Bhatti and City Of Belmont - [2014] WASAT 166

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BHATTI and CITY OF BELMONT [2014] WASAT 166

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 25 NOVEMBER 2014

DELIVERED : 9 DECEMBER 2014

FILE NO/S: DR 218 of 2014

BETWEEN: MUMTAZ AHMED BHATTI
ANTHONY GALLUCCIO
HEALTHER MAY CAMPBELL GALLUCCIO
ROBERT GARY BRODERICK
JOHN DA CRUZ
MATHIEU BERNARD MARIE CUVIT
Applicants
AND
CITY OF BELMONT
Respondent
ASSURED HOSPITALITY PTY LTD
Proposed Intervener

Catchwords:

Practice and procedure Town planning Change of use from serviced apartment to multiple dwelling Whether Class 1 planning application Whether applicants could validly elect that no party to the application is to be represented by a legal practitioner under s 239(1) of the Planning and Development Act 2005 (WA) Whether application for review is an application described in s 237A(2) of the Planning and Development Act 2005 (WA) Whether 'value' in expression 'a development application to commence a development of a value of less than $250 000 ...' in s 237A(2)(a) of the Planning and Development Act 2005 (WA) refers to cost of carrying out proposed development or to monetary worth of development once carried out Whether expression 'a development application to commence a development of a value of less than $250 000 ...' in s 237A(2)(a) of the Planning and Development Act 2005 (WA) only applies to a development application involving physical alterations to land with some degree of permanence and does not apply to a development application involving land use only Participation by third parties Intervention Leave to make submissions Whether third party has sufficient interest Whether intervention is necessary to enable the Tribunal to meet its objectives

Legislation:

Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 5, reg 6
Planning and Development Act 2005 (WA), s 3(1)(b), s 4(1), s 171A, s 237A(2), s 237A(2)(a), s 239, s 239(1), s 239(2), s 242, s 250(1), s 252(1)
Planning Appeals Amendment Act 2002 (WA), s 58(3)
State Administrative Tribunal Act 2004 (WA), s 9(a), s 9(b), s 20(1), s 31(1), s 37(3)
State Administrative Tribunal Regulations 2004 (WA), reg 10, reg 10(1)
State Administrative Tribunal Rules 2004 (WA), r 9(a), r 10
Town Planning and Development Act 1928 (WA)

Result:

Applicants' election that no party to the application is to be represented by a legal practitioner was validly made
Application by Assured Hospitality Pty Ltd for leave to intervene granted

Summary of Tribunal's decision:

The applicants sought review of the decision of the City of Belmont to refuse development approval for a change of use of four units in a strata complex from serviced apartment to multiple dwelling. The complex was originally approved as 72 serviced apartments, a licensed cafe and conference facility. The City subsequently approved the change of use of two units from serviced apartment to multiple dwelling.
No physical modifications are proposed to any of the four units and the carrying out of the proposed development does not involve any cost. In their application for review, the applicants identified the matter as a 'Class 1 application' about 'development of a value less than $250,000' and elected that no party to the application is to be represented by a legal practitioner under s 239(1) of the Planning and Development Act 2005 (WA). The applicants could only make this election if the application for review is described in s 237A(2) of the Planning and Development Act 2005. The applicants maintained that the application for review is described in s 237A(2)(a) of that Act, because it is 'an application for review of the determination of ... a development application to commence a development of a value of less than $250 000 ...' within the meaning of that provision.
The City of Belmont contested the validity of the applicants' election arguing that the application for review is not a 'Class 1 application'. The City did so on two alternative bases. First, the City contended that the word 'value' in s 237A(2)(a) of the Planning and Development Act 2005 means the monetary worth of the proposed development, equivalent to the price a purchaser is willing to pay for it, (which in this case is greater than $250,000), and not the cost of carrying out the proposed development (which in this case is nil). Alternatively, the City contended that the word 'development' in s 237A(2)(a) of the Planning and Development Act 2005 means development in the sense limited to physical alterations to land with some degree of permanence and excludes the use of land.
The Tribunal determined that, on the proper interpretation of the legislation, 'value' means the monetary worth of the carrying out of the proposed development, that is, the cost of carrying out the proposed development, not the monetary worth of the proposed development once carried out. The Tribunal also determined that, on the proper interpretation of the legislation, 'development' includes land use. The Tribunal therefore determined that the applicants' election that no party to the proceeding is to be represented by a legal practitioner is valid.
Assured Hospitality Pty Ltd, which operates a serviced apartment hotel on the land and a wholly owned subsidiary of which leases all but three of the units as well as the reception area, office, restaurant and bar and function venue for the purposes of that business, sought leave to intervene in the proceeding or, alternatively, to make submissions in relation to the application. The applicants opposed participation by Assured Hospitality Pty Ltd while the City of Belmont neither supported nor opposed that application. The Tribunal granted leave to Assured Hospitality Pty Ltd to intervene in the proceeding, because it has a direct and material interest in the proceeding and its involvement as a party is necessary for the Tribunal to be able to make the review decision fairly and according to the substantial merits of the case and to make an appropriate land use planning decision, as Assured Hospitality Pty Ltd has peculiar and direct knowledge relevant to the review.

Category: B

Representation:

Counsel:

Applicants:     Mr R Sklarski (Acting as Agent)
Respondent:     Mr CA Slarke
Proposed Intervener     :     Ms BA Moharich

Solicitors:

Applicants:     N/A
Respondent:     McLeods
Proposed Intervener     :     Flint Moharich

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

Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493
ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184
Macri v Western Australian Planning Commission [2014] WASC 153
Shire of AugustaMargaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55
University of Western Australia v City of Subiaco (1980) 52 LGERA 360
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29
Western Australian Planning Commission v Dungey [2010] WASC 52
Yum Restaurants International and City of Rockingham [2008] WASAT 136

REASONS FOR DECISION OF THE TRIBUNAL:

Preliminary issues

The applicants own four lots in Strata Plan 41685 which comprises a total of 73 lots in two buildings at No 150 Great Eastern Highway, Ascot (land). The applicants are Mr Mumtaz Bhatti, who owns Lot 17 on Strata Plan 41685 (Unit 107, 150 Great Eastern Highway, Ascot), Mr Anthony and Ms Heather Galluccio, who own Lot 18 on Strata Plan 41685 (Unit 108, 150 Great Eastern Highway, Ascot), Mr Robert Broderick, who owns Lot 33 on Strata Plan 41685 (Unit 211, 150 Great Eastern Highway, Ascot), and Mr John Da Cruz and Mr Mathieu Cuvit, who own Lot 54 on Strata Plan 41685 (Unit 408, 150 Great Eastern Highway, Ascot). The applicants' units are located on Level 1 (Units 107 and 108), Level 2 (Unit 211) and Level 4 (Unit 408) of a six storey building.
In November 2001, the Western Australian Planning Commission granted development approval for the construction and use of the buildings on the land as 72 serviced apartments, a licensed café and conference facility (and for the construction and use of two buildings comprising 66 multiple dwellings on what is now the adjoining property at No 152 Great Eastern Highway, Ascot). Subsequently, development approval was granted by the City of Belmont (City or Council) for a change of use of two of the units on the land from serviced apartment to multiple dwelling.
Assured Hospitality Pty Ltd (Assured Hospitality) has operated the Ascot Quays Apartment Hotel on the land since the buildings were completed in March 2003. A wholly owned subsidiary of Assured Hospitality leases 69 of the 72 units on the land together with Lot 73 on Strata Plan 41685, which comprises the reception area, office, restaurant and bar and function venue, for the purposes of Assured Hospitality's apartment hotel business. The current leases expire on 30 April 2017, with options extending to April 2023.
In December 2013, the applicants each sought development approval from the City for a change of use of their units from serviced apartment to multiple dwelling. No physical modifications are proposed to any of the four units. Each development application states that the '[a]pproximate cost of proposed development' is '$Nil'.
On 9 June 2014, the City refused to grant development approval for the change of use for four reasons. The Council's reasons for refusing development approval (as modified in its decision upon reconsideration under s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on 4 September 2014) are as follows:
1The storerooms for Strata Lots 17, 18, 33 and 54 do not comply with the 'design principles' under Clause 6.4.6 of State Planning Policy 3.1 (Residential Design Codes).
2The proposal does not demonstrate that an adequate bin storage area and appropriate rubbish collection arrangements can be accommodated on the subject site to satisfy the requirement of Clause 6.4.6 C6.2 of State Planning Policy 3.1 (Residential Design Codes).
3The location of the proposed Multiple Dwellings are incompatible in the setting of the predominant existing Serviced Apartment development, and is likely to increase the potential for conflict between occupants of the different land uses, contrary to the objectives of Clause 10.2(i) and (j) of Local Planning Scheme No. 15.
4Approval of the proposal is contrary to the principles of orderly and proper planning, in that allowing land use changes of individual units within the subject complex in an uncoordinated manner is prejudicial to the development complex for which planning approval was granted by the Western Australian Planning Commission on 13 November 2000.
On 3 July 2014, the applicants sought review by the Tribunal of the City's decision to refuse development approval under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) (although the application erroneously refers to the enabling Act provision as s 250(1) of the PD Act). The application form identifies 'Class 1 appeals' as 'those set out in section 237A(2) of the [PD Act]' and states the terms of that subsection (quoted later in these reasons). The application form then contains a section entitled 'CLASS 1 INFORMATION' stating that it is 'to be completed for a Class 1 application'. The applicants completed this section of the application form indicating that the application for review is a Class 1 application about 'development of a value less than $250,000'. In response to the question in the 'CLASS 1 INFORMATION' section of the application form 'Do you want to elect that no party be represented by a lawyer?', the applicants said 'Yes'.
The City has contested the validity of the applicants' election in their application to the Tribunal that no party is to be represented by a lawyer. The City contended that, on the proper interpretation of s 237A(2) of the PD Act, the review application is not a 'Class 1 application' and therefore that the applicants are not entitled to elect that no party is to be legally represented.
Assured Hospitality has sought leave to intervene in the proceeding under s 37(3) of the SAT Act or, alternatively, to make submissions in respect of the application under s 242 of the PD Act.
In this context, the following two issues were identified for determination by the Tribunal as preliminary issues:
1)Whether the application for review is an application described in s 237A(2) of the PD Act and therefore whether the applicants could validly elect, at the time the application was made, that no party to the application is to be represented by a legal practitioner under s 239(1) of the PD Act.
2)Whether leave should be granted to Assured Hospitality to intervene in the proceeding under s 37(3) of the SAT Act or, alternatively, to make submissions in respect of the application under s 242 of the PD Act.
I will set out the legal framework and principles and address each of the preliminary issues in turn.

Is the applicants' election that no party is to be represented by a legal practitioner valid?

Legal framework and principles

Section 239 of the PD Act states as follows:
(1)In the case of an application described in section 237A(2) the applicant may, at the time the application is made, elect that no party to the application is to be represented by a legal practitioner.
(2)If an applicant makes an election under subsection (1), no party to the application is entitled to be represented by a legal practitioner unless
(a)the President, being of the opinion that the application is likely to raise complex or significant planning issues, directs that the parties may be so represented; or
(b)the President, having regard to whether the application involves a question of law, directs in any other case that the parties may be so represented; or
(c)the applicant is a legal practitioner; or
(d)the applicant withdraws the election.
Section 237A(2) of the PD Act, which is referred to in s 239(1) of the PD Act, states as follows:
The State Administrative Tribunal is to be constituted by one Tribunal member when it is dealing with an application for a review of the determination of, or conditions imposed in respect of
(a)a development application to commence a development of a value of less than $250 000 or such other amount as is prescribed by regulations made under the State Administrative Tribunal Act 2004; or
(b)a development application to commence a development of a single house on a single lot where the development is of a value of less than $500 000 or such other amount as is prescribed by regulations made under the State Administrative Tribunal Act 2004, or any development ancillary to that development; or
(c)an application for approval to subdivide a lot into not more than 3 lots.
No 'other amount' has been prescribed by regulations made under the SAT Act for the purposes of either paragraph (a) or (b) of s 237A(2) of the PD Act.
Applications described in s 237A(2) of the PD Act are commonly referred to as 'Class 1 applications' or 'Class 1 appeals'. This terminology is not found in the PD Act, but rather in reg 10 of the State Administrative Tribunal Regulations 2004 (WA) (SAT Regulations) which prescribes fees for applications under various enabling Act sections of the PD Act, including s 252(1), by reference to whether the application is a 'Class 1 application' or a 'Class 2 application'. Regulation 10(1) of the SAT Regulations defines 'Class 1 application' to mean an application under one of the identified enabling Act sections in relation to:
(a)a development with a value of less than $250 000.00; or
(b)a development that is a single house with a value less than $500 000.00 on a single lot; or
(c)a subdivision of a lot into not more than 3 lots[.]
Regulation 10(1) of the SAT Regulations defines 'Class 2 application' to mean an application under one of the identified enabling Act sections 'that is not a Class 1 application.'
The applicants contended that the application for review in this case is described in paragraph (a) of s 237A(2) of the PD Act, because it is 'an application for a review of the determination of … a development application to commence a development of a value of less than $250 000 …'. In contrast, the City contended that the application for review does not fall within this expression.
The first preliminary issue, therefore, turns on the proper interpretation of s 237A(2)(a) of the PD Act. In particular, the first preliminary issue turns on whether, on its proper interpretation, the word 'value' in this provision means the cost of carrying out the proposed development (as contended by the applicants) or rather the monetary worth of the proposed development once carried out (as contended by the City). The first preliminary issue also turns on whether, on its proper interpretation, the word 'development' in this provision means development in the sense limited to physical alterations to land with some degree of permanence and excludes the use of land (as contended, alternatively, by the City).
In Western Australian Planning Commission v Dungey [2010] WASC 52 (Dungey), an appeal from a decision of the Tribunal to the Supreme Court which concerned the scope of the right of election conferred by s 239(1) of the PD Act and which turned on the proper interpretation of that provision, Beech J set out the following principles of statutory interpretation at [27] [32]:
27The starting point for the construction of a statute is the text. Statutory construction is a 'text based activity': Alcan (NT) Alumina Pty Ltd v Commissioner of Northern Territory Revenue [2009]HCA 41; (2009) 239 CLR 27 [4], [47]; Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 [16]. In Alcan Hayne, Heydon, Crennan and Kiefel JJ said the following about the task of statutory construction:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy [47].
28In that passage, their Honours referred to the limits of the use of historical considerations and extrinsic materials when the text has a clear meaning. As I will later explain, and as counsel for the respondent concedes, in this case the text does not have a clear meaning.
29It is well established that the language of the words of the statute must be interpreted having regard to their context and the legislative purpose. Context is used in a wide sense: Alcan [4]; Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [153] - [155]. For convenience, I repeat the statement of principles set out in Mijatovic.
In determining a question of construction of statutes, attention is to be given to considerations of context, object, and inconvenience or improbability of result.
In Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 [11] McHugh ACJ, Gummow and Hayne JJ restated the following principles of statutory interpretation, by reference to earlier authorities:
In Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 112, McHugh J observed:
'[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.'
His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. There, Brennan CJ, Dawson, Toohey and Gummow JJ said (408):
'It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363, 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.' (footnotes omitted)
In the passage from CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408, set out above, Brennan CJ, Dawson, Toohey and Gummow JJ cited with approval the reasons of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 - 321, where their Honours said:
If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.
... the propriety of departing from the literal interpretation is not confined to situations described by these labels [namely absurd, extraordinary, capricious, irrational or obscure]. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
30By s 18 of the Interpretation Act 1984 (WA) a construction that would promote the purpose or object underlying a written law (whether that purpose is expressly stated in a written law or not) shall be preferred to a construction that would not promote the purpose or object. That section is not directed to a construction which better achieves the object of an Act. Rather, the section assists when there is a choice between a construction that would promote the underlying object or purpose of the Act, and one which would not: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, 262. Nevertheless, as the principles set out above demonstrate, quite apart from the Interpretation Act, at common law the court has regard to the evident purpose and context, in its wide sense, when construing legislation.
31A provision of a statute must be construed consistently with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].
32Section 19 of the Interpretation Act identifies extrinsic material which a court may consider in order to confirm the meaning of a provision in a written law, or to determine the meaning of a provision where there is ambiguity or obscurity in its ordinary meaning. Such material includes any explanatory memorandum relating to the Bill and the Second Reading speech. However, secondary materials must not be substituted for the text of the legislation: K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501 [53]. The words of the statute, not non-statutory words seeking to explain them, are of paramount significance: Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 [22]; see also [82] [84].

Does 'value' mean the cost of carrying out the development or the monetary worth of the development once carried out?

The applicants contended that, on its proper interpretation, the word 'value' in paragraph (a) of s 237A(2) of the PD Act 'can only properly refer to the value of the physical modifications involved in the Development Application'. It is common ground that no physical modifications are proposed to any of the four strata lots. The applicants, therefore, submitted that the application for review is in respect of the determination of a development application to commence a development of a 'value' of less than $250,000.
In contrast, the City contended that the 'value' of a development for the purposes of s 237A(2) of the PD Act means 'the monetary worth of the development, not just the cost of any physical works required to produce it'. The City referred to the following apposite meanings of the nouns 'cost' and 'value' in the Macquarie Dictionary (5^th edition, 2009) in support of a submission that 'cost and value are not equivalent terms':
cost … the price paid to acquire, produce, accomplish, or maintain anything: the cost of a new car is very high. (Page 386)
value … material or monetary worth, as in traffic or sale: even the waste has value. (Page 1819)
The City submitted as follows:
In the context of a proposed development, the ordinary and natural meaning of the 'value' of a development is its monetary worth, not the cost of producing it.
The monetary worth of a multiple dwelling at 150 Great Eastern Highway is equivalent to the price a purchaser is willing to pay for it. In that sense, each of the four strata lots proposed to be used as multiple dwellings has a value greater than $250,000 see Statement of Agreed Facts, paragraph 16.
Paragraph 16 of the statement of agreed facts (Exhibit 1) is that '[e]ach of the four strata lots the subject of the review has a value greater than $250,000' (in the sense contended by the City).
The City submitted that, had the Parliament intended that 'value' in s 237A(2) of the PD Act means 'cost', it could easily have said so expressly. Ms BA Moharich, counsel for Assured Hospitality, supported the City's submission that 'value' is different to 'cost' by reference to reg 5 and reg 6 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations). Regulations 5 and 6 of the DAP Regulations prescribe the classes of development applications that are required to be determined by a Development Assessment Panel for the purposes of s 171A of the PD Act by reference to the 'estimated cost' of the proposed development. Ms Moharich submitted that the reference to 'estimated cost' in reg 5 and reg 6 of the DAP Regulations indicates that the word 'value' in s 237A(2) of the PD Act is intended to convey a different meaning to 'cost'.
Mr CA Slarke, counsel for the City, also submitted that the City's proposed interpretation of 'value' is 'an entirely familiar concept' and that a 'developer' would not carry out a development unless the developer has determined both the cost of carrying out the development and the 'value' in the sense contended for by the City, that is the monetary worth of the development once carried out, relevantly, the monetary worth of each of the strata lots the subject of the development applications as a multiple dwelling.
In my view, on its proper interpretation, the word 'value' in s 237A(2)(a) of the PD Act means the monetary worth of the carrying out of the proposed development, that is, the cost of carrying out the proposed development, not the monetary worth of the proposed development once it is carried out. The following factors support this interpretation.
First, as Beech J said in Dungey at [27], '[t]he starting point for the construction of a statute is the text.' The terms 'development application' and 'development' are defined in s 4(1) of the PD Act, for the purposes of that Act 'unless the contrary intention appears', as follows:
development application means an application under a planning scheme, or under an interim development order, for approval of development;
development means the development or use of any land, including
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a Conservation Order made under section 59 of the Heritage of Western Australia Act 1990 applies, any act or thing that
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building[.]
The expression in the definition of 'development' in s 4(1) of the PD Act provides a textual indication that the 'value' of 'development' which is to be determined under s 237A(2) of the PD Act refers to a process, rather than to a product. It is the carrying out of the 'development', not the result of the 'development', that is to be valued. This is apparent both from the words 'the development or use of any land' in the first part of the definition of 'development' and the expression in the inclusive part of the definition, namely (emphasis added) 'any demolition, erection, construction, alteration of or addition to any building or structure on the land', 'the carrying out on the land of any excavation or other works' and 'any act or thing' in the case of a place to which a Conservation Order applies with stated consequences. Thus, the 'value' of the 'development' is the value or monetary worth of the carrying out of the development proposed in the development application, that is, the cost of carrying it out.
A second textual indication to this effect is provided by the words 'to commence' in s 237A(2) of the PD Act. The words 'to commence' indicate that the 'value' of the development that is referred to is the monetary worth of the carrying out the proposed development, that is, the cost of carrying it out.
Thirdly, the City's proposed interpretation would be contrary to the legislative purposes of affording an applicant in a Class 1 application a right of election under s 239(1) of the PD Act that no party is to be represented by a legal practitioner, namely, ensuring that the review process is as informal as possible and enabling an applicant to minimise his or her costs of exercising a right of review. As the meaning of the word 'value' in s 237A(2) of the PD Act is unclear, it is permissible and appropriate to refer to extrinsic materials, including the Second Reading speech. The Minister's Second Reading speech in introducing the Planning Appeals Amendment Act 2002 (WA) included the following in relation to s 58(3) of that Act (now re-enacted in substantially identical terms in s 239(1) of the PD Act):
To ensure the appeals process is as informal as possible, legal representation for the more simple appeals mentioned previously would be elected by the appellant at the time the appeal is lodged. (Western Australia, Parliamentary Debates, Legislative Assembly, 28 June 2001, 1583 (The Hon A MacTiernan, Minister for Planning and Infrastructure)) (see Dungeyat [53] where Beech J determined that this sentence relates to s 58(3) of the Planning Appeals Amendment Act 2002).
The 'more simple appeals' that the Minister 'mentioned previously' were described by her earlier in the speech as follows:
For more simple cases developments of less than $250,000, subdivisions of not more than three lots, and other classes of appeal set out in the Town Planning Appeal Tribunal rules … .
In Dungey at [55], Beech J accepted a submission that the purpose of s 239 of the PD Act is 'to permit an appellant [applicant] to elect to reduce his or her own costs without a consequent disadvantage as against the other side, thereby ''ensuring a level playing field'' …'.
It would be contrary to the legislative purposes of ensuring that the review process in relation to a Class 1 application is as informal as possible and enabling an applicant in a Class 1 application to minimise his or her costs of exercising a right of review, to require the applicant to obtain a valuation of the price a purchaser is willing to pay for the development before the applicant can make an election that no party to the application is to be represented by a legal practitioner under s 239(1) of the PD Act.
Contrary to the City's submission, it is not likely that a 'developer' who has made a development application which would cost less than $250,000 to carry out would obtain a valuation of the price a purchaser is willing to pay, particularly if the proposed development is not being carried out in order to sell the land, prior to lodging the development application. In contrast, any applicant for development approval is likely to be aware of the approximate cost of carrying out the proposed development. Indeed, the development application forms completed by the applicants and lodged with the City seeking approval for the proposed development in this case require the identification of 'Approximate cost of proposed development'. As noted earlier, the development applications lodged by the applicants with the City state that the approximate cost of the proposed development in this case is '$Nil'.
The City's proposed interpretation would involve significant uncertainty as to whether a right of election exists and significant cost to an applicant in having to obtain a valuation of the price a purchaser is willing to pay. Furthermore, an application for review is required to be commenced under r 9(a) of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) within 28 days of the day on which the original decisionmaker gives the applicant written notice of the decision and of the right of review under s 20(1) of the SAT Act (although the Tribunal has a discretion under r 10 of the SAT Rules to extend the time for commencement of a proceeding). It could not have been the intention of the legislation to require an applicant seeking approval for a development, costing less than $250,000 to carry out, to have to obtain a valuation of the price a purchaser is willing to pay for the development within 28 days of the reviewable decision, in order to be able to elect that no party to the application is to be represented by a legal practitioner.
Fourthly, if the City's proposed interpretation of s 237A(2)(a) of the PD Act were correct, it would mean that the 'value' of precisely the same development costing precisely the same amount to carry out would vary in different localities having regard to differences in land values in those localities. It could not possibly have been the intention of Parliament to deny an applicant a right of election that no party to the application is to be represented by a legal practitioner under s 239(1) of the PD Act, because of the underlying value of land in the locality in question. Furthermore, it could not possibly have been the intention of Parliament to 'discriminate' between applicants depending on the locality in which they propose to undertake a development or to treat developers of identical developments differently.
Fifthly, not all development has or is capable of having a 'value' in the sense of 'the price a purchaser is willing to pay for it'; for example, a retaining wall or some other structure desired by the current owner of the land, but not by a purchaser. In contrast, all physical development, at least, involves a cost in carrying it out.
Sixthly, the City's proposed interpretation involves uncertainty as to whether the 'value' of the 'development' should be discounted by the predevelopment value of the land. For example, in this case, would the 'value' of the 'development' be the price a purchaser is willing to pay for a multiple dwelling or that price less the price a purchaser would be willing to pay for a serviced apartment?
Finally, although reg 5 and reg 6 of the DAP Regulations use the expression 'estimated cost' with respect to development, in my view, this does not bear on the proper interpretation of s 237A(2) of the PD Act, because although the DAP Regulations are made under the PD Act, a provision of an Act cannot be interpreted by reference to the choice of language in subsidiary legislation, much less by reference to subsidiary legislation made some years after the legislative provision in question was enacted.

Does 'development' exclude land use?

The City also advanced an alternative contention in relation to the proper interpretation of s 237A(2)(a) of the PD Act in support of its argument that the applicants' election is invalid. The City referred to the wellknown statement by Burt CJ in University of Western Australia v City of Subiaco (1980) 52 LGERA 360 at 363 364 that the term 'development' as it was defined under the former Town Planning and Development Act 1928 (WA) (and as it is currently defined in s 4(1) of the PD Act set out earlier) 'makes use of and encompasses two ideas' as follows (citations omitted):
The first is the 'use' of the land which 'comprises activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself'[.]
The City contended that:
If the value of a development for the purposes of section 237A(2)(a) means, or is equivalent to, the cost of making physical alterations to land [which, for reasons set out earlier, in effect it does], the term 'development' in section 237A(2)(a) should be construed to apply only to a development application which involves carrying out physical alterations to land, and to exclude a development application only for a use.
The City made essentially three submissions in support of this contention. First, the City submitted that the fact that 'land use applications will always involve a development of a nil value' indicates that s 237A(2)(a) of the PD Act is not intended to apply to a development application for a change of use. The City submitted that it 'only makes sense' to apply a threshold value test based on the cost of physical works if physical works are actually proposed.
Secondly, the City submitted that there is contextual support for its proposed alternative interpretation of paragraph (a) of s 237A(2) of the PD Act in the terms of paragraph (b) of that subsection. The City pointed out that s 237A(2)(b) uses the same concept of 'a development application to commence a development' of a value less than a specified amount in the context of 'a single house'. The City submitted that '[s]uch a development application necessarily involves physical works and an associated cost' and that this suggests that s 237A(2)(a) 'is intended to likewise apply [only] to physical works.'
Thirdly, the City referred to the legislative purposes of s 237A(2) and s 239(1) of the PD Act of minimising formality and cost in relation to more simple review proceedings and submitted that although the thresholds set out in s 237A(2)(a) and (b) 'provide a convenient, if arbitrary, demarcation below which the starting presumption is [that] the development is unlikely to raise complex or significant planning issues', this has no application in relation to land use where the cost is nil. The City submitted that it would be 'incongruous' with the legislative purposes if all use applications, such as extractive industries, continuation of timelimited developments, changes of use from shop to liquor store, or changes of use from serviced apartment or multiple dwelling, were assumed to be of limited planning complexity or significance, as these applications are often highly complex.
Although I was initially attracted to the City's contention that s 237A(2)(a) only applies to a development application proposing physical development of land, and does not apply to a development application proposing only the use of land, I consider that this interpretation is incorrect for the following reasons.
As noted earlier, the defined meaning of the term 'development' in s 4(1) of the PD Act as meaning 'the development or use of any land …' (emphasis added) applies in the PD Act 'unless the contrary intention appears'. I do not consider that the 'contrary intention appears' to the application of the defined meaning of the term 'development' as including both physical development and use of land in s 237A(2)(a) of the PD Act.
Contrary to the City's submission, it does not 'only [make] sense' to apply a threshold value test based on the cost of physical works if physical works are actually proposed. The demarcation relates to the cost of carrying out a proposed development. The Parliament has determined that if it will cost an applicant less than $250,000 (or $500,000 in the case of a single house on a single lot) to carry out a development for which the applicant seeks approval in a review proceeding, then the applicant has a right to elect that no party to the application is to be represented by a legal practitioner. As the legislative purposes of conferring the right of election are to minimise formality and cost when the cost of carrying out a proposed development is less than the threshold, it certainly 'makes sense' to apply a threshold value test based on physical works even if no physical works are proposed, because the development for which the applicant seeks approval in the review proceeding will not cost the applicant anything to carry out.
Furthermore, it is common for a single development application to propose both a change of use and physical works necessary to facilitate the change of use. It could not have been the intention of the legislation to confer a right of election upon an applicant seeking a change of use merely because the applicant proposes some minor physical works to facilitate the change of use and not to confer a right of election where an applicant does not propose any physical works to facilitate a change of use. Furthermore, it could not have been the legislative intention to confer a right of election upon an applicant in relation to a part of a development application that seeks approval for minor physical works, but not in relation to a part of the development application that proposes a change of use.
The contextual argument by reference to paragraph (b) of s 237A(2) of the PD Act does not indicate a contrary intention to the application of the defined meaning of 'development' in s 4(1) of the PD Act to paragraph (a) of s 237A(2) of the Act, because 'a development of a single house on a single lot' involves not only physical development, but also land use. Indeed, development applications expressed in terms of proposed physical development often also, at least implicitly, propose and seek approval for development in terms of land use within or associated with the proposed physical development.
Finally, the City's submission referring to the purposes of s 237A(2) and s 239(1) of the PD Act of minimising the formality and cost of more simple review proceedings by conferring a right of election that no party is to be represented by a legal practitioner upon applicants in such cases, whereas applications for a change of use may involve complexity, does not indicate a contrary intention to the application of the defined meaning of 'development' as including land use in s 237A(2)(a). Although it is correct that some development applications proposing a change of use may raise complex or significant planning issues, other development applications proposing a change of use may not. An obvious example would be a home occupation involving no other employee than the home owner, having no clients visit the premises and involving no goods deliveries.
Furthermore, the PD Act expressly contemplates that there may be cases falling below the monetary thresholds in s 237A(2) of the PD Act where an applicant has elected that no party is to be represented by a legal practitioner which are nevertheless likely to raise complex or significant planning issues or questions of law. Thus, s 239(2) of the PD Act enables the President to direct that the parties may be legally represented, notwithstanding an election by an applicant to the contrary under s 239(1) of the PD Act, where the President is of the opinion that the application is 'likely to raise complex or significant planning issues' or where the application involves a question of law.

It is open to the City to make an application to the President under s 239(2) of the PD Act and, indeed, the City foreshadowed such an application if the applicants' election in this case is found to be valid. It is strongly arguable that this case is likely to raise complex or significant planning issues in terms of the City's third and fourth reasons for refusal. However, the determination of that issue is a matter for the President alone under s 239(2)(a) of the PD Act.

Is the applicants' election valid?

The applicants' application to the Tribunal in this proceeding is for a review of the determination of four development applications each to commence a development of a value of less than $250,000 and is, therefore, an application described in s 237A(2) of the PD Act. Consequently, the applicants could validly elect, at the time the application was made, that no party to the application is to be represented by a legal practitioner under s 239(1) of the PD Act. The applicants' election to that effect is therefore valid.

Should leave be granted to Assured Hospitality to intervene or to make submissions?

Legal framework and principles

Section 37(3) of the SAT Act states as follows:
The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit.
The applicable principles in relation to intervention were stated by Deputy President Judge Chaney (as his Honour then was) in ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184 (ING) at [28] as follows (citations omitted):
In my view, the authorities and statutory provisions referred to above lead to the conclusion that in relation to applications under the PD Act:
(i)to be granted leave to intervene, a person must demonstrate at least an interest sufficient to meet the test for standing identified in Australian Conservation Foundation;
(ii)merely demonstrating a sufficient interest does not by itself enliven a right to intervene;
(iii)an incorporated or unincorporated body will not gain standing to intervene merely because it has constitutional objects directed to promoting outcomes relevant to the matter under a review. Similarly private citizens will not gain standing to intervene merely because they hold strong beliefs or emotions concerning the matter under review;
(iv)although the third party's interest may not necessarily be a legal interest (although it commonly will involve a legal interest), merely demonstrating any of the other matters referred to in s 38 of the SAT Act will not usually be sufficient to secure leave to intervene under s 37;
(v)the third party will generally need to demonstrate that its intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act (including minimising cost and avoiding delay, and the PD Act. Factors which the Tribunal will take into account when considering an application for leave to intervene will include:
•the contribution which the applicant for joinder is likely to be able to make to the proper disposition of the issues before the Tribunal;
•whether the interest which the applicant for intervention represents and the material to be advanced by that person will be adequately dealt with by the parties already before the Tribunal[;]
•the impact on the proceedings of the intervention;
•the interests of the parties before the Tribunal as of right and the public interest in the prompt and efficient dispatch of proceedings[;]
•any other matter that, in the particular circumstances of the case, justifies leave to intervene;
(vi)an intevenor, unlike a party, will ordinarily be allowed only to support or oppose a decision contended for by one or other of the parties to the proceedings and will not be permitted to expand the issues to be decided;
(vii)intervention will generally not be permitted where the third party simply seeks to argue on the very same basis as an existing party to the proceedings;
…
As I said in Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29 at [11]:
The Tribunal has a broad discretion under s 37(3) of the SAT Act to grant leave to intervene. However, the established test for intervention has two principal elements, both of which must be established by a proposed intervener in order to be granted leave to intervene. The two principal elements are:
1)The proposed intervener must demonstrate at least an interest sufficient to meet the test for standing to seek judicial review, as stated in the decision of the High Court of Australia in Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493 (ACF); and
2)The proposed intervener will generally need to demonstrate that its intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act and of the relevant enabling Act - in this case, the PD Act.
The test for standing referred to by Judge Chaney in ING, as stated by the High Court in Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493 (ACF), was articulated by Gibbs J at page 530 in ACF as follows:
…
I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi.
Mason J formulated the test in ACF at page 547 as follows:
…
Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests ... and perhaps to his social or political interests.
Section 242 of the PD Act states as follows:
The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.
As Pullin JA held in Shire of AugustaMargaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55 (Gray) at [139], a 'sufficient interest' for the purposes of s 242 of the PD Act is synonymous with a special interest that would give standing to seek judicial review in accordance with the test in ACF. If the Tribunal is satisfied that a proposed submitter has a 'sufficient interest' in a matter, then the Tribunal has a discretion as to whether to allow the person to make submissions. However, if the Tribunal is not satisfied that a proposed submitter has a 'sufficient interest', a discretion does not arise.
In Gray at [139], Pullin JA endorsed the following nonexhaustive list of factors to guide the exercise of discretion if the Tribunal is satisfied that a proposed submitter has a 'sufficient interest':
(i)the nature and strength of the interest of the proposed submitter;
(ii)the contribution the proposed submitter is likely to be able to make to the proper resolution of the issues before the Tribunal;
(iii)whether the interest that the proposed submitter represents and the material to be advanced by that person would be adequately dealt with by the parties;
(iv)the impact upon the proceeding of granting leave to make submissions;
(v)the interests of the parties; and
(vi)the public interest in the prompt and efficient despatch of the proceeding.

Assured Hospitality's evidence

Assured Hospitality called Ms Sally Ann Kelly, its Managing Director, to give evidence. Ms Kelly was not crossexamined.
Ms Kelly gave evidence that Assured Hospitality has made submissions to the City in relation to two previous development applications proposing a change of use from serviced apartment to multiple dwelling in relation to two other units in Strata Plan 41685. In one case, Assured Hospitality retained solicitors who sent a letter to the City opposing the application and attended the Agenda Briefing Forum of the City in relation to that matter. The City subsequently refused that development application. Ms Kelly attended the Agenda Briefing Forum in relation to the second development application and made a submission at that meeting. Although that development application was refused by the Council, following an application for review to the Tribunal and mediation in the Tribunal, the Council granted development approval for the change of use upon reconsideration under s 31(1) of the SAT Act. Ms Kelly attended a mediation in that proceeding on behalf of Assured Hospitality.
Ms Kelly gave evidence that she considers that the proposed change of use from serviced apartment to multiple dwelling will have a significant adverse impact for Assured Hospitality. In particular, the 'erosion of the [serviced apartment] use', as Ms Kelly described it, will have a significant financial impact on a Assured Hospitality (and also other strata owners who purchased their apartments on the basis that the building would be used as a serviced apartment business), because the restaurant/bar and function facilities operate as part of an integrated serviced apartment hotel which also includes the serviced apartments themselves. Inhouse guests make up approximately 70% of breakfast covers and 45% of dinner covers in the restaurant. Room service makes up 13% of the restaurant revenue. Ms Kelly expressed concerns that the reduction in the number of serviced apartments on the land and the introduction of permanent residents in the proposed multiple dwellings would impact on the viability of the serviced apartment business and the viability of the serviced apartment use of the land as a whole.
Ms Kelly also expressed concerns about land use conflicts that would be created by the proposed change of use. She said that people on holidays, on sporting trips or attending functions 'can sometimes be in high spirits, and it is not uncommon to get complaints from neighbouring rooms if our guests come home late, and continue their celebrations in their apartments.' She said that the nature of the serviced apartment business is that people arrive and leave at night and early in the morning to catch flights, with consequent noise in common areas. She expressed the concern that while shortterm guests may tolerate such impacts, permanent residents 'are likely to have a very different perception' and that '[t]his could have an impact on the way we operate and manage the business'.

Parties' submissions

Assured Hospitality submitted that it has a 'direct and unequivocal' interest in the proceeding, because approval of the proposed development 'will directly impact on its business both financially and physically'. It therefore submitted that it has a 'sufficient interest' to meet the test for standing in ACF. Assured Hospitality also submitted that its intervention is necessary to enable the Tribunal to meet its statutory objectives set out in s 9(a) and (b) of the SAT Act and the purposes of the PD Act. The objectives of the Tribunal set out in s 9(a) and (b) of the SAT Act are:
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties[.]
The purposes of the PD Act set out in s 3(1)(b) of that Act relevantly include:
To … provide for an efficient and effective land use planning system for the State[.]
Assured Hospitality submitted that, if granted leave to intervene, it will be in a position to:
Provide evidence on the way in which the Serviced Apartment use operates from the subject land;
Provide detailed evidence on the impact of other uses on the Serviced Apartment use;
Provide evidence regarding the financial impact the change in use of one or more of the existing apartments to 'Multiple Dwelling' will have on both Assured's business and the viability of the commercial arrangements it has with other landowners within the building;
Provide evidence regarding the practicalities of the change in use, and what that will mean to the predominant Serviced Apartment use.
Assured Hospitality also contended that, although its officers and employees may be called by the City to provide evidence in the City's case, 'these are issues which are peculiar to Assured [Hospitality], and form part of only a range of issues and considerations that will be advanced by the [City] in the discharge of its planning functions.' Assured Hospitality also submitted that its intervention is necessary for it to be able to assist the Tribunal 'in understanding the way in which the Serviced Apartment use operates and the impact the proposal will have on that use' and that Assured Hospitality's interests 'are peculiar to [it] and are not subsumed in the wider case which may be advanced by the [City][.]'
The applicants opposed Assured Hospitality's application for leave to intervene or to make submissions. The applicants characterised Assured Hospitality's interest as merely an indirect commercial interest and, relying on Yum Restaurants International and City of Rockingham [2008] WASAT 136 (Yum), submitted that this is not a 'sufficient interest' under the test in ACF. The applicants also submitted that Assured Hospitality's intervention is not necessary to meet the objectives of the SAT Act and the PD Act and that the application should be refused, in any case, because Assured Hospitality seeks to argue on the very same basis as the City.
The City neither opposed nor consented to the application for leave to intervene or to make submissions. When asked by the Tribunal whether the City would call officers of Assured Hospitality as part of its case, Mr Slarke said that, although he had not sought instructions, he could not see any reason why that would not occur.

Should leave to intervene be granted?

In my view, Assured Hospitality has a direct and material interest in the proceeding such as would give it standing to seek judicial review in accordance with a decision of the High Court in ACF. In particular, having regard to the evidence of Ms Kelly, Assured Hospitality 'is likely to gain some advantage' if the application for review is dismissed and is likely to 'suffer some disadvantage' if the application for review is allowed (in terms of the expression of Gibbs J in ACF) and can show 'actual or apprehended injury or damage to [its] … business or economic interests …' (in terms of the expression of Mason J in ACF). Assured Hospitality has a direct and material interest in the proceeding, because the development application would remove four units from being available as part of the hotel, would potentially affect the integrated nature of the restaurant/bar, function centre and accommodation parts of the hotel and would potentially introduce land use conflicts affecting its use of the land and business. Avoiding future land use conflict is a relevant planning consideration: Macri v Western Australian Planning Commission [2014] WASC 153 at [43] (Kenneth Martin J).
Assured Hospitality's interest is fundamentally different to the interest of the proposed submitter in Yum. In Yum, the only interest of a company which sought leave to make submissions in relation to a planning application under s 242 of the PD Act concerned its commercial relationship with the applicant (its former franchisor in relation to its former fast food business) and the avoidance of competition between a franchised fast food business on the proposed development site and any new fast food outlet established by the proposed submitter at its leased premises. Deputy President Judge Chaney observed and determined in Yum at [25] as follows:
Section 242 of the PD Act requires that there be demonstrated 'a sufficient interest in the matter' (emphasis added). The 'matter' is the controversy as to the planning merits of the particular proposal, and the potential use and enjoyment of the subject site. The controversy involves questions of a planning nature. The interest of [the proposed submitter] relates to its commercial relationship with Yum as a former and potential franchisor or as a competitor, and its competitive position in the Rockingham fast food industry. It has no direct interest in the proposal. The outcome of the application may indirectly affect the commercial interests of [the proposed submitter], but in my view that is not sufficient to create an interest 'in the matter'.
However, his Honour recognised at [26] that:
It does not, in my view, follow that in all cases a 'business or economic interest' is incapable of amounting to a sufficient interest for the purposes of s 242. Each case requires an examination of the relationship of the interest to the matter before the Tribunal. It would, in my view, be an error to exclude particular categories of interest as a general rule applicable to all cases. As Mason J said in Australian Conservation Foundation v Commonwealth of Australia, 'there is nothing to be gained from discussing in the abstract the broad range of interests which may serve to support a locus standi'.
In my view, unlike the proposed submitter in Yum, Assured Hospitality, being the operator of a serviced apartment hotel in buildings approved for that use and which leases all but three of the strata lots in those buildings, has a direct and material interest in the proceeding which concerns whether development approval should be granted for a change of use of four lots from serviced apartment to multiple dwelling.
Furthermore, in my view, the involvement of Assured Hospitality as a party is necessary for the Tribunal to be able to effectively meet its relevant objectives to make the review decision 'fairly and according to the substantial merits of the case' (s 9(a) of the SAT Act) and to make an appropriate land use planning decision (s 3(1)(b) of the PD Act). Assured Hospitality has peculiar and direct knowledge of the operation of the serviced apartment use and business and potential impacts of the proposed multiple dwelling use on the serviced apartment use and of the serviced apartment use on the multiple dwelling use, which is relevant to the review.
Although the City is likely to call evidence from Assured Hospitality if leave to intervene is not granted, the Tribunal would be assisted in exercising its planning discretion fairly and according to the substantial merits of the case by the involvement of Assured Hospitality as a party, in testing other evidence presented to the Tribunal and in making submissions to the Tribunal, given its direct and material interest in the proceeding and its direct and peculiar knowledge.
Furthermore, given that the City is likely to call evidence from Assured Hospitality if leave to intervene is not granted, the granting of leave to intervene is not likely to substantially increase the length of the hearing or cost to other parties. I accept Assured Hospitality's submission that there will be 'minimal impact on the conduct of the proceedings should intervention be allowed' and 'the interests of the parties in the prompt and efficient despatch of the proceedings will not be disrupted'. Granting leave to intervene in this case would therefore not be inconsistent with the objectives in s 9(b) of the SAT Act.

Finally, although Assured Hospitality would not be allowed to expand the issues identified by the City in its decision upon reconsideration made on 4 September 2014, it is not correct, as submitted by the applicants, that Assured Hospitality 'seeks to argue on the very same basis as the [City] … and its views will be advanced if the [City] remained the only party.' As Assured Hospitality submitted, although its position is 'consistent with the position adopted by the [City]', if granted leave to intervene it would '[provide] a perspective upon the impact of the proposed use which is not identical to the wider planning functions to be discharged by the [City]' and its interests are 'peculiar' to it and are 'not subsumed in the wider case which may be advanced by the [City]'.
Consequently, the application for leave to intervene by Assured Hospitality should be granted in the exercise of discretion under s 37(3) of the SAT Act.

Orders

The Tribunal makes the following orders:
1.The applicants could validly elect, at the time when the application was made, that no party to the application is to be represented by a legal practitioner under s 239(1) of the Planning and Development Act 2005 (WA), because the application for review in this proceeding is an application described in s 237A(2) of the Planning and Development Act 2005 (WA).
2.Pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA), Assured Hospitality Pty Ltd has leave to intervene in this proceeding.

I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT