CANN and CITY OF FREMANTLE
[2023] WASAT 41
•15 JUNE 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CANN and CITY OF FREMANTLE [2023] WASAT 41
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 23 - 24 AUGUST 2022 AND 14 NOVEMBER 2022
DELIVERED : 15 JUNE 2023
FILE NO/S: DR 126 of 2019
DR 90 of 2020
BETWEEN: PETER DAVID CANN
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Town planning - Enforcement - Written direction - Whether works undertaken were authorised by a development approval - Multiple development approvals - Commencement of development approval - Evaluation of which development approval was implemented - Principles which inform the discretion as to whether to affirm a written direction
Words and phrases: 'not less than' - 'within'
Legislation:
City of Fremantle Local Planning Scheme No 4, Pt 7, Pt 8, cl 1.1.2(a), cl 10.5.1(a), cl 10.5.1(b), cl 10.5.2, cl 11.4
City of Fremantle Town Planning Scheme No 3, cl 12, cl 90, cl 92
Interpretation Act 1984 (WA), s 5, s 61(1)(f)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 61(1)
Planning and Development Act 2005 (WA), s 214, s 214(2), s 214(3), s 214(4), s 214(6), s 214(7), s 255, Pt 13
State Administrative Tribunal Act 2004 (WA), s 9, s 27, s 29(3), s 91
Result:
Applications for review successful
Category: A
Representation:
Counsel:
| Applicant | : | No Appearance |
| Respondent | : | Mr P Gillett |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39; (2012) 187 LGERA 122
Auburn Municipal Council v FN Eckold Pty Ltd (1974) 34 LGRA 101
Auscon Pty Ltd and Town of Cambridge [2021] WASAT 116
Ayres v Chacos (1972) 19 FLR 468
Boral Resources (NSW) Pty Ltd v Wingecarribee Shire Council (2003) 124 LGERA 90
Bradshaw and City of Joondalup [2020] WASAT 156
Cann and City of Fremantle [2012] WASAT 211
Caruso v Shire of Augusta-Margaret River [2016] WASC 379
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476
Corp and Town of Cambridge [2019] WASAT 65; (2019) 97 SR (WA) 252
Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111
Day v Pinglen Pty Ltd (1981) 148 CLR 289, 299
Drummoyne Municipal Council v Lebnan 1974 131 CLR 350, 360
Edge Holdings No 6 Pty Ltd and The Acting Presiding Member of the Metro Central Joint Development Assessment Panel [2020] WASAT 35; (2020) 99 SR (WA) 222
Fazio v City of Fremantle (unreported, WASC, Library No 960454, 16 August 1996).
Forrest and Forrest Pty Ltd and Minister for Aboriginal Affairs [2023] WASAT 28
Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231
Gull Petroleum (WA) Pty Ltd & Ors v Nashville Investments Pty Ltd & Anor [1999] WASCA 12; (1999) 102 LGERA 431
Low & Anor v Swan Cove Holdings Pty Ltd & Anor [2003] WASCA 115
Mackinlay and City of Fremantle [2013] WASAT 84
Moles and City of Armadale [2021] WASAT 140
Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301
Morton v Hampson [1962] VicRp 50; [1962] VR 364
North Fremantle JV Pty Ltd and City of Fremantle [2022] WASAT 70
North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rohrlach v City of Unley (2011) SAERDC 19
Sharpe v Town of Vincent [2010] WASC 391; (2010) 181 LGERA 114
Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170, 176
Sopikiotis v Owners Corporation RP017740 [2013] FCA 353; (2013) 211 FCR 321
Taranto v Glen Eira CC [2015] VCAT 1904
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Waterfront Place Pty Ltd v Minister for Planning [2018] VSC 621
Waugh v Kippen (1986) 160 CLR 156
Waverley Municipal Council v Ladec Holdings Pty Ltd (1978) 36 LGRA 188
WP Ivanhoe Dev Pty Ltd v Banyule CC [2019] VCAT 1414
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This case concerns a question as to what development approval, if any, has a renovated dwelling at No 38 (Lot 9) Tuckfield Street, Fremantle (Land) been constructed in accordance with. This matter has a somewhat complicated history.
The owner of the dwelling, Mr Peter Cann (Mr Cann or Applicant) obtained two separate development approvals to extend an existing cottage dwelling on the Land. The first was issued on 11 November 2003 (2003 Approval) and the second on 26 March 2012 (2012 Approval).
The Applicant's case is that he extended the dwelling based on the 2003 Approval.
The City of Fremantle (City or Respondent) considers that the dwelling has been constructed 'substantially in compliance' with the 2012 Approval and that the 2003 Approval ultimately lapsed with the effluxion of time.
While the City's case is that the 2012 Approval has been 'substantially' complied with, there are important aspects of that 2012 Approval, including a large upper-level north-western window in the master bedroom that overlooks a neighbouring property (Window), that was not authorised by the 2012 Approval. It is the presence of the Window that is, in practical terms, the focus of the dispute between the parties.
Because the City is of the view that the extensions to the Land (namely the Window) have been undertaken without, or at least not consistent with, a valid development approval, it issued two written directions on the Applicant pursuant to s 214(3) of the Planning and Development Act 2005 (WA) (PD Act). The first on 13 June 2018 (2018 Direction) and the second on 9 March 2020 (2020 Direction).
Both the 2018 Direction and the 2020 Direction (together the Directions) were issued in relation to the Window which, in effect, was required by the Directions to be screened.
The Applicant seeks review of the Directions pursuant to s 255 of the PD Act.
For the reasons that follow, I find that, as a matter of fact and degree, the extensions undertaken to the dwelling on the Land, aside from the Window, bear no real relationship with the 2003 Approval. I therefore find that the 2003 Approval lapsed on 11 November 2013 and cannot now be relied upon by the Applicant to justify the presence of the Window.
I also find that the Applicant acted on, and ultimately implemented, the 2012 Approval. It is the 2012 Approval which remains in effect, and which binds the world.
However, for reasons which I also explain, I am not satisfied that the Directions comply with the requirements of s 214(6) of the PD Act. This is because something less than 60 days is provided for in the Directions, both of which require physical works to be undertaken.
For this reason, I decline to affirm the Directions as I am not satisfied that the Tribunal's jurisdiction has been properly engaged.
Background
The following background, drawn largely, but not exclusively, from the Respondent's Statement of Issues, Facts and Contentions is not substantially contested by the Applicant. Except as otherwise indicated, I therefore find as follows.
The Applicant owns the Land.
The Land is zoned 'Residential R25' in the City of Fremantle Local Planning Scheme No 4 (LPS 4) and 'Urban' in the Metropolitan Region Scheme.
The dwelling on the Land is included on the Heritage List maintained by the City pursuant to Pt 7 of LPS 4.
By reason of Pt 8 of LPS 4, development approval was required for all works to a dwelling on the City's Heritage List, even if such works only affected the interior of the dwelling.
The 2003 Approval
On 9 September 2003, the Applicant applied for development approval to renovate the dwelling on the Land.
As stated, the City granted approval to the 2003 Approval on 11 November 2003.
The supporting material outlined that the 'renovation has been designed to fit within the existing built structure'.
The approved plans for the 2003 Approval showed:
(a)the 'Existing circa 1970s addition' and 'Existing circa 1980s addition' at the rear of the heritage listed dwelling on the Land were to be renovated; and
(b)the only external parts of the 'circa 1970s' and 'circa 1980s' additions to be demolished were:
(i)the 'existing balcony and stair' abutting the 'circa 1970s' addition; and
(ii)the 'existing storeroom' abutting the 'circa 1980s' addition.
The 2003 Approval also stated:
…
This consent allows you to commence the use and/or construction within two years and to complete construction within three years of 11 November 2003. If the development is not completed within these periods you must reapply for planning consent[.]
The 2003 Approval was extended on a number of occasions subject to the same terms and conditions. The last extension was granted on 22 November 2011.
By the terms of the extension granted on 22 November 2011, the 2003 Approval had to be commenced by 11 November 2013 and completed by 11 November 2014.
The 2012 Approval
On 19 October 2011, the Applicant lodged a further application for development approval for proposed alterations to the dwelling. The application included a supporting letter in the following terms:
…
During the detailed design works required to turn the DA plans into working drawings, both the project architect and the engineer determined that retaining portions of the 1980's structure was unfeasible, and represented a significant costs impediment[.]
The plans attached to the 2011 application included a 'Demolition Plan' which showed that the entirety of the 'circa 1970s' and 'circa 1980s' additions were to be demolished and removed.
As stated, on 26 March 2012, the City granted approval to the 2012 Approval.
The approved plans for the 2012 Approval showed:
(a)the entirety of the 'circa 1970s' and 'circa 1980s' additions were to be demolished and removed;
(b)a new two storey addition was to be erected at the rear of the existing heritage listed house; and
(c)the internal layout for both the ground floor and first floor levels of the new two storey addition was different to that shown on the approved plans for the 2003 Approval.
The 2012 Approval included condition 3 which was in the following terms:
…
Prior to occupation, the upper level window(s) on the western elevation of the master bedroom shall be either:
(a)fixed obscured or translucent glass to a height of 1.65 metres above the upper floor level, or
(b)be fixed with vertical screening which incorporate horizontal louvers to a height of 1.65 metres above the upper floor level, or
(c)a minimum sill height 1.65 metres as determined from the internal floor level, or
(d)screened by an alternative method to the satisfaction of the Chief Executive Officer, City of Fremantle. (Condition 3)
On 9 May 2012, the Applicant sought review of the City's decision to impose Condition 3.
On 24 October 2012, the Tribunal published its reasons in Cann and City of Fremantle (Cann).[1] The following is extracted from the Tribunal's reasons for decision in Cann:
[1] Cann and City of Fremantle [2012] WASAT 211.
66In the view of the Tribunal, the matter before it is a direct result of a poor planning decision made in the mid 70s to allow a ground floor extension on the subject site to within 2.0 metres of the rear boundary when a 6.0 metre setback was required. An unauthorised second storey rear addition, and subsequent retrospective planning approval in 1992, has now given rise to the question of overlooking, particularly as the current proposal raises the floor level of the second storey 1.63 metres above that existing and the development is still only 2.0 metres from the rear boundary of the subject site.
67In its conditional approval of 26 March 2012, the respondent was prepared to support the current proposal and grant concessions from the R-Codes with respect to building height and boundary setbacks. However, it was not prepared to grant concessions with respect to the visual privacy requirements of the R-Codes.
68In examining this matter, the Tribunal considered the arguments of the parties, as well as those from Ms Jackson, the part-owner of No 15 Burt Street, in relation to whether the current proposal was materially similar to that approved in 2003 without a visual privacy condition, whether the proposed upper level north-west facing master bedroom window met the performance criteria of the visual privacy element of the R-Codes and whether the imposition of condition 3 was reasonable. The matters of orderly and proper planning were also addressed.
69The Tribunal concluded that, although the approvals in 2003 and 2012 could, theoretically, give rise to materially similar structures if built, they would not, in fact, be identical for reasons outlined in [42] and [43] above. More importantly, the circumstances and conditions pertaining to the two approvals as considered by Council in its assessments had changed over time.
70On the question of whether the subject window would meet the objective and performance criteria of the R-Codes with respect to visual privacy, the Tribunal was not convinced, based on the conflicting evidence from the applicant and respondent, that direct overlooking into the backyard of No 15 Burt Street had, in fact, been minimised by the proposals.
71In view of this conclusion, the Tribunal considers that the imposition of condition 3 was both fair and reasonable in order to address the issue of overlooking, and that the applicant's argument that there would be no or minimal overlooking was not correct.
72However, in fairness to the parties, the size of the subject window(s) has been reduced by the applicant in the current proposal and the respondent has also attempted to find a solution with the suggestion of a horizontal screen projecting outwards from the windowsill. However, the Tribunal does not support this proposal.
73The Tribunal believes that a fair, reasonable and equitable decision in this case is to give significant weight to the amenity concerns of Ms Jackson and to vary condition 3 to read as follows:
Prior to occupation, the upper level north-western window(s) of the master bedroom shall be fitted with fixed vertical screening which incorporates horizontal louvres to a height of 1.65 metres above the upper floor level to prevent downward overlooking in accordance with cl 6.8.1 A1 of the Residential Design Codes of Western Australia (2010) to the satisfaction of the Chief Executive Officer, City of Fremantle, and thereafter maintained to the satisfaction of the Chief Executive Officer, City of Fremantle [Amended Condition 3].
74The Tribunal determines that the application for review is dismissed and that the decision of the respondent is varied in that condition 3 read as set out in [73] above.
On 29 October 2013, the City issued a Building Permit for alterations and additions to the dwelling on the Land.
The plans specified in the Certificate of Design Compliance for the Building Permit included a 'Demolition Plan' which showed the entirety of the circa 1970s and circa 1980s additions were to be demolished and replaced with a two-storey addition.
Works on the Land
In or about July 2014, the Applicant demolished the circa 1970s and circa 1980s additions and commenced construction of a new two-storey addition to the rear of the heritage dwelling on the Land. This fact is not agreed by the Applicant but for reasons I will come to, I so find.
The construction of the new two-storey addition at the rear of the heritage house on the Land was not completed by 11 November 2014.
On 10 May 2018, an officer of the City inspected the two-storey additions to the rear of the dwelling on the Land. That inspection revealed:
(a)the internal layout of the new two storey addition at the rear of the heritage dwelling was consistent with the approved plans forming part of the 2012 Approval (this 'fact' is also not agreed by the Applicant and thus is the focus of these reasons. However, as I will come to, I agree with the City that the extensions reflect the 2012 Approval); and
(b)screening had not been fitted to the upper-level north-western window of the master bedroom in accordance with Amended Condition 3.
The City takes compliance action
On 13 June 2018, the City gave the Applicant the 2018 Direction requiring him to comply with Amended Condition 3 'within 60 days' of being given the 2018 Direction.
On 14 June 2019, the Applicant applied to the Tribunal to review the City's decision to issue the 2018 Direction.
On 9 March 2020, the City issued the 2020 Direction requiring the Applicant to comply with Amended Condition 3 'within 60 days' of being given that direction.
On 5 May 2020, the Applicant applied to the Tribunal for a review of the City's decision to issue the 2020 Direction.
Jurisdiction
These matters arise in the Tribunal's review jurisdiction. Pursuant to s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), I am therefore required to make the correct and preferable decision at the time of the decision upon the review.
As was recently explained in Forrest and Forrest Pty Ltd and Minister for Aboriginal Affairs,[2] on a review no party bears any legal or practical onus of proof. In this review, the civil standard of proof applies. Therefore, when I set out that I am satisfied as to the existence of a fact, I mean that I am satisfied on the balance of probabilities that the relevant fact has been proved.
Issues
[2] Forrest and Forrest Pty Ltd and Minister for Aboriginal Affairs [2023] WASAT 28 [78].
There was no agreement between the parties as to the issues that I must resolve. Ultimately, it is not in contest that in these reasons I must:
(1)determine whether the development that has been erected on the Land is lawful by reason of the 2003 Approval or the 2012 Approval; and
(2)if the answer to (1) above is no, determine whether to affirm the 2018 Direction and/or the 2020 Direction.
If the answer to (1) above is yes, it is not contested that if neither written direction was lawfully issued by the City, I must set them aside.
Evidence
In this matter, in addition to substantial documentary evidence, I heard from four witnesses.
The Respondent called:
(a)Mr Charl Herman Erasmus: who is employed as Team Leader Compliance and Health at the City; and
(b)Mr Justin Lawrence who is the Coordinator of Statutory Planning.
The Applicant called:
(a)Mr Peter David Cann, the Applicant; and
(b)Ms Simone Pirovich, a design draftsperson.
Respondent's case
The Respondent submits that the Applicant has, in effect, implemented the 2012 Approval. This is because the two-storey extension constructed at the rear of the heritage listed house on the Land is substantially the same development as the development approved pursuant to the 2012 Approval.
The Respondent submits that the 2003 Approval was not acted upon because:
(a)the 2003 Approval did not authorise the demolition of the 'circa 1970s' and 'circa 1980s' additions at the rear of the heritage listed house on the Land; and
(b)in any event, the Applicant did not substantially commence the development the subject of the 2003 Approval by 11 November 2013.
Applicant's case
The Applicant submits that he carried out the 2003 Approval because:
(a)the ground floor is constructed of timber stumps and floor joists floorboards;
(b)the upper floor construction is also timber floor joist construction;
(c)the upper windows are floor to ceiling; and
(d)the upper windows are not fitted with vertical screening.
On 29 October 2013, the Applicant was granted a Building Permit consistent with the Certificate of Design Compliance (dated 27 September 2013). This makes clear the development was constructed consistent with the 2003 Approval.
The Applicant submits that he did not carry out the 2012 Approval because the development carried out is substantially different in that:
(a)the ground floor is not constructed from a concrete slab placed on the ground;
(b)the upper floor construction is not a concrete slab; and
(c)the certificate of design compliance or the Building Permit dated 29 October 2013 does not contain any reference to the 2012 Approval.
The Applicant also submits that the 2003 Approval was substantially commenced before 11 November 2013.
Applicable planning framework
The 2003 Approval was granted on 11 November 2003 under the then City of Fremantle Town Planning Scheme No 3 (TPS 3), which was originally Gazetted on 18 December 1987. Clause 1.1.2(a) of LPS 4 revoked TPS 3 at the time of its commencement on 8 March 2007.
Clause 12 of TPS 3 provided that a person shall not commence 'development' unless approval for that development has been obtained. Clause 90 provided that no modification could be made to an approved development unless the further approval of the City is obtained. Clause 92 was in the following terms:
Every consent shall, unless extended, lapse if:
(a)where consent is given for land to be used for a specified use in accordance with Part III, such use has not commenced within six months or within such time as stipulated by the Council;
(b)where consent is for building, such building has not been commenced within six months or completed within two years or within such time as stipulated by the Council.
For the purposes of this clause a building is completed on the date of practical completion certified by an architect or the date upon which the building is occupied and used, whichever is the earlier.
As stated above, the 2003 Approval provided that the use and/or construction authorised by the approval must 'commence' within two years of 11 November 2003 and that construction must be completed within three years of that date. The 2003 Approval was extended several times subject to the same terms and conditions. The last extension was granted on 22 November 2011. By its terms, the 2003 Approval had to be commenced by 11 November 2013 and completed by 11 November 2014.
At the time the 2012 Approval was granted, LPS 4 had commenced. Clause 10.5.1(a) of LPS 4 provided that approved development is required to be 'substantially commenced' within two years, or such other period as specified, after the determination. Clause 10.5.1(b) provided that if a development is not 'substantially commenced' within the period provided by cl 10.5.1(a), the approval lapses.
Clause 10.5.2 allowed for the term of a development approval to be extended by way of a written request made before the approval expired.[3] Clause 11.4 provides that the use and development of land must be undertaken in compliance with the requirements of LPS 4.
[3] Which explains why the City extended the 2003 Approval on 22 November 2013, 11 days after it had, in practical terms, lapsed.
While the 'deemed provisions' commenced on 19 October 2015, no further applications were made to extend either the 2003 Approval or the 2012 Approval.[4]
Applicable principles
[4] The 'deemed provisions' are the provisions contained in Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions).
Before I turn to resolve the question of the lawfulness or otherwise of the development on the Land, I shall first set out some applicable legal principles.
Firstly, a development approval, once acted upon, is binding so long as the development endures. By that I mean that once the step is taken to, in effect, 'commence' or 'substantially commence', and then ultimately implement and rely on a development approval, that development approval then attaches to the land and binds the world.[5]
[5] Low & Anor v Swan Cove Holdings PtyLtd & Anor [2003] WASCA 115 [182] (Roberts-Smith J).
Once operative, in general terms, a development approval endures until it is no longer relied upon or is amended by the grant of a further development approval. So long as each approval is consistent with each other, multiple development approvals can be acted on, and relied upon, together.
There is also no impediment to seeking and obtaining multiple development approvals on the same land which, by their terms, are inconsistent with each other.[6]
[6] Coventry Square WA Pty Ltd and City of Bayswater [2013] WASAT 111 [23] (Coventry Square) citing Rohrlach v City of Unley (2011) SAERDC 19 [47] (Costello J).
However, what is impermissible is to act and simultaneously rely on two development approvals in relation to the same land when those approvals are, by their terms, inconsistent with each other.[7]
[7] Moles and City of Armadale [2021] WASAT 140 [374] (Moles); Coventry Square [24].
Put another way, the holder of multiple development approvals is not entitled to, as it were, cherry-pick between aspects of two or more inconsistent development approvals. Inconsistent development approvals on the same land cannot be merged or blended.
In this instance, the 2003 Approval and the 2012 Approval are inconsistent with each other. They are both approvals that seek to, in effect, provide for the renovation and extension of the original heritage cottage. The approvals are materially different, especially with respect to the placement of windows as well as the internal arrangements. It is not permissible for the Applicant to submit that, the development that has been built on the Land is, in effect, a hybrid between the 2003 Approval and the 2012 Approval.
Indeed, in fairness to the Applicant, it is not his case that he seeks to rely on the two inconsistent approvals. Rather, he submits that he has implemented, relies on, and is therefore bound by, the 2003 Approval.
Secondly, should I find that the development on the Land is not authorised, that is not the end of the matter. In the context of a review under s 255 of the PD Act, it remains a discretionary decision as to whether to affirm a written direction. A number of principles have developed that inform that discretion which are well-known and settled. These principles include:
(a)It is in the public interest of the proper and orderly development and use of land that planning law should generally be complied with. It is expected that, ordinarily, those who carry out subdivision or development will comply with planning legislation and any applicable approval. As Kirby P (as he then was) observed in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361 at 365 [Warringah Shire Council] unless the legislative purpose of planning is upheld, private advantage may accrue to individuals which others cannot enjoy.
(b)The impact of the contravention of the scheme on the relevant locality and the environment. This will involve an assessment as to whether the breach is technical in nature in that it is unnoticeable other than to those well versed in the relevant law.
(c)The factual circumstances in which the planning scheme was contravened.
(d)The time that has elapsed since the unauthorised development was undertaken.
(e)The expense and inconvenience which would be involved in remedying the contravention of the planning scheme.[8]
[8] Morea Architects and Town of Vincent [2006] WASAT 263; (2006) 44 SR (WA) 301 [63] (Morea Architects); Moles [83].
Thirdly, in order to affirm a written direction under s 214 of the PD Act, I must first be satisfied that the Tribunal's jurisdiction to review that direction has been properly engaged. As was set out by the High Court of Australia in Citta Hobart Pty Ltd v Cawthorn,[9] the Tribunal has a duty to ensure that a matter before it 'is and remains within its jurisdiction to hear and determine'.[10]
[9] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 (Citta).
[10] Citta [17] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).
I will return to discuss this question later in these reasons.
Is the development on the Land authorised and, if so, on what basis?
This is the central question that is before me. My task is, in effect, to evaluate what has been built on the Land as against the 2003 Approval and the 2012 Approval and to determine which approval, if any, the extension to the dwelling has been constructed in accordance with.
This question ultimately reduces to an evaluative judgment as to which, if any, of the 2003 Approval or the 2012 Approval was actually constructed, and thus relied upon, by the Applicant. That evaluative judgment is informed by a comparison of what was constructed as against what was authorised under each development approval. The timing of when such works were carried out may also inform that judgment.
That evaluative judgment is a question of fact and degree. It is necessary to say that because it is clear to me that Mr Cann has not acted, in constructing (or extending) the dwelling on the Land, entirely consistently with either the 2003 Approval or the 2012 Approval.
In my view, the question that is ultimately asked of the Tribunal in this matter is resolved, in large part, by a comparison between Exhibit 7 (an outline of the 2003 Approval laid over the 2014 Construction Issue Plans) and Exhibit 8 (an outline of the 2012 Approval laid over the 2014 Construction Issue Plans). These plans were attached to the witness statement of Ms Pirovich but were the focus of much of the hearing (and thus were made separate exhibits). Exhibit 6 was a plan that shows the 2003 Approval, the 2012 Approval and the 2014 Building Licence. That exhibit has also been most helpful.
Because of this, in large part, the evidence prepared by the parties has been of limited assistance to resolving what may be said to be the ultimate issue. That observation is not intended as a criticism. It simply reflects the nature of the issue before me.
In saying that, it is necessary to observe that Mr Cann's evidence was generally unhelpful. He was an evasive and argumentative witness who, at times, persistently resisted answering the questions that were properly asked of him by Mr Gillett, counsel for the City.[11] I am satisfied his evidence is, in large part, a fabrication framed to support his case before the Tribunal. To the extent that Mr Cann's evidence differs from the evidence of another witness or the documentary evidence, I prefer that other evidence.
[11] See for example ts 90 - 94, 24 August 2022.
In terms of the evidence of Ms Pirovich, a key aspect of her evidence was to the effect, at least in part, that because the dwelling was constructed on timber stumps and floor joists floorboards, and not a concrete slab, the 2003 Approval was ultimately acted upon. Ms Pirovich also identifies some of the differences between what was built and the 2003 Approval but does note that the Window, which lies at the heart of the proceeding, is consistent with the 2003 Approval.
In cross-examination Ms Pirovich agreed that she did not look at the internal differences between the as-built dwelling and the 2003 Approval, only changes that were made at the perimeter. She did refer to internal changes that she considered were minor and of no consequence.[12] The relocation of the staircase was not referred to.
[12] ts 59, 23 August 2022.
There are a number of things to say here. I agree that in terms of assessing the town planning impacts of a particular development, it is generally appropriate to focus on how that development presents externally. This is because, in large part, planning controls are directed to how a particular development sits in its context. It is also why the focus for planning assessments is very often on questions such as amenity and compatibility.
It may be said that planning controls end at the external walls and windows of a development because, in many instances, internal arrangements are not the focus of planning controls. So much is recognised by item 5 in the table to cl 61(1) of the deemed provisions.
Of course, there are a number of caveats to that general position. The following examples should not be regarded as exhaustive.
First, where a development is of the requisite heritage significance, internal changes to a development, or its proposed demolition are, or at least may be, properly regarded as planning considerations.[13]
[13] In this regard see generally Caruso v Shire of Augusta-Margaret River [2016] WASC 379 (Fiannaca J); Sharpe v Town of Vincent [2010] WASC 391; (2010) 181 LGERA 114 (Jenkins J); Mackinlay and City of Fremantle [2013] WASAT 84; North Fremantle JV Pty Ltd and City of Fremantle [2022] WASAT 70.
Second, the internal arrangements proposed (together with the relevant uses being proposed or undertaken) necessarily inform the question of what kind of development is being, or is proposed to be, carried out in terms of the land use classification of a proposed development.[14]
[14] See for example Corp and Town of Cambridge [2019] WASAT 65; (2019) 97 SR (WA) 252; Gull Petroleum (WA) Pty Ltd & Ors v Nashville Investments Pty Ltd & Anor [1999] WASCA 12; (1999) 102 LGERA 431 (Kennedy J, Ipp J, Steytler J).
Third, in particular in developments for increased residential densities, the question of internal amenity of future residents is an important consideration.[15]
[15] Bradshaw and City of Joondalup [2020] WASAT 156 [28]-[29], Edge Holdings No 6 Pty Ltd and The Acting Presiding Member of the Metro Central Joint Development Assessment Panel [2020] WASAT 35; (2020) 99 SR (WA) 222; see also WP Ivanhoe Dev Pty Ltd v Banyule CC [2019] VCAT 1414 [130]-[149]; and Taranto v Glen Eira CC [2015] VCAT 1904 [21].
Fourth, in circumstances such as those that arise in this matter, in terms of evaluating whether a development approval has been lawfully implemented, it is necessary to consider the totality of what was authorised by a development approval as against what was ultimately constructed.[16]
[16] See, by way of analogy, Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39; (2012) 187 LGERA 122 (Pullin JA, Buss JA, Mazza JA).
It is for this reason that I am unable to accept Ms Perovich's evidence that I need only to focus on the external changes that have been made to the 2003 Approval. In my view, what is required is to evaluate the dwelling (that is, the entirety of the dwelling) on the Land as against the 2003 Approval and the 2012 Approval to ascertain which, if any, could be said to have been implemented. In this case, it is not just about assessing how the dwelling presents to the public realm and neighbouring properties.
Turning now to that task, I have no difficulty in finding that the dwelling on the Land reflects, in large part, the 2012 Approval. Aside from the Window which lies at the heart of this proceeding, there is, in an overall sense, little semblance with the 2003 Approval. That is to say, I find that the 2012 Approval was the development approval that was ultimately acted upon.
My findings which support that overarching conclusion follow.
At the ground floor, I find that the internal arrangements largely reflect the 2012 Approval. The kitchen/dining and bathroom/laundry areas largely reflect the 2012 Approval, not the 2003 Approval. The location of the staircase reflects the 2012 Approval, not the 2003 Approval. I note here that Bedroom 1 and Bedroom 2 as well as the study/studio are the same in each (and are part of the original cottage on the Land).
I find that the upper floor plan resembles the 2012 Approval, not the 2003 Approval. The staircase is located as per the 2012 Approval. The ensuite is located as per the 2012 Approval. The Master Bedroom and the Retreat are the same in each.
At the north-east elevation I find that, what is constructed, in terms of the windows and openings, reflects neither the 2003 Approval nor the 2012 Approval, especially at the upper level.
At the south-west elevation, I find what has been constructed more reflects the 2012 Approval. The only real variation from the 2012 Approval is the absence of the highlight window on the ground floor.
I find that the south-east (street) elevation reflects the 2012 Approval by reason of there being two windows at the upper level (not one as shown on the 2003 Approval). The original cottage remains constant in each on this elevation.
In terms of the north-west elevation, aside from the Window in the Master Bedroom, I find it largely reflects the 2012 Approval. However, I also find that the Window reflects the 2003 Approval and does not provide for vertical screening as per the 2012 Approval (which is the very reason why the Directions were issued).
It is also the case that the constructed dwelling was not contained within the existing structure but rather involved the demolition of the 'circa 1970s' and 'circa 1980s' additions at the rear as shown in the 2012 Approval. This further reinforces the finding that it is the 2012 Approval that was ultimately implemented, even if the rear section was not replaced by fill with a concrete slab as per the 2012 Approval, but instead remained on stumps.
In an overall sense, between the two development approvals, I find there is no room for argument that the 2003 Approval was ever constructed. While not undertaken strictly in accordance with the development approval, it is clear, and I so find, that the 2012 Approval was acted upon.
In my view, it is the 2012 Approval which now binds the Applicant, and which operates in rem.
I turn, next, to discuss the basis for imposing conditions requiring a development to be commenced. This is to address the question as to whether the 2003 Approval was 'commenced' and thus may still be relied upon.
Given my conclusion above, it may be seen as unnecessary for me to address this question. However, having regard to the history of this matter, which includes related proceedings in the Magistrates Court being held in abeyance pending resolution of this proceeding, and the Applicant's long-running position that he 'substantially commenced' the 2003 Approval, it is appropriate that I address the question.
The rationale for 'commencement' conditions on development approvals
In Fazio v City of Fremantle,[17] Commissioner Wheeler QC, as her Honour then was, had before her an application for a declaration as to certain conditions in relation to a development approval, including the question of whether the 'commencement' condition imposed on a development approval had been complied with.
[17] Fazio v City of Fremantle (unreported, WASC, Library No 960454, 16 August 1996).
Commissioner Wheeler noted the following in relation to the rationale or basis for conditions requiring commencement of a development approval within a reasonable timeframe:
The history of applications in respect of the premises illustrates, on a small scale, the 'mischief' at which commencement conditions appear to be aimed; that is, that it is undesirable that a developer should have available for an indefinite time an approval in respect of a development which changing patterns of use or changing community attitudes might, over time, render inappropriate. It is in the interests of orderly planning that an approval for building or for use, once obtained, should be acted upon or should expire, within a reasonable time.[18]
[18] Fazio, 14.
As was explained by the Tribunal in Auscon and Town of Cambridge (Auscon):[19]
A development approval is a right granted at a particular point in time, in a particular context and pursuant to a particular planning framework. The rights granted by that approval should be acted upon within a timely fashion. It is contrary to the public interest for that right to commence that development to endure indefinitely, given that the planning context is always changing as are community needs and attitudes.
[19] Auscon Pty Ltd and Town of Cambridge [2021] WASAT 116 [49].
Clause 1 of the deemed provisions includes a definition of 'substantially commenced' in the following terms:
[S]ubstantial part of work in respect of a development approved under a planning scheme or under an interim development order has been performed[.]
It is important to stress here that the deemed provisions have no application given that the events in question pre-date 19 October 2015. I have included this definition for convenience only.
The general principles on commencement conditions
The applicable principles on commencement have developed largely around the more commonly used term 'substantial commencement'. As I will come to explain, while these terms are not synonymous, there is no reason, in my view, for these general principles not to be applied where the question is whether a development has been 'commenced' or not. However, of course, the test is whether there has been 'commencement', rather than 'substantial commencement'.
Indeed, in Fazio,[20] Commissioner Wheeler considered cl 92 of TPS 3 and concluded, by reference to the High Court's decision in Day v Pinglen,[21] that there was a clear distinction between the requirement to 'commence' as against to 'substantially commence'.[22]
[20] Fazio, 19.
[21] Day v Pinglen Pty Ltd (1981) 148 CLR 289, 299 (Day).
[22] Fazio, 19.
In Auscon,[23] the Tribunal set out the following general principles on the concept of substantial commencement:
(a)the 'test' of substantial commencement is objective and focuses on what has been done, rather than the intention with which it was done;[24]
(b)the 'commencement' must be a positive and unequivocal step indicating that the building for which approval had been obtained has actually commenced. That is, the works done must be referable only to the approved development and not anything else.[25] In general terms, demolition works do not inform the question of substantial commencement or commencement unless the work is expressly required by a condition of the approval;[26]
(c)'substantial commencement' is a question of degree and involves the commitment of resources of such proportion relative to the approved development so as to carry the assurance that work has really commenced. That is, the facts must be such as to lead naturally to the conclusion that the commencement is not merely evident, but is substantial, that is, of a considerable amount;[27]
(d)substantial 'commencement' should not be confused with substantial 'completion'. The focus is on whether the approved development has 'commenced'.[28] It does not matter that the development is not near completion. For example, work done which is extensive and costly may constitute substantial commencement, even though it may only be a small portion of the overall development;
(e)the 'test' is whether the 'work or development, the subject of the development approval has begun by the performance of some substantial part of that work or development';[29] and
(f)'commencement' occurs when the building, engineering or construction work relating to the development, the subject of the approval is physically commenced.[30]
[23] Auscon, [54].
[24] Drummoyne Municipal Council v Lebnan 1974 131 CLR 350, 360.
[25] Drummoyne, 360; North Sydney Municipal Council v Middle Harbour Investments Pty Ltd (1963) 10 LGRA 41, 45.
[26] Auburn Municipal Council v FN Eckold Pty Ltd (1974) 34 LGRA 101 (Auburn); Waverley Municipal Council v Ladec Holdings Pty Ltd (1978) 36 LGRA 188 (Waverley); Boral Resources (NSW) Pty Ltd v Wingecarribee Shire Council (2003) 124 LGERA 90, [18].
[27] Day, 299.
[28] Day, 297.
[29] Drummoyne, 361.
[30] Smith v Wyong Shire Council (No 3) (1984) 53 LGRA 170, 176; Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231 [76].
In Fazio, Commissioner Wheeler found that while the development in question had not been 'substantially commenced', it had nevertheless been 'commenced'.[31] Further, Commissioner Wheeler found that the works, 'although minimal, [were] clearly related to the development that had been approved'.[32]
[31] Fazio, 19 - 23.
[32] Fazio, 19.
Commissioner Wheeler observed that it was conceivable that a purported commencement may be de minimis and that also:
… no doubt it is possible also to have a commencement which is a sham (that is, which is so unrelated to the work required to be carried out as to be no real commencement of the project at all)[.][33]
The 2003 Approval was not 'commenced' by 11 November 2013
[33] Fazio, 19.
In addition to finding that the 2003 Approval was not implemented, I also find that it was not 'commenced' as at 11 November 2013 nor was it completed by 11 November 2014.
As was the case in Fazio, the reference in the 2003 Approval was to 'commence', rather than the more common term 'substantial commencement'. That difference, and the different requirement it imports, must be given effect. It is trite to say that to commence a development approval cannot be read and applied as if it were the same as substantial commencement. A development approval may be commenced well before it is substantially commenced. However, in any event, the question remains one of degree and judgment.
In this case, Mr Cann, on his own evidence, had a 'preliminary design meeting' with a structural engineer on 24 April 2013. A certificate of design compliance was issued on 27 September 2013 with the reference DA574/03 (Mr Cann regards the fact that the design compliance refers back to the 2003 Approval as significant to his contention as to which approval was implemented, I do not. It is an administrative label, nothing more). On 17 October 2013, Mr Cann obtained a Certificate of Insurance to cover the internal demolition works. Mr Cann then vacated the dwelling while works progressed.
Between 25 October 2013 and 11 November 2013, Mr Cann, together with friends, removed 20m2 of termite damaged floorboards, 15m2 of Jarrah floorboards and 30m2 of pine floorboards in order to save on costs. Most of the first-floor level and ceiling joists were also removed. Demolition work commenced, Mr Cann says, on 2 November 2013.
Mr Cann's evidence on the above chain of events is not contested. Accordingly, I so find.
It is at this point, and on account of this work, that Mr Cann says he had 'substantially commenced' the 2003 Approval.
That submission cannot be accepted for five reasons. First, as is the case in the context of substantial commencement, demolition works are generally regarded as preparatory works, not evidence of the commencement of the approved development. This is to say, such works to ready a site for a development are not an unequivocal step towards the commencement of the approved development.
Second, the works undertaken by Mr Cann were not expressly referenced in, or authorised by, the 2003 Approval. For the same reason as explained in Auscon ([107(b)] above, such works are not generally regarded as a positive step that an approved development has been commenced.
Third, and perhaps most importantly, the works described by Mr Cann relate equally to the 2012 Approval which, I have found, was the development approval that was actually implemented.
Fourth, Mr Cann's subjective belief that he had 'substantially commenced' the 2003 Approval is irrelevant. The test as to whether an approved development has commenced is to be assessed objectively. The objective assessment is that the 2012 Approval was acted upon.
Fifth, the aerial photographs still show the former dwelling (namely the circa 1980s addition) remaining on the Land until sometime between February and August 2014.[34] That is why, as set out at [34] above, I agree with the City that the 'circa 1980s' aspect of the development was demolished on or about July 2014. That fact, which I so find, is inconsistent with the Applicant's evidence that he commenced the 2003 Approval by 11 November 2013.
[34] Exhibit 2, pages 104 and 106.
I therefore find, as at 11 November 2013, the 2003 Approval had not been 'commenced' in any tangible or real sense and thus lapsed.
What is the consequence of the 2003 Approval lapsing?
It follows from the findings above that any works that remain that are inconsistent with the 2012 Approval are unauthorised. As I have explained, in my view, the Applicant is bound by the 2012 Approval.
The consequence of that is the Window, which lies at the heart of these proceedings, and which reflects the 2003 Approval, is in my view unauthorised.
I turn, next, to whether the question of whether I should affirm or set aside the Directions.
Decision as to whether to affirm the Directions
As I have explained, the decision as to whether to affirm or set aside a written direction in relation to unauthorised development is discretionary. That discretion is informed by the principles set out at [68] above.
Having regard to these principles, without needing to address each in turn, I would have no difficulty in affirming the Directions. The Applicant, a developer, has, in my view, plainly attempted to cherrypick between two inconsistent development approvals and has shown a dogged and belligerent attitude in dealing with the City's reasonable efforts to secure compliance with the applicable planning framework.
It is also the case that the Window plainly has impacts on the neighbouring properties in terms of overlooking and a loss of privacy. So much is obvious from the site view I attended with the parties at the commencement of the hearing.
Furthermore, the question of the Window has been previously considered by the Tribunal in Cann, where the Tribunal found that the Window should be screened as per Amended Condition 3.
Upon finding that the Window is not authorised by the 2003 Approval (because it was never commenced and thus lapsed), I do not consider it to be the correct and preferable decision to allow the Window to nevertheless remain. That is to say, I can see no cogent reason not to follow the decision of the Tribunal in Cann.
However, there is an anterior issue that needs to be addressed. That issue is whether the Directions are properly before the Tribunal in a jurisdictional sense. I turn now to address that threshold question.
Do the Directions comply with the PD Act?
The Tribunal's review jurisdiction is only enlivened when a valid reviewable decision is made.
The statutory scheme set out in Pt 13 of the PD Act provides for the enforcement of planning laws. Section 214 allows for a 'responsible authority' (the City) to issue a written direction on an 'owner or any other person undertaking that development' to address 'illegal development'. There are two aspects to the defined term 'development': use and works.[35]
[35] University of Western Australia v City of Subiaco (1980) 52 LGRA 360 (Burt CJ).
Section 214(2) operates in the context of unlawful uses. A written direction can require unlawful uses to cease and not to recommence. Written directions under s 214(2) can be issued with immediate effect.
Section 214(3) operates where there are unlawful works or where works are otherwise required in order to secure compliance with the scheme. The same written direction can deal with unlawful uses and works.[36]
[36] Planning and Development Act 2005 (WA), s 214(4).
However, unlike s 214(2), a written direction under s 214(3) of the PD Act requiring works to be undertaken cannot operate with immediate effect. Section 214(6) provides that where a written direction is issued pursuant to s 214(3), it:
… is to specify a time, being not less than 60 days after the service of the direction, within which the direction is to be complied with.
(Emphasis added)
Perforce of s 214(7) of the PD Act, a failure to comply with a written direction, within any time specified in that written direction, is an offence.
Both Directions were issued pursuant to s 214(3) of the PD Act. Each of the Directions relevantly provides as follows:
DIRECTION TO ALTER DEVELOPMENT
…
DIRECTION
1.The City hereby directs you to alter the Development as specified in the Third Schedule hereto within 60 days after the service of this Direction.
(Emphasis added)
…
THIRD SCHEDULE
Fit to the upper level north-western window(s) of the master bedroom fixed vertical screening which incorporates horizontal louvres to a height of 1.65 metres above the upper floor level in accordance with Amended Condition 3.
Issues with the Directions
In the drafting of these reasons, it became apparent that the language used in the Directions does not match that used in the PD Act.
The Directions require the works to the Window to be undertaken 'within 60 days'. In my view, a question arises whether the time provided by 'within 60 days' is consistent with the requirement to provide 'not less 60 days' as mandated by s 214(6) of the PD Act.
I raised my concerns with the parties and invited submissions. By this stage, Mr Cann had ceased even responding to the Tribunal's communications, so nothing further was filed by the Applicant. The Respondent filed submissions.
Where a written law uses the phrase 'not less than' in terms of the computation of time, the case authorities establish that such a provision requires that the days provided for compliance must be 'clear days'.[37] That requirement is confirmed by s 61(1)(f) of the Interpretation Act 1984 (WA) (Interpretation Act) which is in the following terms:
where there is a reference to a number of clear days or "at least" or "not less than" a number of days between 2 events, in calculating that number of days both the days on which the events happen shall be excluded[.]
[37] Ayres v Chacos (1972) 19 FLR 468; see also Waterfront Place Pty Ltd v Minister for Planning [2018] VSC 621 [27] (Garde J).
As stated, s 214(6) of the PD Act requires 'not less than 60 days' be provided 'after the service of the direction'. By reason of both the common law authorities and s 61(1)(f) on the Interpretation Act, the phrase 'not less than' means both the date of service and the date on which the works must be undertaken are to be excluded in the reckoning of the 60-day period.
While the Respondent submitted that the Directions complied with the requirements of s 214(6) of the PD Act, I do not accept that is the case.
The use of the word 'within' used in the context of the Directions means, in effect, 'before the end of' the 60th day. There are many authorities that emphasise this point. In Sopikiotis v Owners Corporation RP017740,[38] a bankruptcy note was required to be served within 6 months of issue. Kenny J adopted the following passage from Morton v Hampson:[39]
… The modern rule in relation to a period of time fixed by statute "within" which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from and of course including the first day[.].[40]
[38] Sopikiotis v Owners Corporation RP017740 [2013] FCA 353; (2013) 211 FCR 321 (Sopikiotis).
[39] Morton v Hampson [1962] VicRp 50; [1962] VR 364, 365.
[40] Sopikiotis [29].
Now, of course, these authorities are referring to the use of the word 'within' in the context of a written law. However, the Directions use 'within' in this same sense. This also accords with the ordinary meaning of 'within', which, when referring to a time period, means 'before the end of'.[41]
[41] Oxford Online Dictionary.
In my view, the use of 'within' in the Directions has the effect that the works must be carried out 'before the end of' the 60th day. That is inconsistent with the requirement in s 214(6) of the PD Act that at least 60 clear days must pass after the notice is served before the date by which the works must be performed.
Can the Directions be saved or cured on review?
If I do not accept the Respondent's submissions on whether the Directions complied with the requirements of s 214 of the PD Act, the Respondent further submits that, on review and in the context of a de novo hearing, I may amend the Directions.
I do not accept this submission.
It is not my task to determine the validly of the Directions and I have no authority to make any kind of binding declaration.[42] Nevertheless, I must be satisfied that the Tribunal's jurisdiction has been enlivened.
[42] cf State Administrative Tribunal Act 2004 (WA), s 91.
Part 13 of the PD Act is directed to ensuring that planning laws are observed and complied with for the benefit of the public. Its purpose is plainly remedial. As a general proposition, remedial legislation is to be interpreted liberally. On the other hand, s 214 is a provision that potentially has criminal consequences and is thus a penal provision. In general terms, penal provisions are to be applied strictly. Therefore, there is a tension between the remedial nature of Pt 13 as against the penal consequences that may flow from a failure to comply with a s 214 written direction.
In Waugh v Kippen, the majority of the High Court said that:
[Where] the two principles of interpretation ... come into conflict ... the Court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have … In such a context the strict construction rule is indeed one of last resort[.][43]
[43] Waugh v Kippen (1986) 160 CLR 156, 164-165.
While I acknowledge the remedial nature of Pt 13, it is my view that the meaning of 'not less than' is clear and unambiguous. Section 214(6) provides that where an owner is required to undertake physical works to comply with a written direction, they are to be given 'not less than' 60 clear days to complete such works. Based on the accepted meaning of 'within' in the sense used in the Directions, something less than 60 clear days was provided to the Applicant in this case.
Having regard to the criminal sanctions that may flow from a written direction made under s 214, it seems to me, taking account of the statutory scheme of Pt 13, the scope and object of the PD Act as a whole, and the language employed, that a breach by a responsible authority of the requirements set out in s 214(6), in taking enforcement and compliance against an individual landowner, is such that I am not satisfied that the Directions can be saved by taking a liberal approach to the calculation of time.[44]
[44] See for example Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [93] (McHugh, Gummow, Kirby and Hayne JJ).
The Tribunal is a creature of statute, and its review jurisdiction rises and falls having regard to the terms of the SAT Act read with an enabling Act (such as the PD Act). In order for the Tribunal to make any orders of any legal effect, its jurisdiction must be properly engaged. For the reasons I have explained, I am not satisfied that the Directions have given rise to a reviewable decision. In my view, the Directions do not comply with the requirements of the s 214(6) of the PD Act.
Finally, I turn to consider whether I can cure or save the Directions by amending them having regard to the de novo nature of reviews before the Tribunal.
While s 29(3) of the SAT Act provides that I may indeed vary a reviewable decision, my authority to do is only enlivened if a matter is properly before the Tribunal arising from a reviewable decision lawfully made.
While I may have broad powers on review, those powers do not extend to curing a fault in a decision that would, but for that fault, be reviewable. Put simply, on review, I cannot vary the terms of a decision made by the City so as to give myself jurisdiction to then review that decision.
In the context of these reviews, the jurisdiction of the Tribunal is not a tap that I can, as it were, turn on myself. I either have jurisdiction or I do not. In this instance, for the reasons I have explained, I do not.
A final comment
Regrettably, the Applicant's conduct in this proceeding should not go without comment.
He has been a very unhelpful litigant who, time and again, sought to delay the progression and finalisation of these matters. Along the way, he has engaged several law firms to act for him, each of which has ceased to act shortly thereafter. For long periods he has acted for himself and, in large part, refused to engage meaningfully with these reviews.
Due, in large part, to his conduct, these reviews have entailed 28 directions hearings being listed (with 16 of these having to be vacated often due to the Applicant not attending at all, or otherwise seeking a late adjournment). The matter was listed for final hearing on four occasions and vacated three times at short notice due to solicitors being recently instructed.
His conduct has, at times, been disrespectful and has impeded the Tribunal from achieving its objectives pursuant to s 9 of the SAT Act. The resources of the Tribunal and those of the Respondent have, at some level, been wasted.
It is reasonable to expect that applicants who engage the Tribunal's review jurisdiction should do so diligently, conscientiously, and respectfully. The Applicant's conduct of his reviews stands in stark contrast to those reasonable expectations.
Conclusion
Despite all my findings on the substantive planning issues that arise from the presence of the Window, I am not satisfied that the Tribunal's jurisdiction has been properly engaged due to the defect with the Directions. Accordingly, in my view, there is no basis on which I can affirm the Directions.
I shall hear from the parties as to any orders necessary to give effect to these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
15 JUNE 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: CANN and CITY OF FREMANTLE [2023] WASAT 41 (S)
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 6 SEPTEMBER 2023
FILE NO/S: DR 126 of 2019
BETWEEN: PETER DAVID CANN
Applicant
AND
CITY OF FREMANTLE
Respondent
FILE NO/S: DR 90 of 2020
BETWEEN: PETER DAVID CANN
Applicant
AND
CITY OF FREMANTLE
Respondent
Catchwords:
Practice and procedure - Town Planning - Costs - Costs thrown away
Legislation:
Legal Profession (State Administrative Tribunal) Determination 2022 (WA)
Legal Profession (Supreme and District Courts) (Contentious Business) Report 2020 (WA)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)
Result:
Application allowed
Category: B
Representation:
DR 126 of 2019
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
DR 90 of 2020
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Cann and City of Fremantle [2023] WASAT 41
Citygate Properties Pty Ltd v City of Bunbury [2005] WASAT 53
Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43(S)
Oshlack v Richmond River Council (1998) 19 CLR 72; 96 LGERA 173
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and background
The City of Fremantle (Respondent) seeks costs against Mr Peter Cann (Applicant) in the amount of $4,801.50.
The costs claimed by the Respondent are costs that it says were thrown away by the Applicant's conduct throughout the primary proceeding, Cann and City of Fremantle [2023] WASAT 41, for which I delivered my reasons on 15 June 2023 (Primary Reasons).
In the Primary Reasons, I ultimately dismissed the applications for review on the basis that the Tribunal lacked jurisdiction. This was because the written directions the subject of the review applications did not comply with the mandatory requirements of the Planning and Development Act 2005 (WA) in terms of providing the minimum amount of time for the Applicant to comply.[45]
[45] Primary Reasons [138] to [158].
Nevertheless, in the Primary Reasons I found it necessary to make the following comments in relation to the Applicant's conduct:
159Regrettably, the Applicant's conduct in this proceeding should not go without comment.
160He has been a very unhelpful litigant who, time and again, sought to delay the progression and finalisation of these matters. Along the way, he has engaged several law firms to act for him, each of which has ceased to act shortly thereafter. For long periods he has acted for himself and, in large part, refused to engage meaningfully with these reviews.
161Due, in large part, to his conduct, these reviews have entailed 28 directions hearings being listed (with 16 of these having to be vacated often due to the Applicant not attending at all, or otherwise seeking a late adjournment). The matter was listed for final hearing on four occasions and vacated three times at short notice due to solicitors being recently instructed.
162His conduct has, at times, been disrespectful and has impeded the Tribunal from achieving its objectives pursuant to s 9 of the SAT Act. The resources of the Tribunal and those of the Respondent have, at some level, been wasted.
163It is reasonable to expect that applicants who engage the Tribunal's review jurisdiction should do so diligently, conscientiously, and respectfully. The Applicant's conduct of his reviews stands in stark contrast to those reasonable expectations.
The Respondent seeks $4,801.50 for costs thrown away by, relevantly:
(a)the Applicant failing to attend a mediation conference and a number of directions hearings (as referred to in the Primary Reasons);
(b)the Applicant failing to file any evidence resulted in the Respondent being required to 'follow-up' with the Applicant to ascertain his intentions as to the future conduct of the reviews; and
(c)the Applicant's late engagement of legal representation shortly before final hearings resulted in those hearings being vacated late and costs thrown away.
The Respondent does not seek any costs in relation to attending the hearings or preparing documents that were required as a necessary part of the hearing.
The hourly rate being sought by the Respondent is $495 per hour which is the hourly rate for a Senior Practitioner pursuant to the Legal Profession (Supreme and District Courts) (Contentious Business) Report 2020 (Court Determination) which the Respondent submits is an appropriate costs scale in this instance.
The Applicant has not made any submissions on the question of costs nor attended any directions hearings since the publication of the Primary Reasons.
Disposition
While the statutory presumption is that each party will bear their own costs in a planning review before the Tribunal,[46] I retain a discretion to award costs if I consider it appropriate in the circumstances.[47]
[46] State Administrative Tribunal Act2004 (WA) (SAT Act), s 87(1).
[47] SAT Act, s 87(2).
In Oshlack v Richmond River Council,[48] Gaudron and Gummow JJ stated the following in relation to the scope of a discretion to award costs:
There is no absolute rule with respect to the exercise of the power conferred by a provision such as s 69 of the [Land and Environment Court Act 1979 (NSW)] that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party.
[48] Oshlack v Richmond River Council (1998) 19 CLR 72; 96 LGERA 173 80 - 81 [40], 186 - 187.
It follows that my power to award costs is not displaced by the fact that in the Primary Reasons, I ultimately determined that the Tribunal did not have jurisdiction to determine the review applications.
As was the case in Citygate Properties Pty Ltd and City of Bunbury (Citygate Properties),[49] Senior Member Parry (as he then was) made a costs order against the respondent even in circumstances where the Tribunal had no jurisdiction in relation to the applicant's review.
[49] Citygate Properties Pty Ltd v City of Bunbury [2005] WASAT 53 [28].
The Tribunal found that the City induced the applicant to lodge a review, and then successfully applied to strike that review out as misconceived. Despite finding in favour of the City that it lacked jurisdiction, the Tribunal nevertheless awarded the applicant its costs. Senior Member Parry stated:
… Even in circumstances where the Tribunal has determined to strike out proceedings as misconceived, the proceedings remain pending before the Tribunal until they are disposed of by order. Until that time, the applicant and the respondent are parties to a proceeding of the Tribunal. The Tribunal, therefore, has power under s 87(2) of the [SAT Act] to order the respondent in the present case to pay the costs of the applicant.[50]
[50] Citygate Properties.
With respect, I agree and adopt this analysis from Citygate Properties.
In this matter, the relevant conduct of the Applicant, which I outlined in the Primary Reasons, and which is repeated at [4] above, occurred while he and the Respondent were both parties to the proceeding.
Having regard to the Applicant's insouciant attitude to his conduct in the proceeding, which I find was, and continues to be, well short of the standard that ought reasonably be regarded as acceptable.
The costs thrown away by the Respondent resulted from the Applicant's unexplained failure to attend a mediation, directions hearings, his lack of diligence in complying with Tribunal orders as well as his late engagement of legal representation shortly before a final hearing. Because of his overall (and repeated) conduct, I find it is appropriate that the Applicant pay the Respondent's costs fixed in the amount of $4,161.30 based on the Schedule below.
In Legal Profession Complaints Committee and Goldsmith (Goldsmith),[51] the Tribunal set out the principles that apply when making a fixed costs determination. The purpose of fixing costs is to avoid expense and delay. The Tribunal observed that a 'broader brush' is applied as against a taxation exercise, and it should only be employed where it is considered that the appropriate amount can be determined fairly and reasonably.[52] In this instance, I am satisfied that I can determine the question of costs fairly and reasonably.
[51] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (S).
[52] Goldsmith [89].
The costs sought by the Respondent are set out in a Schedule attached to its submissions amounting to 9.7 hours as follows:
SCHEDULE
Date
Event
Outcome
Costs
22.07.21 – 23.07.21
Preparation for an attendance at mediation (3.9 hrs)
Particulars –
· Considering mediation strategy
· Meeting with client
· Attending mediation at the Tribunal
· Reporting to client
Vacated - No appearance by applicant
$1,930.50
30.07.21
Attending directions hearing by audio link (0.2 hrs)
Vacated – no appearance by applicant
$99.00
06.08.21
Preparing for and attending directions hearing by audio link (0.7 hrs)
Vacated – no appearance by applicant
$346.50
10.09.21
Attending directions hearing by audio link (0.2. hrs)
Vacated – no appearance by applicant
$99.00
14.03.22
Considering status of proceedings and email Mr Cann and SAT in relation to Mr Cann failing to file witness statements by 18 February 2022 in accordance with orders made on 3 December 2021 (0.6 hrs)
Email Mr Cann and SAT
$297.00
22.03.22
Liaising with B Moharich, client and SAT re application to vacate hearing on 30 March 2022 (1.7 hrs)
Particulars –
· Telephone attendance with B Moharich and client
· Emails with B Moharich and client
· Email SAT
· Considering SAT orders made on 25 March 2022
· Reporting to client
Hearing scheduled for 30 March 2022 vacated on 25 March 2022.
Hearing relisted for 9 and 10 May 2022.
$841.50
14.04.22 - 16.05.22
Liaising with B Moharich and T Houweling in relation to B Moharich ceasing to act and application to vacate hearing on 9 and 10 May 2022 (2.4 hrs)
Particulars –
· Telephone attendances B Moharich, T Houweling, client and SAT
· Emails B Moharich, T Houweling, client and SAT
· Emails and telephone attendance with witness
Hearing scheduled for 9 and 10 May 2022 vacated on 6 May 2022.
Additional programming orders made.
$1,188.00
TOTAL
$4,801.50
I accept the accuracy of this Schedule. I find that the costs sought by the Respondent are reasonable, proportionate and appropriate. The Respondent's costs are far less than would have been incurred throughout the matter.
However, I will not apply the rate set out in the Court Determination as submitted by the Respondent. Rather, I will instead apply the rate for a Senior Practitioner set out in the Legal Profession (State Administrative Tribunal) Determination 2022 which provides for a rate of $429 per hour (x 9.7 hours) = $4,161.30.
The Applicant shall pay these costs within 60 days of the date of this order.
Order
The Tribunal orders:
1.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Applicant is to pay the Respondent's costs in a total amount fixed at $4,161.30 in respect of the costs in DR 126/2019 and DR 90/2020, within 60 days of the date of this order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
6 SEPTEMBER 2023
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