| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CHALLENGER LISTED INVESTMENTS LTD and METROPOLITAN NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2013] WASAT 51 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 9 AUGUST 2012 DELIVERED : 3 OCTOBER 2012 PUBLISHED : 15 APRIL 2013 FILE NO/S : DR 100 of 2012 BETWEEN : CHALLENGER LISTED INVESTMENTS LTD Applicant
AND
METROPOLITAN NORTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
Catchwords: Town planning Development application Decision made by Development Assessment Panel - Development Assessment Panel replacing Local Government as decision-maker and respondent in review - Planning framework comprised of Local Government's planning instruments Decision-making reliant on Local Government's officers - Practice and procedure Intervention in planning cases Prohibition on joinder of parties Proper approach where
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Local Government seeks to intervene Whether anything materially added to review by proposed intervener Whether statutory objective of streamlining planning approvals undermined by permitting intervention Nature of interest necessary to permit intervention Leave to intervene refused Legislation: Approvals and Related Reforms (No 3) Planning Act 2010 (WA), Pt 3
City of Stirling Local Planning Scheme No 3
City of Stirling Town Planning Scheme No 38
Planning and Development (Development Assessment Panels) Regulations 2011 (WA)
Planning and Development Act 2005 (WA), s 242, s 243
State Administrative Tribunal Act 2004 (WA), s 9, s 37, s 37(3), s 38 Result: Application for intervention refused
Summary of Tribunal's decision: Pursuant to s 37 of the State Administrative Tribunal Act 2004 (WA), the City of Stirling sought leave to intervene in the proceedings. The review was a matter between Challenger Listed Investments Ltd, the applicant, and the Metropolitan NorthWest Joint Development Assessment Panel, the decisionmaker and respondent. Both the applicant and the respondent Development Assessment Panel opposed the proposed intervention.
The proceedings involved an application for review of a number of conditions of approval granted by the respondent for the development of the applicant's large site located on Liege Street, Woodlands.
It was common ground that of the limited number of planning conditions at issue (which would need to be determined by the Tribunal at a later date), condition 2 was of principal concern. This condition related to a connecting road which provided for certain access only at the north-west corner of the subject land to an extension of Ewen Street to Odin Road, south of Scarborough Beach Road.
The applicant had challenged condition 2. Both the City of Stirling and the respondent wished to see condition 2 upheld by the Tribunal. The challenge by the applicant was on the basis of requiring a 'full movement' intersection allowing vehicles a right turn movement from the connecting road into the Ewen Street extension.
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The prohibition on the joinder of parties under the State Administrative Tribunal Act 2004 (WA) and various previous rulings of the Tribunal pointed to a more limited role for parties seeking to intervene. A primary consideration was whether anything would be materially added to the review by the proposed intervener in order to advance the Tribunal's review of the matters in dispute.
The Tribunal noted that although the planning framework was comprised directly or indirectly of the City of Stirling's planning instruments and that the connecting road, when built, would be over City of Stirling land, the legislative intent of the new planning regime setting up the Development Assessment Panel model was to displace local governments as the primary decision-maker and to make the relevant Development Assessment Panel the respondent in any Tribunal review. These changes placed Development Assessment Panels on top of the existing approvals and review framework, with obvious consequences for local authorities, consequences which the Tribunal held must ordinarily be reflected in decisions of the Tribunal regarding intervention.
The Tribunal concluded that, where the City of Stirling's planning framework and its officers' expertise will be before it, and the respondent intends to use that material to advance the City's position, permitting a local government to too readily intervene in such circumstances would significantly undermine the objects and purpose of the new statutory framework.
The Tribunal therefore refused the City of Stirling's application for intervention.
Category: A
Representation: Counsel:
Applicant : Ms B Moharich
Respondent : Mr CS Bydder
Proposed Intervener : Mr A Roberts (Acting as Agent)
Solicitors:
Applicant : Flint Moharich
Respondent : State Solicitor's Office
Proposed Intervener : City of Stirling
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Case(s) referred to in decision(s):
ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 9 August 2012, I dismissed an application brought by the City of Stirling (City) for leave to intervene in these proceedings. At that time, I gave a very brief indication of my reasons for refusing leave to the City, and I said that I would deliver and then publish more complete reasons at a later date. These are those reasons. 2 The Tribunal gave its reasons for decision orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Background 3 Originally, the present review dealt with some four conditions, three of them dealing with various road configurations and the status of various roads in relation to a major development located at No 57 (Lot 1) Liege Street, Woodlands. These conditions were imposed by the respondent decision-maker, the Metropolitan North-West Joint Development Assessment Panel (JDAP). 4 The conditions related to the connecting road, the extension road, the slip lane and an internal road, including an issue about the free of cost ceding to the City in relation to that last-mentioned road. There was also, at that stage, a condition dealing with the time period fixed for substantial commencement of the development. 5 All of those roads matters originated from the City's input into the planning process and they were required to be undertaken, speaking generally, to the engineering or technical standards required of the City. However, following mediation - which, at the invitation of the Tribunal, the City participated in - and subsequent reconsideration by the JDAP, it appears that only three conditions now remain in issue. In any case, it is common ground that the principal one of these conditions in dispute is condition 2, which relates to the Odin Road extension. 6 This condition seeks a connecting road which provides for left-in/left-out access only at the north-west corner of the subject land to an extension of Ewen Street to Odin Road, south of Scarborough Beach Road. The central difference between the parties now is whether there should be 'full movement' of vehicles at the intersection of Odin Road and certain new in-roads. The challenge was on the basis (Page 6)
of requiring a 'full movement' intersection allowing vehicles a right turn movement from the connecting road into the Ewen Street extension. 7 Both the City and the JDAP wish to see condition 2 upheld in the review.
Planning framework 8 There can be no doubt that, as already indicated, the raison d'être for the condition originates in both the policy and the technical frames of reference established, and advocated for, by the City. 9 In any case, as the JDAP model contemplates - and I shall say something more about this in a moment - the planning framework here is controlled solely by local instruments, in this case the City's Town Planning Scheme No 38, and the City's decisions and subsidiary instruments made thereunder. The City's Local Planning Scheme No 3, when approved, will continue this state of affairs. 10 It is unnecessary to rehearse the various technical, practical, interpretative and historical arguments for and against the respondent and the City's position with respect to condition 2 and, indeed, the necessity for the condition and its consistency with the planning framework. These will be matters for a relatively complex review at the merits hearing later this year.
The City's application 11 The City has sought leave to intervene in the proceedings pursuant to s 37 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The applicant and the respondent have both opposed that intervention. It is common ground that, as already noted, the planning framework is comprised directly or indirectly of the City's planning instruments. Further, the Odin Road extension is over - and is otherwise connected with - the City's ownership of certain land, and will likely ultimately lead to a reserved public road comprised of land vested in the City. In addition, the respondent's case will rely exclusively on the City's officers' expertise on these matters, which follows the Development Assessment Panel (DAP) framework for decision-making. 12 In fact, all of this reflects the statutory position of DAPs and the restrictions that the DAP model imposes upon the primary administrator; that is, local government. It is relevant to note that, according to the Minister's published policy statement of April 2010, the DAP model (Page 7)
is based upon the 'streamlining of planning approvals but with the inclusion of local government representatives in the decision processes'. 13 It is unnecessary to canvass the exact mechanics in respect of local government involvement in the DAP process, but the combined effect of Pt 3 of the Approvals and Related Reforms (No 4) Planning Act 2010 (WA) (amending the PD Act) and the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) makes the affected local governments the effective handmaidens of DAPs. 14 For example, the local planning framework is implemented by but not made by DAPs. Local governments become the referral agents. They provide their officers' reports and other information, and they supply local government councillors to be included in the relevant panel. The DAP model, whether described as a reform or not, is a very significant, if not perhaps radical, change in the way major developments in this State are to be assessed, approved and regulated. In short, DAPs have been placed on top of the existing approvals and review framework, with obvious consequences for local authorities. These consequences must be, I think, reflected in any decision to be made about conferring intervention status. 15 I turn to consider intervention in State Administrative Tribunal proceedings generally.
Relevant principles with respect to intervention under the SAT Act 16 The first point to be noticed is that there is a prohibition on joinder of parties under s 38 of the SAT Act (effected by s 243 of the Planning and Development Act 2005 (WA) (PD Act)). It follows that a s 37 intervention leading to party status must necessarily be directed towards a different goal from joinder as a party per se. 17 Thus, various cases in the Tribunal have attempted to define - but in general terms - what that more limited role is of a party seeking to intervene. 18 These cases are, for example, discussed at pages 97 - 100, and particularly at footnote 10 thereof, of Judge David Parry's and Dr Bertus De Villiers' work Guide to Proceedings in the Western Australian State Administrative Tribunal (Law Book Co Thomson Reuters, 2012) (Guide to Proceedings). Like the parties here, the learned authors have drawn particular attention to the analysis of Judge Chaney, as his Honour then was, of the relevant factors to be (Page 8)
applied, found in ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104 (ING). 19 I have had regard to those various factors in considering this application, and to the commentary by the learned authors of the Guide to Proceedings,at page 98 in particular. That commentary draws attention to the need to consider whether anything is materially added to the review by the proposed intervener, in the context of both the case itself and the Tribunal's statutory objectives (see s 9 of the SAT Act). 20 Of course, there is a threshold matter of standing (that is, 'sufficient interest') to be satisfied first, but here, the nature of the City's involvement in the matter to date and the impact of the review upon the City, in my view, clearly demonstrate an interest sufficient to justify intervention. I accept the City's contentions in this regard.
Application of these principles 21 The real issue, it seems to me, is whether the participation by the City as intervener will materially advance the Tribunal's review of the matters in dispute. Here, the City will be likely to cover more or less exactly the same central ground as the respondent's case, and will be unlikely to add to the efficient disposition of the case, as it, amongst other things, might expose the applicant to dealing with what are variations on a theme, which would probably contribute little to the review process. 22 Where the City's planning framework and its officers' expertise will be before the Tribunal and the respondent intends to use that material to, in effect, advance the City's position, I cannot see how permitting the City to participate as an intervener will either clarify or explain, or advance the relevant issues further. 23 Moreover, and importantly, where Parliament has clearly displaced the local government as the decisionmaker and made the relevant DAP both the primary decisionmaker and the respondent in any Tribunal review, in my view, permitting a local government to too readily intervene in such circumstances as we are currently dealing with would significantly undermine the objects of the new statutory framework. The ING case itself, at [16], expressly acknowledges the importance of the statutory objectives found in both the PD Act and the SAT Act. (Page 9)
Conclusion and orders 24 For all of the above reasons, I determined on 9 August 2012 that the City's application for intervention must be refused. The Tribunal orders are therefore as follows: 1. The application by the City of Stirling to intervene in this proceeding pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) is dismissed. 2. The application by the City of Stirling for leave to make a submission in the proceeding pursuant to s 242 of the Planning and Development Act 2005 (WA) is deferred to directions on a date to be fixed. 3. The hearing dates of 20 and 21 September 2012 are vacated. 4. The proceeding is adjourned for the making of further programming orders in the class 2 directions hearing at 9.15 am on 17 August 2012 in light of the hearing dates of October and November advised by the Tribunal. |