BLISSETT and WESTERN AUSTRALIAN PLANNING COMMISSION

Case •

[2012] WASAT 54

•

21/03/2012

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   BLISSETT and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 54

MEMBER:   JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   21 MARCH 2012

FILE NO/S:   DR 493 of 2011

BETWEEN:   MALCOLM BLISSETT

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Review by judicial member of determination of Tribunal upon a matter involving a question of law under s 244 of the Planning and Development Act 2005 (WA) - Tribunal affirmed decision to refuse to grant development approval for construction of private jetty on public foreshore land - Jurisdiction - Whether s 59 of the State Administrative Tribunal Act 2004 (WA) expands or affects the jurisdiction to review a determination - Whether a 'question of law' includes a question of mixed law and fact - Whether any error of law disclosed - Consideration of policy - Adverse planning precedent

Legislation:

Peel Region Scheme
Planning and Development Act 2005 (WA), s 244, s 244(1)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 32(2), s 32(2)(a), s 32(2)(b), s 59, s 59(1)

Result:

Application for review of Tribunal's determination dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Mr BD Nelson

Solicitors:

Applicant:     N/A

Respondent:     State Solicitor's Office

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

Blissett and Western Australian Planning Commission [2011] WASAT 186

Chin v Legal Practice Board of Western Australia [2011] WASCA 110

Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433

Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170

Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117

Plesa Pty Ltd and Western Australian Planning Commission [2010] WASAT 58

The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303

Weedon and Shire of Murray [2006] WASAT 128

Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150

REASONS FOR DECISION: 

Summary of judicial member's decision

  1. Mr Malcolm Blissett sought a review by a judicial member under s 244 of the Planning and Development Act 2005 (WA) of a determination of the Tribunal in which the Tribunal affirmed the decision of the Western Australian Planning Commission to refuse development approval for the construction of a private jetty on the public foreshore of the Murray River. Mr Blissett provided a hybrid statement of 13 grounds and submissions. The judicial member considered each of these grounds/submissions and decided that they did not disclose any error of law that would vitiate the Tribunal's determination.

  2. The judicial member determined that s 59 of the State Administrative Tribunal Act 2004 (WA), which provides for the determination of a question of law in a proceeding of the Tribunal and which defines a 'question of law' to include a 'question of mixed law and fact', does not expand or affect the scope of the jurisdiction of the Tribunal under s 244 of the Planning and Development Act 2005. Although, if there is a matter involving a question of law, then the whole of the primary decision ­ not merely the question of law ­ is open to review by a judicial member under s 244 of the Planning and Development Act 2005, this section does not confer jurisdiction to entertain a challenge to a finding of fact.

  3. The application for review by a judicial member was dismissed and the decision of the Tribunal to refuse development approval for the jetty was affirmed.

Introduction

  1. Mr Malcolm Blissett has sought review by a judicial member, pursuant to s 244 of the Planning and Development Act 2005 (WA) (PD Act), of the determination made by the Tribunal constituted by Senior Sessional Member Mr L Graham in Blissett and Western Australian Planning Commission [2011] WASAT 186 (reasons or determination). In the determination, the Tribunal affirmed the decision of the Western Australian Planning Commission (Commission) to refuse development approval under the Peel Region Scheme (PRS) for the construction by Mr Blissett of a private jetty measuring 6 metres by 1.5 metres on public foreshore land on the south or mainland side of the Minjoogup branch of the Murray River within the Shire of Murray (Shire).

  2. The land on which Mr Blissett proposed the construction of the jetty is reserved for Regional Open Space under the PRS and contains an existing revetment.  Mr Blissett resides at a property on Yunderup Island on the north side of the river, approximately 80 metres from the site of the proposed jetty, and has an existing jetty on public foreshore land adjacent to his property on the island.  The width of the river is approximately 30 metres to 40 metres.  There are a number of private jetties and five revetments for mooring craft on the mainland side of the river and Mr Blissett currently uses one of these revetments to gain access to and from the mainland by a pontoon vessel.

  3. The Tribunal observed at [13] ­ [15] of the reasons as follows:

    13The predominant character of the locality in which the proposed jetty would be built (the Minjoogup foreshore) is that of a partly cleared river foreshore with low level indigenous trees with patches of undergrowth.  There is fringing remnant vegetation along the river bank.

    14The proposed jetty would be accessed by means of an existing narrow limestone track constructed and maintained by the Shire to facilitate access to some five revetments along the foreshore area.  These revetments, which are small clearings along the water's edge, have been established for the berthing and mooring of boats and the parking of cars, and provide mainland access for the owners of Yunderup Island lots.

    15It is intended that the proposed jetty would be constructed at one of these revetments, some 80 metres from the applicant's existing foreshore jetty on the opposite (island) side of the river.

Determination of the Tribunal

  1. The Tribunal determined Mr Blissett's application for review of the Commission's decision to refuse development approval on the documents, and published the determination and reasons on 22 November 2011.

  2. At [21] ­ [32] of the reasons, the Tribunal described key aspects of the statutory and policy planning framework comprising provisions of the PRS and the Peel Inlet Advisory Council ­ Position Statement ­ Boating Facilities, Jetties and Structures ­ WS 3.4 (WS 3.4).  At [33] of the reasons, the Tribunal identified the principal issues for determination as follows:

    1)Is the proposed development consistent with the provisions of the relevant statutory and policy documents?

    2)Would an approval create an undesirable precedent for similar applications?

  3. The Tribunal then proceeded to assess the first issue at [34] ­ [48] and [62] ­ [72] and the second issue at [49] ­ [61] and [73] ­ [79] of the reasons. The Tribunal made the following principal findings:

    68[T]he overall intent of the PRS and WS 3.4 is to protect the natural environment and to ensure that the number of boating facilities on the waterways is strictly controlled, and that the alienation of public waterways and foreshore areas is minimised.

    …

    70… [T]he Tribunal is satisfied that the relevant public authorities are attempting to limit development to the absolute minimum in order to protect the river and its foreshores.

    …

    72… [W]hat the Tribunal is dealing with here is a development proposal on a narrow branch (Minjoogup branch) of the Harvey [sic ­ Murray] River which contains a number of private jetties on the island side (including one owned by [Mr Blissett]) and a number of private jetties and five revetments for mooring craft on the mainland side. …

    73… In effect, public access to the river via the revetment would be compromised by the construction [as proposed by Mr Blissett] of a permanent structure intruding into the river at that point.

    …

    75On the matter of [Mr Blissett's] personal circumstances, it is explained in [The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303] that personal considerations count for little in the context of the broader public interest and there is a significant risk that an approval in this case could give rise to other similar applications from residents on Yunderup Island and elsewhere.

    …

    77… [T]he fact that [Mr Blissett] uses Plesa Pty Ltd and Western Australian Planning Commission [2010] WASAT 58] to advance the 'precedent' argument only confirms the belief by this Tribunal that an approval in this case could give rise to other similar applications.

    78Although the Tribunal recognises the arguments of [Mr Blissett], they are not of sufficient substance to outweigh the broader public interest and the ongoing attempts by public authorities to protect the waterway and foreshores.

Application for review by a judicial member

  1. On 22 December 2011, Mr Blissett commenced this proceeding for a review by a judicial member of the determination of the Tribunal on 12 'grounds of appeal' which contained hybrid elements of grounds and submissions.  On 3 January 2012, the Tribunal ordered Mr Blissett to provide 'a statement of the grounds for review clearly identifying the question or questions of law said to be involved', together with his supporting submissions (see para 7 of Practice Note 4 ­ Review of decisions of the Tribunal under section 244 of the Planning and Development Act 2005).  Mr Blissett did not provide a statement of the grounds for review clearly identifying the question or questions of law said to be involved, together with supporting submissions.   Rather, on 27 January 2012, Mr Blissett filed a document entitled 'Application for Review of DR 156­2011 by a Judicial Member' comprising two parts.  The first part, which is entitled 'Statement of the Grounds for Review' does not contain a statement of the grounds for review identifying any question of law, but rather, references to miscellaneous legal and other concepts and provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The second part of this document, which is entitled 'Submissions in Support', essentially restates the 12 'grounds of appeal' containing hybrid elements of grounds and submissions from Mr Blissett's application for review filed on 22 December 2011 (adding, in some paragraphs, a reference to s 32(2) of the SAT Act and/or an allegation of 'bias', and in one paragraph, amplifying a reference to Mr Blissett's argument presented to the Tribunal), and adds a thirteenth paragraph commencing 'In conclusion …'.

  2. Section 244 of the PD Act enables a judicial member to review a direction, determination or order of the Tribunal upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member, as defined in s 3(1) of the SAT Act. Senior Sessional Member Graham is not a legally qualified member. However, for reasons which follow, the determination of the Tribunal does not disclose or is not vitiated by any error of law.

Does s 59 of the SAT Act expand or affect the scope of the jurisdiction of the Tribunal under s 244 of the PD Act?

  1. In his submissions, Mr Blissett referred to s 59 of the SAT Act which provides for the determination of a question of law in a proceeding of the Tribunal. Section 59(1) of the SAT Act defines a 'question of law' for the purposes of that section to mean:

    a question of law arising in a proceeding for decision by the Tribunal and includes a question of mixed law and fact.

  2. Mr Blissett suggested that '[t]his definition provides a broader approach to include some fact when the two cannot be extracted with ease'. In his submissions in reply, Mr Blissett said that s 59(1) of the SAT Act 'indicates a "broad brush approach" when deciding what a question of law is?' It appears that Mr Blissett contends that s 59 of the SAT Act expands or affects the scope of the Tribunal's jurisdiction under s 244 of the PD Act.

  3. As the Court of Appeal determined in Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 at [26] ­ [27] (Pullin JA) and [106] ­ [109] (Kenneth Martin J), the use of the phrase 'matter involving a question of law' in s 244(1) of the PD Act confers a broader statutory right of review than an appeal which is limited to a 'question of law'. Thus, their Honours held, if there is a matter involving a question of law, then the whole of the primary decision ­ not merely the question of law ­ is open to review. However, unlike other applications for review made to the Tribunal, an application for review by a judicial member under s 244 of the PD Act is not a review by way of a fresh hearing (hearing de novo) or full merits review of the primary decision. Rather, it is a review of a direction, determination or order by way of rehearing upon a matter involving a question of law.

  4. The terms of s 59 of the SAT Act do not expand or affect the scope of the jurisdiction under s 244 of the PD Act, as the review by a judicial member of a direction, determination or order of the Tribunal must be 'upon a matter involving a question of law', whereas s 59 of the SAT Act applies when a question of law arises in a proceeding for decision by the Tribunal. Section 244 of the PD Act does not confer jurisdiction upon the Tribunal constituted by a judicial member to entertain a challenge to a finding of fact made by the Tribunal in an earlier determination.

Consideration of application for review by a judicial member

  1. In its submissions, the Commission addressed each of Mr Blissett's 13 paragraphs in the second part of his document filed on 27 January 2012 as though it were a separate ground of review.  I will adopt the same approach.  I will quote each paragraph in full and then consider it.  (The words in italics in the quotations below were not in italics, but rather, were underlined in Mr Blissett's document.  For technical reasons concerning the publication of Tribunal decisions on-line, underlining cannot be reproduced.)

Ground 1 ­ 'The member[']s finding that cl 4.1 and cl 2 are inconsistent (see para 41 of the review) is wrong in law.  Cl 2 refers to general applications and cl 4.1 refers to proposals adjacent to public land. General applications will be dealt with on their merits. A proposal adjacent to public land will not, is the correct statutory interpretation. (Inconsistent with S.32(2)(a) of the SAT Act.).'

  1. At [41] of the reasons, the Tribunal noted 'an apparent inconsistency' between cl 4.1 of WS 3.4, which states that the Peel Inlet Advisory Council (PIAC) 'will not recommend approval of applications for new private jetties, boat ramps, slipways or structures abutting or fronting public land', and cl 2 of WS 3.4, which states that '[i]ndividual applications will be assessed on their merits'.  The Tribunal was quite correct in observing that there is an element of inconsistency between these provisions, because applications for new private jetties, boat ramps, slipways or structures abutting or fronting public land, which are referred to in cl 4.1 of WS 3.4, also fall within the general policy considerations in cl 2 of WS 3.4.  While cl 4.1 of WS 3.4 does not purport to preclude an application for a new private jetty, boat ramp, slipway or structure abutting or fronting public land, it says that PIAC will not recommend approval of such an application.  The non­recommendation of such an application by PIAC would form part of the assessment of such an application on its merits under the general policy considerations in cl 2 of WS 3.4.

  2. Mr Blissett is incorrect in contending that the effect of cl 4.1 of WS 3.4 is that an application for a new private jetty, boat ramp, slipway or structure abutting or fronting public land is not to be dealt with on its merits. The clause simply says that such an application will not be recommended for approval by PIAC. As the Tribunal said, correctly, at [42] of the reasons, 'although the Tribunal will have regard to the overall intent of WS 3.4 it is not bound by its provisions' and it is to 'determine the matter on the merits of the case'. It is clear from the Tribunal's reasons that it did determine the matter on its merits, having proper regard to 'the overall intent of the PRS and WS 3.4 … to protect the natural environment and to ensure that the number of boating facilities on the waterways is strictly controlled and that the alienation of public waterways and foreshore areas is minimised': reasons at [43]. Section 32(2)(a) of the SAT Act, to which Mr Blissett refers, provides that the Tribunal is not bound by the rules of evidence. The Tribunal's observation of an apparent inconsistency within WS 3.4 and its determination to consider Mr Blissett's application on its merits is not inconsistent with s 32(2)(a) of the SAT Act.

  3. The Tribunal did not err in law in relation to ground 1.

Ground 2 ­ 'The members' [sic ­ member's] finding that the Tribunal is not bound by the provisions of WS 3.4 is wrong in law.  WS 3.4 was originally endorsed by PIMC on 19/5/2004 and by the PIAC on 15/10/2008.  It is recognised and adopted by the Department of Water, Shire of Murray and WAPC who have sought to argue that the application does not comply with WS 3.4 and that no application for jetties has been approved since 1976 unless they comply with WS 3.4. The Tribunal[']s function, therefore, is to review and consider the facts provided by the evidence and in this case is bound to consider the provisions of WS 3.4 as argued by both parties. In para 35 of the review the member refers to the certainty that WS 3.4 brings to the approval process. The member has chosen to ignore his own words. (Inconsistent with S.32(2)(a) of the SAT Act and show bias.)'

  1. The Tribunal was quite correct in determining that it was not bound by the provisions of WS 3.4, although it was to have regard to them.  WS 3.4 appears to be in the nature of a policy.  It is well recognised that a policy 'is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it': Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 at [24] (Barker J). It is clear from [43] and [67] ­ [73] of the reasons that the Tribunal had proper regard to WS 3.4. The decision was not inconsistent with s 32(2)(a) of the SAT Act.

  2. There is absolutely no basis for an argument of either actual or reasonable apprehension of bias on the part of the member.  For actual bias, an applicant 'must show that the mind of the decision­maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented': Chin v Legal Practice Board of Western Australia [2011] WASCA 110 (Chin) at [5] (Newnes JA). The test to be applied for determining whether a Tribunal member is disqualified by reason of the appearance of bias is 'whether a fair-minded lay observer might reasonably apprehend that the [member] might not bring an impartial and unprejudiced mind to the resolution of the question the [member] is required to decide': Chin at [3]. There is absolutely no basis for a contention that the member was either actually biased or that there was a reasonable apprehension of bias.

  3. The Tribunal did not err in law in relation to Ground 2.

Ground 3 ­ 'The Tribunal[']s finding that the use of the plural form (foreshores) refers to the foreshores on several different islands and does not extend to the mainland (see para 7 of the Review) is wrong in law.  Paragraph 1 of S 4.1 of WS 3.4 states PIMA will not recommend approval of jetties abutting public land.  This includes the mainland and island reserves.  The paragraph referring to non-conforming areas (Murray River Delta islands) commences by saying that "as access to lots on these islands is via the river and foreshore reserves" (plural).  The literal interpretation of this can only mean access from the mainland reserve to the island reserve.  It then goes on to say it will consider approval of applications (plural) in these locations (plural). Again this can only mean in both mainland and island locations. This is the only sensible literal interpretation intended as access has to be from both sides via the river. The respondents' [sic ­ respondent's] argument was totally rejected in Plesa P/L and WAPC. This is an incorrect statutory interpretation and inconsistent with S 32(2)(a) of the SAT Act and Plesa P/L v WAPC.'

  1. As the Tribunal noted at [31] and [44] of the reasons, the Murray River Delta Islands, including Yunderup Island, is one of three 'non­conforming areas' for the purposes of WS 3.4. At [32] of the reasons, the Tribunal set out an extract from cl 4.1 of WS 3.4 in relation to the Murray River Delta Islands as follows:

    As access to lots on these islands is via the river and foreshore reserves, [the Department of Water] will consider recommending approval of applications for jetty licenses (excluding boat ramps and slipways) in these locations. …

  2. As recorded at [46] of the reasons, Mr Blissett presented essentially the same argument to the Tribunal as he now advances in Ground 3.  At [47] of the reasons, the Tribunal rejected Mr Blissett's argument.

  3. The Tribunal was correct to reject Mr Blissett's argument and to accept the Commission's suggested interpretation of cl 4.1 of WS 3.4.  As the Commission submitted, the 'foreshore reserves' and 'locations' referred to in cl 4.1 of WS 3.4, in regard to the non­conforming area identified as 'Murray River Delta Islands', is the public land on the various islands separating the freehold lots from the river.  This is apparent on both a literal and purposive interpretation of the provision.  The clause states 'access to lots on these islands is via the river and foreshore reserves' (emphasis in bold added).  As the literal meaning of these words suggests, to gain access to one of these lots, one first crosses the river and then traverses a foreshore reserve (on the island).  The 'locations' are the 'foreshore reserves' (on the islands).  Moreover, had it been the intention of the provision to extend the 'non­conforming areas' from the 'Murray River Delta Islands' to the mainland in relation to access to properties on the Murray River Delta Islands, the policy could have said so.  Furthermore, given the emphasis in WS 3.4 on minimising boating facilities, jetties and structures generally, it is to be expected that if WS 3.4 had intended to apply the 'non­conforming areas' provisions to the mainland, as contended by Mr Blissett, WS 3.4 would have expressly provided to that effect.  Indeed, applying a purposive interpretation, it could not have been the intention of cl 4.1 of WS 3.4, which specifically identifies 'non­conforming areas' as exceptions to the general emphasis on minimising boating facilities, to contemplate that the mainland foreshore could be developed with boating facilities for those who live on the islands.  Mr Blissett's submission that the Commission's argument 'was totally rejected' in Plesa Pty Ltd and Western Australian Planning Commission [2010] WASAT 58 (Plesa) is also incorrect. In that case, the Tribunal, at [86], assumed, without deciding, that the Commission was correct in the interpretation that was accepted in the determination in this case. Section 32(2)(a) of the SAT Act is not in point.

  4. Furthermore, it is to be noted that, even if the 'non­conforming areas' provisions of WS 3.4 applied to the mainland foreshore for a jetty to access a property on an island, cl 4.1 only refers to the Department of Water recommending approval for a jetty licence, rather than to the consideration by the Commission (or the Tribunal on review) of whether to grant development approval under PRS for the construction of a jetty.

  5. Finally, and in any case, as the Tribunal explained at [48] of the reasons, the Tribunal was not bound, and did not consider itself to be bound, by the provisions of WS 3.4, but rather, was required to have regard, and had regard, to them.  As the Tribunal said, correctly, at [48]:

    … What the Tribunal has before it is a development proposal for a jetty on the mainland and it will deal with the matter on the merits of the case.

  6. It is apparent from the Tribunal's reasons that the Tribunal did so.  The Tribunal did not err in law in relation to Ground 3.

Ground 4 ­ 'The Tribunal[']s finding (see para 49 of the review) that the case of Nicholls and WAPC supports the concept of adverse planning precedent in this case is wrong in law.  Two criteria have to be met.  That the proposed development is in itself objectionable and there may be undistinguishable applications.  The first criteria has not been met as the jetty in itself is not objectionable in its form, layout and construction has been approved by the Jetties Department of the DPI and accepted by WAPC.'

  1. As noted earlier, at [33] of the reasons, the Tribunal identified adverse or undesirable precedent as an issue for determination.  At [49] of the reasons, the Tribunal correctly identified the criteria stated in Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [74] as to the circumstances in which precedent is a relevant consideration in a planning assessment, which have been consistently applied by the Tribunal since that time, namely:

    (1)that the proposed development or subdivision is not in itself unobjectionable; and

    (2)that there is more than a mere chance or possibility that there may be later undistinguishable applications.

  2. It is clear from the reasons that the Tribunal found that both of these criteria were satisfied in the circumstances of the case. The Tribunal found that the proposed jetty is 'not in itself unobjectionable', and indeed, is not acceptable in the proposed location, having regard to 'the overall intent of the PRS and WS 3.4 … to protect the natural environment and to ensure that the number of boating facilities on the waterways is strictly controlled, and that the alienation of public waterways and foreshore areas is minimised' (at [68]), because the effect of the proposal would be that 'public access to the river via the revetment would be compromised by the construction of a permanent structure intruding into the river at that point' (at [73]). The Tribunal also found that there was more than a mere chance or possibility that there may be undistinguishable applications, given that 'there is a significant risk that an approval in this case could give rise to other similar applications from residents of Yunderup Island and elsewhere': reasons at [75]. Both of these findings were reasonably open on the evidence before the Tribunal.

  3. The Tribunal did not err in law in relation to Ground 4.

Ground 5 ­ 'The Tribunal[']s finding that the application['s] approval may lead to a precedent being set is wrong in law.  It is inconsistent with the Tribunal[']s statement that it will consider the matter on its merits (see para 42 of the review).  It is also wrong in law to refuse an application which has been brought on its merits on the basis that if granted it may create a precedent.  What the Tribunal are [sic] in effect saying is that even if the application was successful on its merits it would not in any event approve it.  Courts in general create precedents regularly by their decisions as each case is dealt with on its merits, and have never been restricted in their decisions by the concern that their judgment may create a precedent if a positive decision is made on its merits. It is inconsistent with S 32(2)(b) of the SAT Act. The case of Riviera Properties Project P/L v East Gippsland SC, referred to by the Tribunal (see para 65 of the review) supports the above.  It says that the argument that an application as a matter of general principle is inappropriate is unsustainable where you have an application to be considered on its merits.  In the Review there are several references to the overall deciding factor [which] was the fear of creating a precedent irrespective of the merits of the case.'

  1. The Tribunal's finding that the proposed development would set an undesirable precedent was a finding of fact which is not amenable to review.  In Nicholls, the Tribunal referred to the following statement by the former Town Planning Appeal Tribunal in Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 at 177 with approval:

    The Tribunal has been reluctant to place great importance on the undesirable precedent argument in several appeals for the reason stated in Aspen Pty Ltd v State Planning Commission (WATPAT, No 13 of 1988, unreported) at 10:

    'The precedent argument is not usually treated by this Tribunal as a "stand alone" argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other applications being made for similar kinds of development, should not be a reason why the appeal should be dismissed … '

    The fact that a subdivision will result in an undesirable precedent is a valid consideration that has been accepted by the Supreme Court of South Australia in Mills v District Council of Willunga (1985) 61 LGRA 29. As stated in Aspen, and applied by this Tribunal in several instances, it will not defeat, on its own, a subdivision of merit.  Where, as here, there is a strong code and standard and there is no compelling reason why subdivision should proceed, the precedent argument provides a further rationale for refusing subdivision.

  2. In this case, the Tribunal correctly identified adverse or undesirable planning precedent as an issue for determination and did not treat it as a 'stand alone' argument that would, in itself, defeat the proposed development.  Rather, the Tribunal considered the adverse planning precedent that would be set by approval of the application as a further factor warranting refusal of the application in the exercise of planning discretion.  This approach was legally correct.

  3. Mr Blissett also referred to s 32(2)(b) of the SAT Act, which states that the Tribunal 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms'. It is apparent from the Tribunal's reasons that Senior Sessional Member Graham determined the development application in accordance with this provision.

  4. The Tribunal did not err in law in relation to Ground 5.

Ground 6 ­ 'The applications [sic] of the principles in the cases of Haigh and Weedon by the Tribunal are wrong in law.  Haigh and Weedon are cases of applications made by property owners for recreational jetties to be constructed on sites where natural growth was to be cleared and on properties which were not landlocked and did not fall within the provisions of WS 3.4 (non­conforming areas).  These cases are inconsistent with merits of this case and the findings in Plesa P/L v WAPC.'

  1. In its consideration of the case, and in particular in considering the issue of adverse planning precedent, the Tribunal referred, briefly, to extracts from the earlier decisions of the Tribunal in The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303 (Haigh), Weedon and Shire of Murray [2006] WASAT 128 and Plesa. The extracts from those decisions set out at [56], [58] and [60] of the reasons were in point. The Tribunal did not 'apply the principles' in those cases, but rather, had regard to them, because they related to applications for boating structures on or adjacent to the Murray River. It is clear from the reasons that the Tribunal considered and determined the development application proposed by Mr Blissett on its own merits. The Tribunal did not err in law in relation to Ground 6.

Ground 7 ­ 'The Tribunal[']s finding that it was not bound by the precedent set in Plesa P/L on the basis that it distinguished the applications because in Plesa it was an application for a replacement jetty is wrong in fact and law.  The member in that case was quite clear in stating that it was not an application for a replacement jetty (refer to paragraphs 35 and 48 and 49) of the Review in Plesa P/L.  To find otherwise would in itself be contrary to the provisions of [cl] 4.1 of WS 3.4 where PAMA will not recommend applications to rebuild unlicensed old jetties adjacent to public land.  It is to be further noted that the Respondent in Plesa did not appeal the decision and although the Tribunal may not be strictly bound by the principles established in that case; it would certainly have to be extremely persuasive.  If not, you would create a situation of a non-judicial member making a contrary decision to a senior judicial member in the same jurisdiction.  A hardly desirable practice and inconsistent with the case of Grover v Commissioner of Police 2005 WASC 263 @ 25.'

  1. This ground involved challenges to findings of fact.  Furthermore, the Tribunal was not bound to come to the same conclusion, on the merits of the case before it, as the Tribunal had come to on the merits of the case in Plesa.  Plesa was not a 'precedent' that 'bound' the Tribunal in this case.  The Tribunal did not err in law in relation to Ground 7.

Ground 8 ­ 'The Tribunal[']s decision to "hold the line" in the face of the merits of the application and the decision in Plesa P/L is wrong in law.  It displays an attitude of dogged and dour determination and complete rejection of the judicial process.  It is a biased approach and entirely inconsistent with the basic principle that the matter must be decided on its merits in a fair and reasonable way.'

  1. The Tribunal did not decide to 'hold the line' in the face of the merits of the application.  Rather, it is clear from the reasons that the Tribunal properly assessed the proposed development in the context of the applicable planning framework and the merits of the case.  There is absolutely no basis for an argument of bias.  The Tribunal did not err in law in relation to Ground 8.

Ground 9 ­ 'The Tribunal accepted that to construct a jetty at a revetment (a land backed wharf) would not lead to destruction of foreshore vegetation (see para 74 of the Review).  It must follow that the Tribunal[']s statement at paragraph 74 refers to the revetment on the mainland foreshore.  This is inconsistent with the Tribunal[']s finding that WS 3.4 only refers to the island foreshores.'

  1. This ground involves a challenge to a finding of fact.  Mr Blissett has also misunderstood the finding at [74] of the reasons, which was not that the construction of a jetty at a revetment would not lead to destruction of foreshore vegetation, but rather, that the construction of a jetty away from a revetment would lead 'to an even worse result', which was a finding made 'in fairness to the applicant'.  There is nothing inconsistent between this finding and the interpretation that the 'non­conforming areas' for the purposes of WS 3.4 do not include the location of the proposed jetty.

Ground 10 ­ 'In Catchwords and paragraph 3 and paragraph 7 of the Review the member refers to the applicant seeking approval for safe and comfortable access.  This is a falsehood as the applicant made no reference to the word 'comfortable' and it shows deliberate and clear bias to the applicant.'

  1. This ground involves a challenge to a finding of fact. In any case, the Tribunal's characterisation of the basis for the application as 'safe and comfortable access for [Mr Blissett]'s family and himself between the island and the mainland' (reasons at [3]) was reasonable, given Mr Blissett's evidence that, at various times of the year, the level of the river drops to a point where the only way to exit the boat is to walk through deep mud and that he is a senior citizen 'with a significant back problem': reasons at [64]. The Tribunal's characterisation of the basis for Mr Blissett's application as 'safe and comfortable access' does not, as Mr Blissett contended in his submissions in reply, indicate 'a contemptuous and biased approach'. There is absolutely no basis for an argument of bias in the determination against Mr Blissett. The Tribunal did not err in law in relation to Ground 10.

Ground 11 ­ 'The member has specifically relied on the evidence of Mr O'Brien.  The member has failed to mention, discuss or consider [Mr Blissett]'s evidence indicating the doubtful originality and reliability and credibility of Mr O'Brien's evidence, which [Mr Blissett]'s evidence clearly shows the report to be plagiarised (in at least 21 instances) of the statement made by Mr John Pride in the matter of Plesa P/L v WAPC, whose evidence in that case must be regarded as doubtful when compared to his previous statement (see page 19 in attachments to Applicant[']s answer to Respondent[']s written submissions submitted on 5 September 2011) on the establishment of jetties in 1994 (inconsistent with Neat Holdings P/L v Karajan Holdings P/L 1992 ­ 110 ALRִ 449) and the case of Department of Community Development 2007 WASAT 116).'

  1. At [53] of the reasons, the Tribunal referred to a 'hypothetical scenario' (at [54]) advanced by Mr Aiden O'Brien, Senior Planning Officer, Peel Region, at the Department of Planning, in the context of considering the Commission's submission that there was 'more than a mere chance or possibility that there may be later undistinguishable applications' and that 'the cumulative impacts of developments such as the proposal would have significant adverse effects on the natural environment, and on the recreational opportunities and public access to the river foreshore and the waterway', with the consequence that the proposed development would set an adverse planning precedent.  Mr O'Brien contemplated a hypothetical scenario under which 306 metres to 315 metres of the 570 metre long Minjoogup foreshore could be occupied by jetties to serve the landowners on Yunderup Island.  Given that the Tribunal expressly placed only 'limited weight on the hypothetical scenario advanced by Mr O'Brien' (at [54]), and given the objective circumstance that a number of properties on Yunderup Island do not currently have a jetty on the mainland (which, as the Tribunal found at [75] ­ [77], would clearly give rise to more than a mere chance or possibility that there may be later undistinguishable applications, if Mr Blissett's application were approved), the Tribunal's failure to consider Mr Blissett's criticisms of Mr O'Brien's evidence in its reasons would not vitiate the decision.

Ground 12 ­ 'The applicant makes reference to the sensible and correct conclusion by [Member] McNab at para 69 of the Review in Plesa P/L v WAPC but takes issue with the order of a temporary licence as once the Tribunal has made a finding of 'need' then the issue of a temporary licence is illogical as the need will still be ongoing at the end of a temporary licence period.'

  1. This ground appears to challenge a finding of fact made in Plesa which is obviously not amenable to review in this proceeding.

Ground 13 ­ 'In conclusion, the member has disregarded the common law and statutory provisions on findings to be made on their merits in a fair and reasonable way.  He has created undue hardship to the applicant and has shown bias and ignored important matters of evidence and precedent probative to the Applicant[']s case.'

  1. This ground does not disclose any error of law in the determination.  It is clear from [64] of the reasons that the Tribunal took Mr Blissett's personal circumstances into account, but, quite correctly, at [75], referred to the well­established principle in planning law that 'personal considerations count for little in the context of the broader public interest'.  At [58] of the reasons, the Tribunal referred to a statement to this effect in Haigh at [81].

  2. As found earlier, the Tribunal properly considered the proposed development on its merits, and there is absolutely no basis for an argument of bias against Mr Blissett.  Furthermore, the Tribunal did not ignore 'important matters of evidence and precedent'.

  3. The Tribunal's decision to refuse Mr Blissett's development application for a private jetty on public land was reasonably open.  Indeed, given the clear intent of the planning framework in PRS and WS 3.4 to limit the number of boating facilities and to preclude the alienation of public waterways and foreshore areas for private use, the fact that the proposed structure would compromise public access to the river, and the fact that there are other properties on Yunderup Island which do not have their own jetties on the mainland, the planning decision made by the Tribunal to refuse development approval to Mr Blissett would appear to be compelling.

Conclusion

  1. As the Tribunal's determination was not affected by any error of law which would vitiate the decision, the application for review by a judicial member should be dismissed and the determination of the Tribunal should be affirmed.

Orders

  1. For these reasons, I make the following orders:

    1.The application for review by a judicial member is dismissed.

    2.The determination of the Tribunal in Blissett and Western Australian Planning Commission [2011] WASAT 186 affirming the decision of the respondent to refuse development approval for the construction of a private jetty on the Murray River foreshore is affirmed.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE D R PARRY, DEPUTY PRESIDENT

Actions
Download as PDF Download as Word Document