1950] 1 KB 148
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41
Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416
Waverley Municipal Council v Ladec Holdings Pty Ltd (1978) 36 LGRA 188
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is a building matter that focuses on a planning question. That question is whether a three storey dwelling at Lot 197 (No 37) Pandora Drive, City Beach (subject land), which was granted development approval by the Town of Cambridge (respondent) on 31 October 2014, has been substantially commenced.
On 3 July 2020 Auscon Pty Ltd (applicant) applied to the respondent for a third extension to the building permit. On 6 July 2020, the respondent advised the applicant it was unable to grant an extension to the building permit as the development approval had lapsed.
On 13 July 2020, the respondent advised that prior to a building permit being issued, a development application is required to be lodged by no later than 11 August 2020. The respondent also advised that failure to provide the requested information will result in the building permit extension being deemed refused.
The application for review was made to the Tribunal on 8 September 2020 pursuant to reg 25 of the Building Regulations 2012 (WA) (Building Regulations), on the basis that the application to extend the building permit had been deemed to have been refused.
The matter was heard in June 2021. At the commencement of the final hearing on 1 June 2021, we inspected the subject land, together with the parties.
For the following reasons, we find that the correct and preferable decision is to dismiss the application for review.
Subject land
The subject land is zoned 'Residential' under the Town of Cambridge Local Planning Scheme No 1 (LPS 1).
The subject land has an area of 938m2, and a significant upward slope of approximately 16 degrees from Pandora Drive up to the rear of the subject land.
At the time of the site view on 1 June 2021, the previous single dwelling on the subject land was demolished with the exception of the under croft garage (currently located under demolition rubble), boundary fencing, the swimming pool at the front and, at the rear of the subject land, terraced retaining walls which remain.
Proposed development and procedural history
The proposed development and procedural history of this matter is usefully set out in Exhibit 1 at paras 5 to 18. This details the original development approval, the building and demolition permits issued by the respondent, including two building permit extensions, and finally the respondent's refusal to further extend the building permit.
Development approval
On 13 May 2014, the owners of the subject land (the owners) made application for development approval to carry out the development of a new three storey dwelling with under croft garage on the subject land (proposed development). The covering letter with the application states that the proposed development comprises four bedrooms, a study, formal living room, an open living area, dining and kitchen area, and audio visual and activity rooms.
The proposed development would involve the partial demolition of an existing dwelling on the subject land. The covering letter with the application explains that the retaining structures, the swimming pool, under croft garage, store and stairwell would remain, and that new upper floors would then be built atop the existing basement level.
On 31 October 2014, the respondent approved the proposed development (development approval) subject to the following condition '[l]andscaping within the front setback area provided as shown on the approved' plan.
The development approval also stated '[t]his approval is valid for a period of 24 months from the date of this notice'. At the relevant time, cl 42(2) of LPS 1 provided that a development approval expires if not substantially commenced within two years from the date that approval was granted.
An amendment to the development approval, to increase the size of the basement with an additional storage area, was approved by the respondent on 16 June 2015. The notice of approval of this amendment states that it does not constitute a new planning approval and the development approval expires on 31 October 20l6.
Building and demolition permits issued by the respondent
The respondent issued building permit BP0182-2015 for a '[t]hree storey dwelling and carport, garage, decking, retaining wall pergola, swimming pool and swimming pool fence' on the subject land on 21 Ju1y 2015 (building permit). This building permit was valid until 21 July 2017.
On 29 June 2017, the respondent issued a demolition permit to Capital Recycling.
On 18 July 2017, the respondent issued an extension to the building permit (building permit extension 1). Building permit extension 1 was valid until 18 July 2018.
On 13 July 2018, the respondent issued a second extension to the building permit (building permit extension 2). Building permit extension 2 was valid until 13 July 2020.
Refusal to extend building permit
On 3 July 2020, the applicant applied for a third extension to the building permit.
On 6 July 2020, the respondent informed the applicant that it was unable to grant an extension to the building permit as the development approval had lapsed.
By letter dated 13 July 2020, the respondent advised the applicant that 'prior to a building permit being issued a development application is required to be lodged' and requested that a development application be lodged no later than 11 August 2020. The letter also stated that failure to provide the requested information will result in the building permit extension application being deemed refused.
By email dated 31 July 2020, the applicant informed the respondent that an extension to the development approval was not required as it had been substantially commenced. The applicant provided supporting information for its position.
By email dated 12 August 2020, the respondent informed the applicant that the respondent's position remained that the proposed development had not been substantially commenced before 31 October 2016.
The application for review was made by the applicant pursuant to reg 25 of the Building Regulations on the basis that the application to extend the building permit is deemed to have been refused.
Legislative framework
Building Act 2011
The statutory scheme for building permits is contained in Pt 2 of the Building Act 2011 (WA) (Building Act). Division 2 of Pt 2 deals with applications for building permits. Section 9 provides that a person must not undertake 'building work' unless a building permit is in effect. An application must meet the requirements set out in s 16.
A permit authority must grant a building permit, in respect of either a certified or uncertified application, if it is satisfied of the requirements set out in s 20(1)(a) to (s) of the Building Act. Those requirements include, as we will come to, that the applicant has obtained in relation to the building work each authority under a written law that is prescribed: s 20(1)(n). The applicant must also comply or be complying with each of these authorities: s 20(1)(o) of the Building Act.
The required authorities include building work that is 'development' for the purposes of the Planning and Development Act 2005 (WA) (PD Act): reg 18(2)(b) of the Building Regulations.
Section 22 of the Building Act sets out further grounds for not granting a building permit. These include where there is an error in the information provided or in an accompanying document. Section 23 sets out the period in which an application for a building permit must be decided. Section 24 of the Building Act sets out the notice requirements of a decision not to grant a building permit.
Division 3 of Pt 2 of the Building Act relates to building permits. Section 25 of the Building Act regulates the form and substance of a building permit. Section 27 enables the permit authority to impose conditions on a building permit. Section 29 requires that the building work is completed in accordance with the plans and specifications and otherwise complies with the building permit. A failure to comply with s 29 is an offence.
Division 4 of the Building Act sets out the duration of a building permit. Section 32 provides that a building permit has effect for the period set out in the building permit, or such longer period as may be approved on an application to extend.
Part 3 of the Building Regulations relates to building permits. For the purposes of s 32 of the Building Act, reg 23 provides for the making of an application to extend a building permit. Regulation 24(1) provides that the relevant permit authority may extend the building permit if it is satisfied:
(a)the work, or stage of work, for which the permit was granted has not been completed; or
(b)the extension is necessary to allow rectification of defects in the work, or the stage of work, for which the permit was granted.
Regulation 24(2) allows a permit authority to impose any condition it may have otherwise imposed under s 27 of the Building Act. Regulation 25 provides a right of review to the Tribunal if, relevantly, the permit authority refuses to extend the building permit.
Planning and Development Act 2005
The word 'development' is defined in s 4(1) of the PD Act to mean inter alia:
development means the development or use of any land, including
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works[.]
In Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (the Deemed Provisions) the term 'substantially commenced' is defined in cl 1 as follows:
[S]ome substantial part of work in respect of a development approved under a planning scheme or under an interim development order has been performed[.]
Subclauses 61(1)(a) and (b) of the Deemed Provisions exempts the demolition of the single house on a lot from requiring development approval. The Deemed Provisions commenced on 19 October 2015.
The definition that was included in the Deemed Provisions reflected the test for substantial commencement outlined by the High Court in Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350 (Drummoyne) and Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289 (Day). As we will explain, it is the formulation of the concept of substantial commencement in Drummoyne (by Gibbs at 361) which is our focus.
LPS 1
As we have stated, at the time the development approval was granted, cl 42(2) of LPS 1 provided that:
A planning approval shall lapse if the development has not been substantially commenced before the expiration of two years, or such other period as the Council may determine, from the date on which the application is approved.
Prior to 19 October 2015 (the date the Deemed Provisions commenced), and at the time when development approval was granted on 31 October 2014, demolition of the single house on the subject land did not require development approval by virtue of cl 33(1)(d) of LPS 1 read with Planning Policy 2.1 Minor Use and Development Exempt from Planning Approval (Policy 2.1).
As at 31 October 2014, the term 'substantial commencement' was not defined in LPS 1. Therefore, the term should be read in a manner consistent with the High Court's formulation of the concept in Drummoyne. As we explained at [37], the definition of 'substantially commenced' reflects the High Court's analysis in Drummoyne.
Policy 2.1
As stated above, as at 31 October 2014, cl 6 of Policy 2.1 operated to exempt demolition of the single house at the subject land from the requirement to obtain development approval under LPS 1.
Issues for determination
The Tribunal identified two issues for determination in this matter. Those issues and our summary answers, are set out below:
1.In circumstances where the respondent has twice granted extensions to the building permit after 31 October 2016 (being the date at which the development approval was required to be substantially commenced), on an application to further extend the building permit, is the respondent entitled to consider the question of substantial commencement?
Answer:'yes'
2.If the answer to Issue 1 is 'yes', has the proposed development been substantially commenced?
Answer: 'no'
Evidence
The respondent did not file any witness statements. The applicant called evidence from the following people:
a)Mr George Veaudry a registered builder and the proprietor of the applicant. Mr Veaudry's evidence is that the subject land is 'difficult' and the works to remove the shell of the former dwelling took, in effect, 2,500 hours of professional involvement. Mr Veaudry considers it to be 'absurd' that the respondent could verbally confirm the substantial commencement and issue extensions to the building permit but then change its mind. Mr Veaurdry has lost money due to the respondent's action. Mr Veaudry was not required to give oral evidence at the final hearing.
b)Mr David Grant a licensed plumber and gas fitter employed by Changeovers Pty Ltd (Changeovers) (the business which is owned and operated by Mr Dean Stanley the co-owner of the subject land). Mr Grant owns the subject land with his fiancé, Mr Stanley. Mr Grant gave evidence as to the works that were undertaken on the subject land. Mr Grant gave oral evidence at the final hearing.
c)Mr Stanley gave oral evidence as to the background to the building project, including discussions with the respondent prior to engaging an architect. Mr Stanley also gave evidence as to the works that were undertaken on the subject land and the time required and costs incurred to perform those works. Given that the applicant was not represented at the final hearing, the Tribunal allowed Mr Stanley to, as it were, make submissions while giving evidence.
d)Mr Tony Moore the Operations Manager for Capital Recycling Pty Ltd. Mr Moore gave evidence as to the difficulties in demolishing the majority of the former dwelling ahead of the construction of the approved development. Engineers were engaged to ensure the structural integrity of the structure that was to remain on the subject land. Mr Moore was not required to give oral evidence.
e)Mr Dean Hill a Trades Manager at Changeovers. Mr Hill gave evidence that the proposed development was difficult and that the amount of work required involved in the demolition, trenching, level manipulation, and the alteration and addition of structures and services to enable the shell of the former dwelling to be removed were 'extraordinary'. Mr Hill was not needed for oral evidence.
f)Mr Keelie Bush an electrician employed by Changeovers. He also worked on the subject land performing electrical and other works. When Mr Bush finished other projects, he was required to attend the subject land and undertake works as required by the proposed development. Mr Bush did not give oral evidence at the final hearing.
g)Ms Stacy Massey a Lead Trade and Customer Scheduler at Changeovers. Ms Massey organised the tradespeople to work at the subject land during 2014 to 2016. Ms Massey explains that when Changeover tradespeople completed their daily tasks at other sites, they would attend the subject land to continue the works. Ms Massey did not give oral evidence.
The planning concept of substantial commencement
The planning concept of substantial commencement can be difficult.
The early approach to the concept in Australia derives from the Court of Appeal judgments in Attorney-General v Mayor of Bournemouth [1902] 2 Ch 714 and London County Council v Marks and Spencer Ltd [1952] 1 Ch 549. An early Australian authority is the decision of the New South Wales Supreme Court in Milson Gardens Pty Ltd v North Sydney Municipal Council [1964] NSWR 926; (1963) 9 LGRA 308.
As we have outlined, the question of substantial commencement has been considered by the High Court on two occasions. These were the cases of Drummoyne and Day.
The only Western Australian case which discusses the concept is Fazio v City of Fremantle (unreported, WASC, Library No 920584, 16 August 1996). In the context of an application for declaration that certain conditions had been complied with, including the 'commencement' condition, Commissioner Wheeler QC, as her Honour then was, noted (at 14) that:
The history of applications in respect of the premises illustrates, on a small scale, the 'mischief' at which commencement conditions appear to be aimed; that is, that it is undesirable that a developer should have available for an indefinite time an approval in respect of a development which changing patterns of use or changing community attitudes might, over time, render inappropriate. It is in the interests of orderly planning that an approval for building or for use, once obtained, should be acted upon or should expire, within a reasonable time.
We can do no better than Commissioner Wheeler QC in explaining the rationale for conditions that required development approvals be 'substantially commenced' within a specified period, or they should otherwise expire.
A development approval is a right granted at a particular point in time, in a particular context and pursuant to a particular planning framework. The rights granted by that approval should be acted upon within a timely fashion. It is contrary to the public interest for that right to commence that development to endure indefinitely, given that the planning context is always changing as are community needs and attitudes.
The significance of the concept of substantial commencement in Western Australia has diminished, at some level, by reason of cl 77 (2)(b) of the Deemed Provisions, which allows for a development approval to be extended, even after the period in which a development must be substantially commenced, has expired. However, as this case demonstrates, even in Western Australia, the concept still has some significance.
As we have stated, cl 1 of the Deemed Provisions defines the term 'substantially commenced' to mean:
[S]ubstantial part of work in respect of a development approved under a planning scheme or under an interim development order has been performed[.]
We now turn to the relevant principles. In doing so we bear in mind that, having regard to the date of the development approval, it is the concept of substantial commencement in the sense described by Gibbs J in Drummoyne [at 361], which we set out in [54(e)] below, that is our focus. As we have noted, cl 1 of the Deemed Provisions is consistent with the test for substantial commencement set out in Drummoyne.
The question of substantial commencement should be approached with some caution. This is because each case will ultimately turn on its own facts. In this regard, looking for comparative cases to resolve the question can be fraught. In Day the High Court acutely observed that 'it is futile to seek an answer to one case in the facts of another' at 299.
Nevertheless, the case law on substantial commencement establishes the following principles:
a)the 'test' of substantial commencement is objective and focuses on what has been done, rather than the intention with which it was done: Drummoyne at 360 (Gibbs J);
b)that the 'commencement' must be a positive and unequivocal step indicating that the building for which approval had been obtained has actually commenced. That is, the works done must be referable only to the approved development and not anything else: Drummoyne at 360 (Gibbs J); North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41 at 45 (Hardie J);
This principle has particular relevance to this matter as the applicant's case relies, heavily, on the efforts it took to partially demolish the dwelling as a central plank in its argument that it has substantially commenced. On the question of the relevance or otherwise of demolition to the question of substantial commencement, the authorities are against the applicant. In this regard see Auburn Municipal Council v FN Eckold Pty Ltd (1974) LGRA 101 (Mohoney J) (Auburn) and Waverley Municipal Council v Ladec Holdings Pty Ltd (1978) 36 LGRA 188 (Rath J) (Waverley);
c)'substantial commencement' is a question of degree and involves the commitment of resources of such proportion relative to the approved development so as to carry the assurance that work has really commenced. That is, the facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of a considerable amount: Day at 299 (Mason J, Murphy J, Aickin J, Wilson J, Brennan J);
d)substantial 'commencement' should not be confused with substantial 'completion'. The focus is on whether the approved development has 'commenced': Day at 297 (Mason J, Murphy J, Aickin J, Wilson J, Brennan J). It does not matter that the development is not near completion. For example, work done which is extensive and costly may constitute substantial commencement, even though it may only be a small portion of the overall development;
e)the 'test' is whether the 'work or development, the subject of the development approval has begun by the performance of some substantial part of that work or development': Drummoyne at 361 (Gibbs J). As we have stated, the language adopted in the Deemed Provisions largely mirrors the formulation of the concept set out in Drummoyne; and
f)'commencement' occurs when the building, engineering or construction work relating to the development, the subject of the approval is physically commenced: Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170 at 176 (Cripps J); Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231 at [76] (Giles JA with whom Mason P and Ipp AJA agreed).
The works carried out on the subject land
The applicant states that the following works were undertaken, based on the development approval, between 21 July 2015 and 31 October 2016:
a)structures associated with the Western Power services to the subject land were demolished and reinstated;
b)external brick pavement and concrete was removed;
c)trench and excavation works were carried out throughout the subject land for the provision of new services including plumbing, gas and electricity;
d)new storm water facilities were installed to re-route drainage;
e)the existing front pergola and pavement were demolished;
f)the rear alfresco area (comprised by a retaining wall and pergola) were demolished;
g)excavation works were undertaken, in order to access retaining walls which were cut or removed;
h)the front retaining wall was cut down;
i)existing external stairwells were demolished; and
j)work was undertaken on the swimming pool to install new pool flow and return lines and to relocate the pool pump and services.
The fact that the applicant undertook these works is not really contested. However, the respondent probed the time taken and the costs involved. In any event, we find that the applicant undertook the works set out at [55] above prior to 31 October 2016.
After 31 October 2016, the applicant undertook other works, including removing all internal structures and fittings of the former dwelling, and demolishing the former dwelling on the subject land.
Issue 1: In circumstances where the respondent has twice granted extensions to the building permit after 31 October 2016 (being the date at which the development approval was required to be substantially commenced), on an application to further extend the building permit, is the respondent entitled to consider the question of substantial commencement?
Applicant's submissions
Despite not being legally represented, the applicant made detailed submissions. The key aspects of those submissions are as follows.
Firstly, on an application for an extension of a building permit, it is permissible only to look at the Building Regulations. In particular, s 20(1) of the Building Act, and the various factors identified there which are relevant for the purposes of the grant of a building permit, are not relevant, and cannot be considered, in the context of an application to extend a building permit.
Section 20 of the Building Act is not cross-referenced in reg 24 of the Building Regulations. Like all the regulations, they have a reference section in the governing Act that is to apply. The cross-reference of reg 24 of the Building Regulations is s 32(3) of the Building Act.
The applicant's submission was, in effect, that extensions of time to permits are assessed under either reg 24 or reg 25 of the Building Regulations, nothing else.
Secondly, having twice issued extensions to the building permit, on an application to further extend the building permit, the respondent is not entitled to again consider the question of substantial commencement. That is to say that the respondent does not have the power, nor is it permitted, to repeatedly assess the question of substantial commencement.
Thirdly, retrospectively assessing the question of substantial commencement is unfair as evidence can be lost. Also, there is no requirement to keep evidence of works. This makes for unfair requests, especially three years and nine months on. It is unrealistic. For example, trenching is a recognised activity towards substantial commencement. If there was a site view while the trenching was occurring, the scale of work undertaken would be clear. However, three years later the subject land looks very different.
Fourthly, the application for a certified building permit, (Form BA1), refers to the requirement of relevant prescribed authorities from s 20 of the Building Act. The form for extensions to building permits (Form BA22) does not. This makes sense as it would need to cater for both s 20 and s 21 of the Building Act. Time extensions to both building and demolition permits are handled by the same Form BA22.
Form BA22 relates to time extensions for all building and all demolition permits and has reference to and only to reg 24 of the Building Regulations, not the Building Act whatsoever.
Fifthly, if the Tribunal determines that the subsequent and repetitive testing of substantial commencement is authorised, there will be a precedent set that undermines and disregards the whole intent of the process legislated to handle both the review of the refusal of new building permits and the separate administration of issuing building permit extensions for the entire building arena within Western Australia.
Respondent's submissions
The respondent submits that Issue 1 is essentially a question of statutory construction. In broad overview, the respondent's submissions are as follows.
Firstly, there is no difference in substance or legal effect between a grant of a building permit and the grant of an extension to a building permit. As to the legal effect, carrying out building work without a building permit is an offence. The legal effect of the grant of a building permit is to insulate the holder of that permit from the commission of an offence.
However, the building permit has a time limit of application, so to continue to be insulated from the offence, the grant of an extension to a building permit is required. A building permit and an extension to that building permit do the same thing in strictly legal terms.
In substance, a building permit is literally, as the words indicate, a permission to carry out building work. Upon the grant of a building permit, nothing else is required from the local government permit authority. However, before the building permit can be granted, the applicant must tick many boxes.
The local government must be satisfied that a range of certificates, and approvals are in place, as specified in s 20 of the Building Act. It is only upon being so satisfied that a building permit may be granted. Otherwise, there is no power to grant the building permit if the local government is not satisfied as to all of the matters set out in s 20(1) of the Building Act.
It is also relevant that there are further grounds for refusing a building permit in s 22 of the Building Act. The first of those is s 22(1) which provides that a permit authority may refuse to grant a building permit or demolition permit if it appears to the permit authority that there is an error in the information provided.
In Miller and City of Melville [2012] WASAT 156 (Miller), the Tribunal confirmed that although the building compliance regime is, in effect, a private certification system and there is no obligation on the local government to check a certificate of design compliance when it is lodged, the local government is entitled to do that, and if they believe that that certificate contains an error, then there is an entitlement to refuse.
Section 22(2) of the Building Act then provides two other grounds upon which the local government might refuse a building permit. These are:
…
(a)a function that the permit authority has under any other written law; or
(b)an agreement between the permit authority, or the local government in whose district the building or incidental structure is, or is proposed to be, located and the applicant.
If the grant of an extension to a building permit has precisely the same substance as the grant of a building permit and has precisely the same legal effect, then it would absurd that the matters a permit authority had to be satisfied of in granting a building permit were irrelevant to the question of whether to extend that building permit. The respondent submits it would not just be absurd. It would reveal an inconsistency in the statute, and the respondent submits the Building Act should not be read in that way.
The respondent highlights the following example. Assume in this case the applicant accepts there has not been a substantial commencement of the proposed. In such circumstances, if it applied to the respondent for a new building permit, the respondent could not grant it. There would be no power to do that because it would be accepted by the applicant and the respondent that there was no development approval in place any longer.
In such a scenario the respondent could not say to the applicant (ts 157, 2 June 2021):
…well, don't worry about that. Just make a different application to us. Make an application for the extension of the building permit instead, and we will be able to grant that extension because we don't have to worry about what's said in s 20(1) when you apply for an extension. All we have to do is look at what's in reg 24.
That, in the respondent's submission, is an absurd outcome and cannot be correct.
Secondly, the need for a 'permit authority' to be satisfied of the matters listed in s 20 of the Building Act does not arise but for one moment. That is to say, the permit authority's satisfaction required by s 20 of the Building Act is not relevant only to the grant of a building permit. If an application applies to a local government for the grant of a building permit extension, it seems uncontroversial that the local government should and, in fact, the respondent submits, must, satisfy itself before granting the extension that there is still a development approval in place.
The respondent further submits it would be extraordinary if the local government, not only could, but must, grant an extension to a building permit if there has been no work done on the subject land at all (and therefore no substantial commencement), when it is obvious that the development approval has lapsed.
In most cases, substantial commencement will be the issue which comes up for the local government to consider, but it is also possible, in theory at least, that the development approval could have been cancelled under cl 77(1)(d) of the Deemed Provisions. It is therefore possible that the development approval will not be in effect anymore when the applicant comes along for the extension.
If it is accepted that the local government can legitimately consider whether a development approval remains in place when the application for a building permit extension comes in, three things must follow. The first is that the various considerations identified in reg 24 are not the only considerations that arise in an application to extend a building permit. Second, satisfaction required by s 20(1) of the Building Act is not a one-off thing only to be addressed at the grant of the building permit stage. Third, being satisfied at the building permit stage does not mean that the local government will necessarily be so satisfied of the same thing at the building permit extension stage.
Thirdly, a range of circumstances referred to in s 20(1) of the Building Act might change between the grant of the building permit and the building permit extension application.
One change in circumstance might be in s 20(1)(g) of the Building Act which relates to where a part of a building or incidental structure is proposed to be placed beyond the boundaries of the land on which the building work is proposed to be done. In such circumstances, s 76 of the Building Act must be complied with. Section 76 requires consent for any encroachment. The respondent observes that it may be the case that a necessary consent to undertake works on adjacent land has been withdrawn since the grant of a building permit.
It is also the case that an acquired policy of insurance, required by s 20(1)(i) of the Building Act, might have lapsed or no longer be in existence. Furthermore, the heritage status of a building, relevant by reason of s 20(1)(m) of the Building Act, may change between the grant of a building permit and an application to grant an extension.
In addition, s 20(1)(o) of the Building Act is also relevant. That subparagraph requires that the applicant has complied, or is complying with, each authority required by s 20(1)(n). Section 20(1)(n) requires the applicant to obtain each authority required under a 'written law' that is prescribed for the purposes of this paragraph. Among those approvals is building work which is 'development' for the purposes of s 4 of the PD Act: reg 18(2)(b) Building Regulations.
The respondent submits that the language that is used in subparagraph (o) indicates that the satisfaction requires:
... that the applicant has complied or is complying with each authority[.]
is something to be considered from timetotime. That is, the language is ambulatory. The respondent further notes that there is similar language used in s 20(1)(p) and (q) of the Building Act.
In the context of s 20(1)(o) of the Building Act, it is possible that building work being undertaken may not be compliant with a development application. In such circumstances, if an applicant applies for a building permit extension, the respondent submits that the local government could justifiably refuse and, in fact, would be required to refuse the permit extension because the applicant would not be complying with the authority mentioned in paragraph (n).
Fourthly, there is nothing in the building legislation which expressly or necessarily impliedly prevents a local government from revisiting the matters set out in 20(1) of the Building Act in the context of a building permit extension.
On the question of whether the respondent can, as it were, change its mind on the question of substantial commencement, the respondent submits that the question must be answered in the affirmative. This is so having regard to the submissions above.
This is also because the respondent is entitled to look, in fact, at the factors set out in s 20(1) of the Building Act on each occasion that an application for a building permit or an extension to a building permit is applied for. Furthermore, there is no statutory estoppel in this context.
There is nothing in s 20(1) of the Building Act which says that the local government must make the same decision again or, having made a decision, it is not possible to depart from it. There is nothing which necessarily implies, having been satisfied once, it is impermissible to change one's mind.
Furthermore, there is nothing in the building permit regime which requires the local government to perpetuate an evident error. That would be contrary to public policy. In addition, s 22(1) of the Building Act allows the local government to refuse a building permit if it believes the applicant's documentation contains an error. It would be consistent with that statutory purpose for the local government to be able to refuse a building permit extension if the local government itself had made an error previously.
In addition, s 22(2)(a) of the Building Act allows, in facts requires, the permit authority to:
... not grant a building permit or demolition permit if to do so would be inconsistent with … a function that the permit authority has under any other written law[.]
For the local government to grant a building permit extension, that is to say, to give permission to carry out building work, where it knows that the development approval has lapsed, that would be inconsistent with the local government's function as a responsible planning authority.
The respondent submits that the building legislation intends to avoid the perpetuation of errors and intends to avoid conflicting outcomes in different legislative regimes. Therefore, the question of statutory construction posed by Issue 1, the respondent submits, should be considered in that context.
Fifthly, in terms of the question of estoppel, the respondent submits that, as an administrative tribunal, the Tribunal is not cloaked with jurisdiction in matters of equity.
In any event, the accepted position appears to be that estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. That principle arises from the English case Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416. That principle was applied in Western Australia in Enoka v Shire of Northampton (1996) 15 WAR 483 (Enoka). Both of these cases are referred to Adams v Executive Director, Fisheries WA [2000] WASC 34 (Adams) where McKechnie J states (at [67]):
[E]stoppel will not operate to extend the power of an administrative body beyond the regulations of law which creates the power.
The respondent submits that the present case provides an example whereby estoppel would extend the operation of the law beyond the instrument which establishes the power. That is to say, if the respondent estopped from asserting the failure of substantial commencement, the result would be, it would have to issue a building permit extension in circumstances where it otherwise would be prohibited from doing that, at least on the respondent's case.
Consideration of Issue 1
Can the question of substantial commencement be considered?
We generally accept the respondent's submissions on Issue 1. That is, for the following six reasons, we accept that the respondent is entitled to consider the matters identified in s 20(1) of the Building Act in relation to an application made under reg 23 of the Building Regulations.
Firstly, this matter arises in the Tribunal's review jurisdiction. Our task is to hear the matter de novo and to make the correct and preferable decision: s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On review, it is the Tribunal which must be satisfied that there is a lawful basis to grant an extension to the building permit under reg 25 of the Building Regulations. In large part, the history of this matter and the applicant's complaints thereon, are not relevant to the Tribunal. While the Tribunal stands in the shoes of the respondent, we still must satisfy ourselves that a further extension to the building permit is capable of being lawfully issued.
Secondly, there is nothing in the text of the statute which begins and ends the inquiry of statutory construction that would suggest the range of requirements set out in s 20(1) of the Building Act are somehow excluded by the operation of Pt 3 of the Building Regulations, including reg 23 to reg 25.
There is nothing in the language of the Building Regulations which would lend weight to a submission that the range of considerations is narrowed to those identified in reg 24(1) of the Building Regulations. Implicit within the considerations set out in reg 24(1) is that the building permit extension can otherwise lawfully be granted. That being the case, the requirements set out in s 20(1) of the Building Act must be enlivened each and every occasion an application to extend a building permit is made.
Thirdly, and in a related sense, the Building Regulations are subsidiary legislation. As subsidiary legislation they cannot be inconsistent with the Building Act: s 43(1) of the Interpretation Act 1984 (WA). Unless expressly provided for, the Building Regulations cannot operate so as to limit the operation of the Building Act. The two instruments are to be read together but the Building Act prevails.
It follows that we do not accept the applicant's submissions on this point. We do not accept the content of the building permit or extension application forms dictate the outcome of what is, in effect, a question of statutory construction.
Fourthly, the statutory purpose evident in s 20(1) of the Building Act, which is to ensure that in order to be granted a building permit the permit authority needs to be satisfied of a range of requirements, including that any consent has been duly obtained and there is otherwise compliance with other written laws, would be defeated if those requirements were rendered irrelevant to applications to extend building permits under Pt 3 of the Building Regulations.
Leaving aside the complex history of this case, it is entirely plausible that a development approval may lapse since the grant of a building permit. At the time that an application is made to extend a building permit, it is appropriate, indeed necessary, to ensure that there is still the underlying authority to undertake that building work. That includes whether there remains the authority to undertake 'development': in this regard see the observations of DP Parry and Member de Villiers in Gnech Building Co and Town of Claremont [2018] WASAT 77at [6]-[10].
If that were not the case, the building works that ensued would be illegal development and leave the owner or occupier of that land liable to prosecution under the PD Act. That cannot be the intent of the statutory scheme relating to building permits. Building permits, including extensions to building permits, are premised on the range of s 20(1) of the Building Act being satisfied for the duration of such works, not at only the point of the grant of the initial building permit.
Fifthly, we agree with the respondent that the decision of the Tribunal in Miller supports the proposition that the scheme of the Building Act enables a local government to refuse to issue a building permit.
In Miller, the Tribunal found that a local government is authorised to refuse a building permit where it disagreed with an opinion expressed in a certificate of design compliance that a proposed building would comply with all relevant building standards. That is, even in the context of what is largely a private certification regime, the local government may refuse to grant a building permit, including on the basis of an erroneous opinion: at [34]-[35]. The statutory scheme we have set above is consistent with the Tribunal's decision in Miller.
Sixthly, while we agree the applicant has been disadvantaged in having to reproduce evidence of the works undertaken over an extended period, in our view the applicant has overstated the disadvantage. The question of substantial commencement is asked and answered primarily by reference to building work on the subject land. Evidence of receipts and workers attending the subject land are very much secondary and supplementary evidence at best. Furthermore, we are not satisfied that any trenching that the applicant has undertaken is such that it can be said the proposed development has substantially commenced. As we will come to when we address Issue 2, it plainly has not.
No question of estoppel arises
On the question of estoppel, we agree with the respondent that it does not arise. We step cautiously into the question of estoppel for three reasons. The first is that we have no authority to make any decision in the nature of a declaration: cf s 91(2) of the SAT Act. The second is the Tribunal is a creature of statute and generally does not, unless expressly provided for, exercise an equitable jurisdiction. The third is that we are undertaking a review on the merits. It is difficult to see how estoppel could operate against the Tribunal in its review jurisdiction.
Having said that, in order to address the issues that arose in the context of the hearing, we do need to explain to the applicant why, in our view, estoppel does not operate to prevent the respondent (much less the Tribunal on review) from considering the question of substantial commencement, even on a third application to extend the building permit.
Before we progress, we feel compelled to say that the respondent's administration of the building permit and extension process leaves a lot to be desired. However, equally, at some level, what has happened is understandable.
On the application form (Form BA22) for building permit extension 1 and building permit extension 2, as well as the application in 3 July 2020, the application leading to the reviewable decision, the builder has answered the question 'has work commenced under the original permit?' by ticking 'yes'. Form BA22, unsurprisingly, does not ask the planning question of whether the development has been 'substantially commenced'.
And that is for good reason. In Western Australia the planning and building regimes are separate and discrete and the (planning) question of substantial commencement will only arise in a limited number of circumstances. That is because in some instances the development approval will remain operative; in other instances, development approval may not be required for the 'works' in question.
However, in this instance, the question of whether the development approval remained operative was an important factor to consider in relation to whether the respondent could be reasonably satisfied, for the purposes of s 20(1) of the Building Act, to grant an extension to the building permit.
That is because of the requirements cl 42(2) of LPS 1 as at 31 October 2014 (the time that the development approval was granted). Clause 42(2) placed a limit on the duration of the development approval if it was not substantial commenced. The respondent therefore needed to be satisfied on the ongoing validity of the development approval as a relevant 'authorisation' for the purposes of s 20(1)(o) of the Building Act (read with 18(2)(b) of the Building Regulations).
In granting the first two extensions to the building permit in 2017 and 2018, the respondent should have satisfied itself that it had the authority to grant an extension having regard to the requirements set out in s 20(1) of the Building Act. It plainly did not. However, on the making of the third application in July 2020 (which was a request for a five year extension), the respondent made enquiries and reached the view that it did not have authority to grant an extension on the basis that the development approval granted on 31 October 2014 had lapsed for want of substantial commencement.
Having reached that view, we agree with the respondent that it lacked the authority to then grant the third extension to the building permit.
Turning to the question of public law estoppel, McKecknie J refers to there being two central principles: Adams at [67]. The first principle is that no estoppel arises in the administration of a statute in circumstances where, in this instance, a permit authority, acts in a manner which exceeds its statutory powers: Enoka at 494; Adams at [67].
The second principle arises where the existence of an estoppel would not cause an administrative body to go beyond power. In such circumstances, the Court exercises a discretion whether in the public interest it will permit the person who asserts the estoppel to rely upon it: Adams at [68].
As we will explain, this case raises the first principle, not the second. Before we explain our conclusion, it is convenient to briefly review the case law.
Enoka is a planning case. The plaintiffs had purchased land that was authorised to be used for a service station. The plaintiffs were in the process of acquiring a panel beating business which the plaintiffs wanted to co-locate with their service station.
The Shire of Northampton's (Shire's) building surveyor, who also dealt with town planning issues at the time, represented to the plaintiffs that operating a panel beating business from the service station site would fall within the terms of the development approval for the service station.
The Shire then appointed a town planner who informed the plaintiffs that a panel beating business required development approval on the site. The plaintiffs applied for development approval which was refused. The plaintiffs sought declarations that the Shire's refusal was void and of no effect and that a panel beating business could validly operate at the site.
In refusing declaratory relief, Steytler J, at 496, referred to the analysis of Cassels J in Minister forAgriculture and Fisheries v Matthews [1950] 1 KB 148 where, at 154, he referred to the following dictum of Lorde Greene MR in Minister for Agriculture and Fisheries and Hulkin (unreported, Court of Appeal, 1948):
The power given to an authority under a statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by effecting an estoppel.
Steytler J also, at 494, referred to the following analysis of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193:
[A]s a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying.
The following analysis from Steytler J in Enoka offers an illuminating insight into the issues (at 493):
This kind of contention raises difficult questions concerning conflicting interests. There is, on the one hand, much to be said for the proposition that a good citizen who has no knowledge of the complexities of town planning matters and who takes the trouble to ensure that a proposed development, upon which he or she proposes to make a substantial expenditure, is authorised, should be entitled to rely upon an assurance given accordingly on behalf of the public body with authority to oversee such developments. There is, on the other hand, an obvious public interest in ensuring that the public authority concerned does not, by its conduct, render nugatory schemes which have been gazetted in the interest of an entire community and which are required to be approved of by the Minister.
In Adams, a Tribunal established under the Fish Resources Management Act 1994 (WA) (Fish Resources Act) referred certain questions of law to the Supreme Court as a stated case.
In essence, the question for the Supreme Court was whether the Executive Director was estopped from refusing an authorisation in circumstances where certain representations were made to 'the Objectors' that they would be entitled to access the fishery when a management plan was declared. These representations were made prior to the management regime being established.
For present purposes, in effect, the question for McKechnie J was whether the Executive Director was estopped from refusing an authorisation on account of the representations notwithstanding that it had no power to issue the authorisation.
On the question of public law estoppel, McKechnie J found, consistent with Enoka, that the estoppel 'will not operate to extend the power of an administrative body beyond the regulations or law which creates that power': at [67].
Adams was subsequently applied by Nicholson J in Latitude Fisheries Pty Ltd v Australian Fisheries Management Authority [2002] FCA 416; (2002) 68 ALD 365 at [79].
Turning now to the facts of this case, at the time that the respondent granted extensions to the building permit in 2017 and 2018 it had no authority to do so under the Building Act. That is because, as we will come to when we discuss Issue 2, the proposed development had not substantially commenced.
Therefore, there was no authority for the respondent to grant an extension to the building permit because it could not, as a matter of law, be 'satisfied' that, at the relevant time, the applicant had all required authorities for the purposes of s 20(1)(n) of the Building Act.
Therefore, in granting the building permit extensions the respondent acted ultra vires. The established case law confirms that where a statutory authority acts in excess of its powers, no estoppel arises.
It follows that the respondent was not estopped from refusing the application to extend building permit made in July 2020. In fact, by law, it was compelled to refuse the application to extend the building permit because, as we set out below in the context of Issue 2, the proposed development was not, and still has not, substantially commenced.
Issue 1 must be answered 'yes'. We now turn to Issue 2.
Issue 2: Has the proposed development substantially commenced?
It is not in contest that LPS 1 requires the proposed development to have been substantially commenced by 31 October 2016. We have found above that the works listed at [55] above were undertaken prior to 31 October 2016.
However, the nature of the works themselves, do not demonstrate substantial commencement of the proposed development. The works undertaken by the applicant were, by and large, site preparation works including excavation and significant demolition.
In terms of the works identified at [55]:
a)subparagraphs (a), (c), (d) and (j) are works directed to establishing services and the operation of the pool. They do not constitute a positive unequivocal step towards the construction of the proposed development;
b)subparagraphs (b), (e), (f), (h) and (i) are demolition works. These steps were no doubt expensive, tedious and time consuming, but they are anterior steps to ready the subject land for the proposed development; and
c)subparagraph (g) is directed to excavation works. Again, having regard to the nature of the excavation works in question, it cannot be said that these works were a positive unequivocal step towards the construction of the proposed development. They were more in the nature of readying the subject land for a development, not necessarily the proposed development.
In addition, Mr Stanley refers to other activities such as the placement of a builder's shed and a site toilet. These are incidental actions that are not relevant to the question of substantial commencement.
It is also the case that, by reason of Policy 2.1, at the relevant time, development approval was not needed for demolition works. Nor were demolition works referred to in the proposed development.
On the question of the relevance of demolition works in assessing substantial commencement, in Auburn, Mahoney J stated (at 105):
The work for which in terms the development consent was sought in the present case was, as I have said, 'block of twenty flats …'. The work of demolishing the existing structures on the land was not referred to in that application or in the consent itself, and (if it be relevant) no consent would have been required to the demolition of these buildings.
And:
[A] development consent may by implication be a consent to matters incidental to the development; but the question here at issue is whether preparatory acts or acts necessary to be undertaken prior to the development are part of 'the development' which is to be 'substantially commenced' for purposes of cl. 32 (2). [In Drummoyne] [h]is Honour appears to have been of the view that 'the development' in question is to be considered by reference to that for which the consent was actually given, and that that which is to be taken into account in determining "substantial commencement" is the work of that development. No doubt the problem of drawing the line between what are acts preparatory to the development and acts necessarily involved in the development will give rise to difficulty in particular cases, but as I read his Honour's judgment in [Drummoyne], his Honour was of the view that the demolition of existing dwelling houses upon the relevant site should fall within the category of acts preparatory to the development in question. At least in such a context as was there considered, and is under consideration in the present case, I am of the opinion that demolition should be so considered.
Subsequently, Rath J set out the following analysis in Waverley:
It was not pressed in argument before me that the demolition work on the land was to be regarded in the resolution of the question whether the development to which the consent refers was substantially commenced. That demolition work was not referred to in the development consent or the plans accompanying it. Clause 29 (2) of the County of Cumberland Planning Scheme Ordinance provides that land, included in a zone, whether forming the site of a building or not, shall not be used without the consent of the responsible authority for any purpose for which a building in the same zone may be erected or used only with the consent of the responsible authority. Subclause (4) provides that in the clause "use" in relation to land includes the carrying out of work on the land. The demolition of the buildings on the land in this case may have been "the carrying out of work on the land", but it was not done in any relevant sense for any purpose referred to in subclause (2), and for that reason did not require development consent: cf. Auburn … per Mahoney J. No submission to the contrary was put. If this view is correct, then, even if the consent referred to demolition, that demolition would not be relevant development within the meaning of cl. 41 (5), and the carrying out of such work, not requiring consent, would not be material in relation to the question of substantial commencement.
We agree with the analysis in Auburn and Waverley that demolition works, that were not directly referenced or authorised by the development approval, do not inform the question of substantial commencement of the proposed development.
While the applicant has, through the evidence of Mr Grant and Mr Stanley, presented a large volume of evidence as to the efforts it made to ready the subject land for the proposed development, as a matter of law, it cannot be said that the totality of those works as at 31 October 2016, were such that it could reasonably be concluded that:
[The] work or development, the subject of the development approval has begun by the performance of some substantial part of that work or development.
The point being that the demolition and other works are not works 'the subject of the development approval'. They are preparatory works that did not need development approval. The same could be said of the works to ensure power, water and gas were available to the subject land during the build. However, nothing in these works is specifically referrable to, and only referrable to, the new three storey dwelling, the subject of the development approval granted on 31 October 2014.
It follows that there is no reasonable basis on which we could find that the proposed development was substantially commenced, as a matter of law, as at 31 October 2016. Furthermore, it is also not without relevance that we would reach the same conclusion today.
That is, regardless of the building permit extensions (invalidly) granted, the proposed development still has not been substantially commenced.
Issue 2 must be answered 'no'.
Some final comments
Mr Stanley and Mr Grant are plainly frustrated with how these events have unfolded. It is obvious that they are entitled to be frustrated. It must be said that for the respondent to twice extend the building permit, without any lawful basis for doing so, is far from ideal.
However, no matter how much sympathy one may feel for the situation Mr Stanley and Mr Grant find themselves in, they are at some level responsible for their own misfortune.
That is because they have taken an inordinate amount of time to actually commence the proposed development. The applicant had until at least July 2020 until the respondent concluded it could not grant a third extension to the building permit. On any view, almost six years is a considerable period of time in which to commence what is ultimately a single dwelling.
True it may be that the build for the proposed development is difficult and complex. But that is the reality of the subject land and arises from the owners' desire to partially demolish the existing dwelling and to erect a new dwelling and to use surplus labour for this purpose as and when it was available.
Furthermore, the applicant was provided with two extensions to its building permit when there was no lawful basis for an extension. In the end, time ran out and the respondent, correctly in our view, determined that the development approval had lapsed.
The applicant and owners now need to work with the respondent to obtain a fresh development approval. Having regard to the history of this matter and its evident failings, we consider the respondent would be wise to provide all reasonable assistance it can in this regard.
Conclusion
For the foregoing reasons, the application for review must be dismissed.
Orders
For these reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent is affirmed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
2 SEPTEMBER 2021
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