BAKKER and CITY OF NEDLANDS
[2005] WASAT 106
•16 MAY 2005
BAKKER and CITY OF NEDLANDS [2005] WASAT 106
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 106 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 | |||
| Case No: | RD:294/2004 | ON THE PAPERS | |
| Coram: | MR P McNAB (MEMBER) | 16/05/05 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | The decision under review is affirmed and the application for review of the respondent's decision is dismissed | ||
| B | |||
| PDF Version |
| Parties: | HARRY AND VICKI BAKKER CITY OF NEDLANDS |
Catchwords: | Town planning Administrative decisions Decision of local government authority not to revoke a condition Interpretation of decision Whether power exists to alter, amend or vary a previous decision Whether authority functus officio when revocation decision made Whether appeal period affected by "deemed refusal" clause Power of Tribunal on review Confining decision under review Whether re-characterisation of decision permissible Role of precedent and consistency in respect of Tribunal decisions Effect of invalid decision on review rights |
Legislation: | Acts Interpretation Act (Cth), s 33(1) Interpretation Act 1984 (WA), s 48 Interpretation Act 1987 (NSW), s 48(1) State Administrative Tribunal Act 2004 (WA), s 167 Town Planning and Development Act 1928 (WA) Town Planning Regulations 1967 (WA) |
Case References: | Australian Telecommunications Commission v Zanicotti unreported; Fed C of A (Davies J) 18 December 1986 Aznavour Pty Ltd v City of Mandurah (2002) 124 LGERA 173 Aznavour Pty Ltd v City of Mandurah (2002) 128 LGERA 361 Esther Investments v Town of Mosman Park (1995) 15 SR (WA) 74 Falkiner v Director-General of Planning NSW (2002) 125 LGERA 138 Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 Gangemi v Shire of Augusta-Margaret River [2004] WATPAT 41 Jebb v Repatriation Commission (1988) 80 ALR 329 Lynch v Miners' Pension Board [1987] Tas R 105 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Mosman Park Town v Esther Investments (1996) 93 LGERA 38 NABM of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 335 Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1 Platt Nominees Pty Ltd v Historic Building Council [1992] 2 VR 476 R v Berri District Council; ex parte H L Clark (Berri) Pty Ltd (1984) 36 SASR 404 Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 Re Donald and Australian Securities and Investments Commission (2001) 64 ALD 717 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Re Hare and Commissioner for Superannuation (1979) 2 ALN N662 Re Matusko and Australian Postal Corporation (1995) 21 AAR 9 Re Secretary, Department of Social Security and Lea (1993) 31 ALD 789 Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254 Secretary, Department of Social Security v Riley (1987) 17 FCR 99 Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 Winpar Holdings Ltd v National Consolidated Ltd [2001] FCA 1662 Boucker v City of Joondalup [2005] WATPAT 20 Deane-Spread v Shire of Mundring [2004] WATPAT 21 Erceg McIntyre v City of Stirling [2003] WATPAT 150 Mirvac Fini Pty Ltd v City of Wanneroo [2004] WATPAT 44 National Lifestyle Villages Pty Ltd v Shire of Busselton [2004] WATPAT 19 Ridan Pty Ltd v City of Gosnells [2004] WATPAT 22 Tangelo Design Consultants v Town of Vincent [2004] WATPAT 91 Tremaine v Wesern Australian Planning Commission [2003] WATPAT 144 |
Orders | The Tribunal makes the following orders:,(1) the decision under review is affirmed; and,(2) the application for review of the respondent's decision is dismissed. |
Summary | This matter comes before the Tribunal for a ruling, on written submissions, on what the parties agree is a "preliminary point" consisting of two interrelated issues. These may be summarised as follows:,(1) Whether the City of Nedlands ("the respondent") was functus officio when it made a decision on 28 September 2004 ("the decision") not to approve an application made by Mr and Mrs Bakker ("the applicants") – styled as "an exemption" from a certain condition imposed by the respondent. Consequently, it is argued that the exemption "was not within the [respondent's] power to grant" and therefore the decision was "not a discretionary decision" (ie, not a reviewable decision), meaning that this Tribunal lacks jurisdiction to hear the matter. ,(2) Whether the appeal in this matter to the former Town Planning Appeal Tribunal (continued in this Tribunal) was incompetent as it was brought after the then in force appeal period of 60 days, being a date calculated after the date that had passed for a "deemed refusal".,The written submissions have widened the issues to include the question of whether the respondent had, in any event, power to alter, amend or vary a condition the respondent had imposed.,The applicants sought review of the decision by way of an appeal to the Town Planning Appeal Tribunal ("the former Tribunal") on 29 November 2004 pursuant to the Town Planning and Development Act 1928 (WA) as then in force. On 1 January 2005, the former Tribunal ceased to exist and this Tribunal took over the appeal as a review under the State Administrative Tribunal Act 2004 (WA) ("SAT Act"): see s 167.,The respondent's objections must be upheld, at least in part. Consequently, the issues decided above fully determine the matter in its favour. In any event, the correct and preferable decision was that reached by the respondent, albeit on different grounds from those expressed by it. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 CITATION : BAKKER and CITY OF NEDLANDS [2005] WASAT 106 MEMBER : MR P McNAB (MEMBER) HEARD : ON THE PAPERS DELIVERED : 16 MAY 2005 FILE NO/S : RD 294 of 2004 BETWEEN : HARRY AND VICKI BAKKER
- Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning - Administrative decisions - Decision of local government authority not to revoke a condition - Interpretation of decision - Whether power exists to alter, amend or vary a previous decision - Whether authority functus officio when revocation decision made - Whether appeal period affected by "deemed refusal" clause - Power of Tribunal on review - Confining decision under review - Whether re-characterisation of decision permissible - Role of precedent and consistency in respect of Tribunal decisions - Effect of invalid decision on review rights
(Page 2)
Legislation:
Acts Interpretation Act (Cth), s 33(1)
Interpretation Act 1984 (WA), s 48
Interpretation Act 1987 (NSW), s 48(1)
State Administrative Tribunal Act 2004 (WA), s 167
Town Planning and Development Act 1928 (WA)
Town Planning Regulations 1967 (WA)
Result:
The decision under review is affirmed and the application for review of the respondent's decision is dismissed
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Mrs LE Rowley
Solicitors:
Applicant : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Australian Telecommunications Commission v Zanicotti unreported; Fed C of A (Davies J) 18 December 1986
Aznavour Pty Ltd v City of Mandurah (2002) 124 LGERA 173
Aznavour Pty Ltd v City of Mandurah (2002) 128 LGERA 361
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Esther Investments v Town of Mosman Park (1995) 15 SR (WA) 74
Falkiner v Director-General of Planning NSW (2002) 125 LGERA 138
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Gangemi v Shire of Augusta-Margaret River [2004] WATPAT 41
(Page 3)
Jebb v Repatriation Commission (1988) 80 ALR 329
Lynch v Miners' Pension Board [1987] Tas R 105
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Mosman Park Town v Esther Investments (1996) 93 LGERA 38
NABM of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 335
Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1
Platt Nominees Pty Ltd v Historic Building Council [1992] 2 VR 476
R v Berri District Council; ex parte H L Clark (Berri) Pty Ltd (1984) 36 SASR 404
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Re Donald and Australian Securities and Investments Commission (2001) 64 ALD 717
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Hare and Commissioner for Superannuation (1979) 2 ALN N662
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9
Re Secretary, Department of Social Security and Lea (1993) 31 ALD 789
Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254
Secretary, Department of Social Security v Riley (1987) 17 FCR 99
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429
Winpar Holdings Ltd v National Consolidated Ltd [2001] FCA 1662
Case(s) also cited:
Boucker v City of Joondalup [2005] WATPAT 20
Deane-Spread v Shire of Mundring [2004] WATPAT 21
Erceg McIntyre v City of Stirling [2003] WATPAT 150
Mirvac Fini Pty Ltd v City of Wanneroo [2004] WATPAT 44
National Lifestyle Villages Pty Ltd v Shire of Busselton [2004] WATPAT 19
Ridan Pty Ltd v City of Gosnells [2004] WATPAT 22
Tangelo Design Consultants v Town of Vincent [2004] WATPAT 91
Tremaine v Wesern Australian Planning Commission [2003] WATPAT 144
(Page 4)
REASONS FOR DECISION
Introduction
1 This matter comes before the Tribunal for a ruling, on written submissions, on what the parties agree is a "preliminary point" consisting of two interrelated issues. These may be summarised as follows:
(1) Whether the City of Nedlands ("the respondent") was functus officio when it made a decision on 28 September 2004 ("the decision") not to approve an application made by Mr and Mrs Bakker ("the applicants") – styled as "an exemption"from a certain condition imposed by the respondent. Consequently, it is argued that the exemption "was not within the [respondent's] power to grant" and therefore the decision was "not a discretionary decision" (ie, not a reviewable decision), meaning that this Tribunal lacks jurisdiction to hear the matter.
(2) Whether the appeal in this matter to the former Town Planning Appeal Tribunal (continued in this Tribunal) was incompetent as it was brought after the then in force appeal period of 60 days, being a date calculated after the date that had passed for a "deemed refusal".
2 The written submissions have widened the issues to include the question of whether the respondent had, in any event, power to alter, amend or vary a condition the respondent had imposed.
3 The applicants sought review of the decision by way of an appeal to the Town Planning Appeal Tribunal ("the former Tribunal") on 29 November 2004 pursuant to the Town Planning and Development Act 1928 (WA) as then in force. On 1 January 2005, the former Tribunal ceased to exist and this Tribunal took over the appeal as a review under the State Administrative Tribunal Act 2004 (WA) ("SAT Act"): see s 167.
Facts and background
4 The application for review concerns a development approval dated 16 October 2002 given in respect of the applicants' land at No 13 Rene Road Dalkeith (lot 839). One of the conditions the respondent imposed on the applicants was in these terms:
(Page 5)
- "(iv) the south side of the front balcony shall be constructed with obscure 1m high balustrading from the finish [sic] floor level of the balcony."
5 It is common ground that the respondent issued a corresponding building licence with a condition in the same terms; that the building has now been constructed; that no appeal was ever brought in respect of the condition; and that the building, as constructed, does not comply with this condition.
6 Presumably, rectification of this irregular situation was the motivation that led the applicants to seek, on 12 May 2004, "an exemption to [this] condition placed on our building licence [sic] issued last year" ("the application"). The exemption was sought in an item of correspondence which also sought planning approval for certain improvements to be built at No 11 Rene Road.
7 The grounds for the "exemption" were argued in terms of "privacy … not [being] an issue"; consistency with other properties in the area ("[t]here are countless examples in surrounding streets where this requirement has not been enforced"); and the "serious compromise [to] the design intent of the building" that would follow compliance with the condition.
8 On 28 September 2004, the respondent rejected the application (styled by the respondent as an "application … to commence development", emphasis added) in the following terms:
"Council does not approve the deletion of clause (iv) in the planning approval dated 16 October 2002 and does not remove the requirement for an obscure balustrade on the south side of the balcony."
9 At the same time as notification of this decision was communicated in writing to the applicants (7 October 2004), the respondent also notified the applicants of their right to appeal to the former Tribunal "within 60 days from the date of this approval [sic]". Presumably, the references to commencing development and approval relate in part to the improvements sought to be built on No 11.
10 Neither party has, in their extensive written submissions, referred to whether the relevant Town Planning Scheme ("TPS 2") permits retrospective development approval. It appears that it does, as cl 6.2.1 of TPS 2 provides that "The [respondent] may give planning approval of a
(Page 6)- development already commenced or carried out regardless of when it was commenced or carried out." The Tribunal will return to this matter below.
11 It is convenient to note here that in its grounds of appeal to the former Tribunal the applicants characterised the decision as arising out of an "application … to vary the approval of 16 October 2002" (at [4], emphasis added). In their written submissions to this Tribunal the issue is now characterised by the applicants as "a fresh application in respect of a matter previously determined" (at [11]). No explanation has been offered by the applicants for this apparent change of position; only, in effect, an assertion that that course was open to them.
12 Putting to one side for the moment the issue of whether the decision under review by this Tribunal may be characterised as something else (eg, a decision in respect of an application under cl 6.2.1, referred to above), the decision in substance, and in form, is a decision by the respondent not to alter, amend or vary a previous decision of the respondent by the deletion of a specific condition previously imposed by the respondent on the applicants.
13 The appeal is brought under TPS 2 cl 7.8 and Part V of the Town Planning and Development Act 1928. Clause 7.8 provides as follows:
"7.8 APPEALS
An applicant for the Council's planning approval or other approval required by the Scheme who is aggrieved by a decision of the Council in respect of the exercise of a discretionary power by the Council under the Scheme may appeal under and in accordance with Part V of the Act."
Jurisdictional points
14 The Encyclopaedic Australian Legal Dictionary contains the following entry for "functus officio" which may be conveniently reproduced:
"Administrative law Lat – having discharged one's duty; having completed one's term of office; having ceased to hold some public appointment; having performed the authorised act and being unable to go back to it a second time. The state of an administrator or tribunal which has discharged its duty or performed its functions so that nothing further remains to be done. One who is functus officio is precluded from again
- considering the matter even if new arguments or evidence are presented … ."
15 The respondent contends firstly that it was functus officio when on 28 September 2004 it made its decision not to alter, amend or vary the condition because a deemed refusal under cl 6.5.4 of TPS 2 had already occurred on 11 July 2004; ie, 60 days after receipt of the application on 12 May 2004. Clause 6.5.4 of TPS 2 provides:
"If the [respondent] has not within 60 days of the receipt by it of an application to commence development conveyed its decision to the applicants the application shall be deemed to have been refused."
16 It will be recalled that the actual decision of the respondent occurred on 28 September 2004. Thus, it is argued by the respondent that the notice of appeal dated 29 November 2004 is incompetent.
17 Further, the respondent argues that once the applicants' original right to bring an appeal in relation to condition (iv) had expired back in 2002, the respondent "had no power to enable [the applicants] to circumnavigate [ie, avoid both] TPS 2 [and] the statutory requirements [then in force and limiting appeals to no later than 60 days after its making] by revoking Condition (iv)."
18 In reply, the applicants submit firstly that a decision of the former Tribunal (namely, Permanent Trustee Australia Ltd v City of Wanneroo (1994) 11 SR (WA) 1) is good authority for the proposition that an appeal is competent when it is brought within the time specified for an actual refusal but out of time from the date of a deemed refusal.
19 Secondly, the applicants say that they are entitled to apply to the respondent to consider afresh, on the basis of "new circumstances" (at [13]), the condition that the respondent had previously imposed upon them.
20 In reply to the applicants, the respondent asserts that this Tribunal is not bound by decisions of its predecessor Tribunals; that there is no relevant "common rule" of construction in relation to "deemed refusal" clauses; and otherwise the respondent seeks to read down, explain or distinguish Permanent Trustee (supra) and Gangemi v Shire of Augusta-Margaret River [2004] WATPAT 41, which followed that decision.
(Page 8)21 Further, the respondent says that the application cannot be considered as a "fresh application" even if it were so intended by the applicants; that the respondent was functus officio after it made the decision and that there is no express or implied power in TPS 2 to "review, amend or alter" a decision.
22 It is convenient to deal first with the submissions on the question of a "deemed refusal" and whether the appeal was brought out of time and, if so, what are the consequences of that event.
Out of time appeal
23 In Permanent Trustee (supra) the then Town Planning Appeal Tribunal (constituted by Professor Stein, and Members Allan and Arney), after detailed consideration of the various authorities, held (at 6) that, on a proper construction, the deemed refusal clause there under consideration "put[s] the applicant to an election to exercise the right of appeal at the expiry of 60 days or to wait until the authority has fully considered the application". Further, and importantly, it was said that such a clause "do[es] not have the effect of denying or restricting the power of the [decision-maker] to fully consider the application" (at 6).
24 As noted above, Permanent Trustee was followed by the President of the former Tribunal in Gangemi v Shire of Augusta-Margaret River(supra), at [8].
25 It has been said that while "consistency in decision making is generally desirable, there is no obligation on a Tribunal member to consider every previous decision of [a] Tribunal and give the weight to each decision that would be given to a judicial precedent": NABM of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 335, at [66], per Beaumont J. Nevertheless, it has also been observed in Australian Telecommunications Commission v Zanicotti unreported; Fed C of A (Davies J) 18 December 1986, at 17 18, that:
"The function of a tribunal as constituted for a particular case goes far beyond the ascertainment and application of the legal rules applicable to the case. Consistency in the application of any legal or administrative standards, that is to say, fact evaluations, is just as important."
26 Additionally, the AAT in Re Secretary, Department of Social Security and Lea (1993) 31 ALD 789, at 798 said that it was "mindful of the need for consistency in decision-making on [its part] unless it is (Page 9)
- convinced that a particular decision or line of authority is wrong or there is a sound basis for distinguishing one case from another"; citing Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634, at 639. (See also the useful discussion in Pearce, Australian Administrative Law at [273A] "Precedent and AAT decisions").
27 No authority has been cited to the Tribunal which would relevantly undermine Permanent Trustee (supra)and no basis has been demonstrated for distinguishing it. Thus, there is no good reason to doubt the correctness of the general propositions stated above in relation to the effect of deemed refusal clauses. There is also no good reason not to apply them, in a consistent way, to the construction of TPS 2.
28 Finally, a number of decisions of the former Tribunal were cited by the respondent to suggest that this Tribunal has no jurisdiction to accept an appeal lodged out of time. In light of the conclusions that the Tribunal has reached above, it is unnecessary to consider this related issue.
29 The respondent's contentions on these issues should be rejected.
Functus issues
30 The respondent's contentions on this issue raise more difficult considerations.
31 In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002)209 CLR 597, Gleeson CJ said, at 603:
"There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. … That general proposition must yield to the legislation under which a decision-maker is acting."
32 Although this area of the law is rightly said by Professor Enid Campbell to be "not entirely certain" (Campbell, E "Revocation and Variation of Administrative Decisions" (1996) 22 Monash University Law Review 30, at 67), there are numerous examples illustrating, with respect, the correctness of this general observation of Gleeson CJ.
33 InPlatt Nominees Pty Ltd v Historic Buildings Council [1992] 2 VR 476, at 482 Southwell J said that the Historic Buildings Preservation Council had "a statutory duty, created … by the direction of the minister,
(Page 10)
- to consider whether it should recommend registration. It cannot by its own act render itself functus officio by once considering that question".
34 See too, Lynch v Miners' Pension Board [1987] Tas R 105, at 107, where Cox J said: "I see no reason why [the applicant] cannot make as many approaches to the Board as he likes, seeking to persuade it that such conditions [of entitlement] do exist. The Board is only functus officio when it so [sic] persuaded and the entitlement established. However, there is a machinery provided for a formal determination by reference to a judge whose decisions will bring finality to the matter". Cf Re Matusko and Australian Postal Corporation (1995) 21 AAR 9, at 18 20, which discusses the limited circumstances where a tribunal may allow an issue to be reopened using its "flexible procedures" given to it by the legislature.
35 Of some relevance in the town planning field is the decision of Falkiner v Director-General of Planning NSW (2002) 125 LGERA 138 where Pain J said, at 151:
"I consider the [statutory power to issue a certificate certifying that a draft plan might be exhibited] can be exercised from time to time, consistent with [s 48(1) of] the Interpretation Act 1987 (NSW). It is a well established principle of administrative law that a power can be exercised again where reconsideration of a statutory decision is open given the construction of a particular statute. In my view, the power [to issue a] certificate is not constrained in the statute so as to be irrevocable."
36 Her Honour went on to cite in support of her view the following observation of French J in Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37FCR 429, at 443:
"Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures. There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken."
37 Earlier, also in the Federal Court of Australia, Gummow J (as he then was) had held: (Page 11)
- "[T]here is nothing in the [relevant Act] which suggests an intention contrary to the presumption embodied in s 33(1) of the Acts Interpretation Act 1901 … Accordingly, the power to make [an order] is exercisable from time to time, so as to revoke or revive [an order] previously made, whether on the same facts as before or otherwise. Even if the facts upon which the original decision was based remain constant, it may be the policy of the donee of the power which changes and thus requires a reconsideration of decisions previously made … The significance of a change in either the facts or in ministerial policy would go merely to the merits of the decision … The [decision-maker] could not therefore have been functus officio, and an estoppel could not be allowed which would have the effect of stifling the future exercise of the statutory discretion …": Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, at 218 219 (internal citations omitted; emphasis added).
38 If it were not already clear, this passage demonstrates that there is a logical connection between functus arguments and the statutory construction issue going to the scope of the power to alter, amend or vary (or revoke) an administrative decision.
39 Section 48 of the Interpretation Act 1984 (WA) provides as follows:
"48. Time for exercise of power or performance of duty
Where a written law confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires."
40 "Power" is defined in that Act to include both any "authority" and any "discretion" (s 5).
41 That provision is in pari materia with s 33(1) of the Acts Interpretation Act 1901 (Cth) and s 48(1) of the Interpretation Act 1987 (NSW) both of which are referred to above. A "written law" as referred to in s 48 expressly includes a "town planning scheme" (see the definitions in s 5 of the Interpretation Act 1984 of "written law" and "subsidiary legislation"). Thus, this section may be presumed as prima facie applicable in relation to the respondent's consideration of the applicants' application of 12 May 2004 under TPS 2.
(Page 12)
42 However, against these general principles just discussed stands the following statement of RobertsSmith J in the Full Court of the Supreme Court of WA in Aznavour Pty Ltd v City of Mandurah (2002) 124LGERA 173, at 185, a decision which, unfortunately, neither party cited to the Tribunal:
"It was common ground that there is no legislative provision which would enable the first respondent [the City] to revoke or vary a planning approval once given. It may be accepted that in the absence of such legislative authority, a purported revocation or variation is invalid: R v Berri District Council; ex parte H L Clark (Berri) Pty Ltd (1984) 36 SASR 404; Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254."
43 So too, Miller J at 182 ("submissions [to this effect on this point are] undoubtedly correct"); Parker J concurring in both judgments, at 175 - 176. See also Aznavour Pty Ltd v City of Mandurah (2002) 128 LGERA 361, at 371 - 373 (earlier proceedings before RobertsSmith J). The Town Planning Appeal Tribunal, as then constituted, did touch on the matter of variations in Esther Investments v Town of Mosman Park (1995) 15 SR (WA) 74, at 82 - 83 (further proceedings: Mosman Park Town v Esther Investments (1996) 93 LGERA 38), but these observations must now be read subject to the emphatic statements in the Full Court set out above.
44 It would be inappropriate, to say the least, for this Tribunal to disregard or seek to distinguish these recent and clear comments from this State's highest court, and for the Tribunal to then hold that an implication permitting revocation or variation may be found in TPS 2, whether read with s 48 of the Interpretation Act 1984 or otherwise. Cf TPS 2 cl 6.5.2, which refers to the revocation of approval if a condition is not fulfilled; and see also Town Planning Regulations 1967 (WA), Appendix B – "Model Scheme Text" cl 8.3 dealing with amending or revoking a planning approval prior to commencement of the use or development the subject of the approval.
45 Accordingly, on the current planning law of Western Australia neither the respondent nor, on review, this Tribunal has the power to entertain an application for revocation or variation, if that is what has been sought and decided.
(Page 13)
46 In such circumstances, the Tribunal turns to consider its role on the review of such a decision.
Role of the Tribunal
47 In Re Donald and Australian Securities and Investments Commission (2001) 64 ALD 717 the AAT set down the task of a tribunal as follows (at 728, emphasis added):
"Subject to any statutory qualifications to the contrary, the principles adopted in each case require the tribunal first to identify the decision under review. It must then satisfy itself that it has jurisdiction to review that decision. It will do so by having regard to the scheme of the legislation and remembering that no provision of the AAT Act gives it jurisdiction to review a decision. Having done that, the tribunal must then identify the powers and discretions that rested in the decision maker when that decision was made. They may be found in the provision under which the decision was made or they may be found in other provisions of the statutory framework of which that particular provision is a part. Those are the powers and discretions that then rest in the tribunal by virtue of … the AAT Act. There is no requirement that those powers and discretions must lead to a decision that would itself be reviewable by the tribunal had it been made by the decision maker in the first instance and an application for review lodged in the tribunal."
48 As appears above, this Tribunal has already found that the decision under review is in both substance and form a decision by the respondent not to alter, amend or vary a previous planning decision of the respondent by the deletion or revocation of a condition previously imposed by the respondent. Thus the Tribunal, following the well-established logic of Re Donald (supra), has "identif[ied] the decision under review", and the identification of the decision in those terms for an administrative tribunal in this jurisdiction inexorably confines the decision to that point (see below) and consequently attracts Aznavour's(supra) injunction that a decision to alter, amend or vary a previous planning decision of this type would be invalid.
49 Further, the function of this Tribunal is to review a decision, not to rewrite it. There is nothing in either the common law or in statute law that would relevantly permit this Tribunal to "transmogrify" or "recharacterise" the application and the decision under review so identified into something that they are or were not – to use the apt
(Page 14)
- terminology cited by Allsop J in another context in Winpar Holdings Ltd v National Consolidated Ltd [2001] FCA 1662 at [13].
50 So here, for example, neither the applicants' application to the respondent seeking an exemption, or more importantly, the decision in response, can now be seen as either an application and decision on retrospective consent or as a "fresh" application. That is evidently not what the application sought, nor what it intended. The decision "not [to] approve the deletion of [the] clause" speaks for itself. Moreover, as Sheppard J said in Secretary, Department of Social Security v Riley(1987) 17 FCR 99, at 104:
"The matter [of confining the decision under review] is not without its practical importance. It is very difficult for a Tribunal to review a decision if the matter is completely at large. In a particular case it may have to do its best, but such a situation leads to great difficulty in defining issues and preparing evidence."
51 Further, notwithstanding that this Tribunal forms part of a decisionmaking "continuum and [its] function [is] a part of that continuum" (Jebb v Repatriation Commission (1988) 80 ALR 329, at 333, per Davies J) and that the Tribunal has all the "functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision" (SAT Act, s 29(1)), once the Tribunal has determined that the correct and preferable decision was, in effect, to reject the applicants' application, it is not the function of the Tribunal to then go on to consider the application as a new or further application. In Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 674, Davies J said analogously:
"[I]f the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal's consideration. Any entitlement of the applicant … at a subsequent time must be the subject of a further claim [by the applicant] which, having been made, would only become the subject of review within the Tribunal's jurisdiction once a decision with respect to it had been made … "
52 Consistent with this view, the position in respect of the AAT is said by Pearce to be as follows: (Page 15)
- "Despite the broad power of the AAT to stand in the shoes of the decision-maker, it must be borne in mind that the power is exercisable only in relation to the decision under review. … The AAT does not substitute for the decision-maker generally. Just as the AAT has no general review power … it has no general decision-making power. 'The AAT is not a primary administrator. It is not the original repository of powers and discretions under an enactment': per Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175. Accordingly, if, for some reason, an issue before the AAT has not been the subject of a decision by the primary decision-maker, the Tribunal itself cannot assume to make a decision on the matter on the basis that the decision maker could have made such a decision: Re Hare and Commissioner for Superannuation (1979) 2 ALN N662.": Pearce, Australian Administrative Law at [266A] 'AAT limited to review functions only'."
53 These observations ought to be considered as equally applicable in this jurisdiction.
54 Finally, to the extent that it is suggested that this Tribunal does not have jurisdiction to review an "invalid" decision, it is worth recalling that just because the respondent had in law no power to entertain an application to alter, amend or vary (except perhaps to reject it), this Tribunal does not lose its jurisdiction to review that decision which is attracted by the existence in fact of a decision which purports to be a reviewable decision taken under TPS 2. More importantly, the same result would follow even if the respondent had invalidly altered, amended or varied its previous decision. This is because it is well established, that "[a] Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong": Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 , at 346, per Bowen CJ.
Conclusion
55 The respondent's objections must be upheld, at least in part. Consequently, the issues decided above fully determine the matter in its
(Page 16)
- favour. In any event, the correct and preferable decision was that reached by the respondent, albeit on different grounds from those expressed by it.
The Tribunal makes the following orders:
(1) the decision under review is affirmed; and
(2) the application for review of the respondent's decision is dismissed.
I certify that this and the preceding 15 pages comprise the reasons for decision of the Tribunal. ___________________________
Mr P McNab
Member
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