Cardno BSD and Shire Of Busselton
[2007] WASAT 267
•15 OCTOBER 2007
CARDNO BSD and SHIRE OF BUSSELTON [2007] WASAT 267
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 267 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:299/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 15/10/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for review was not filed within time Application to extend time refused | ||
| B | |||
| PDF Version |
| Parties: | CARDNO BSD SHIRE OF BUSSELTON |
Catchwords: | Practice and procedure Commencement of proceedings Town planning Whether application for review was filed within time Whether applicant and Council can agree to deferral of deemed refusal after deemed refusal has occurred Application to extend time Whether SAT has power to extend time which expired before SAT commenced Whether SAT should extend time Principal considerations on an application to extend time Further relevant considerations |
Legislation: | Busselton Shire Council District Town Planning Scheme No 20, cl 15 Planning and Development Act 2005 (WA), s 238(4), s 252(1) State Administrative Tribunal Act 2004 (WA), s 3(1), s 11(1), s 60(2) State Administrative Tribunal Rules 2004 (WA), r 10 Town Planning and Development (Appeal) Regulations 2003 (WA), reg 4(c) Town Planning and Development Act 1928 (WA), s 36, s 47(1)(a), s 48 |
Case References: | Goedhart and Western Australian Planning Commission [2006] WASAT 49 Jackamarra v Krakouer & Anor (1998) 195 CLR 516 KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297 O'Connor and Town of Victoria Park [2005] WASAT 161 |
Orders | 1. The application for review is out of time.,2. The application under r 10 of the State Administrative Tribunal Rules 2004 (WA) to extend the time for commencement of these proceedings is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CARDNO BSD and SHIRE OF BUSSELTON [2007] WASAT 267 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 15 OCTOBER 2007 FILE NO/S : DR 299 of 2007 BETWEEN : CARDNO BSD
- Applicant
AND
SHIRE OF BUSSELTON
Respondent
Catchwords:
Practice and procedure - Commencement of proceedings - Town planning - Whether application for review was filed within time - Whether applicant and Council can agree to deferral of deemed refusal after deemed refusal has occurred - Application to extend time - Whether SAT has power to extend time which expired before SAT commenced - Whether SAT should extend time - Principal considerations on an application to extend time - Further relevant considerations
(Page 2)
Legislation:
Busselton Shire Council District Town Planning Scheme No 20, cl 15
Planning and Development Act 2005 (WA), s 238(4), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 11(1), s 60(2)
State Administrative Tribunal Rules 2004 (WA), r 10
Town Planning and Development (Appeal) Regulations 2003 (WA), reg 4(c)
Town Planning and Development Act 1928 (WA), s 36, s 47(1)(a), s 48
Result:
Application for review was not filed within time
Application to extend time refused
Category: B
Representation:
Counsel:
Applicant : Mr M Swift (Acting as Agent)
Respondent : Mr M Smith
Solicitors:
Applicant : Cardno BSD (Town Planners)
Respondent : Shire of Busselton
Case(s) referred to in decision(s):
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Jackamarra v Krakouer & Anor (1998) 195 CLR 516
KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297
O'Connor and Town of Victoria Park [2005] WASAT 161
(Page 3)
Summary of Tribunal's decision
1 In June 2003, Cardno BSD applied to the Shire of Busselton for development approval to enable the erection of a house. Over four years later, in September 2007, Cardno BSD sought review by the Tribunal of the deemed refusal of the development application. Cardno BSD contended that, in the circumstances of the case, the application for review was filed within time. Alternatively, it contended that the Tribunal should extend time for the commencement of the proceedings.
2 The Tribunal determined that the application for review was out of time. The Tribunal also determined that it did not have power to extend time for the commencement of the proceedings, because the time was fixed under an Act that did not confer jurisdiction on the Tribunal when the time expired. However, if the Tribunal had power to extend time, it would have declined to do so in the circumstances of the case. Although the parties had been negotiating in good faith, there was an arguable case for review and there would not be any material prejudice caused, an extension of time would have been refused because of the very significant length of delay and the lack of an adequate and acceptable explanation for it.
Introduction
3 On 23 June 2003, Cardno BSD (Cardno) lodged a development application with the Shire of Busselton (Shire or Council) for approval for the erection of a house at No 11 Forrest Beach Road, Wonnerup (site). Over four years later, on 4 September 2007, Cardno purported to file an application for review of the deemed refusal of the development application with the State Administrative Tribunal (SAT or Tribunal).
4 Cardno contends that the proceedings have been commenced within the time provided for in cl 15 of the Busselton Shire Council District Town Planning Scheme No 20 (TPS 20 or Scheme). Alternatively, Cardno seeks an extension of time for the commencement of the proceedings under r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules).
5 The Shire contends that the application for review is out of time. The Shire opposes the application to extend time for the commencement of the proceedings.
(Page 4)
6 The President has formed the opinion under s 238(4) of the Planning and Development Act 2005 (WA) (PD Act) that the application is likely to raise complex or significant planning issues. Consequently, the President has listed the determination of the issues as to whether the application for review has been commenced within time and, if not, whether time for the commencement of the proceedings should be extended, before me under s 11(1) and s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Background
7 As noted earlier, the development application was lodged with the Shire on 23 June 2003. Following receipt of additional information, the development application was advertised for three weeks between 7 August 2003 and 28 August 2003. Submissions were received from the (then) Department of Conservation and Land Management and the Department for Planning and Infrastructure.
8 From September 2003, negotiations took place between Cardno and Shire officers in relation to the development application, the reservation of the site for recreation under the Scheme, coastal setback and biodiversity issues. It appears that on 8 April 2004, the Shire sought further information by letter to Cardno in relation to the visual amenity impact of the proposed development. Under cover of a letter dated 22 June 2004, Cardno provided drawings to the Shire to indicate the visual impact of the development.
9 The Shire says - and Cardno accepts - that on 10 January 2005, Cardno agreed to the deferral of consideration of the development application until finalisation of the Busselton Wetlands Conservation Strategy which had particular impact on the site. This Strategy was finalised some time in 2005.
10 The Shire says - and Cardno agrees - that in 2005, the parties had negotiations regarding rezoning the site from "Reserved for Recreation" to "Conservation" under the Scheme. On 27 October 2005, the Shire wrote to Cardno indicating that the rezoning process would require payment of appropriate fees and noting that the development application would be determined following consideration of any submissions lodged in response to the advertising of the proposed rezoning. On 19 December 2005, Cardno lodged a rezoning report with the Shire to enable consideration of the zoning amendment but did not enclose payment of the amendment fees.
(Page 5)
11 The Shire says - and Cardno agrees - that between 2005 and the present, there have been various negotiations between Cardno and the Shire regarding issues associated with the proposed rezoning. Although it appears that Cardno has not paid the amendment fees, the Shire has continued to consider and process the zoning amendment, but has not formally advertised the amendment.
12 On 15 May 2007, Cardno wrote to the Shire stating that if the development application is not determined within 28 days, it would commence proceedings for review in the Tribunal.
13 As noted earlier, Cardno commenced these proceedings on 4 September 2007, over four years after it lodged the development application with the Shire.
Is the application for review within time?
14 Cardno makes three submissions in support of its contention that the application for review has been commenced within time.
15 First, Cardno submits that "notwithstanding the possible absence of a singular and specific written agreement, the constant trail (and mutual nature) of correspondence and other documentation between the parties over the four years since lodgement of the application satisfies the requirement of cl 15(1) of [TPS 20] for an arrangement '… agreed in writing between the applicant and the Council'". Clause 15(1) of TPS 20 states as follows:
"Subject to Sub-Clause (2), an application for Planning Approval shall be deemed to have been refused where a decision in respect of that application is not conveyed to the applicant by the Council within 60 days of the receipt of it by the Council, or within such further time as agreed in writing between the applicant and the Council." (Emphasis added.)
16 The documents presented by Cardno to the Tribunal, namely, the development application, covering letter dated 19 June 2003 and letter from Cardno to the Shire dated 22 June 2004, do not evidence an agreement in writing between Cardno and the Shire for the purposes of cl 15(1) of the Scheme.
17 As noted earlier, it is common ground that on 10 January 2005, Cardno agreed to the deferral of consideration by the Shire of the development application until finalisation of the Busselton Wetlands
(Page 6)
- Conservation Strategy, which occurred sometime in 2005. As also noted, it is common ground that on 27 October 2005, the Shire wrote to Cardno noting that the development application would be determined following consideration of any submissions made in relation to the proposed rezoning. It is not clear whether Cardno's agreement on 10 January 2005 was in writing. However, assuming that it was in writing, and assuming that the Shire also agreed in writing, the agreement did not have the effect of postponing the deemed refusal. This is because the development application was deemed to have been refused under cl 15(1) of the Scheme 60 days after receipt by the Council, namely, on or about 23 August 2003, well before 10 January 2005. Once a development application has been deemed to have been refused under cl 15(1), it cannot be deemed to have been refused again, and the period after which it shall be deemed to have been refused cannot be extended by agreement in writing between an applicant and the Council. Similarly, even if Cardno agreed in writing to the Shire's indication in its letter dated 27 October 2005 that the development application would be determined following consideration of any submissions, this agreement could not have extended the period after which the development application shall be deemed to have been refused, as the application was deemed to have been refused over two years before.
18 Second, Cardno submits that the application for review has been commenced within time, because cl 15(4) of the Scheme authorises the Council to make a decision in respect of a development application after it is deemed to have been refused under cl 15(1). However, the fact that the Shire is authorised to determine a development application after its deemed refusal does not extend the period after which the application shall be deemed to have been refused.
19 Third, Cardno submits that the Council "is also exercising discretionary powers in setting pre-requisites to the issue of [a] conditional approval, and that exercise of discretion is also subject to review by the Tribunal pursuant to Section 252 [of the PD Act]".
20 Section 252(1) of the PD Act confers a right on an applicant for development approval to seek review of a responsible authority's decision to refuse the application or to grant conditional approval to it. Section 252(2) of the PD Act confers a right on an applicant to seek review of a responsible authority's decision under a local planning scheme as to the classification or permissibility of a land use. Section 252 of the PD Act does not confer a right to seek review of a responsible authority's decision to set prerequisites to the issue of a conditional development approval.
(Page 7)
21 As noted earlier, the development application was deemed to have been refused under cl 15(1) of TPS 20 on or about 23 August 2003. At that time, Cardno had a right to appeal against the deemed refusal of the development application to the Town Planning Appeal Tribunal (TPAT) which was established by s 36 of the Town Planning and Development Act 1928 (WA) (TPD Act): see TPD Act s 47(1)(a). Section 48 of the TPD Act stated that an appeal was commenced by giving notice, including the grounds of appeal, in the time and manner prescribed, to the persons and bodies prescribed. As at the date of the deemed refusal of the development application, reg 4(c) of the Town Planning and Development (Appeal) Regulations 2003 (WA) (TPD Appeal Regs) prescribed that an appeal was to be commenced not more than 60 days after the date of the decision. Therefore, Cardno had an appeal right against the deemed refusal of the development application to TPAT which expired on or about 23 October 2003. Unlike SAT (see SAT Rules r 10), TPAT did not have power to extend the period within which an appeal had to be commenced.
22 The proceedings were purportedly commenced over three years and 10 months after the date by which any appeal to TPAT had to be brought against the deemed refusal of the development application. The application for review to SAT is, therefore, out of time.
Should time be extended?
23 Although both parties appear to have assumed that the Tribunal has power to extend time for the commencement of these proceedings, I do not consider that there is relevantly power. Rule 10(1) of the SAT Rules states as follows:
"The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding."
24 In this case, Cardno seeks an extension of the 60 day period for commencement of an appeal to TPAT fixed under the TPD Act by reg 4(c) of the TPD Appeal Regs. The Tribunal would only have power to extend this period if the TPD Act was relevantly an "enabling Act". The term "enabling Act" is defined in s 3(1) of the SAT Act to mean:
"Another Act or a portion of another Act, under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act."
(Page 8)
25 As at the date of the expiry of the appeal right to TPAT on or about 23 October 2003, the TPD Act did not confer jurisdiction on SAT and was not, therefore, relevantly an enabling Act for the purposes of r 10 of the SAT Rules. The Tribunal does not, therefore, have power to extend time under reg 4(c) of the TPD Appeal Regs from the expiry of the appeal right.
26 However, if the Tribunal had power to extend time for the commencement of the proceedings, I would decline to do so for the following reasons.
27 As I said in KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297, the discretion to extend time under r 10 of the SAT Rules is guided by four principal considerations, although the range of considerations is not closed. The four principal considerations are the length of delay, the reasons for delay, whether there is an arguable case and whether there is prejudice to any person.
28 The length of delay in this case, namely, in excess of three years and 10 months, is very significant. In O'Connor and Town of Victoria Park [2005] WASAT 161 at [41], the President described a delay of just over five weeks, in the context of a statutory period of one month in which to seek review, as "borderline". In Goedhart and Western Australian Planning Commission [2006] WASAT 49 at [16], I described a delay of between 81 and 87 days, in the context of a 28 day review period, as "considerable".
29 Cardno contends that the sole reason for the delay was the Shire's requests to defer consideration of the development application. However, it appears that the Shire only requested deferral of consideration of the development application in 2005, until finalisation of the Busselton Wetlands Conservation Strategy. That Strategy was finalised sometime in 2005. I do not consider that the Shire's request provides an adequate explanation for the delay, as Cardno had already delayed 14 months prior to it. It appears that during the period September 2003 to June 2004, the parties discussed issues concerning the development application. It also appears that from 2005 to the present, the parties have discussed issues associated with the zoning amendment and the development application. It is common ground that these discussions have occurred in good faith. However, given the very significant length of the delay, I do not consider that these ongoing discussions provide an acceptable explanation for it.
(Page 9)
30 I consider that there is an arguable case for review of the deemed refusal of the development application. It is common ground that the Shire has a discretion to approve the development application. Although an important consideration in relation to whether to approve the development application would be the reservation of the site for recreation, it is conceivable that an approval could be granted conditional upon the removal of the house and other improvements if the site is acquired for recreation. The Shire has not argued on the application to extend time that the site has characteristics or values which would preclude the erection of a house while the site remains in private ownership. As I said in Goedhart and Western Australian Planning Commission at [21], "the threshold to establish an 'arguable case' is not particularly onerous": see Jackamarra v Krakouer & Anor (1998) 195 CLR 516 at 540.
31 I do not consider that there would be any material prejudice to the Shire or to any other person if the Tribunal were to extend time for commencement of the proceedings. The Shire submits that it would suffer prejudice in terms of finalisation of the zoning amendment. However, if time were extended for the commencement of the proceedings, the Shire could argue that approval, prior to a rezoning, is contrary to orderly and proper planning. It also does not appear that the Shire has advanced the rezoning with any degree of expedition.
32 As I noted earlier, the range of considerations in relation to whether to extend time for the commencement of proceedings is not closed. In my opinion, two further considerations are relevant in the circumstances of this case. First, the Shire could still determine and refuse the development application under cl 15(4) of the Scheme, thereby conferring a further exercisable right to seek review under s 252(1) of the PD Act. This consideration supports the granting of an extension of time. Second, during the period from August 2003 to October 2003, Cardno decided to proceed with negotiations with the Shire in relation to the development application, rather than to appeal against the deemed refusal of the development application to TPAT. At the time, this decision was, in effect, an election to negotiate rather than to appeal against the deemed refusal, because unlike SAT, TPAT did not have power to extend time for the commencement of proceedings. This consideration supports the refusal of an extension of time.
33 Having regard to each of these matters, I consider that, if the Tribunal had power to extend time for the commencement of the proceedings, the application to extend time should be refused.
(Page 10)
- Although the parties have been negotiating in good faith to try to resolve a number of planning issues concerning the site, including the development application, there is an arguable case for review, there would be no material prejudice to the Shire, and the Shire could still determine the application, thereby conferring a review right, I consider that the very significant length of the delay and the lack of an adequate and acceptable explanation for it, in effect, outweigh these other considerations in the exercise of discretion. This conclusion is further strengthened by the fact that Cardno elected to pursue negotiations with the Shire, rather than, or rather than additionally, to appeal to TPAT.
Conclusion
34 Cardno purported to commence the application for review in excess of three years and 10 months out of time. The Tribunal does not have power to extend time for the commencement of these proceedings, because the time was fixed under an Act that did not relevantly confer jurisdiction on SAT. However, if the Tribunal had power to extend time for the commencement of the proceedings, it would have declined to do so in light of the very significant delay and the lack of an adequate and acceptable explanation for it.
Orders
35 I make the following orders:
1. The application for review is out of time.
2. The application under r 10 of the State Administrative Tribunal Rules 2004 (WA) to extend the time for commencement of these proceedings is refused.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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