Black and City Of Canning
[2015] WASAT 143
•16 DECEMBER 2015
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: DOG ACT 1976 (WA)
CITATION: BLACK and CITY OF CANNING [2015] WASAT 143
MEMBER: MR P McNAB (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 16 DECEMBER 2015
FILE NO/S: CC 897 of 2015
BETWEEN: ANNE BLACK
Applicant
AND
CITY OF CANNING
Respondent
Catchwords:
Local government Animals Inconsistency of laws Interrelationship between town planning scheme and Dog Act 1976 (WA) Whether laws inconsistent with each other Whether town planning scheme overrides Dog Act 1976 (WA) Held: laws were not inconsistent Both regulatory laws capable of operating concurrently and cumulatively Dogs required application for exemption Town planning scheme dealt with land use Town planning principles contemplated ordinary domestic keeping of animals as pets or as a hobby as ancillary to residential use Companion animals Dogs Local law prescribing maximum number of dogs in residential area Exemption sought for keeping of five dogs Factors to be considered for exemption Good Tribunal and public administration required best and most current information available Matter had yet to be properly evaluated at first instance Matter remitted for reconsideration by City of Canning Words and phrases: 'Kennel'
Legislation:
City of Canning Town Planning Scheme No 40
Dog Act 1976 (WA), s 26, s 26(3)
Planning Act 1982 (SA)
State Administrative Tribunal Act 2004 (WA), s 31(1), s 60(2)
Waterworks Act 1932 (SA)
Result:
Extension of time granted
Matter remitted for reconsideration
Summary of Tribunal's decision:
Only two dogs may be kept in the City of Canning unless the City approves otherwise. The applicant, Ms Black, wanted to keep five dogs at her residential premises. The City refused her application on the grounds that to do so would avoid a prohibition on the 'Kennel' use of land. The prohibition was found in the City's town planning scheme. The City argued that the discretion appearing in the Dog Act 1976 (WA) to permit the keeping of more than two dogs was, in effect, illusory, as the town planning scheme governed the fate of Ms Black's application.
The Tribunal disagreed. There was clear authority at the highest level that demonstrated that separate laws directed at planning controls and the regulation of dogs were capable of operating concurrently (and cumulatively). Each law had a distinct purpose. They could both comfortably work together in the same field.
Moreover, the City's consideration of the matter had apparently ignored other authority which showed that planning controls contemplated that the ordinary domestic keeping of animals as pets or as a hobby was ancillary to residential use of land. If so, a prohibition on 'Kennel' land use in residential areas would have no application to Ms Black.
Good public administration required the Tribunal to consider the 'best and most current information available' to it. The information before the Tribunal was out of date. Further, the City having been sidetracked into erroneously considering planning issues, was yet to consider the matter on its merits in accordance with the guidance offered by the Tribunal's other cases on the administration of the Dog Act 1976.
Accordingly, the matter was remitted to the City for reconsideration to be undertaken by reference to uptodate information and otherwise in accordance with the reasons of the Tribunal.
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Mr T Beckett
Solicitors:
Applicant: N/A
Respondent: McLeods
Case(s) referred to in decision(s):
Burdett v Bowden [2010] VSC 574
Drew v Baw Baw Shire Council [2006] VCAT 868; (2006) 24 VAR 339
Ho v Greater Dandenong City Council [2012] VSC 165; (2012) 188 LGERA 424
Ho v Greater Dandenong City Council [2013] VSCA 168; (2013) 194 LGERA 191
Makucha v Albert Shire Council (No 2) (1992) 81 LGERA 250
Makucha v Albert Shire Council (No 2) (1994) 85 LGERA 424 (CA)
McLeod v Shire of Harvey [2007] WASAT 44; (2007) 50 SR (WA) 257
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
South Australia v Tanner (1989) 166 CLR 161
Valestro v City of Greater Geelong [1996] VICCAT 485
Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 65
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 16 December 2014, the City of Canning (City or respondent) resolved to advise Ms Anne Black (applicant) that her application (made in the form of a petition to Council) to keep more than the prescribed number of dogs at her premises was unsuccessful (December 2014 decision).
The applicant had sought to keep five dogs at her premises. The prescribed number of dogs that may be accommodated by the applicant at her premises, without the need for any approval from the City, is two dogs.
In its letter to the applicant dated 25 May 2015, the sole reason given by the City for refusing to exercise any discretion, if any, in the applicant's favour was as follows:
[The City does] not grant an exemption in respect of the Dog Act and exceeding the limit on the keeping of dogs, as prescribed by the City's Consolidated Local Laws … as this would constitute a breach of the City's Town Planning Scheme No. 40 and consequently the Planning and Development Act 2005.
Also on 25 May 2015, the City gave the applicant a written notice (Notice), purportedly issued under s 26 of the Dog Act 1976 (WA) (Dog Act). The practical effect of the Notice was a direction by the City to the applicant to remove three of her dogs within 28 days of the Notice.
Application for review
By way of an application made to this Tribunal dated 15 June 2015, the applicant sought to have the December 2014 decision of Council set aside and in lieu thereof an approval given for the keeping of five dogs. This application was accompanied by an interim application seeking, in effect, a stay of the Notice.
On 16 June 2015, the City advised the Tribunal, entirely appropriately, that there would be no need to consider the stay application as the City would take no enforcement action until the review was finalised.
After various directions hearings in the Tribunal, on 30 July 2015, Member Eddy ordered the exchange of written submissions and that the matter then be 'determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA)'.
Application out of time
The City's written submissions raised no objection to the delay in seeking a review of the December 2014 decision. Although the time for seeking that review has long since expired, there is no prejudice to the City in pursuing the review. In any case, the substantive issues could presumably have been resolved in any review brought with respect to the Notice or other enforcement action where there may have existed rights of review in this Tribunal.
The Tribunal will therefore grant an extension of time for such period as is necessary for the bringing of a review of the December 2014 decision.
Agreed facts and documents
The parties have agreed upon the following facts said to be relevant to the review:
1.The Applicant resides at 35 Mitchell Street, Bentley (Property).
2.The Property is located within the district of the City of Canning (City).
3.The Applicant is the owner of five dogs which are kept at the Property, being:
(a)Melik ‑ male longcoat Siberian Husky;
(b)Shaina ‑ female Alaskan Malamute;
(c)Gypsie ‑ female Siberian Husky;
(d)Sookie ‑ female Siberian Husky; and
(e)Conan ‑ male Alaskan Malamute.
4.On 30 September 2014, the City received a complaint in relation to the keeping of more than two dogs at the Property.
5.On 2 October 2014, an officer of the City spoke with the [A]pplicant's brother about the dogs and confirmed that, at that time, four dogs were being kept at the Property. He was advised that no more than two dogs could be kept at the Property and that the remaining dogs would need to be re-homed.
6.On 10 October 2014, the City issued 2 caution notices to the Applicant, requiring that:
(a)two dogs be removed from the Property; and
(b)the unregistered dogs at the Property be registered and micro‑chipped.
7.On 22 October 2014, the residents of the City of Canning were advised of the Local Government Reform and that the City of Canning would need to be absorbed into the City of Gosnells, Melville, Belmont and South Perth/Victoria Park on 1 July 2015.
8.On 27 October 2014, the City received correspondence from the Applicant, requesting that the City consider a petition prepared by the Applicant and allow the Applicant to keep four dogs, and one long term foster dog, at the Property. The petition included 145 signatories in support of the Applicant's request and contained additional documents relating to the keeping of dogs at the Property.
9. At the Ordinary Council Meeting of 16 December 2014, the City refused to grant an exemption to enable the Applicant to keep 5 of the dogs at the Property, noting that the City of Canning Town Planning Scheme No. 4038802 [sic, No. 40] (Scheme) prohibited the keeping of more than two dogs at the Property.
10.In May 2015, the residents of the City of Canning were advised that the Local Government Reform would no longer go ahead for the City of Canning.
11.As at 29 [sic, 25] May 2015, there were still 5 dogs at the Property.
12.On 29 [sic, 25] May 2015, the City wrote to the Applicant giving her notice of the City's decision and confirming that the City had refused to grant an exemption to enable the Applicant to keep more than two dogs at the Property pursuant to section 26(3) of the Dog Act 1976. That notice required the excess number of dogs to be removed from the Property within 28 days.
13.On 14 June 2015, the Applicant filed an application for review with the State Administrative Tribunal, requesting a review of the City's decision of 16 December 2014.
The parties also agreed a bundle of relevant documents. These documents, which included an extract of the City's Consolidated Local Laws dealing with dogs (Part VI), were filed in the Tribunal on 16 September 2015.
Respondent's case
The following matters of law, taken from counsel for the City's first set of written submissions, appear to be common ground. I reproduce them, to the extent necessary, as follows:
4.Section 26(1) of the [Dog Act] provides that a local government may, by a local law under the Act, limit the number of dogs that have reached three months of age that can be kept in or at premises in the local government's district.
5.Clause 6.5.3 of [Part VI of] the City of Canning Consolidated Local Laws (Local Law) provides that:
'The owner or occupier of any premises within the district shall not keep, permit or suffer to remain thereon more than two (2) dogs over the age of eighteen (18) weeks and the young of those dogs under that age unless ‑
(a)the premises are on land situated within a part of the district where kennels are permissible under a Town Planning Scheme of the City; and
(b)the premises are licenced [sic] as an approved kennel establishment'.
6.Section 26(3) of the Act provides:
'(3) Where by a local law under this Act a local government has placed a limit on the keeping of dogs in any specified area but the local government is satisfied in relation to any particular premises that the provisions of this Act relating to approved kennel establishments need not be applied in the circumstances, the local government may grant an exemption in respect of those premises but any such exemption ‑
(a)may be made subject to conditions, including a condition that it applies only to the dogs specified in the exemption; and
(b)cannot authorise the keeping in or at those premises of ‑
(i)more than 6 dogs that have reached 3 months of age; or
(ii)a dog under that age unless it is a pup of a dog whose keeping is authorised by the exemption; and
[(c)] may be revoked or varied at any time.'
7.Therefore, a person cannot keep more than two dogs over the age of 18 weeks in the district of the City of Canning unless:
(a)the relevant property is in a zone where kennels are permissible and the property is licenced [sic] of [sic, for] an approved kennel establishment; or
(b)an exemption is granted under section 26(3) of the Act.
8.The Property is zoned as 'Residential' under the City of Canning Town Planning Scheme No. 40 (Scheme), and comprises 705m2 …
9.The Scheme provides that the use of land for a 'kennel' is prohibited in the Residential zone (clause 2.2.2 ‑ 2.2.3 and Table 3 – Zoning Table).
10.Therefore, clause 6.5.3 of the Local Law effectively prohibits the keeping of more than two dogs at the Property without an exemption having been granted under section 26(3) of the Act.
The respondent then goes on to discuss the extent of the discretion, if any, available to the City or, on review, this Tribunal, to grant an exemption from the 'two dogs' limitation.
I will, if necessary, consider any 'amenity' type issues (such as those to do with the nature of the premises, their location and zoning, and the number and type of dogs et cetera) below. This is because the City raises, in effect, a preliminary legal issue that must be resolved.
Is the proposal capable of approval?
The City contended that the approval sought may not be given as a matter of law because s 26(3) of the Dog Act, which, in effect, gives a Council the discretion to approve the keeping of more than two dogs, does not authorise a land use which is, in effect, prohibited.
The City's argument runs as follows:
1)The relevant premises are zoned Residential.
2)The relevant land use is in fact a 'Kennel' use as is defined under City of Canning Town Planning Scheme No 40 (TPS 40).
3)Such a land use is a prohibited use under TPS 40.
4)Therefore, no approval may be given under the Dog Act which avoids, or has the effect of avoiding, that prohibition.
A 'Kennel' land use is defined in TPS 40 to mean:
… any land or building where the owner or occupier thereof keeps, breeds, buys, sells, cares for or boards more than two dogs over the age of 18 weeks[.]
In the respondent's counsel's reply to the applicant's submissions, dated 21 October 2015, the respondent 'firmed up' its submissions in this regard as follows:
11.More significantly, as identified in the [first] Submissions, the overriding issue arising from this application is that the grant of an exemption to keep more than two dogs at the Property would result in a direct contravention of the City of Canning Town Planning Scheme No. 40 (Scheme).
12. While the Act establishes circumstances in which an exemption to keep more than two dogs can be granted, the grant of such an exemption in the current case would result in the Respondent purporting to authorise the unlawful use of the Property. If the exemption was acted upon, the Applicant would be committing an offence under section 218 of the Planning and Development Act 2005 (PDA), which carries a maximum penalty of $200,000.
The applicant, who was not legally represented, has submitted, in effect, that the City has discretion under the Dog Act to give the approval sought, and that the Dog Act governs the issue.
Conclusions on the preliminary point
The Tribunal agrees with the applicant. The Tribunal does not accept the respondent's contentions.
This conclusion is reached by the application of well‑known principles formulated, for example, in South Australia v Tanner (1989) 166 CLR 161 (Tanner). There, it was made clear that two separate, but overlapping, pieces of regulatory legislation can operate concurrently; that is, they can quite comfortably 'work together' in the same field.
Tanner turned upon the interrelationship between a regulation made in 1974 under an earlier Act (the Waterworks Act 1932 (SA)) and the Planning Act 1982 (SA). The court (Wilson, Brennan, Dawson, Toohey and Gaudron JJ) said (at 170 and 171, emphasis added):
The Solicitor‑General argued that there is no inconsistency. Both pieces of legislation can stand together and operate cumulatively. They can do this because each Act has a distinct purpose, different from the other. The Waterworks Act deals, inter alia, with the specific problem of the threat of water pollution in a watershed, an identifiable area of special concern. The Planning Act, albeit later in time than the Waterworks Act, establishes a general regime of planning control covering the whole State. Although the [relevant planning scheme] applicable to the respondents' land recognizes the problem of the threat of pollution to water supplies and therefore raises issues similar to those addressed by the Waterworks Regulations, there is no difficulty in requiring compliance with both legislative schemes. Consent [by the relevant planning authority] removes the prohibition imposed by [the Planning Act] but the respondents remain bound by [the relevant prohibition in the Waterworks Regulations]. There is nothing surprising about that, given the different purposes of the two statutes and the generality of the Planning Act. The Solicitor‑General also drew attention to other circumstances where the imposition of planning controls under the Planning Act provides only one regulatory device among others operating with respect to the conduct of operations upon particular land. He referred to the Meat Hygiene Act 1980 (SA), the Liquor Licensing Act 1985 (SA) and the Waste Management Act 1987 (SA) …
…
In our opinion the submission of the Solicitor‑General is correct[.]
Writing separately, Brennan J said on this point (at 184):
The two statutory regimes have different, though partly coincident, purposes and they may co-exist … It is unlikely that the complex of regulatory laws in South Australia was intended to be swept away by the Planning Act and the sundry licensing powers conferred by those laws were intended to be concentrated in the relevant planning authority.
In my view, the prohibitions … stand independently and cumulatively, and the enactment of the Planning Act left the operation of [the regulation] intact.
In Makucha v Albert Shire Council(No 2) (1992) 81 LGERA 250, Thomas J (at first instance) had to consider whether a statutory Order in Council under the principal Act could amend a planning scheme made under that Act 'making a particular use or all uses subject to a system of consents outside the Act'. Thomas J declined to invalidate the amendment. His Honour, citing Tanner, said (at 255; internal citations omitted; emphasis added):
… Where an inconsistency exists between town planning provisions and another by-law or statute, if the various measures cannot be read sensibly together, one may be impliedly repealed by the other … However the coexistence of multiple controls is a familiar feature of modern government and the existence of one consent will often be insufficient to absolve a landowner from complying with other measures[.]
Although Thomas J was reversed, by majority, on appeal (Makucha v Albert Shire Council (No 2) (1994) 85 LGERA 424 (CA)), Pincus JA (in the majority, at 432) also relied upon the same principle from Tanner, but held that Brennan J's dictum therein (see above: 'It is unlikely that the complex of regulatory laws in South Australia was intended to be swept away by the Planning Act …') was exactly what the Order had sought to do. The Act did not authorise such an Order. Thus, Pincus JA could say 'No such argument [of consistency as was available in Tanner] is open to the respondents here'.
In Ho v Greater Dandenong City Council [2013] VSCA 168; (2013) 194 LGERA 191, the Court of Appeal dealt with a pet sheep. The appellant (Mr Ho) contended that there was a 'direct conflict' between the relevant local planning scheme and a Local Law which regulated the keeping of livestock. The appellant submitted that it was the 'evident intent that the planning scheme should cover the field of regulation of animals generally or in particular the keeping of domestic pets ancillary to the permitted use of land as a residence'. Garde AJA, speaking for the court, rejected the argument. His Honour said, at [27] and [28]:
In my opinion, there is no substance in [the argument on alleged inconsistency]. To use the words of Smith J in Wain v Maroondah City Council, [[2000] VSC 540; (2000) 112 LGERA 272 at [22] and [23]] the situation is 'a classic one of multiple controls' with the provisions of the two regulatory regimes operating cumulatively.Smith J held that, through the planning scheme on the one hand and the local laws on the other, 'the council provided planning controls at different levels of detail.'
There are many examples of multiple controls over land use found in Victoria. In addition to land use controls, there are often environmental, conservation, ecological, heritage, economic, subdivisional, health, transportation, extractive industry, gaming, or local government controls regulating the use or development of land. All applicable controls must be satisfied if the land use or activity is to be lawful. The present instance is one where there are planning controls relating to land and local government controls imposed through the local law.
Finally, I note that in Vary Enterprises Pty Ltd and City of Belmont [2008] WASAT 65, Senior Member Parry (as he then was) was considering whether 'a proposed day care centre for dogs could not be approved, because it [fell] within the definition of "Dog Kennels" under the local planning scheme'. This question turned 'on whether the proposed development involve[d] the "boarding" of dogs'. The Senior Member noted, at [22] (emphasis added), that:
… the fact that the proposed development may require a licence to operate as an approved kennel establishment under the Local Law does not have the effect that it is deemed to reasonably fall within the interpretation of 'Dog Kennels' under the [Town Planning] Scheme. Different definitions may well have different regulatory consequences.
These cases are, I think, examples of courts and tribunals applying the interpretative principle that requires, in the first instance, an attempt at reconciliation of apparently inconsistent statutory instruments made by the same legislator or, here, the same ultimate legislator. This is upon the basis that:
… statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict. That principle of harmonious construction applies to the construction of provisions within different statutes of the same legislature to create 'a very strong presumption that the … legislature did not intend to contradict itself, but intended that both … should operate'.
(Gagelar J in Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1 at [98], citing Butler v Attorney‑General (Vic) (1961) 106 CLR 268.)
If, and only if, this interpretative approach fails does one then turn to, in effect, the consequences of repugnancy between instruments and the application of the relevant '[c]onflict resolution rules': see Leeming, Resolving Conflicts of Laws (Federation Press, 2011) at 71‑76.
In this case, however, we do not need to take this step because, in my view, the discretion given here to the City by the Dog Act is not necessarily inconsistent with the regulation (here, in fact, an apparent prohibition) upon the operation of kennels as a land use in the City of Canning. To apply the words of the court in Tanner, '[b]oth pieces of legislation can stand together and operate cumulatively. They can do this because each [legislative regime] has a distinct purpose, different from the other'. The Dog Act deals with the regulation of dogs. On the other hand, TPS 40, itself a 'species of delegated legislation' (Drew v Baw Baw Shire Council [2006] VCAT 868; (2006) 24 VAR 339 at fn 21 (Morris J)), regulates the particular development and use of land.
Thus, whether or not an approval were to be given under the Dog Act, a quite separate question might arise as to whether, at any point, a 'kennel' could be said to be in use or operation within the meaning of TPS 40. This issue is, as I have said, a quite distinct question with quite different consequences, consequences that ought not, and most probably cannot, be determined in these proceedings. Whatever the fate of any procedural objection there would be to taking this course, in any case, the Tribunal simply does not have a sufficient record of facts before it to determine the issue.
Domestic dogs and 'kennels'
When, and if, this planning issue were to be considered by the City (or, on review, in this Tribunal), close attention would have to be made to the suggestion, which appears in counsel for the City's submissions, to the effect that the applicant's domestic activities, as regards her five dogs, actually constitutes a separate land use attracting characterisation as a 'Kennel' use.
The City's approach appears to invoke a literal reading of the elements of the TPS 40 definition of 'kennel'. However, that approach, with respect, appears to ignore the following well‑settled principle of planning law:
Activities that are ancillary to the dwelling such as, for example, gardening or washing of clothes in the laundry are regarded in planning terms, as part of that residential use. Ancillary activities do not have to be essential to the primary use to qualify as such. The playing of tennis for enjoyment on a domestic tennis court is just as much an ancillary part of the residential use as clothes washing, even though most dwellings do not have associated tennis courts. The keeping of dogs as pets or as a hobby is also ancillary, in the same way; just as pottery or carpentry (other than as a business or home occupation) would be if a person keeps dogs as pets or as a hobby and, as part of that, prepares and trains them for dog shows and obedience trials, then that too would be an ancillary part of the use of the land as a residence.
(Valestro v City of Greater Geelong [1996] VICCAT 485 (Deputy President Byard, emphasis added), cited with approval by Macaulay J in Ho v Greater Dandenong City Council [2012] VSC 165; (2012) 188 LGERA 424 (aff'd: [2013] VSCA 168; (2013) 194 LGERA 191 at [81]; see also Burdett v Bowden [2010] VSC 574 at [27]: 'The simple keeping of dogs … or other creatures as pets whether at home or elsewhere is not animal keeping.' (Osborn J).)
Amenity and other concerns: a decision on the merits
The parties have correctly identified the cases (such as McLeod v Shire of Harvey [2007] WASAT 44; (2007) 50 SR (WA) 257 (McLeod), and the cases that have followed that decision), and the relevant criteria and principles to be therefore applied on the exercise of the discretion available to a decision‑maker under s 26(3) of the Dog Act. However, there has been no thorough examination, recently or otherwise, by the respondent against that criteria.
Moreover, what is lacking from the record in the present review are any current facts or circumstances. The last assessment of the situation 'on the ground' was the officers' assessment to Council, such as it was, from over a year ago (see respondent's 'Briefing Agenda', 9 December 2014). Unfortunately, much of that assessment was taken up with the consideration of irrelevant planning issues. For the reasons set out above, such considerations do not control the discretion available to Council. (I am far from saying, however, that planning considerations will never be relevant to these decisions, but any such considerations must be carefully analysed before they are fed into the mix on this question, as the focus must always remain on the factors relevant to the control and regulation of dogs.)
The applicant's data, also from 2014, relies upon significant evidence of support for and the careful management of the dogs (including evidence as to the dogs' vaccinations, and a petition from a very large number of neighbours in favour of the application). The respondent's counsel's first set of submissions referred, briefly, only to the alleged 'close proximity to numerous other residential properties [which] may create a nuisance by way [of] noise or odour': see details in the respondent's 'Briefing Agenda', 9 December 2014 at page 2.
However, the Tribunal must make the correct and preferable decision on the material known to it at the time of the review. That material should be reasonably up‑to‑date. In Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 Kirby J counselled as follows (at [41], emphasis added):
When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make 'a decision in substitution for the decision so set aside', as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.
In McLeod, I said at [58] and [59]:
The Tribunal has now published three decisions in the area of dog exemptions [cases referred to in the decision] and it is respectfully suggested that sufficient general indicia have now emerged to indicate the type of considerations that primary decision-makers (that is, local authorities) ought to be having regard to in this regulatory area. Thus, in the ordinary case, the Tribunal would expect any respondent Council to structure both their primary decision-making and their subsequent case in the Tribunal around such indicia.
Where a respondent has not done so it might be a proper case for the matter to be initially sent back for reconsideration by the local authority under s 31 of the State Administrative Tribunal Act 2004 (WA).
Accordingly, because the matter should be assessed 'on the best and most current information available' and then be evaluated properly (in the first instance by the Council itself), the matter ought, as McLeod suggests, to be remitted to the respondent for reconsideration, such reconsideration to be, of course, consistent with these reasons.
Final orders
For the reasons given above, the Tribunal makes the following orders:
1.Pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA), the time for commencement of this proceeding is extended until the date of filing, namely, 15 June 2015.
2.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision.
3.The matter is to return for directions in the Tribunal on 22 January 2016.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, SENIOR MEMBER
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