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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASAT 18
Decision Date: 5 APRIL 2019

CaseChat Overview and Summary

Bethune brought an application to the Western Australian Planning Commission for approval of a two-lot subdivision within the Swan River floodway. The Commission refused approval, and Bethune sought review of that decision by the Western Australian State Administrative Tribunal. The Tribunal affirmed the Commission's decision, finding that approval of the subdivision would facilitate an increase in the number of residents in the floodway, thereby increasing the risks to those residents and emergency personnel during flooding. The Tribunal also found that approval of the application would set an adverse planning precedent. Bethune appealed the Tribunal's decision to the Supreme Court of Western Australia, seeking judicial review of the Tribunal's determination. The appeal raised several grounds, including whether the Tribunal erred in law, whether it misconstrued the provision of the local planning strategy, and whether it failed to give adequate reasons for its decision.

The Supreme Court found that the Tribunal did not err in law and that it properly considered the relevant planning framework, including the local planning strategy. The court held that the Tribunal's reasons were legally adequate and elucidated the process of reasoning applied by the Tribunal. The court also found that the Tribunal properly assessed the risks associated with a flood event and did not fail to afford procedural fairness by cutting off expert witnesses. Furthermore, the court held that the Tribunal did not err in determining that there was a difference in the depth of water between the floodway and the flood fringe, and that the risk of rescues in the floodway is greater than the risk of rescues in the flood fringe.

The Supreme Court dismissed Bethune's appeal and affirmed the Tribunal's decision. The court held that the Tribunal properly exercised its discretion in refusing approval of the subdivision application, and that the Tribunal's decision was not flawed by any error of law or failure to give adequate reasons. The court also found that the Tribunal's reasons were sufficient to enable the unsuccessful party to evaluate the prospects of success on appeal and to enable the court to evaluate the process of reasoning if the appeal was brought.

The final orders of the Supreme Court were that Bethune's appeal be dismissed with costs. The court also ordered that the costs of the appeal be paid by Bethune to the Western Australian Planning Commission within 28 days of the date of the judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.