Branca and City of Stirling
[2014] WASAT 77
•10 FEBRUARY 2014
BRANCA and CITY OF STIRLING [2014] WASAT 77
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 77 | |
| 26/06/2014 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:443/2012 | 15 OCTOBER 2013 | |
| Coram: | MR P McNAB (SENIOR MEMBER) | 10/02/14 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | RAFFAELE SANDRO BRANCA CITY OF STIRLING |
Catchwords: | Town planning Development application Semicompleted substantial multilevel residential dwelling Long history of delay by applicant in completing dwelling Delay going back over a decade Tribunal giving conditional planning approval in 2011 for building to be completed Tribunal describing 2011 planning approval as applicant's 'last chance' Twelve month timetable for building agreed to by applicant Conditions included a selfexecuting demolition order if dwelling not completed Building not finished Conditions not met Applicant pleading guilty in Magistrates Court to a failure to build in accordance with 2011 planning approval Applicant now seeking further extension to complete house Applicant proposed engaging an independent builder to complete house Refusal by City given previous history of matter Whether permissible to seek to vary 2011 approval No power to vary 2011 approval Scope of planning discretion if power to vary assumed to be available Whether public interest test applicable Tribunal holding public interest a relevant planning consideration Public interest extended to addressing long period that applicant's residence had stood uncompleted Public interest also extended to applicant's direct involvement in or contribution to that state of affairs Tribunal holding that it was in the public interest that applicant's involvement with building on the site be concluded Tribunal affirming decision under review Words and phrases: 'public interest' |
Legislation: | Environmental Planning and Assessment Act 1979 (NSW), s 79C(1)(e) Planning and Development Act 2005 (WA), s 241(1) |
Case References: | Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26 Callan v Greater Geelong City Council [2005] VCAT 31 City of Belmont and Town of Victoria Park [2014] WASAT 46 Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111 Forster v Gardenia Shire Council and Dixon [1998] VCAT 778 |
Summary | Mr Branca is a builder by profession. He is the owner and builder of a halffinished residence which languishes in a residential street in suburban Dianella. The building of this substantial multilevel dwelling has been accompanied by a very long history of false starts and delays, going back over a decade. In fact, the original building licence was approved by the City of Stirling as far back as March 2000.,In 2011, the Tribunal, in a series of planning and building cases heard together, gave Mr Branca 'one last chance' to complete his residence. The City of Stirling had argued against any such approval. The Tribunal's orders gave Mr Branca in effect a 52 week timetable to complete the project. Mr Branca agreed with that timetable.,The orders included a selfexecuting demolition order if there was a failure to complete the project. Mr Branca did not build and otherwise failed to comply with the Tribunal's orders. He did not demolish the uncompleted structure.,Mr Branca subsequently pleaded guilty in, and was convicted by, the Magistrates Court for failing to comply with the conditions of his development approval as determined by the Tribunal.,Mr Branca then sought from the City of Stirling, by way of a development application, a further 'extension' to complete his house. Unsurprisingly, in view of the long history of the matter, the City of Stirling refused him planning approval and the matter was reviewed in this Tribunal.,The Tribunal upheld the City of Stirling's position. The Tribunal held that there was probably no power to approve the application because Mr Branca's development application sought to vary what has been previously approved. Unless a written law authorised that course such a variation was not permissible, and no such law applied here.,In any case, if there had been power to approve the application then the Tribunal would not have exercised its planning discretion in Mr Branca's favour.,The Tribunal applied a public interest test to the exercise of planning discretion holding that the Tribunal could have no confidence, based upon very wellestablished events to date, that Mr Branca, even with the assistance of another builder (as had been proposed), would bring to a conclusion this decade old problem, not at least without further substantial and unacceptable delays.,In the Tribunal's view it was in the public interest that Mr Branca's involvement with the site and the building project be concluded. The Tribunal said that Mr Branca should accept the consequences of that situation as one of his own making.,The application for a review was therefore dismissed and the City of Stirling's decision affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BRANCA and CITY OF STIRLING [2014] WASAT 77 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 15 OCTOBER 2013 DELIVERED : 10 FEBRUARY 2014 PUBLISHED : 26 JUNE 2014 FILE NO/S : DR 443 of 2012 BETWEEN : RAFFAELE SANDRO BRANCA
- Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning Development application Semicompleted substantial multilevel residential dwelling Long history of delay by applicant in completing dwelling Delay going back over a decade Tribunal giving conditional planning approval in 2011 for building to be completed Tribunal describing 2011 planning approval as applicant's 'last chance' Twelve month timetable for building agreed to by applicant Conditions included a selfexecuting demolition order if dwelling not completed Building not finished Conditions not met Applicant pleading guilty in Magistrates Court to a failure to build in accordance with 2011 planning approval Applicant now seeking further extension to complete house Applicant proposed engaging an independent builder to complete house Refusal by City given previous history of matter Whether permissible to seek to vary 2011 approval No power to vary 2011 approval Scope of planning discretion if power to vary assumed to be available Whether public interest test applicable Tribunal holding public interest a relevant planning consideration Public interest extended to addressing long period that applicant's residence had stood uncompleted Public interest also extended to applicant's direct involvement in or contribution to that state of affairs Tribunal holding that it was in the public interest that applicant's involvement with building on the site be concluded Tribunal affirming decision under review Words and phrases: 'public interest'
Legislation:
Environmental Planning and Assessment Act 1979 (NSW), s 79C(1)(e)
Planning and Development Act 2005 (WA), s 241(1)
Result:
Application for review dismissed
Summary of Tribunal's decision:
Mr Branca is a builder by profession. He is the owner and builder of a halffinished residence which languishes in a residential street in suburban Dianella. The building of this substantial multilevel dwelling has been accompanied by a very long history of false starts and delays, going back over a decade. In fact, the original building licence was approved by the City of Stirling as far back as March 2000.
In 2011, the Tribunal, in a series of planning and building cases heard together, gave Mr Branca 'one last chance' to complete his residence. The City of Stirling had argued against any such approval. The Tribunal's orders gave Mr Branca in effect a 52 week timetable to complete the project. Mr Branca agreed with that timetable.
The orders included a selfexecuting demolition order if there was a failure to complete the project. Mr Branca did not build and otherwise failed to comply with the Tribunal's orders. He did not demolish the uncompleted structure.
Mr Branca subsequently pleaded guilty in, and was convicted by, the Magistrates Court for failing to comply with the conditions of his development approval as determined by the Tribunal.
Mr Branca then sought from the City of Stirling, by way of a development application, a further 'extension' to complete his house. Unsurprisingly, in view of the long history of the matter, the City of Stirling refused him planning approval and the matter was reviewed in this Tribunal.
The Tribunal upheld the City of Stirling's position. The Tribunal held that there was probably no power to approve the application because Mr Branca's development application sought to vary what has been previously approved. Unless a written law authorised that course such a variation was not permissible, and no such law applied here.
In any case, if there had been power to approve the application then the Tribunal would not have exercised its planning discretion in Mr Branca's favour.
The Tribunal applied a public interest test to the exercise of planning discretion holding that the Tribunal could have no confidence, based upon very wellestablished events to date, that Mr Branca, even with the assistance of another builder (as had been proposed), would bring to a conclusion this decade old problem, not at least without further substantial and unacceptable delays.
In the Tribunal's view it was in the public interest that Mr Branca's involvement with the site and the building project be concluded. The Tribunal said that Mr Branca should accept the consequences of that situation as one of his own making.
The application for a review was therefore dismissed and the City of Stirling's decision affirmed.
Category: B
Representation:
Counsel:
Applicant : Ms A Dowley
Respondent : Mr C Slarke
Solicitors:
Applicant : Encore Legal Pty Ltd
Respondent : McLeods
Case(s) referred to in decision(s):
Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26
Callan v Greater Geelong City Council [2005] VCAT 31
City of Belmont and Town of Victoria Park [2014] WASAT 46
Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111
Forster v Gardenia Shire Council and Dixon [1998] VCAT 778
Introduction
1 The applicant, Mr Branca, applied to the City of Stirling (City), on or about 26 October 2012, for planning approval in relation to his 'residence under construction' at No 2 (Lot 295) Montclair Retreat, Dianella (subject land or site). The residence is a substantial multi-level dwelling which is unfinished.
2 The development application sought, in effect, an extension of time to finish that residence within three months after the date of approval (if given) by the City. Mr Branca's application was refused by the City and the applicant sought review of that refusal in this Tribunal.
3 Ms Dowley, counsel for the applicant, has sought to characterise this development approval as a fresh application for planning approval and not an extension; I will return to this matter in a moment.
4 The Tribunal dismissed the application for a review. The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Background to the application
5 Some of the background to the matter may be found in the transcript of earlier proceedings delivered by me in August 2011 in proceedings DR 254 of 2010 (August 2011 decision) (and two sets of related proceedings in this Tribunal).
6 There, I said:
It is unnecessary for present purposes to go over the long history of the false starts and delays or the reasons or circumstances for them that relate to the development [on the subject land]. They are set out in sufficient detail in the amended statement of agreed facts filed by the parties. What may be noticed is that the dwelling as at 2011 remains approximately 50 per cent uncompleted, and is in that state an eyesore and needs to be resolved. (TS:2; 05.08.2011)
7 For present purposes, save for one condition, it is unnecessary to set out the lengthy orders made by the Tribunal on that occasion. The effect of them was to create a carefully worked out timetable of around 52 weeks (allowing for certain contingencies) for completion of the development, a timetable that the applicant agreed with.
8 These reasons must be read with those orders in mind as they set out the relevant planning and building conditions attaching to the development on the subject land as at August 2011.
9 I will, however, refer to Schedule A, Condition 3, operative from 5 August 2011, which reads as follows:
In the event the development is not completed in accordance with the time limited by these conditions, it is a requirement that the building is demolished, all building materials removed from the site and the site reinstated to a neat and tidy condition within 21 days following the date by which development should have been completed.
10 As will appear in a moment, the fact that this condition has not been complied with is common ground in the review. That fact is also, in my view, significant to the outcome of the review.
11 What does not appear at the very end of the transcript of those proceedings in 2011, but was certainly issued by me on that occasion (as both I and counsel for the City, Mr Slarke, recall - and Mr Slarke has a contemporaneous note thereof), was a blunt warning by the Tribunal given to Mr Branca (who was present) to the effect that this really was his 'last chance' to finish work on his residence.
Facts in the review
12 Most of the material facts for these proceedings have been agreed. See paragraph 4 of the respondent's statement of issues, facts and contentions, where agreement is noted as to the bulk of factual assertions made by the applicant. Even the disputed assertions as to the applicant's facts mainly relate to the proper characterisation of certain events or transactions. See the respondent's statement of issues, facts and contentions at paragraphs 6 to 15.
13 Importantly, the full and unhappy history of the building activity on the subject land and the previous planning and building approvals, dating from as far back as 2000, are set out in the comprehensive statement of material facts tendered in the Magistrates Court in relation to a prosecution of Mr Branca brought by the City for his failure to comply with the conditions of his development approval given by the Tribunal in the earlier 2011 proceedings.
14 That statement of material facts was received in these proceedings. That document is as follows:
Statement of Material Facts
The accused [Mr Branco] is the owner of a property at 2 Montclair Retreat Dianella [subject land].
He is a builder by trade operating a building company.
On 6 January 2000 he applied for a building licence to construct a substantial multi-levelled dwelling on the subject land.
The land is situated in a residential area surrounded by substantial residences in a higher area of Dianella.
The City approved the application and a building licence for the dwelling was approved on 20 March 2000.
The licence was not actually issued until 14 February 2001 when the accused collected the licence from the City.
Pursuant to the Building Regulations 1989 (WA) made under the Local Government (Miscellaneous Provisions) Act1960 (WA) which was in force at the time building licences were valid for only 24 months from the date of issue.
Accordingly, the accused's dwelling needed to be completed by 14 February 2003 or else the building licence would lapse.
Following the issue of the building licence work commenced but was slow to proceed and eventually stopped completely with the dwelling brickwork and some roofing complete but not at a lockup stage.
When work ceased scaffolding around the building remained in place.
In 2004 complaints were received from residents in relation to the unfinished building adversely affecting the amenity of the residential area.
Following those complaints the accused was requested by the City to give reasons why the work had not been completed.
The City wrote to the accused on a number of occasions between 18 September 2003 and 7 October 2004 in relation to its concerns about the uncompleted building.
Following the correspondence of 7 October 2004 the City considered the matter at a council meeting and resolved to direct the accused to forthwith make the site safe by erecting a security fence around the perimeter of the lot. The accused was also invited to submit a fresh building licence application forthwith in order to enable him to complete the dwelling within the following 12 months. The accused was advised that in the event of non-compliance with the proposed construction schedule the City would issue a notice under Section 409A of the Local Government (Miscellaneous Provisions) Act 1960 in relation to the uncompleted building.
No fresh building licence application was received from the accused and there was no contact with the accused until 15 August 2006 when the City was advised that the subject site formed part of a divorce settlement between the accused and his wife which was schedule[d] for trial in November 2006.
The City was advised that it was proposed to sell the property.
Thereafter the property was not sold and the City continued to receive complaints about the lack of fencing on the site.
This led to a site inspection on 6 January 2009 by which time the subject property was solely in the accused's name and not in joint names.
Following that inspection when the land was not adequately fenced or secured and the building remained incomplete the City corresponded with and officers spoke with the accused further in relation to the matter.
That led to an on site meeting on 17 February 2009.
On that day, the accused met with officers of the City. His architect was also present at the meeting.
The accused was advised what he would need to do to enable building work to continue on the site.
He was advised he would need to lodge an application for planning approval as well as a further building licence application and was reminded of information which was still required by the City in relation to the uncompleted building and unauthorised roof trusses within the building mentioned in correspondence from the City on 22 June 2007.
When no further applications were received the City served formal notice on the accused pursuant to Section 409A of the Local Government (Miscellaneous Provisions) Act 1960 on 22 June 2009.
The notice required the accused to submit reasons for non-completion of a building within two years of the date of issue of the building licence.
The accused through his solicitor then pointed out that the Section 409A Notice served by the City had an incorrect expiry date on it.
The City then served a further Section 409A Notice on the accused which changed the expiry date on the notice from the incorrect 20 March 2002 to 14 February 2003. The terms of the notice were otherwise identical to the earlier notice served on the accused.
On 11 August 2009 the accused lodged a development application with the City for proposed additions to the partially constructed dwelling.
The proposal related to modifications to the design of the proposed dwelling which involved the master bedroom and bedroom 2.
The application was approved by the City with development approval being granted on 1 September 2009.
The City then received correspondence from the accused dated 30 October 2009 in which the accused explained his reason for not completing the building within the time required.
The City considered the explanation but resolved to issue an order under Section 409A requiring the building to be demolished in view of the time lapse since the building was commenced.
An order under Section 409A was forwarded to the accused on 8 December 2009.
The accused then applied to the State Administrative Tribunal for a review of the order.
Initially the Tribunal ordered a stay on the order issued by the City.
There followed in the Tribunal lengthy argument in relation to whether or not the building should be removed or whether it could be completed.
Further issues arose in the course of the Tribunal proceedings because sections of the building which had already been constructed were not in compliance with the approved plans forming part of the original building licence or the plans forming part of the planning approval for the dwelling issued under the City's Town Planning Scheme.
The Tribunal required the accused to lodge retrospective applications to try and address the departures from the original approved plans.
Following lengthy hearings in the Tribunal the Tribunal ordered that the roof level of the as constructed dwelling was to be reduced and other amendments to the structure were to be made to alleviate the problems caused by the initial construction of the dwelling being contrary to approved plans.
Orders were eventually made by the Tribunal in relation to the building with the orders being subject to conditions agreed to by negotiation between the accused and his lawyers and the City and its lawyers. Final orders were then made by the Tribunal giving development approval subject to conditions. The final orders were made on 10 August 2011.
Orders included matters relating to the required building licence for proposed building works and the required building approval certificate for works already completed.
The orders made by the Tribunal were to the effect that a development approval be issued subject to conditions requiring all works to be complete within 52 weeks of the specifications for the building works forming part of the required building licence being approved by the City.
The orders set out a time frame for each stage of the works as an indication of the way the works were to be completed.
Following the issue of the SAT orders a development approval was formally issued by the City reflecting the content of the SAT orders agreed between the parties and their lawyers and the Tribunal.
Following the Tribunal order the City approved plans and specifications for the building licence required by the order.
The specifications for the building licence the subject of the Tribunal building licence approval were approved by the City on 1 September 2011.
Accordingly, the 52 weeks for completion of the dwelling commenced on 1 September 2011.
The accused was advised by telephone by the Senior Building Surveyor of the City on 2 September 2011 that the building licence and approved plans and specifications were prepared and available for collection at the City. That is standard procedure by the City when issuing building licences. Builders attend at the City to collect their licence and acknowledge receipt of the building licence together with the approved plans and specifications. At the same time, builders provide proof of home indemnity insurance which is required in relation to building matters and then the City gives the approved documentation to the builder.
The development approval which was issued by the City following the Tribunal orders was approved on 2 September 2011 and posted out to the accused on 7 September 2011.
On 13 September 2011 the City wrote to the accused confirming that the building licence had not been collected and that the building licence would issue upon collection provided details of the accused's home indemnity insurance was received.
The accused collected the building licence documents from the City on 27 January 2012.
On 27 January 2012 the accused also lodged amended plans with the City for approval.
The plans were approved on 27 March 2012 and the accused was notified that the plans were approved and would be ready for collection on 18 April 2012.
Once development approval issued by the City the various milestone requirements for the subject works came and went without work being done to the building by the accused or any other builder.
The Senior Building Surveyor of the City inspected the property at the time of each milestone requirement and as work had not been carried out advised the accused in writing of that fact.
The accused mobilised to the site and started removing scaffolding and retaining walls in mid May 2012.
The City noticed that building work on the building re-commenced in July 2012.
Pursuant to the Tribunal orders and the development approval all work on the dwelling needed to be completed by 3 September 2012.
Following inspections on the milestone dates the City wrote to the accused warning that he was missing the milestones set by the development approval each time they occurred and reminding the accused on each occasion of the need to complete the works by 3 September 2012.
Eventually what occurred was that the accused via his site manager requested extensions of time from July 2012 onwards.
The City would not, and in all likelihood could not, extend the time set by the Tribunal for the completion of the dwelling.
Pursuant to condition 1 attached to the development approval if work was not complete within 52 weeks all building work on the site was to be removed within 21 days with the entire site to be completely cleared within that time.
As at 3 September 2012 when work as required to be complete work was not complete on the site and accordingly the City requested removal of the partially completed building works in accordance with the condition of approval.
That request was made through the City's solicitors to the accused and his lawyers.
Following that request there was no attempt made to comply with the condition by removal of the building works and the accused's solicitors advised they had ceased acting for the accused.
Work did cease on the site, however the outstanding condition was not complied with by removal of all building works on the site. Accordingly, the City brought the present prosecution proceedings.
15 In those proceedings in the Magistrates Court, Mr Branca pleaded guilty and has been convicted. Amongst other things, he thereby accepted as a fact that he was lawfully required by the earlier approval of the Tribunal to have completed his outstanding work by 3 September 2012.
Applicant's case
16 In effect, Mr Branca seeks, as I have said, to further extend this building process by varying the development approval given by the Tribunal.
17 In doing so, he has offered an explanation for his failure to comply with the carefully worked out and agreed timetable imposed by the Tribunal in 2011. Further, he now seeks to offer in the alternative a third party builder contracted by him to complete the job.
18 In addition to her written contentions on behalf of the applicant, Ms Dowley says that with the benefit of hindsight: first, the 2011 building licence could not be issued because of the need for certain certifications, which were delayed and; secondly, in any event, the 52 week timetable and the milestones therein (set out in the August 2011 decision) could not be practically met. Ms Dowley also sought to blame, in part, the City for delays in the consideration of certain amended plans.
19 However, Ms Dowley properly conceded that the alternative course of engaging an independent builder, namely Mr Longo - and there were documents in evidence concerning his proposed contract - was perhaps the only practical alternative available in the special circumstances of this unusual case.
20 This, it seems to me, in the end, became the dominant contention of the applicant's case.
Respondent's case - no power in Tribunal to vary 2011 approval
21 The City says that, as a matter of law, neither the City nor the Tribunal may vary or modify the Tribunal's approval given in August 2011, by, in effect, deleting conditions found in Schedule A to the Tribunal's orders of 5 August 2011, absent, that is, any authority found in a written law, including a town planning scheme (TPS). No such authority was identified by any party.
22 In the facts and circumstances of this case, the application must be, I think, taken and must be read, as an application to vary or modify the Tribunal's, in effect, final planning approval of 5 August 2011.
23 The law on this issue, at least as I understand it, is set out in a recent decision of the Tribunal: Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111 (Coventry Square). In that case, a distinction was drawn between a lawful application seeking fresh planning approval augmenting or extending development for which approval has already been granted and an unlawful application 'varying' what has been previously approved. This latter restriction applies because a consent to the development of land 'is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title'. See City of Belmont and Town of Victoria Park [2014] WASAT 46 (City of Belmont) and the authorities therein discussed, at [11] to [20].
24 Coventry Square was referred to in the proceedings and supports Mr Slarke's contentions.
25 City of Belmont is an example where a TPS did, on its true construction, permit a variation of a planning approval; however, those circumstances are not replicated here.
26 I therefore conclude that Mr Slarke is correct when he submits that there is no power in the City or the Tribunal to do what the applicant wants: the conditions that Mr Branca wants removed or varied cannot be altered as a matter of law.
Respondent's case - exercise of discretion
27 However, I will proceed upon the basis that there is such a power or that somehow it is possible, as Ms Dowley has submitted, to treat this case as a fresh application for planning approval.
28 Then the real issue is one of the proper exercise of planning discretion by the Tribunal in the circumstances of the case.
29 Mr Slarke contends, by way of explanation to the charge of the City's alleged neglect as regards the delay in approving certain amended plans, that the City did not require any such additional certification as the applicant sought, and there was, in any event, a considerable delay in getting the relevant documents to the City - it appears from August 2011 to January 2012.
30 The City submits that the applicant had, apparently, no sense of urgency despite the self-executing demolition condition (Condition 3, set out above) hanging over the proceedings. This is further illustrated, the City submits, by the fact that no substantial work was done on the site until around May 2012.
31 Mr Slarke submits that the third party builder option would not work for essentially three reasons: first, Mr Branca still remains the controlling principal, both practically and formally, under the new contract; secondly, whether the proposed arrangement, however described, could form a valid planning condition must be a very doubtful proposition and; thirdly, the previous proceedings were, in any event, correctly described as Mr Branca's 'last chance' in the matter.
Conclusions on the circumstances relevant to the exercise of discretion
32 With respect, I do not accept Mr Branca's explanation for his failure to build under the previous approval. Even if the City made administrative errors, or caused delay in its processes at some points, these matters do not explain the extraordinary delay in commencing, or recommencing, building. They are, however, unfortunately wholly consistent with a long history of delay and inactivity at various points over the last decade with respect to building on this site.
33 The fact is that Mr Branca had a year to complete his building on a timetable agreed with him. He is himself a builder; he was warned that this was his last chance in the circumstances. He faced a self-executing demolition condition, which he, in effect, accepted.
The public interest as a relevant test
34 Both parties accepted that a 'public interest' test was a valid criterion for the exercise of planning discretion in a case such as this. The term 'public interest' does not appear in the planning framework - unlike in other local government planning instruments. Ms Dowley submitted that the public interest would be in fact best served by allowing the new builder to complete this long-standing unfinished project.
35 On the other hand, Mr Slarke submitted that the public interest would be best served by not permitting Mr Branca, given his record, to be directly or indirectly involved in the building process. He should not be given any further latitude in the matter, particularly in light of the previous proceedings in SAT.
36 I commence by noting that under the Environmental Planning and Assessment Act 1979 (NSW) in determining a development application, a consent authority may take into consideration 'the public interest': s 79C(1)(e).
37 Of course, the specification in that Act of the public interest does not mean that it may not be relevant to the evaluation and assessment of development approvals in this State because of its express absence from any local statutory criteria. As Bennion on Statutory Interpretation (5th ed, 2008) notes, at pages 1251 to 1252:
All drafters do not take the same view about the need to specify a matter rather than leaving it to implication. Thus the fact that one Act specifies a particular matter, whereas another is silent on the point, does not necessarily mean that [any principle of statutory interpretation] should be applied [to limit the second Act].
38 The very wide scope of relevant planning considerations in this State suggests that notions of 'public interest' are included in such criteria.
39 Very recently, the Supreme Court of Western Australia has had cause to consider the scope of such planning considerations in Atlas Point Pty Ltd v Western Australian Planning Commission [2014] WASC 26 (Atlas Point).
40 Simmonds J drew attention to the specified assessment criteria found in s 241(1) of the Planning and Development Act 2005 (WA) (PD Act) saying, at [58] of Atlas Point:
[The Tribunal is] required by [PD Act] s 241(1) to have 'due regard to relevant planning considerations' with the specific inclusions in that subsection. The term 'planning considerations' is one of 'broad import' which is not limited to those inclusions [citing Zampatti v Western Australian Planning Commission [2010] WASCA 149].
41 His Honour went on, at [59], to observe that:
[It may also be] accepted that the term is capable of including all considerations relating to the use and development of land, and is not limited to matters relating to amenity.
42 At [62] to [64] his Honour said (internal citations omitted, emphasis added):
My attention was directed in particular to authorities which state that 'financial hardship, economic feasibility, and similar considerations and evidence respecting them, as a matter of law are inadmissible' … and that the conduct or motivation of an applicant are not relevant planning considerations, and decision makers like [the Tribunal] are not equipped to deal with allegations as to those matters …
However, in my view, as other authorities … indicate, considerations like those of the likelihood of the proposed development going forward are capable of being a planning consideration if such considerations go to a planning aspect of the proposed development …
An example of a case so indicating in my view is that of a proposed development which it was probable or likely could not be effectively maintained with the result that the amenity of its locality would be substantially impaired[.]
43 Not infrequently, planning tribunals have had regard to a proponent's 'track record' in determining or assessing development applications. Hence, in the Victorian Civil and Administrative Tribunal in Callan v Greater Geelong City Council [2005] VCAT 31, the Tribunal made reference to the fact that the 'applicants [had] an established track record … given the planting, fencing, water reticulation improvements that have already been carried out on this property'. The Tribunal granted planning approval to the applicants to build a dwelling on a large rural block.
44 In contrast, in Forster v Gardenia Shire Council and Dixon [1998] VCAT 778, the Tribunal said (emphasis added):
The first issue to be determined is whether or not the proposed use will be less detrimental than the present use. This is a difficult question to answer. While the Tribunal has little doubt that, providing conditions of the permit regarding landscaping and the appropriate storage of the tanks are obeyed, the use would be less detrimental. However, the track record of the proponent is poor and gives rise to an apprehension that Mr Dixon is unduly casual in his attitude to permit conditions. One would hope his recent experience at the Magistrates Court has brought home to him the fact that non-compliance with permit conditions is a serious matter indeed …
[The] Tribunal has come to the conclusion that the use should be permitted, but for a trial period of twelve (12) months. This is an adequate period for the proponent to put his house in order. In particular, the landscaping, storage areas and car parking can all be established, and once in place, these improvements should enhance the amenity of the subject land and the surrounding environment.
45 It is clear from these passages that a wide view is taken by courts and tribunals in relation to what may be a relevant planning consideration in any given case. In my view, in the circumstances of this case, they would include notions of public interest arising out of the extraordinarily long period that Mr Branca's residence has stood semi-completed in a residential street, and Mr Branca's direct involvement, in or contribution to, that state of affairs.
Conclusions
46 In my view, this saga - for that is a correct description of it - should come to an end and come to end now, at least so far as the current planning process is concerned.
47 I regret to say that I have no confidence, based upon very well-established events to date, that Mr Branca, even with the assistance of another builder, would conclude this decade-old problem, not at least without further substantial and unacceptable delays.
48 It is in the public interest that Mr Branca's involvement with this site and this project be, in effect, terminated and that the aftermath of his failure to avail himself of his last chance from 2011 be affirmed. Mr Branca must take responsibility for the consequences of that situation which are of his own making.
Orders
For the reasons given above, the orders of the Tribunal will be:
1. The application for review is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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