CANAL ROCKS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION

[2010] WASAT 176

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   CANAL ROCKS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 176

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   12 NOVEMBER 2010

DELIVERED          :   EDITED REASONS DELIVERED ORALLY ON 12 NOVEMBER 2010

FILE NO/S:   DR 33 of 2010

BETWEEN:   CANAL ROCKS PTY LTD

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
 

Catchwords:

Practice and procedure - Review proceedings - Application by parties for order inviting respondent to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) - Application opposed by proposed intervener - Parties reached agreement in principle for resolution of proceeding through mediation in Tribunal - Whether parties should be required to proceed by way of consent orders - No third party right of review in Western Australia

Legislation:

Planning and Development Act 2005 (WA), s 242
Shire of Busselton Town Planning Scheme No 20, cl 15(3), cl 96(2)
State Administrative Tribunal Act 2004 (WA), s 9, s 31, s 31(1), s 37, s 37(3)

Result:

Order made inviting respondent to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA)

Category:    B

Representation:

Counsel:

Applicant:     Mr MJ Hardy

Respondent:     Ms CA Ide

Proposed Intervener     :     Mr JCW Skinner

Solicitors:

Applicant:     Hardy Bowen

Respondent:     State Solicitor's Office

Proposed Intervener     :     Jackson McDonald

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

Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 62

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The parties in planning review proceedings reached agreement in principle for resolution of the matter through lengthy mediation conducted by the Tribunal.  Meanwhile, an adjoining landowner that had applied to the Tribunal for leave to intervene in the proceeding or to make a submission in relation to the application, waited for its applications to be heard.

2. The parties sought an order from the Tribunal inviting the respondent to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA). The proposed intervener opposed this application and argued that the parties should be required to seek consent orders to finalise the proceeding. If the matter were to proceed by way of consent orders, then the intervention application would be heard first and if leave to intervene or to make submissions were granted, then the proposed intervener could participate in the hearing as to whether the consent orders should be made.

3. Following the hearing, the Tribunal gave an oral decision in which it decided to invite the respondent to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA). Inviting a reconsideration would be consistent with the Tribunal's objectives to achieve appropriate resolutions acceptable to the parties speedily and with minimal costs, would enable the decision that is being reviewed by the Tribunal to reflect the position contended for by the original decision­maker and would enable the original decision­maker to address changed circumstances. The Tribunal noted the fact that, uniquely amongst the Australian States, there are no third party rights of review in relation to planning decisions in Western Australia. The making of an order inviting a reconsideration would not, therefore, preclude the proposed intervener's legitimate involvement in the planning process. Finally, the Tribunal noted that the applicant could seek leave to withdraw the proceeding and lodge a fresh application with the original decision­makers. However, it would be inappropriate and contrary to the Tribunal's objectives to leave the parties to that course of action.

4. The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction and background

1. This proceeding involves an application for a review brought by Canal Rocks Pty Ltd (Canal Rocks) in relation to the deemed refusal by the Western Australian Planning Commission (Commission) of a Development Guide Plan pursuant to cl 96(2) and cl 15(3) of the Shire of Busselton Town Planning Scheme No 20 (Scheme).

2. The proceeding was commenced on 29 January 2010.  The Commission raised a preliminary issue as to whether there is jurisdiction to entertain the proceeding.  That issue was determined on the documents, and a decision holding that there is a right to seek review of a deemed refusal of a Development Guide Plan under the Scheme was published on 30 April 2010: see Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 62.

3. Meanwhile, on 8 March 2010, the owners of Smiths Beach Survey Strata Plan 49006 (proposed intervener) made an application to the Tribunal for leave to intervene in the proceeding, pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), or alternatively, for leave to make a submission in relation to the application, pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act).

4. On 21 May 2010, the Tribunal listed the application to intervene for hearing on 1 July 2010 and referred the matter to mediation on 13 July 2010.  On 16 June 2010, the hearing of the intervention application was vacated.  At the same time, the proposed intervener was directed to file and serve on each party a statement of its position in relation to the proposed Development Guide Plan, having regard to the Commission's proposed modifications and Canal Rocks' response.  The Tribunal ordered that the proposed intervener's statement was to be discussed by the parties at the mediation.

5. On 12 July 2010, the proposed intervener filed and served its statement of issues for consideration by the parties at the mediation on 13 July 2010.  A member of the Tribunal, Mr Maurice Spillane, then conducted mediation sessions with the parties on 13 July 2010 and 26 July 2010.  On 26 July 2010, Member Spillane adjourned the matter to directions on 5 August 2010 for programming through to a hearing.  On 5 August 2010, the Tribunal listed the matter for final hearing over eight days, commencing on 15 December 2010.  The Tribunal also listed the matter for further mediation on 14 September 2010 and 28 September 2010.  Finally, the Tribunal listed the application to intervene or to make submissions for hearing on 11 November 2010.

6. Member Spillane conducted the further mediations on 14 September 2010 and 28 September 2010.  On 8 October 2010, the Tribunal vacated the earlier listing of the application to intervene or to make submissions and listed that application for hearing on 6 December 2010.

7. The representatives of the parties and of the proposed intervener attended a directions hearing convened by the Tribunal on 12 November 2010 to review preparation for hearing.  The representatives of the parties announced that the parties had reached agreement in principle for resolution of the matter.  The resolution, they said, involves approval of the Development Guide Plan, subject to modifications.  They said that the resolution has been achieved through the mediation process conducted by the Tribunal and, in particular, discussions and information provided in that process.

8. The representatives of the parties originally indicated that consent orders would be filed approving the Development Guide Plan, subject to agreed modifications.  I indicated that the intervention application was still pending and that it would be determined before the Tribunal considered whether to endorse the consent orders.

9. The parties indicated that they had considered requesting the Tribunal to make an invitation to the Commission under s 31 of the SAT Act for a reconsideration but thought that that process would take longer than finalising the matter through consent orders, as the relevant committee of the Commission would only be meeting on 14 December 2010. They regarded proposing consent orders quicker and cheaper than an invitation for reconsideration under s 31 of the SAT Act.

10. The parties then had further discussions during an adjournment and later announced that, rather than the making of consent orders, they sought an invitation by the Tribunal to the Commission for the Commission to reconsider its decision under s 31 of the SAT Act.

11. Although the proposed intervener is not a party to the proceeding, I considered it appropriate to allow Mr Julius Skinner, counsel for the proposed intervener, to make submissions in relation to the parties' proposal. Mr Skinner opposed the application for an invitation to reconsider under s 31 of the SAT Act and submitted, rather, that the parties should be required to proceed by way of consent orders.

Parties' submissions

1. Mr Skinner submitted that it would be inappropriate for the Tribunal to invite reconsideration in the circumstances of this case.  He noted that his client has been waiting to have its application to intervene or to make submissions heard by the Tribunal since 8 March 2010 and that the application has been listed for hearing twice since that time.

2. Mr Skinner submitted that the parties' proposal for a s 31 reconsideration was intended to preclude or thwart his client's involvement in relation to the planning application, which, he submitted, was inappropriate. He also submitted that his client, whose land adjoins the subject land on two boundaries, has a genuine and material interest in relation to the matter.

3. Mr Ian Rogers, counsel for Canal Rocks, submitted that the application before the Tribunal is an application between his client and the Commission.  The parties should be given the opportunity to finalise the matter between them as quickly and as cost­effectively as possible.  Mr Rogers submitted that the parties have engaged in a lengthy mediation process in the Tribunal.  He also noted that this is the second Tribunal application that his client has made in an effort to achieve the approval of the Development Guide Plan.  A previous application for review of the Shire of Busselton's decision in relation to the same Development Guide Plan resulted in a mediated outcome after a considerable period.

4. Ms Catherine Ide, counsel for the Commission, adopted Mr Rogers' submissions. Ms Ide also submitted that the s 31 invitation sought by the parties is not intended to preclude the involvement of the proposed intervener; rather, it is quicker and cheaper, and is likely to be concluded by 14 December 2010. Ms Ide also submitted that the Tribunal routinely makes s 31 invitations in circumstances such as this because it is appropriate for an original decision­maker to be able to make a fresh decision where circumstances change.

5. In reply, Mr Skinner submitted that, while it may be the general practice of the Tribunal, in cases having been through mediation, to make an invitation under s 31 of the SAT Act for the original decision­maker to reconsider its decision having regard to new circumstances, this case is different because his client is a third party with a genuine interest and has been attempting to have its application for intervention or to make submissions heard since March 2010.

Should the Tribunal invite the Commission to reconsider its decision under s 31 of the SAT Act?

1. Section 31 of the SAT Act states as follows:

   (1)At any stage of a proceeding for the review of a reviewable decision, the Tribunal may invite the decision­maker to reconsider the decision.

   (2)Upon being invited by the Tribunal to reconsider the reviewable decision, the decision­maker may ­

   (a)affirm the decision;

   (b) vary the decision; or

   (c)set aside the decision and substitute its new decision.

   (3)If the decision-maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision.

2. The word 'may' in s 31(1) of the SAT Act imports a discretion. The Tribunal is not compelled to invite the decision­maker to reconsider its decision if requested to do so by either party or by both parties jointly; rather, it has a discretion in relation to whether or not to invite the original decision­maker to reconsider its decision.

3. In my view, it is appropriate to exercise the discretion in favour of making the order inviting a reconsideration in the circumstances of this case for the following six reasons.

4. First, the discretion is to be exercised having regard to the Tribunal's main objectives set out in s 9 of the SAT Act. The Tribunal's main objectives are:

   (a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case;

   (b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and

   (c)to make appropriate use of the knowledge and experience of Tribunal members.

5. Allowing a reconsideration, in my opinion, is consistent with these objectives.  It is likely to result in a resolution of the proceeding, in a manner acceptable to the parties, by 14 December 2010.  As noted, the hearing is listed to commence on 15 December 2010 for eight days.  The Tribunal, if it reserves its decision, must give a decision within 90 days.  Resolution of the proceeding by way of reconsideration is likely to be quicker and cheaper for the parties than resolution through an application for the making of consent orders.

6. Furthermore, the resolution between the parties appears to have arisen in consequence of a lengthy mediation process involving no less than four sessions. Mediation is, in itself, an important means by which the Tribunal is able to achieve its objectives under s 9 of the SAT Act and, in particular, achieve appropriate resolutions acceptable to the parties speedily and with minimal costs.

7. Secondly, these are review, not original, proceedings.  The Tribunal is not an original decision­maker in planning cases.  The original decision­maker is the Commission.  It is appropriate that the original decision­maker be given an opportunity to reconsider its decision so that the decision that is being reviewed by the review Tribunal reflects the position contended for by the original decision­maker.  That is not presently the case.

8. Thirdly, where circumstances have changed through mediation by discussion and the provision of information, as appears to be the case here, it is appropriate for the original decision­maker to have the opportunity to address the changed circumstances and make a fresh decision, having regard to the changed circumstances.

9. Fourthly, the proposed intervener does not have independent standing to seek review of the planning decision. Section 37 of the SAT Act enables the Tribunal to grant leave at any time for a person to intervene 'in a proceeding' on conditions. Section 242 of the PD Act confers discretion on the Tribunal to receive or hear submissions 'in respect of an application' from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.

10. Importantly, there would not be any 'proceeding' or any 'application' in circumstances where the original decision­maker, the Commission in this case, makes a decision acceptable to Canal Rocks.  It is only because there was a deemed decision contested by Canal Rocks that the proceeding and the application came before the Tribunal.  It appears that as a result of the mediation process, the parties have reached a point where there will be a decision of the Commission that is acceptable to Canal Rocks.

11. Fifthly, the application for a s 31 invitation is not intended to preclude the proposed intervener's legitimate involvement in the planning process. The proposed intervener may make submissions to the Commission in relation to the reconsideration. However, the law does not confer standing upon the proposed intervener to seek a merits review before the Tribunal of the Commission's decision in relation to another person's land.

12. Third party planning appeals exist, to a greater or lesser extent, in every other Australian State.  While there may be different views about whether third party rights of review should also be conferred in Western Australia, that is not currently the law.  The proposed intervener does not have an independent right to seek review, but may simply make submissions in relation to a planning application.

13. Finally, it is to be noted that Canal Rocks could simply seek leave to withdraw the application for review and resubmit the Development Guide Plan, amended and modified in the way agreed with the Shire of Busselton in earlier proceedings, and now as apparently agreed with the Commission.  The Shire of Busselton and the Commission could then approve the Development Guide Plan.  As I have observed, those decisions would not give rise to any right to seek review on the part of the proposed intervener.  It would be, in my view, inappropriate and contrary to the objectives of the SAT legislation to leave the parties to the proceeding to such a course of action.

14. For these reasons, in my opinion, it is appropriate to exercise the discretion conferred by s 31 of the SAT Act in the way sought by the parties to the proceeding and to invite the Commission to reconsider its decision by 14 December 2010.

Orders

1. I therefore make the following orders:

   1.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision by 14 December 2010.

   2.The proceeding is adjourned to a further directions hearing at 10 am on 17 December 2010, to await the reconsideration and to enable the applicant to seek leave to withdraw the application if it so elects.

   3.The hearing of the application for intervention listed to take place on 6 December 2010 is vacated.

   4.The final hearing dates commencing on 15 December 2010 for eight days are vacated.

   5.All outstanding programming orders are discharged.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER