Bethune and Western Australian Planning Commission - [2019] WASAT 18

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   BETHUNE and WESTERN AUSTRALIAN PLANNING COMMISSION [2019] WASAT 18
MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   5 APRIL 2019
FILE NO/S:   DR 195 of 2018
BETWEEN:   BRIAN BETHUNE
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) Subdivision application Tribunal affirmed decision of Western Australian Planning Commission to refuse subdivision approval Two-lot subdivision Swan River floodway Tribunal found that subdivision would facilitate increase in residents in floodway and thereby increase risks to residents and rescue personnel during flooding Tribunal found that approval of application would set adverse planning precedent Whether Tribunal erred in law Whether Tribunal misconstrued provision of local planning strategy Whether Tribunal failed to give adequate reasons Whether Tribunal erred in determining that there was a difference in the depth of water between the floodway and the flood fringe Whether Tribunal failed to afford procedural fairness by cutting off expert witnesses Whether Tribunal failed to assess particular risks associated with a flood event Whether Tribunal erred in determining that a witness is not qualified to give expert evidence on relevant risk Whether Tribunal erred in concluding that risk of rescues in floodway is greater than risk of rescues in flood fringe

Legislation:

Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 143(1)(b), s 237A(2)(c), s 239(1), s 244, s 251(1)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 32(1), s 74(a), s 77, s 77(2), s 79
Town of Bassendean Local Planning Scheme No. 10

Result:

Determination of Tribunal affirmed

Summary of Tribunal's decision:

Mr Brian Bethune sought review by a judicial member of the determination made by a non-legally qualified member in a planning review proceeding which affirmed the refusal of a two-lot subdivision of land located in the Swan River floodway. The Tribunal refused subdivision approval, because the subdivision would facilitate an increase in the number of residents in the floodway and thereby increase risks to residents and emergency personnel during flooding and would set an adverse planning precedent.

A review by a judicial member must be upon a matter involving a question of law. Mr Bethune sought review on seven grounds, some of which involved a challenge to a finding of fact, rather than a matter involving a question of law. The judicial member determined that, insofar as the grounds of review involved questions of law, the Tribunal did not err in law in the determination. The Tribunal's determination was affirmed.

Category: B

Representation:

Counsel:

Applicant	:	Ms B Moharich
Respondent	:	Mr I A Repper

Solicitors:

Applicant	:	Moharich & More
Respondent	:	State Solicitor's Office

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

Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Thio and Western Australian Planning Commission [2009] WASAT 88; (2009) 63 SR (WA) 33
Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150

REASONS FOR DECISION:

Application for review by a judicial member of the Tribunal's decision to refuse subdivision approval

Mr Brian Bethune seeks review by a judicial member, under s 244 of the Planning and Development Act 2005 (WA) (PD Act), of a determination made by the Tribunal constituted by Member Ms R Moore in a planning review proceeding (determination).
The planning review proceeding involved an application for review by Mr Bethune, under s 251(1) of the PD Act, of the decision of the Western Australian Planning Commission (Commission) to refuse to grant subdivision approval for a two-lot battle-axe subdivision of Mr Bethune's property at No. 184 (Lot 631) West Road, Bassendean (site). The site has a rectangular shape and an area of 4,489m². Proposed Lot 1, which addresses West Road, has a frontage of 34.2 metres to West Road and an area of 2,049m², and includes the existing house on the site, which is to be retained. Proposed Lot 2, which is the battle-axe lot, has a six metre wide accessway to West Road and an area of 2,440m² (and an effective area of 2,082m²), and does not contain any existing structures.
The site is zoned 'Urban' under the Metropolitan Region Scheme and is zoned 'Residential' with a residential density coding of R5 under the Town of Bassendean Local Planning Scheme No. 10 (LPS 10 or Scheme). The proposed lots exceed the minimum site area per dwelling of 2,000m² for land coded R5 under Table 1 of State Planning Policy 3.1 Residential Design Codes (R-Codes).Indeed, the Tribunal found in the determination that the proposed subdivision is generally 'appropriate under the planning framework'.[1] However, the site is located in an area of Bassendean known as 'Ashfield Flats', which is at a bend in the Swan River, and is entirely within the Swan River floodway (floodway) and affected by major flooding. The site is one of 15 lots which are zoned 'Residential' with a residential density coding of R5 under LPS 10 and which are located entirely or partially within the floodway, of which seven have the potential to be further subdivided, having regard to the minimum site area per dwelling of 2,000m² specified in Table 1 of the R-Codes.
[1] ts 6, 22 June 2018.
The hearing of the application for review took place on 19 - 21 June 2018. On 19 June 2018, Member Moore conducted a view of the site and immediate locality accompanied by Mr Joe Algeri, a consultant town planner, who represented Mr Bethune, and Ms Sally Grebe, a town planner employed by the Department of Planning, Lands and Heritage, who represented the Commission. On 20 June 2018, the Tribunal heard opening statements and the evidence of the witnesses. On the morning of 21 June 2018, the parties made oral closing submissions. The member then adjourned the matter to 4 pm the following day, 22 June 2018, in order to give an oral decision.
At 4 pm on 22 June 2018, Member Moore made the determination and gave oral reasons for decision in which she affirmed the Commission's refusal of subdivision approval under s 143(1)(b) of the PD Act. The member's oral reasons are recorded in, and comprise a little over five pages of, transcript.
Under s 74(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), a 'final decision' of the Tribunal 'has to be given in writing'. Section 77 of the SAT Act states as follows in relation to reasons for a 'final decision' of the Tribunal:
(1)The Tribunal is to give its reasons for a final decision.
(2)Reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.
Under s 3(1) of the SAT Act, the term 'final decision' means 'a decision of the Tribunal that disposes of the matter raised in an application'. The determination made by Member Moore on 22 June 2018 was a 'final decision', within the meaning and for the purposes of s 74(a) and s 77 of the SAT Act, and, therefore, had to be given in writing and encompass the Tribunal's reasons for the final decision, including its findings on material questions of fact, referring to the evidence or other material on which those findings were based.
However, s 79 of the SAT Act states as follows:
A written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally is sufficient for a provision of this Act that requires the decision or reasons to be in writing.
In this case, the Tribunal provided the written transcript of the oral reasons given on 22 June 2018 to the parties, under s 79 of the SAT Act, as the Tribunal's final decision and determination in the planning review proceeding and its written reasons for the final decision, under s 74(a) and s 77 of the SAT Act.
Section 244 of the PD Act enables a judicial member to review a direction, determination or order of the Tribunal '… upon a matter involving a question of law …' that was made in a planning review proceeding by the Tribunal when constituted without a legally qualified member, as defined in s 3(1) of the SAT Act. Member Moore is not a legally qualified member as defined in s 3(1) of the SAT Act.
In Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150, Pullin JA held as follows in relation to the requirement for a review by a judicial member under s 244 of the PD Act to be '… upon a matter involving a question of law…' at [27] [28] as follows:[2]
27The result is that an applicant for review by a judicial member must demonstrate that there has been some step taken by the … member in arriving at its conclusion which involved a 'question' of law. It is not necessary to show that there was an error of law before the applicant has a right to a review which 'arose for decision' … . However, there must have been a 'question' of law. If the law is referred to but the parties were not in issue about the law, then there will be no 'question' of law. In this case, some findings of fact had to be made about whether the land was viable for agricultural purposes and whether buildings might be visible from various viewpoints. They raised questions of fact. The law was referred to (that is the legislative framework and the law concerning adverse planning precedent) but it was not in issue and there was therefore no question of law involved. It may be added that if it can be shown that there had been a matter involving a question of law in the proceedings, then the whole decision and not merely the question of law is open to review … .
28If the issues involved in the case under review were only issues of fact, then there will be no question of law involved and there will be no right of review. … Finally, it is a prerequisite of jurisdiction that the question of law identified must be really, and not colourably involved … .
[2] Citations omitted.
Mr Bethune seeks review by a judicial member on seven grounds which are set out later in these reasons. As discussed below in the consideration of the grounds, some of the grounds involve a challenge to a finding of fact by the Tribunal, rather than a matter involving a question of law.
As the Tribunal has said in a number of decisions under s 244 of the PD Act, most recently in The Bethanie Group Inc and Presiding Member of the Metro North-West Joint Development Assessment Panel [2018] WASAT 127 at [6], in a review by a judicial member, the reasons for determination of the Tribunal must be read as a whole, not minutely or finely with an eye keenly attuned to the perception of error, not in an overly critical or pernickety manner, and not concerned with looseness of language or unfortunate phrasing. As the Commission submits, this is 'especially the case where, as in this case, the reasons were given [orally] shortly after the conclusion of the hearing'.[3] Reading the Tribunal's reasons for the determination in this way, insofar as the grounds of review involve questions of law, Member Moore did not err in law in any of the respects alleged by Mr Bethune.
[3] Respondent's legal submissions dated 7 November 2018 at [3].
I will now refer to the Tribunal's reasons for determination and set out Mr Bethune's seven grounds of review, before addressing each ground in turn.

Tribunal's reasons for determination

As indicated earlier, the Tribunal gave an oral decision on the day after the conclusion of the final hearing. A decision given orally at, or shortly after, the conclusion of a hearing is referred to as an 'oral immediate decision'. As also indicated earlier, the Tribunal's reasons for its oral immediate decision are recorded in, and comprise a little over five pages of, transcript, which constitutes the Tribunal's written final decision and determination in the planning review proceeding and its reasons for the final decision, for the purposes of s 74(a) and s 77 of the SAT Act, under s 79 of the SAT Act.
At the commencement of the reasons, the Tribunal referred to the 'facts in relation to the application, the site, the locality and other relevant matters' as 'not in dispute' and set out at [7] [25] of the Commission's statement of issues, facts and contentions,[4] other than in relation to the depth of flooding over the site in a one in one hundred year flood event, 'the figures of which have since been agreed by the parties'.[5] The Tribunal stated that it 'finds those facts'.[6]
[4] The member mistakenly referred to the Commission's statement of issues, facts and contentions as the Commissions 'section 24 bundle of documents': ts 2, 22 June 2018.
[5] ts 2, 22 June 2018.
[6] ts 2, 22 June 2018.
The Tribunal then said that '[t]he planning framework relevant to this matter is also agreed between the parties' as set out at [26] [36] of the Commission's statement of issues, facts and contentions.[7] The Tribunal then said that it was:[8]
… satisfied that this is the planning framework that applies in this case while noting that the parties disagree as to the weight to be placed on some of these planning documents, in particular, the Town of Bassendean Local Planning Strategy and the Town of Bassendean Local Planning Policy Number 4, Floodplain Management and Development Policy.
[7] The member mistakenly referred to the Commission's statement of issues, facts and contentions as the Commissions 'section 24 bundle of documents': ts 2, 22 June 2018.
[8] ts 2, 22 June 2018.
In its reasons, the Tribunal referred to the Town of Bassendean Local Planning Strategy as 'LPS' or 'strategy', the Town of Bassendean Local Planning Policy No. 4 Floodplain Management & Development Policy as 'LPP 4' and the Commission's Development Control Policy 1.1 Subdivision of Land General Principles and Development Control Policy 2.2 Residential Subdivision as 'DCP 1.1' and 'DCP 2.2', respectively. I will use the same abbreviations in these reasons.
The Tribunal set out three issues which had been identified by the parties for determination in the proceeding as follows:[9]
… firstly, whether the subdivision of the land would be consistent with the LPS and LPP4; secondly, whether the proposed subdivision will create an unacceptable risk to future residence [sic] in the event of a major flood and, therefore, be inconsistent with DC 1.1 and DC 2.2; and, finally, whether approval of this approval [sic] subdivision will create an undesirable precedent with the Swan River floodway.
[9] ts 2-3, 22 June 2018.
The Tribunal said that it had 'the benefit of expert evidence' from the following witnesses:[10]
… Dr James Davies, a civil engineer with experience in hydrology [who was called by Mr Bethune]; Mr Simon [Rodgers], an environmental engineer with experience in hydrology [who was called by the Commission]; Mr Benjamin Laycock, a town planner [who was called by Mr Bethune]; Ms Amanda Butterworth, a town planner [who was called by the Commission]; Ms Kimberley Houghton, a structural engineer [who was called by Mr Bethune]; Mr Gordon Munday, the manager of the Bassendean State Emergency Service [who was called by Mr Bethune]; and Mr Damien Pumphrey, [D]istrict [O]fficer for [I]ntelligent [sic] [M]anagement at the Department of Fire and Emergency Services Intelligence and Hazard Planning [b]ranch [who was called by the Commission].
[10] ts 3, 22 June 2018.
After referring to the view and the Commission's withdrawal, at the commencement of the hearing, of 'its contention that buildings constructed on the subject site would be vulnerable to structural damage',[11] the Tribunal said the following:[12]
In relation to the planning framework, the applicant submitted that the proposal is consistent with the local planning strategy because one of the strategies for the riverside [sic] precinct is to consider an alternative residential density coding for the sub-precinct within the floodway to reflect the existing lot-size pattern and exclude further development in the floodway or that it would restrict flows within the floodway, and that the Council of the Town of Bassendean did just that when they put forward amendment 9 to the town planning scheme.
The rezoning of this sub-precinct from R5 to R2 preventing further subdivision was originally to be part of this amendment but the [C]ouncil rescinded its original resolution and the amendment recommendation went forward to the WAPC and the Minister without it.
Mr Laycock was of the view that these [C]ouncil resolutions put in doubt the weight that should be given to the current versions of both the strategy and LPP4. The respondent [sic] also submitted that LPP4, specifically clause 3.2, which states:
That further subdivision of land wholly within the floodway will not be supported, does not reflect the aspirations of the [T]own and should be given little weight.
The [T]ribunal is not persuaded by the inference sought to be relied upon, that the failure to rezone the sub-precinct, including the subject site, from R5 to R2 was a stepping away from either the strategy or LPP4. The [C]ouncil minutes refer to – give the [C]ouncil's reasons for omitting the rezoning from the proposed scheme amendment and suggest the strategy and LPP4 should be reviewed, but the [C]ouncil has not amended or revoked either document, and both documents are still in place.
The [T]ribunal is therefore satisfied that it must give some weight to both the strategy and LPP4. Obviously, as submitted by the applicant, LPP4 is to be used as a guide for exercising discretion and is not to be applied inflexibly, nor is it determinative of the matter.
[11] ts 3, 22 June 2018.
[12] ts 3-4, 22 June 2018.
In the first paragraph of the quotation from the reasons set out immediately above, the Tribunal incorrectly referred to the site as located in the 'riverside precinct' under the LPS, whereas it is located in the 'Riverfront Housing Precinct'. In the third paragraph of the quotation from the reasons set out immediately above, the Tribunal incorrectly referred to the 'respondent' as having made the submission that cl 3.2 of LPP 4 'does not reflect the aspirations of the [T]own [of Bassendean]', whereas it appears that this submission was made by the applicant. There is also obviously a formatting error in the third paragraph, because cl 3.2 of LPP 4 states (only) as follows:[13]
Further subdivision of land wholly within the floodway will not be supported.
The words 'does not reflect the aspirations of the [T]own and should be given little weight' are clearly the member's paraphrasing of Mr Bethune's submission.
[13] Respondent's Section 24 Bundle dated 30 April 2018 (Exhibit 1) page 107.
The Tribunal referred to the parties' submissions in relation to, and considered whether, risk to people, property and emergency personnel as a result of flooding is a relevant consideration in the assessment of the subdivision application. The Tribunal said the following:[14]
In relation to DC 1.1, which provides general principles for the subdivision of land throughout the State, and DC 2.2, which sets out the respondent's requirements for subdivision of land into residential lots, the applicant submitted that these are broad-brush policies to be applied generally to all residential subdivision but that they do not specifically contain the words "risk", "hazard" or "flooding".
Notwithstanding whether the issue of risk to people, property and emergency personnel is a factor relevant to the desirability of subdivision in a floodway is expressly contained within the policies referred to by the planners or not, the [T]ribunal is satisfied that this is a planning issue that is a relevant factor in the determination of this application.
The respondent conceded that the words "risk", "hazard" or "flooding" do not appear in either DC 1.1 or DC 2.2 but said it relied on the policy objective in DC 1.1 of:
…facilitating development which achieves appropriate community standards of health, safety and amenity.
The [T]ribunal accepts that this policy objective does include the issue of risk and hazard, particularly considering risk to future residents and emergency personnel.
[14] ts 4, 22 June 2018.

The Tribunal then referred to the conferral of expert witnesses and said that the conferral process had resulted in the distillation of the issues in dispute down to 'only [one] substantive issue for determination' as follows:[15]
Following conferral of the experts, the [T]ribunal considers that the only substantive issue remaining for determination is whether the location of the site in an area at risk of flooding is a sufficient reason for the refusal of the proposed subdivision, particularly in terms of any potential risk to future residents and emergency personnel.
While the planners had differing opinions in relation to the weight to be given to the various planning framework documents, the policy provisions and their applicability, these differences relate directly to the location of the land in the Swan River floodway, its risk of flooding and the consequences, if any, of this. The planners relied heavily on the evidence of the emergency response experts and the hydraulic engineers.
Despite their disagreement in relation to whether the proposed subdivision is consistent with the policies, I am satisfied that, absent the flood risk issue, this application is entirely consistent within the planning framework and find that the land is capable of subdivision.
[15] ts 4-5, 22 June 2018.
Thus, the Tribunal determined that the 'only substantive issue' for determination related to whether the subdivision application should be refused, because of risk associated with flooding on the site. Later in the reasons, the Tribunal again identified this as the 'only substantive issue' as follows:[16]
Ultimately, the only substantive issue that remains is is the risk such that subdivision which is otherwise appropriate under the planning framework should not be allowed. This risk has been identified by the respondent as a risk to future residents and emergency personnel in a flood event. …
[16] ts 6, 22 June 2018.
The Tribunal summarised the hydraulic engineering expert evidence, which had been agreed by Dr Davies and Mr Rodgers, as follows:[17]
The hydraulic engineering experts, Dr Davies and Mr [Rodgers], agreed all of the relevant matters contained in their joint statement, which is exhibit 17, including that the site is subject to flooding during major river flows; the one in 100 AEP flood level is 3.7 metres AHD, which is one metre lower than previous estimates; if floodwaters reach 3.7 metre AHD, the flood depth with [sic] exceed one metre over the entirety of the site and exceed 1.5 metres over the entire proposed lot 2 to the rear of the site; the depth of flow in the floodplain in the vicinity of the site is expected to be relatively high and is more important than the flow velocities when considering hazard in this location; and that the flood warning system and flood emergency response planning does not alter the hazard but will provide adequate time for people who choose to evacuate and are able to do so prior to a flood event.
The [T]ribunal accepts this expert evidence. …
[17] ts 5, 22 June 2018.
The Tribunal then addressed the submission made by Mr Algeri on behalf of Mr Bethune that risk or hazard is the same in relation to development within the floodway (such as on the site) and within the flood fringe, and rejected that submission, preferring the evidence of Mr Rodgers over Dr Davies on this point. In relation to this aspect, the Tribunal said the following:[18]
The applicant['s] submission [is] that there is no difference in risks or hazards between the floodway and the flood fringe and that in light of the recent HARC and BMT WBM studies, it is possible that the demarcation between the two areas may change in the future. It was the evidence of Mr [Rodgers] and Dr Davies that the similar flood hazard conditions to the subject site exist in parts of the flood fringe and the only difference between the floodway areas and similar areas of flood fringe is that the distance to higher ground above the level of flooding is typically longer from the floodway.
The experts agree that velocity was unlikely to be an issue in either the flood fringe or the floodway of this section of the Swan River, and Mr [Rodgers] said that the floodwater levels would likely be similar in both areas in the event of a flood event, but that the water will be shallower in the flood fringe because of the higher ground levels in that area. The [T]ribunal accepts Mr [Rodgers]' evidence and finds that there is a difference between the floodway and the flood fringe and a consequent difference in the risk to future residents and emergency personnel.
[18] ts 5-6, 22 June 2018.
Having said again that 'the only substantive issue that remains is … the risk [to future residents and emergency personnel in a flood event] such that subdivision which is otherwise appropriate under the planning framework should not be allowed',[19] the Tribunal then referred to the evidence of Mr Munday and Mr Pumphrey. Mr Munday is the Manager of the Bassendean State Emergency Service (SES) and was called by Mr Bethune to give evidence in relation to emergency response by SES volunteers and other agencies in the event of flooding.[20] Mr Pumphrey is employed as the District Officer (Intelligence Management) within the Department of Fire and Emergency Services (DFES) Intelligence and Hazard Planning branch and was called by the Commission. The Tribunal said the following in relation to their evidence concerning risk to future residents and emergency personnel in a flood event:[21]
… Mr Munday and Mr Pumphrey gave evidence in regard to this risk. Following conferral, they prepared a joint statement and agreed all matters contained in paragraphs 3(a) to 3(r), which is at exhibit 15.
This [sic] disagreement in paragraph 4 arose because Mr Munday does not have the technical expertise or qualifications to express a personal opinion on the impacts of further subdivision on riverside flooding or to determine that subdivision would or would not increase risk to emergency personnel.
Given that I have expert evidence on this issue by only one person with sufficient expertise in the area, Mr Pumphrey, and those expert opinions have been fully explained and the [T]ribunal finds no basis in that reasoning to reject Mr Pumphrey's conclusions, and he maintained these opinions despite cross-examination, the [T]ribunal accepts the expert evidence of Mr Pumphrey and finds that a proposed subdivision will place future residents and emergency personnel at risk from flood events. Creating an additional lot will expose additional members of the community to flood hazards and will increase the risk to emergency services personnel.
[19] ts 6, 22 June 2018.
[20] Witness Statement of Gordon Munday dated 29 May 2018 (Exhibit 14).
[21] ts 6, 22 June 2018.
The Tribunal then concluded its reasons for the determination as follows:[22]
The [T]ribunal finds that in this case it is inappropriate to create additional lots that would facilitate an increase in the number of properties and, consequently, the number of people living in this floodway and exposed to the risks and hazards enumerated by Mr Munday and Mr Pumphrey in their evidence. It will also increase the risk to emergency personnel as an increase in residents give [sic] rise to an increase [in] the possible numbers of rescues of those residents.
The respondent submits as a separate issue that approval of the proposed subdivision will set an undesirable precedent. The [T]ribunal is satisfied that there are six lots that are factually undisguisable [sic] from the subject site and that, if this application was allowed, it would be likely that these lots would also be able to be similarly subdivided and, consequently, this would further increase the risk to future residents and emergency personnel. The [T]ribunal accepts that allowing the proposed subdivision would, in this case, set an undesirable precedent.
[22] ts 6-7, 22 June 2018.
The Tribunal then made orders dismissing the application for review and affirming the decision of the Commission to refuse subdivision approval.
It is clear from the final two paragraphs of the transcript of reasons that the Tribunal refused to grant subdivision approval for two merit reasons. First, approval of the proposed subdivision would facilitate an increase in the number of residents living in the floodway and therefore increase the risks to residents and to emergency personnel who may need to rescue residents during flooding. Secondly, approval of the proposed subdivision would give rise to an adverse planning precedent, because 'there are six lots that are factually [undistinguishable] from the subject site' and, if the proposed subdivision were approved, 'it would be likely that these lots would also be able to be similarly subdivided and, consequently, this would further increase the risk to future residents and emergency personnel'.[23]
[23] ts 7, 22 June 2018.
Although the Tribunal did not expressly refer to the analysis of adverse planning precedent in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [71]-[77] (especially at [74]), the Tribunal's consideration of adverse planning precedent is in accordance with the principles stated there. In particular, the Tribunal found, in effect (using the expression in Nicholls and Western Australian Planning Commission at [74]), that the proposed subdivision 'is not in itself unobjectionable', because it would facilitate an increase in the number of residents in the floodway and therefore increase the risks to residents and emergency personnel, and that 'there is more than a mere chance or possibility that there may be later undistinguishable applications', because there are 'six lots that are factually [undistinguishable] from the subject site'[24] in terms of location and area, such that if the proposed subdivision were approved, 'these lots would also be able to be similarly subdivided and, consequently, this would further increase the risk to future residents and emergency personnel'.[25]

Grounds of review

[24] ts 7, 22 June 2018.

[25] ts 7, 22 June 2018.

Mr Bethune seeks review of the Tribunal's determination by a judicial member on the following seven grounds:
(1)The Tribunal erred in law in misconstruing cl 3.8.4 of the LPS as a reason for refusing the application.
(2)The Tribunal erred in law by failing to provide adequate reasons in respect of LPP 4.
(3)The Tribunal erred in determining that there was a difference in the depth of the water between the flood way and flood fringe when there was no evidence to suggest that that was the case.
(4)The Tribunal erred in law in not providing the parties with procedural fairness, by cutting off the witnesses when evidence regarding water depth was being adduced.
(5)The Tribunal erred in failing to asses in any detail the particular risks associated with a flood event.
(6)The Tribunal erred in determining that Mr Munday did not hold technical expertise or qualifications to express an opinion on the relevant risk [and in failing to have regard to the evidence of Mr Munday].
(7)The Tribunal erred in coming to the conclusion that the risk of rescues in the floodway was greater than the risk of rescues in the flood fringe, and that the approval of this subdivision increases that risk, in circumstances where the evidence did not support that conclusion.
I will now address each of the grounds of review in turn.

Ground 1 'The Tribunal erred in law in misconstruing cl 3.8.4 of the LPS as a reason for refusing the application'

Clause 3.8.4 of the LPS includes the following strategy for the Riverfront Housing Precinct (which includes the site):[26]
Consider an alternative Residential Density Coding for the Sub- Precinct within the floodway to reflect the existing lot size pattern, and further, develop specific requirements for properties in the flood fringe, and exclude further development in the floodway or that would restrict flows within the floodway.
[26] Respondent's Section 24 Bundle dated 30 April 2018 (Exhibit 1) page 143.
Although the Tribunal did not refer to cl 3.8.4 of the LPS by its clause number, it plainly referred to the terms of that clause and to the submission made by Mr Algeri on behalf of Mr Bethune, based on the evidence of Mr Laycock, in the following passage of its reasons:[27]
In relation to the planning framework, the applicant submitted that the proposal is consistent with the local planning strategy because one of the strategies for the riverside [sic] precinct is to consider an alternative residential density coding for the sub-precinct within the floodway to reflect the existing lot-size pattern and exclude further development in the floodway or that it would restrict flows within the floodway, and that the Council of the Town of Bassendean did just that when they put forward amendment 9 to the town planning scheme.
The rezoning of this sub-precinct from R5 to R2 preventing further subdivision was originally to be part of this amendment but the [C]ouncil rescinded its original resolution and the amendment recommendation went forward to the WAPC and the Minister without it.
Mr Laycock was of the view that these [C]ouncil resolutions put in doubt the weight that should be given to the current versions of both the strategy and LPP4. The respondent [sic] also submitted that LPP4, specifically clause 3.2, which states:
That further subdivision of land wholly within the floodway will not be supported, does not reflect the aspirations of the [T]own and should be given little weight.
The [T]ribunal is not persuaded by the inference sought to be relied upon, that the failure to rezone the sub-precinct, including the subject site, from R5 to R2 was a stepping away from either the strategy or LPP4. The [C]ouncil minutes refer to – give the [C]ouncil's reasons for omitting the rezoning from the proposed scheme amendment and suggest the strategy and LPP4 should be reviewed, but the [C]ouncil has not amended or revoked either document, and both documents are still in place.
The [T]ribunal is therefore satisfied that it must give some weight to both the strategy and LPP4. Obviously, as submitted by the applicant, LPP4 is to be used as a guide for exercising discretion and is not to be applied inflexibly, nor is it determinative of the matter.
[27] ts 3-4, 22 June 2018.
Mr Bethune submits in the application for review by a judicial member that the Tribunal's determination that it was 'not persuaded by the inference sought to be relied upon, that the failure to rezone the subprecinct, including the subject site, from R5 to R2 was a stepping away from either the strategy or LPP 4':[28]
… is based upon an erroneous understanding of the Town's decision to remove the proposal from Amendment 9 [to LPS 10].
[28] Grounds of review and legal submissions dated 6 September 2018 at [13].
Mr Bethune submits that the Tribunal erred in law 'in the way in which the Local Planning Strategy is to be interpreted',[29] because it misattributed words in the Council minutes, which were in an officer's report to Council, to the Council itself as the '[C]ouncil's reasons for omitting the rezoning from the proposed scheme amendment'.[30] Mr Bethune submits that the Town of Bassendean's (Town or Council) actions:[31]
… constitute a compliance with clause 3.8.4 of the Local Planning Strategy, such that the question as to whether this land should be downcoded has now been answered.
[29] Grounds of review and legal submissions dated 6 September 2018 at [15].
[30] ts 4, 22 June 2018.
[31] Grounds of review and legal submissions dated 6 September 2018 at [14].
In support of the submission that the Tribunal erred in law, Mr Bethune relies on the following passage for the decision of the Full Court of the Federal Court of Australia (Neaves, French and Drummond JJ) in Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189 at 208:
The question arises whether a misapplication or misconstruction of the Ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law. It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decisionmaking may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decisionmaker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. …
In my view, Mr Bethune's criticism of the Tribunal's decision under this ground involves, in substance, a challenge to a finding of fact by the Tribunal. The finding of fact was that the Tribunal 'is not persuaded by the inference sought to be relied upon, that the failure to rezone the subprecinct, including the subject site, from R5 to R2 was a stepping away from either the strategy or LPP 4'.[32] If the Tribunal erred in this respect, it erred in fact, not in law. Furthermore, the Tribunal clearly understood that the Council had rescinded its original resolution and Mr Bethune's submission that the Council had complied with the terms of cl 3.8.4 of the LPS to '[c]onsider an alternative Residential Density Coding for the Sub-Precinct within the floodway to reflect the existing lot size pattern'[33] by originally proposing, and then rescinding, an amendment to LPS 10, which would have down-coded the site and other properties in the floodway from R5 to R2.
[32] ts 4, 22 June 2018.
[33] Grounds of review and legal submissions dated 6 September 2018 at [6].
Furthermore, and in any case, although the Tribunal said that it 'must give some weight to both the [LPS] and LPP4',[34] it is clear from the Tribunal's reasons that it did not (to quote and adapt the words of Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Gray at 208), '[purport] to apply [cl 3.8.4 of the LPS] as a proper basis for disposing of the case in hand'. Rather, as indicated earlier, the Tribunal 'disposed of the case in hand' for two merit reasons, namely that the proposed subdivision would facilitate an increase in the number of residents in the floodway and therefore increase the risks to residents and to emergency personnel and would set an adverse planning precedent. Neither of the Tribunal's reasons for refusing subdivision approval concerned the LPS in general or its contemplation of a potential down-coding of the locality in cl 3.8.4 in particular. Indeed, the Tribunal said that, other than in relation to risk, the 'subdivision … is otherwise appropriate under the planning framework'.[35] The Tribunal correctly recognised that the 'planning framework includes the LPS.[36]
[34] ts 4, 22 June 2018.
[35] ts 6, 22 June 2018.
[36] ts 2, 22 June 2018.
The Tribunal did not err in law in terms of ground 1. This ground of review is not made out.

Ground 2 'The Tribunal erred in law by failing to provide adequate reasons in respect of LPP 4'

As indicated earlier, s 77(2) of the SAT Act states as follows:
Reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.

In Thio and Western Australian Planning Commission [2009] WASAT 88; (2009) 63 SR (WA) 33, Justice Chaney, sitting as the President of the Tribunal, observed and held in relation to the Tribunal's obligation to give legally adequate reasons for a final decision under s 77(2) of the SAT Act at [29] - [33] as follows:
29In Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 at [78] (Re Carey), Martin CJ held, in relation to the Tribunal's obligation to give reasons for a final decision under s 77 of the SAT Act, as follows:
As the Tribunal is obliged to give reasons for its decision, and there is a right of appeal from those reasons, the reasons must elucidate the process of reasoning applied by the Tribunal for at least two reasons:
(a)firstly, so that the unsuccessful party can evaluate the prospects of success on appeal; and
(b)so that the Court can evaluate the process of reasoning if the appeal is brought [citations omitted].
30Having reviewed the leading New South Wales authorities in relation to judicial officers' obligations to give reasons for their decisions, Lloyd J, in the Land and Environment Court of New South Wales, held in Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at [53] as follows:
The principles to which I have referred above show that the duty of a judge to disclose reasons for a decision is more onerous than that imposed upon a lay commissioner. Nevertheless, if a question is in issue in the case and it is one which is critical or fundamental to the case, then, as in [Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451], even a lay commissioner is required to give reasons for his or her conclusion.
31Irrespective of any common law duty to give legally adequate reasons, the SAT Act imposes the same statutory obligation to give reasons for a final decision whether the Tribunal is constituted by or so as to include a legally qualified member or not. The reasons must include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based. The reasons must elucidate the process of reasoning applied by the Tribunal to achieve the purposes discussed by the Chief Justice in Re Carey. This is fundamental and critical to public confidence in the administration of justice and proper public administration.
32This is not to say, however, that on review by a judicial member under s 244 of the PD Act or on appeal to the Supreme Court under s 105 of the SAT Act, the review or appeal decisionmaker should not be conscious of the background and qualifications of the author of the decision which is the subject of review or appeal. The SAT Act provides for the appointment of non legally qualified Tribunal members with 'extensive or special knowledge of, or experience with any class of matter involved in the exercise of the Tribunal's jurisdiction': SAT Act, s 117(3)(b). One of the main objectives of the Tribunal is 'to make appropriate use of the knowledge and experience of Tribunal members': SAT Act, s 9(c).
33People who are not lawyers do not usually express themselves in the same way as lawyers do. Yet it is precisely because nonlegally qualified members have relevant non-legal knowledge or experience that they are appointed to the Tribunal and play a vital role in the fulfilment of the Tribunal's objectives. On review or appeal from a non-legally qualified member's decision, great care must be taken to read the expression of reasons in the context of the decision as a whole and having regard to the background and qualifications of the author.
The Tribunal said in its reasons that it 'must give some weight to … LPP 4' and that 'as submitted by the applicant, LPP 4 is to be used as a guide for exercising discretion and is not to be applied inflexibly, nor is it determinative of the matter'.
Mr Bethune submits that the Tribunal erred in law by failing to provide legally adequate reasons in relation to LPP 4, because:
The Tribunal fails to mention any requirement contained therein in [sic], in its reasons for decision. In this regard, the Tribunal fails to provide adequate reasons for its bald findings that LPP4 is to be given weight, and fails to explain any assessment it has undertaken as to what weight it is to be given [to] the provisions therein that the Tribunal considers relevant.
In my view, in the circumstances of this case, the Tribunal did not err in law by failing to provide legally adequate reasons in relation to LPP 4. Contrary to Mr Bethune's submission that the Tribunal failed 'to mention any requirement contained [in LPP 4]', the Tribunal expressly referred to the particular provision of LPP 4 which it found to be relevant, namely cl 3.2, which it quoted.[37] As Pullin JA held in Zampatti v Western Australian Planning Commission at [27], '[i]f the law is referred to but the parties were not in issue about the law, then there will be no "question" of law'. Furthermore, given that there was no dispute between the parties as to whether cl 3.2 of LPP 4 was a relevant matter for consideration in the determination of the subdivision application, there was no 'material [question] of fact' (within the meaning and for the purposes of s 77(2) of the SAT Act) in relation to which the Tribunal was required to give reasons for its finding that LPP 4 is to be given 'some weight' or any requirement to explain any assessment it has undertaken as to what weight it is to be given, beyond the reasons given by the Tribunal. Clause 3.2 of LPP 4 was the only provision of that policy referred to by either party in their closing submissions. In particular, Mr Algeri, in his closing submissions on behalf of Mr Bethune, conceded that 'the local policy [LPP 4] is relevant to [the] proceedings', although he submitted that 'little weight can be given to it', because it:[38]
… hasn't yet been revised or altered in any way to reflect the [T]own's current aspirations … namely … a motion in August of 2017 to expressly support the subdivision of properties along West Road that are within the floodway in accordance with the current R5 density coding.
[37] ts 3, 22 June 2018.
[38] ts 4, 21 June 2018.
Given that it was common ground that cl 3.2 of LPP 4 was a relevant matter for consideration and that appropriate weight should be given to it (which Mr Bethune submitted was 'little weight'), the Tribunal did not err in law by '[failing] to explain any assessment it has undertaken as to what weight it is to be given'.[39]
[39] Grounds of review and legal submissions dated 6 September 2018 at [18].
Furthermore, and in any case, although the Tribunal said that it 'must give some weight'[40] to LPP 4, it found that, other than in relation to risk, the subdivision is 'appropriate under the planning framework',[41] which the Tribunal correctly recognised includes LPP 4.
[40] ts 4, 22 June 2018.
[41] ts 6, 22 June 2018.
The Tribunal did not err in law in terms of ground 2. This ground of review is not made out.

Ground 3 'The Tribunal erred in determining that there was a difference in the depth of the water between the flood way and flood fringe when there was no evidence to suggest that that was the case'

Mr Bethune submits that the Tribunal erred in determining that there was a difference in the depth of the water between the floodway and the flood fringe, and consequently a difference in the risk to future residents and emergency personnel, in the following part of its reasons:[42]
The experts agree that velocity was unlikely to be an issue in either the flood fringe or the floodway of this section of the Swan River, and Mr [Rodgers] said that the floodwater levels would likely be similar in both areas in the event of a flood event, but that the water will be shallower in the flood fringe because of the higher ground levels in that area. The [T]ribunal accepts Mr [Rodgers]' evidence and finds that there is a difference between the floodway and the flood fringe and a consequent difference in the risk to future residents and emergency personnel.
[42] ts 6, 22 June 2018.
However, as the member said in this part of the reasons, there was evidence from a qualified expert, Mr Rodgers, that the flood water will be shallower in the flood fringe than in the floodway, because of the higher ground levels in the flood fringe. In answer to questions from Ms Grebe, Mr Rodgers gave evidence that, as the terrain moves from the floodway into the flood fringe, 'it does slope up quite quickly once it gets out of the floodway' and that '[o]ther than right at the boundary, the water in the flood fringe will be shallower [than in the floodway]'.[43] Furthermore, Dr Davies and Mr Rodgers gave the following evidence in response to Mr Algeri's question:[44]
ALGERI, MR:   Before we get to the graph – before we get to the risk guidelines and we start talking about levels and depths, in terms of that hazard or any hazard, is it the same in the flood fringe?
WITNESS, DAVIES:   Not always. No, not always.
WITNESS, RODGERS:   There are parts of the flood fringe that would be similar. But largely the flood fringe would be a lot shallower. But – yes, there would be parts of the flood fringe that have similar sort of depth.
[43] ts 61, 20 June 2018.
[44] ts 51, 20 June 2018.
Thus, Mr Rodgers clearly gave evidence that 'largely the flood fringe would be a lot shallower' than the floodway. Furthermore, although Dr Davies replied 'Not always. No, not always' to the question 'in terms of … hazard, is it the same in the flood fringe', thereby indicating that there will be times when the hazard in the flood fringe will be different to the hazard in the floodway. Significantly, as is apparent from Mr Algeri's question, the expert witnesses were giving evidence in the context of 'hazard' associated with the floodway as opposed to the flood fringe.
There was certainly evidence from Mr Rodgers, which the Tribunal could accept, to the effect that 'the water will be shallower in the flood fringe because of the higher ground levels in that area' and that there is 'a consequent difference in the risk to future residents and emergency personnel'[45] between development in the floodway as opposed to development in the flood fringe.
[45] ts 6, 22 June 2018.
The Tribunal did not err in law in terms of ground 3. This ground of review is not made out.

Ground 4 'The Tribunal erred in law in not providing the parties with procedural fairness, by cutting off the witnesses when evidence regarding water depth was being adduced'

Mr Bethune submits that 'the Member [cutting] the witnesses off from providing further evidence regarding the depth of water in the 1 in 100 AEP flood event',[46] and consequently the Tribunal denying the parties procedural fairness, is apparent from the following part of the transcript of evidence:[47]
GREBE, MS:   And we don't have what the likely levels will be?
WITNESS, RODGERS:   1.3 metres at at the boundary itself.
GREBE, MS:   Okay.
WITNESS, DAVIES:   And that that is about 50 metres from the locked – looking at the scale bar on that figure - - -
MOORE MS:   Yes. Okay.
WITNESS, DAVIES:   - - - and - - -
MOORE MS:   Well, I don't think we need any more, unless (indistinct) wanting to let us know about the distance up to that high ground.
[46] Grounds of review and legal submissions dated 6 September 2018 at [34].
[47] ts 61, 20 June 2018.
Mr Bethune submits that the Tribunal 'actively stopped this line of interrogation in circumstances where the depth of water on the proposed block vis a vis the flood fringe was a relevant consideration to which regard should have been had'.[48] Mr Bethune submits that the Tribunal thereby denied the parties 'natural justice and procedural fairness in adducing the evidence required to make their case',[49] particularly in the circumstances where both parties were not legally represented.
[48] Grounds of review and legal submissions dated 6 September 2018 at [35].
[49] Grounds of review and legal submissions dated 6 September 2018 at [36].
The Tribunal was required to afford procedural fairness to the parties. Section 32(1) of the SAT Act states as follows:
The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.
Neither the SAT Act nor the 'enabling Act', namely s 251(1) of the PD Act and the PD Act generally, relevantly authorises a departure from the rules of natural justice.
It is clear from the part of the transcript relied on by Mr Bethune that the member sought to end the evidence of the hydrological expert witnesses with the words 'Well, I don't think we need any more …'. However, Member Moore did not deny procedural fairness to the parties and gave the parties ample opportunity to adduce evidence required 'to make their case' and to respond to the other party's case.
Significantly, the selective part of the transcript relied on by Mr Bethune comes after some 32 pages of transcript in which Dr Davies and Mr Rodgers gave extensive evidence. After affirming the expert witnesses and allowing them to make any changes to their witness statements,[50] Member Moore invited the parties' representatives to ask questions of Dr Davies and Mr Rodgers. Mr Algeri and Ms Grebe agreed that Ms Grebe would ask questions first, because, as Mr Algeri said, '[t]he respondent generally starts'.[51] Ms Grebe then asked questions[52] followed by Mr Algeri.[53] Mr Algeri's questions ended when he said:[54]
I don't have any further questions. Thank you.
[50] ts 29-30, 20 June 2018.
[51] ts 30, 20 June 2018.
[52] ts 30-50, 20 June 2018.
[53] ts 50-58, 20 June 2018.
[54] ts 58, 20 June 2018.
Member Moore then asked for clarification from the expert witnesses in relation to their evidence concerning the levels in the floodway and the flood fringe. Although the member commenced with Mr Rodgers, she asked 'Dr Davies, did you want to add anything?'[55] and Dr Davies then gave further evidence. During the course of this part of the evidence, Ms Grebe asked if there was 'potential for me to ask a question' and she was permitted to do so.[56]
[55] ts 58, 20 June 2018.
[56] ts 60, 20 June 2018.
Viewed in the context of Dr Davies' and Mr Rodgers' concurrent expert evidence as a whole, the member's statement 'Well, I don't think we need any more …' does not evidence a denial of procedural fairness by cutting off the witnesses. Both parties were given adequate opportunity to adduce expert evidence and the expert witnesses were given ample opportunity to express their respective opinions in relation to water depth and all other relevant matters. Furthermore, as the Commission submits, notwithstanding Member Moore's statement that 'Well, I don't think we need any more …', Dr Davies in fact continued to make his point after the Tribunal's intervention and the Tribunal did not prevent him from doing so. The transcript portion relied on by     Mr Bethune, together with the preceding question and answer and the subsequent evidence by Dr Davies is as follows:[57]
[57] ts 61, 20 June 2018.
GREBE, MS:   So the water in the flood fringe will be shallower.
WITNESS, RODGERS:   Other than right at the boundary, yes. Yes. It still is quite low at the boundary, but yes.
GREBE, MS:   And we don't have what the likely levels will be?
WITNESS, RODGERS:   1.3 metres at at the boundary itself.
GREBE, MS:   Okay.
WITNESS, DAVIES:   And that that is about 50 metres from the locked looking at the scale bar on that figure - - -
MOORE MS:   Yes. Okay.
WITNESS, DAVIES:   - - - and - - -
MOORE MS:   Well, I don't think we need any more, unless (indistinct) wanting to let us know about the distance up to that high ground.
WITNESS, DAVIES:   Well, I'm just envisaging it. Really, it's like walking out of a swimming pool almost. The water will be almost stationary but not completely at the height of this 100-year flood.
MOORE MS:   Yes.
WITNESS, DAVIES:   And you will be gradually walking out of almost stationary water if you chose to evacuate at the peak, which, of course, would be the very worst time.
MOORE MS:   Thank you very much, both of you. Could you please leave the [T]ribunal's copies there. I will just make sure we've got everything.
(THE WITNESSES WITHDREW)
Furthermore, although it is correct that the parties were not legally represented,[58] the parties were each represented by experienced planning advocates. In particular, as indicated earlier, Mr Bethune was represented by Mr Algeri, who is an experienced town planning agent and advocate. I have no doubt that if Mr Algeri had considered that further evidence from Dr Davies was necessary in order to advance Mr Bethune's case or to respond to evidence given by Mr Rodgers, then he would have said so to Member Moore and sought her leave to ask further questions, before Dr Davies and Mr Rodgers concluded their evidence.
[58] In the application for review, Mr Bethune made an election, under s 239(1) of the PD Act, 'that no party to the application is to be represented by a legal practitioner', on the basis that the application for review is in respect of 'an application for approval to subdivide a lot into not more than 3 lots' (s 237A(2)(c) of the PD Act).
Nevertheless I note, although this point was not made in Mr Bethune's submissions in the application for review by a judicial member, that Member Moore should have expressly invited Mr Algeri to ask any questions arising out of her further questioning of the expert witnesses. The member did not need to ask Ms Grebe, because Ms Grebe had herself requested, and been allowed by the member, to ask a further question during that process. When a judicial officer asks questions of a witness or witnesses after the parties have concluded their questions, it is incumbent on the judicial officer to invite the parties to ask any questions arising from the judicial officer's questions or the evidence given in response to those questions.
However, in my view, Member Moore's failure to invite Mr Algeri to ask any questions arising out of her further questioning of the witnesses did not result in a denial of procedural fairness in the circumstances of this case, because, as I have said, I have no doubt that Mr Algeri, as an experienced town planning agent and advocate, would have sought leave to ask any further questions, had he considered that to be necessary in order to advance Mr Bethune's case or to respond to any evidence given by Mr Rodgers. Indeed, the fact that Ms Grebe, in effect, sought and was granted leave to ask a further question during the final part of the concurrent evidence process only underscores my conclusion that there was no denial of procedural fairness in relation to the evidence of Dr Davies and Mr Rodgers. The parties' representatives were clearly allowed to ask the expert witnesses any relevant questions they wished to.
In the circumstances of this case, the member did not deny the parties procedural fairness. Ground 4 is not made out.

Ground 5 'The Tribunal erred in failing to assess in any detail the particular risks associated with a flood event'

In his submissions in the application for review by a judicial member, Mr Bethune refers to evidence before the Tribunal that the Bureau of Meteorology issues flood warnings well in advance of a potential flooding event,[59] DFES 'can issue warning to evacuate in advance of the flooding event'[60] and that '[a] house can be designed to be safely occupied during a flood event'.[61] Mr Bethune submits that the 'only "risk" that arises' and that the 'only … scenario [in which] members [of] the public or emergency personnel would be at any risk' is where:[62]
A significant flood event occurs; and
The occupants stay, rather than evacuate in their purpose-built dwelling; and
There is an emergency unrelated to the flood requiring their immediate rescue (for example, an unrelated medical event requiring immediate attention).
[59] Grounds of review and legal submissions dated 6 September 2018 at [39.1] referring to the evidence of Mr Pumphrey (Exhibit 5).
[60] Grounds of review and legal submissions dated 6 September 2018 at [39.2] referring to the evidence of Mr Pumphrey (Exhibit 5).
[61] Grounds of review and legal submissions dated 6 September 2018 at [39.3] referring to the evidence of Ms Hortin (Exhibit 13).
[62] Grounds of review and legal submissions dated 6 September 2018 at [40] and [41].

On its face, this ground of review does not involve a question of law, but rather involves a challenge to a finding of fact. Mr Bethune seeks a different merits outcome in relation to the Tribunal's determination that the proposed subdivision is unacceptable, in part, because it would 'facilitate an increase in the number of properties and, consequently, the number of people living in this floodway and exposed to the risks and hazards enumerated by Mr Munday and Mr Pumphrey in their evidence' and 'increase the risk to emergency personnel as an increase in residents give[s] rise to an increase [in] the possible numbers of rescues of those residents'.[63]
[63] ts 6, 22 June 2018.
Furthermore, and in any case, the 'risk' that would arise from residential development consequent upon the approval of the proposed subdivision is not restricted, on the evidence that was before the Tribunal, to the 'risk' referred to by Mr Bethune in his submissions. Mr Pumphrey gave the following evidence in relation to risks and hazards during flooding events:[64]
… It's an urban area. So we're talking hazards that could be anything from trees, shrubs underneath the ground. Obviously, you've got your flood hazards to start with, which is the way the water behaves, and the water behaves around obstacles. But, then you've got the hazards that sit below the water, so the things that the emergency responders can't actually see. So we're talking parts of trees. We're talking fencing. We're talking submerged walls. We're talking about submerged drainage. We could be talking about power infrastructure. It could be debris that flowed further from further upstream down the floodwater. There's any number of hazards that could present, especially in that area.
[64] ts 73-74, 20 June 2018
When Mr Munday was asked by Ms Grebe whether he had 'any comments' on the evidence of Mr Pumphrey set out in the preceding paragraph, Mr Munday gave the following evidence:[65]
Yes. Well, in any response that we would be carrying out, regardless of whether flood or any other natural hazard, we would always undertake a risk assessment, and in that regard, local knowledge is very helpful. And, that's why you involve the local units. And, I suppose there's always going to be some element that is unknown, whether it's a behaviour in the water, whether it's something submerged something that you can't see, that you will have to react to. And, the training that we give our volunteers is fairly high standard and we make sure that they are ready to act based on those things that may come out unexpectedly. Because a lot of what we do, you really don't know what you're going into until you get there. And, then you have to react accordingly, I suppose, (indistinct)[.]
[65] ts 74, 20 June 2018.
Furthermore, Mr Pumphrey and Mr Munday agreed that, despite warnings and evacuations, residents may well choose to remain in their homes in a flood event and thereby expose themselves and emergency personnel to risks, not only if there is 'an emergency unrelated to the flood requiring their immediate rescue', such as 'an unrelated medical event requiring immediate attention', but also caused by the flooding itself, including if they decide to leave their homes during the flooding. Mr Pumphrey gave the following evidence:[66]
That's something we typically see across all types of emergencies, people choose to remain without having a full understanding of the implications of remaining at an isolated property. So it may be fine to say that the property or the residence is not under water. But, you could be surrounded by that water without a means of egress. So what could occur is any number of things, from the person injuring themselves to the person getting bitten by a snake or a piece of wildlife that's poisonous or toxic. There could be a medical emergency. There could be a frailty or a vulnerability associated with the person. Those vulnerabilities can include everything from the languages they speak, not being able to receive right information through to medical incidents, those kinds of things, and then on top of that there's the likelihood that they've lost power, they've lost gas, they've potentially lost water. So a lot of those services that they depend upon are likely to not be there anymore. So unless they're very, very well prepared, their resilience to that a flooding event is likely to be quite low.
[66] ts 77-78, 20 June 2018.
When, immediately after this evidence was given, Ms Grebe asked Mr Munday to express his opinion, he said the following:[67]
I agree with what Damien [Pumphrey] is saying, with the only exception that we would again be looking at assessing the number of people or the number of residents where there are people impacted and that have stayed behind. The best-case scenario is always to try and evacuate everybody, but that's not always possible. And, then we would look at what methods of communication we could get to the people that are stranded or that are retained in their own building and you go from that point of view. And, that way there will always be some form of communication, hopefully. And, it depends on how long it's provided for. And again, we would encourage people to evacuate, even if their building is completely surrounded.
[67] ts 78, 20 June 2018.
There was clear and cogent evidence before the Tribunal in relation to the risks to residents and emergency personnel associated with a flood event. That evidence was largely agreed between Mr Munday and Mr Pumphrey. It was therefore open to the Tribunal to find, on the evidence, that the proposed subdivision would increase the risks to residents and emergency personnel and to determine, in part on that basis, that the subdivision application should be refused. In the circumstances, there was no error in the Tribunal's assessment of the risks associated with a flood event. Ground 5 is not made out.

Ground 6 'The Tribunal erred in determining that Mr Munday did not hold technical expertise or qualifications to express an opinion on the relevant risk [and in failing to have regard to the evidence of Mr Munday]'

Mr Bethune submits that the Tribunal erred in law in failing to have regard to the evidence of Mr Munday, because the member determined that Mr Munday 'did not hold technical expertise or qualifications to express an opinion on the relevant risk'.[68] Mr Bethune submits that the Tribunal's error is apparent from the way in which the member referred to the evidence of Mr Munday and Mr Pumphrey after she determined that:[69]
Ultimately, the only substantive issue that remains is is the risk such that subdivision which is otherwise appropriate under the planning framework should not be allowed. This risk has been identified by the respondent as a risk to future residents and emergency personnel in a flood event. …
[68] Grounds of review and legal submissions dated 6 September 2018 at [44].
[69] ts 6, 22 June 2018.
The member then referred to the evidence of Mr Munday and Mr Pumphrey as follows:[70]
Mr Munday and Mr Pumphrey gave evidence in regard to this risk. Following conferral, they prepared a joint statement and agreed all matters contained in paragraphs 3(a) to 3(r), which is at exhibit 15.
This [sic] disagreement in paragraph 4 arose because Mr Munday does not have the technical expertise or qualifications to express a personal opinion on the impacts of further subdivision on riverside flooding or to determine that subdivision would or would not increase risk to emergency personnel.
Given that I have expert evidence on this issue by only one person with sufficient expertise in the area, Mr Pumphrey, and those expert opinions have been fully explained and the [T]ribunal finds no basis in that reasoning to reject Mr Pumphrey's conclusions, and he maintained these opinions despite cross-examination, the [T]ribunal accepts the expert evidence of Mr Pumphrey and finds that a proposed subdivision will place future residents and emergency personnel at risk from flood events. Creating an additional lot will expose additional members of the community to flood hazards and will increase the risk to emergency services personnel.
[70] ts 6, 22 June 2018.
In my view, the Tribunal did not err in law in its determination that Mr Munday was not relevantly qualified to express an opinion as to whether development consequent upon subdivision approval would increase risks associated with flooding to residents and emergency personnel or in failing to have relevant regard to the evidence of Mr Munday. It is clear that what the member was doing in the part of the reasons set out in the preceding paragraph was simply accepting Mr Munday's own statements as to limitations on his area of expertise. Paragraph 4 in the joint statement of Mr Pumphrey and Mr Munday, which was referred to by the member, states as follows:[71]
Mr Pumphrey and Mr Munday disagree:
a.Mr Pumphrey does not support further subdivision or development within the Flood Plain or within areas that place people or property at risk from flood events. Mr Munday disagrees with this recommendation as he does not have the technical expertise or qualifications to express a personal opinion on the impacts of further subdivision on riverine flooding.
b.Mr Pumphrey believes that the refusal of the subdivision application would prevent the exposure of additional members of the community to flood hazards and prevent the increased risk of performing additional rescues from the development associated with the proposed sub-division to emergency services personnel. Mr Munday disagrees with this recommendation as he does not have the technical expertise to determine that subdivision would or would not increase risks to emergency personnel.
[71] Joint Conferral Statement of Flood Response Experts at [4] (Exhibit 15) (emphasis added).
Referring to Member Moore's words in the extract from the transcript of reasons at [75] above that 'Mr Munday does not have the technical expertise or qualifications to express a personal opinion on the impacts of further subdivision on riverside flooding …',[72] Mr Bethune submits that neither Mr Munday nor Mr Pumphrey have technical expertise or qualifications to give expert opinion evidence 'on the impacts of further subdivision on riverside flooding' and that the expert witnesses who hold such qualifications, namely Dr Davies and Mr Rodgers, 'gave clear evidence that any further development on the [site] would not impact on flood levels'.[73]
[72] Emphasis added.
[73] Grounds of review and legal submissions dated 6 September 2018 at [46].
The member's words 'a personal opinion on the impact of further subdivision on riverside flooding' were a slight misquoting of Mr Munday's words at [4a] of the joint statement, where he said that he does not have the technical expertise or qualifications to express 'a personal opinion on the impacts of further subdivision on riverine flooding', in explaining why he disagrees with Mr Pumphrey's 'recommendation' that he (Mr Pumphrey) 'does not support further subdivision or development within the Flood Plain or within areas that place people or property at risk from flood events'. It is correct that neither Mr Pumphrey nor Mr Munday profess or hold expertise in relation to the impacts of further subdivision on riverine flooding in the sense of whether development of proposed Lot 2 would impact on flood levels. However, the member was simply referring to Mr Munday's own reason for his concession that he does not have relevant expertise to challenge Mr Pumphrey's evidence in which he says that he 'does not support further subdivision or development within the Flood Plain or within areas that place people or property at risk from flood event'. Although Mr Munday said that he 'disagrees with [Mr Pumphrey's] recommendation', it is clear that he did not disagree as a matter of professional opinion, but rather because he conceded that he does not hold relevant 'technical expertise or qualifications' in order to be able to express any qualified opinion in relation to Mr Pumphrey's 'recommendation'. This was also the case in relation to Mr Pumphrey's evidence that 'refusal of the subdivision application would prevent the exposure of additional members of the community to flood hazards and prevent the increased risk of performing additional rescues from the development associated with the proposed subdivision to emergency services personnel'.
It was open to the Tribunal to find that 'I have expert evidence on this issue [whether the subdivision would increase risks to residents and emergency personnel] by only one person with sufficient expertise in this area, Mr Pumphrey …' and to accept Mr Pumphrey's evidence on this issue. As indicated earlier, Mr Pumphrey is employed as the District Officer (Intelligence Management) within the DFES Intelligence and Hazard Planning branch. In his witness statement, Mr Pumphrey also states that he holds relevant tertiary qualifications, namely a Bachelor of Health Science, a Graduate Certificate of Applied Management (Policing and Emergency Services), a Graduate Certificate of Intelligence Analysis and Graduate Diploma of Emergency Management. It was therefore open to Member Moore to find that Mr Pumphrey has relevant expertise to express the opinions set out at [4] of his joint statement with Mr Munday. Furthermore, it was open to the member to accept Mr Munday's own concession that he does not have relevant expertise to express opinions in relation to the subject matter of Mr Pumphrey's opinions set out at [4] of the joint statement. As indicated earlier, Mr Munday is the Manager of the Bassendean SES, which is a 'volunteer role'.[74] In his witness statement, Mr Munday gives evidence in relation to emergency response by DFES, SES and Police in the event of flooding, but does not profess any expertise in relation to the matters referred to at [4] of his joint statement with Mr Pumphrey.
[74] Witness Statement of Gordon Munday (Exhibit 14) at [1].
Furthermore, during concurrent evidence, Mr Algeri expressly asked Mr Munday and Mr Pumphrey about [4] of their joint statement as follows:[75]
ALGERI, MR:   All right. My final questions are in respect to your joint statement then, so thank you for that. Mr Munday, this is probably a question for you, because I'm trying to make sense of paragraph number 4, 4(a) and (g). Do you disagree with Mr Pumphrey or simply do not have the technical expertise to comment on these matters, because I just wasn't clear from at least the way it was written?
WITNESS, MUNDAY:   As as I said to Mr Pumphrey at the time, I can't either disagree or agree because I don't have the technical knowledge. It's outside of my level of expertise in in my role within the SES.
ALGERI, MR:   Okay. And, Mr Pumphrey, you feel that you are qualified and with the expertise to make those observations.
WITNESS, PUMPHREY:   Yes, correct. I've had experience across emergency management and PPRR and emergency management. I've worked with Local Government as community emergency services manager advising them on planning issues and on emergency management issues and risk management issues. I've had experience working for the State government through DFES working on these issues, so I'm confident that I can take the information that was provided by the applicant and the respondent and make those two judgments that I made.
[75] ts 97, 20 June 2018.
Mr Munday was therefore given the opportunity by the advocate who called him to address whether he has relevant qualifications and experience to express expert opinions in relation to the matters referred to at [4] of the joint statement, and Mr Munday confirmed that 'I can't either disagree or agree because I don't have the technical knowledge' and 'it's outside my level of expertise in in my role within the SES'.
The Tribunal did not err in law in determining that Mr Munday does not hold technical expertise or qualifications to express an opinion on whether the subdivision would increase risks to residents and emergency personnel. Mr Munday himself clearly and expressly conceded that he does not have expertise to give evidence in relation to whether development on proposed Lot 2 would place people or property at risk from flood events or expose additional members of the community to flood hazards and emergency personnel to increased risk of performing additional rescues.
Furthermore, the Tribunal did not err in law in failing to have regard to the evidence of Mr Munday. It is clear from the Tribunal's reasons that it did indeed have regard to Mr Munday's evidence in relation to matters as to which he has expertise. In the conclusion to the reasons, the member referred to 'the risks and hazards enumerated by Mr Munday and Mr Pumphrey in their evidence'.[76]
[76] ts 6, 22 June 2018.
Ground 6 is not made out.

Ground 7 'The Tribunal erred in coming to the conclusion that the risk of rescues in the floodway was greater than the risk of rescues in the flood fringe, and that the approval of this subdivision increases that risk, in circumstances where the evidence did not support that conclusion'

Mr Bethune submits that the evidence before the Tribunal 'confirms that the risk is the same in either the flood fringe and flood way [sic]' and that, therefore, 'the only increase in risk that could be attributed to this subdivision is the increase in the potential number of people requiring evacuation'.[77]
[77] Grounds of review and legal submissions dated 6 September 2018 at [57].
It is clear, on its face, that this ground does not involve a question of law, but rather seeks to challenge a finding of fact 'that there is a difference between the floodway and the flood fringe and a consequent difference in the risk to future residents and emergency personnel'.[78]
[78] ts 6, 22 June 2018.
Furthermore, and in any case, there was certainly evidence before the Tribunal on which it was open for Member Moore to find that development in the floodway involves greater risk to residents and emergency personnel than development in the flood fringe. Mr Rodgers gave evidence that 'largely the flood fringe would be a lot shallower [than the floodway]'.[79] Dr Davies gave evidence that the hazard in the flood fringe is 'not always' the same as in the floodway, thereby indicating that there will be times when the hazard in the flood fringe is different to the hazard in the floodway.[80] Furthermore, as Member Moore said after referring to the joint evidence of Dr Davies and Mr Rodgers that 'similar flood hazard conditions to the subject site exist in parts of the flood fringe':[81]
… and the only difference between the floodway areas and similar areas of flood fringe is that the distance to higher ground above the level of flooding is typically longer from the floodway.
[79] ts 51, 20 June 2018.
[80] ts 51, 20 June 2018.
[81] ts 5, 22 June 2018.
Mr Pumphrey gave evidence that although he and Mr Munday agreed in their joint statement that it is possible to conduct rescues in both the floodway and the flood fringe:[82]
… the catch really is you're travelling further to get to the floodway, so you're travelling further from the point of safety. So whilst not necessarily technically more complex, it's definitely more dangerous, or potentially more dangerous to that creek, requiring more information and better risk assessment prior to doing it, which may rule out those options.
[82] ts 84-85, 20 June 2018.
Mr Munday did not disagree with Mr Pumphrey's evidence in this respect, although he said that rescues in the flood fringe can also be dangerous, because 'there's a lot more hazards in the flood fringe area because they [sic] are usually more residents' with more 'potential for debris'.[83]
[83] ts 85, 20 June 2018.
Thus, there was certainly evidence before the Tribunal, which it was open for the Tribunal to accept, that development in the floodway involves greater risk to residents and emergency personnel than development in the flood fringe, because of the difference in water level relative to ground level in the floodway, as opposed to the flood fringe, and the greater distance to safety from the floodway than from the flood fringe.

Finally, I note that the Tribunal did not refuse to grant subdivision approval because development in the floodway involves greater risk than development in the flood fringe. Rather, the Tribunal refused to grant subdivision approval, because the creation of an additional lot 'would facilitate an increase in the number of properties and, consequently, the number of people living in this floodway and exposed to the risks and hazards … [and] also increase the risk to emergency personnel …',[84] and would create an adverse planning precedent.[85]
[84] ts 6, 22 June 2018.
[85] ts 7, 22 June 2018.
Ground 7 is not made out.

Conclusion

The Tribunal did not err in law in any of the respects alleged in the grounds of review. The application for review by a judicial member should be dismissed and the determination of the Tribunal should be affirmed.
For these reasons, I make the following orders:
1.The application for review by a judicial member is dismissed.
2.The determination made by the Tribunal in proceeding DR 242 of 2017 on 22 June 2018 is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry
5 APRIL 2019