CLARK and SHIRE OF CHITTERING
[2007] WASAT 218
•29 AUGUST 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: HEALTH ACT 1911 (WA)
CITATION: CLARK and SHIRE OF CHITTERING [2007] WASAT 218
MEMBER: MR T CAREY (MEMBER)
HEARD: DETERMINED ON THE PAPERS
APPLICANT'S SUBMISSIONS FILED 13 JULY 2007
RESPONDENT'S SUBMISSIONS FILED 16 JULY 2007
APPLICANT'S SUBMISSIONS IN REPLY FILED 26 JULY 2007
DELIVERED : 29 AUGUST 2007
FILE NO/S: CC 803 of 2007
BETWEEN: MILTON JAMES CLARK
Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Local government - Public building - Certificate of approval under Health Act 1911 (WA) - Maximum accommodation limit - Whether refusal of request to increase limit a reviewable decision
Legislation:
Health Act 1911 (WA), s 36(1), s 178, s 178(1)
Health (Public Buildings) Regulations 1992 (WA), reg 9, reg 9A
State Administrative Tribunal Act 2004 (WA), s 9, s 47
Result:
The preliminary issue is determined as follows: There was a reviewable decision constituted by the respondent's letter, dated 17 April 2007, namely, a decision to refuse the applicant's application to vary the maximum number of persons that a public building may be used to accommodate as it appears in the certificate of approval issued under s 178(1) of the Health Act 1911 (WA).
The proceeding is listed for a directions hearing on 13 September 2007.
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: McLeod & Co
Respondent: Shire of Chittering
Case(s) referred to in decision(s):
Clark and Shire of Chittering [2005] WASAT 175
Randall v Town of Vincent [2005] WASAT 129
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant owns a farm stay and function centre in the respondent's shire. He previously sought an enlargement of the planning approval in respect of the development to permit the function centre to be open to the general public and not just farm stay guests, but that application was unsuccessful. The respondent issued a certificate of approval under the Health Act 1911 (WA) relating to the use of the function centre as a public building which included an accommodation limit of 20 persons. The applicant's solicitors wrote to the respondent to request an increase in this limit, either in consequence of reconsideration of the respondent's earlier refusal to enlarge the planning consent, or on the ground that the planning consent provided no proper basis for the limitation. The respondent rejected the request.
The Tribunal by consent ordered that it be determined as a preliminary issue of whether the respondent's latest refusal constituted a reviewable decision. It held that, on the proper characterisation of the applicant's request and the respondent's response, it did. However, the Tribunal further found that the application had no prospects of success to the extent that it was based solely on the ground referred to in the applicant's solicitors' letter. The matter was listed for a directions hearing to determine whether any further ground is relied upon.
Background
The applicant, Milton James Clark (Mr Clark) has applied under s 36(1) of the Health Act 1911 (WA) (the Act) for review of what he asserts is a decision of the respondent, the Shire of Chittering (Chittering Shire) in respect of the "Crooked Wall Function Centre" (function centre) forming part of a development owned and operated by him at Lot 101 Kay Road, Bindoon known as "Windmill Farm". The function centre was the subject of an earlier decision of the Tribunal – see Clark and Shire of Chittering [2005] WASAT 175. Details of the development and what is described as its "rather tangled planning history" are set out in Member McNab's reasons for decision in that matter.
According to his application in this proceeding, Mr Clark sought an order setting aside the "decision" of the Chittering Shire "to maintain a maximum accommodation number for the [function centre] of 20 persons pursuant to the certificate of approval under s 178(1) Health Act 1911" and in substitution an order for the issue of a certificate of approval for the function centre to accommodate a maximum of 69 persons. Section 178(1) of the Act provides:
"(1)A person shall not open or use a public building unless the local government has issued a certificate of approval in relation to the public building specifying ‑
(a)the purpose or purposes for which the public building may be used; and
(b)the maximum number of persons that the building may be used to accommodate."
When this matter first came on for directions, I raised with the parties whether or not the subject matter of a letter from the Chittering Shire, dated 17 April 2007, the subject of the complaint by Mr Clark constituted a "decision" which might be the subject of an application under s 36(1) of the Act. The parties were agreeable to the Tribunal determining on a preliminary basis the following issue:
"Whether any reviewable decision constituted by the respondent's letter dated 17 April 2007 has been made, given
(a)the respondent's decision reflected in its Certificate of Approval under s 178(1) of the Act
(b)the terms of the applicant's application to the respondent."
I will go into the detail of the Chittering Shire's letter dated 17 April 2007, the certificate of approval and Mr Clark's application shortly. As I have said, at the time of the directions hearing, the descriptor of the "decision" was in terms of the maintenance of a maximum accommodation number for the purposes of a s 178(1) certificate of approval, which gave rise to a doubt in my mind that any reviewable decision had been made. It is apparent from the applicant's submissions on the preliminary issue, to which these reasons are directed, that a more accurate description of the asserted decision of the Chittering Shire is a decision to refuse to vary the maximum number of persons that the function centre may be used to accommodate under regs 9 and 9A of the Health (Public Buildings) Regulations 1992 (WA) (Regulations). So understood, such a decision is clearly reviewable by the Tribunal under s 36(1) of the Act. The question remains whether or not, as a matter of fact, the Chittering Shire's letter constituted such a decision. In order to determine this, it is necessary to retrace a little of the "tangled planning history" with reference to the relevant dealings concerning any certificate of approval relating to the function centre.
Planning history
Unfortunately, some of the relevant source documents have not been produced for the purposes of determining the preliminary issue, and it has been necessary for me to rely upon commentaries appearing in some of the contemporaneous correspondence, the parties' submissions and the history recounted by Mr McNab in his earlier decision. My account is therefore not complete, but I do not believe that any omissions have hindered a proper consideration of the preliminary issue.
The relevant land is zoned "Agricultural Resource", and successive consents by the Chittering Shire have approved or acknowledged the uses of "Farmstay Accommodation" and "Tearooms and Sale of Paintings", under two successive town planning schemes. Planning consent for a "Conference Centre" was first granted on 15 October 2003 and modified on 14 July 2004. The consents for the tearooms and conference centre concerned the same building as the function centre, and for simplicity I will refer to it by the latter name. At some point prior to September 2004, Mr Clark sought a certificate of approval (I am assuming the reference in Mr McNab's reasons to a certificate of occupancy is to such a certificate) for the function centre, according to Mr McNab's reasons, "for more than 20 persons". That application was unsuccessful. Mr Clark then applied for an extension of the use of the function centre to the general public, as opposed to use by Windmill Farm guests only. The Chittering Shire refused that application, and Mr Clark's application to the Tribunal for a review of this decision was the subject of Mr McNab's decision on 18 July 2005 to dismiss the application. On or about 6 June 2006, the Chittering Shire issued a certificate of approval under s 178 of the Act, which may or may not have been after the opening of the function centre to the public (I am having regard here to the opening words of s 178(1)) but which, in any event, seems to be the first occasion of the issue of such a certificate. The certificate specified the public building area as a "Convention Centre", the type of use as "Functions" and the maximum accommodation as "20 persons". The decision to issue the certificate was not the subject of any application for review under s 36(1) of the Act.
On about 28 February 2007, Mr Clark's solicitors, McLeod and Co, wrote to the Chittering Shire (McLeods letter), stating "Mr Clark is making application to the Shire for a Certificate of Approval under the Health (Public Buildings) Regulations 1992 (WA) for the reception centre, for a maximum accommodation number of 69 persons". The McLeods letter also enclosed a planning approval form which, in response to "description of proposed development and/or use", stated "increase of maximum numbers to 69". The McLeods letter is not in evidence, but based on Mr Clark's written submissions, and the response of the Chittering Shire, it is apparent that the reason advanced by Mr Clark for the variation of the then current certificate's maximum accommodation of 20 persons was his view that the terms of the planning consent applying to the function centre imposed no such accommodation limit. The proposed limit of 69 related to the conditions of the building licence issued in respect of the function centre.
On 17 April 2007, the Chief Executive Officer of the Chittering Shire responded in letter form (Shire's letter) to the McLeods letter. The Shire's letter rejected Mr Clark's interpretation of the planning approval. It stated:
"Having demonstrated that there is a restriction as to the number of persons pursuant to planning consent, it follows that there is a basis for the Shire to impose a 20‑person limit on a public building certificate of approval. This is notwithstanding that the reception centre has been designed with generous standards, in terms of space and toilet facilities, adequate for 69 persons.
The number of persons permitted by the Public Building Accommodation Certificate therefore remains at 20 – refer attached certificate."
The Shire's letter enclosed the certificate of approval together with a copy of a letter to Mr Clark dated 7 June 2006 under which the certificate was, it would seem, first issued.
The application to the Tribunal was filed on 15 May 2007.
I will now consider how the exchange of correspondence just particularised is to be characterised.
What is the correct characterisation of the McLeods letter and the Shire's letter?
Mr Clark submits that the Shire's letter, and in particular the words "the number of persons permitted by the Public Building Accommodation Certificate therefore remains at 20 – refer attached certificate" discloses a determination by the Chittering Shire that it would not vary the maximum accommodation number, and that this is a reviewable decision. It was necessary for him to contend, as he did, that the McLeods letter amounted to an application for variation of the certificate of approval, in substantial (but not formal) compliance with reg 9 of the Regulations. Sub-regulations (1) and (2) of that regulation provide:
"9. Application to vary certificate of approval
(1)Where a certificate of approval has been issued in relation to ‑
(a)a public building, a person may apply to the local government that issued the certificate to vary the purposes for which the public building may be used;
(b)a public building other than licensed premises, a person may apply to the local government that issued the certificate to vary the maximum number of persons that the public building may be used to accommodate.
(2)An application under subregulation (1) ‑
(a)shall be made in the form of Form 3 in Schedule 2;
(b)shall be accompanied by the fee calculated in accordance with Schedule 1."
Although not insisting on satisfaction of the precise requirements, the Chittering Shire relied amongst other things upon an alleged failure to comply with the substantive requirement, appearing in Form 3 in Sch 2 of that Regulation, that the reason for the variation from the existing certificate of approval be stated. It was implicit in its submission that to advance as the reason an argument that the import of the planning consent was not to impose the limit on accommodation referred to by the existing certificate was not a substantive reason. The consequence, according to the Chittering Shire, was that no valid application for variation went to the Chittering Shire, which could not and did not, make any decision which was reviewable. The Chittering Shire also relied upon an alleged want of delegated authority of the Chief Executive Officer to make a decision on a variation application as a second ground for arguing against the making of any decision.
I have attempted to exercise caution in my analysis of the history between the parties in reaching any conclusions, given the uncertainties which have been alluded to and the warning in the reasons of Mr McNab at [11] in the following terms:
"The approval for a conference centre must be read in the context of a number of assumptions or understandings between the parties which are acknowledged, for the purposes of this review, as largely common ground between the parties."
The situation is further complicated because the McLeods letter, which precipitated the current application, appears to have agitated for an increase in the permitted accommodation limitation from both the planning and certificate of approval perspectives. This is consistent with the previous conduct of Mr Clarke, which demonstrated that he considered the planning approval and the certificate of approval under s 178 of the Act to be linked. Mr Clark's response to the failure of an earlier application for a certificate of approval of in excess of 20 persons was to seek an expansion of the planning approval, which was then (and remains) in terms that the use of the function centre was limited to Windmill Farm guests and was not open to the general public. Therefore, one possible interpretation of the McLeods letter (and its enclosure) is that Mr Clark once more sought an enlargement of the planning approval to permit accommodation of 69 persons in the function centre and on the assumption that this was granted a corresponding variation of the maximum accommodation number under the certificate of approval. On this interpretation, the application for a variation of the certificate would be contingent upon the amendment to the planning approval. However, this interpretation is inconsistent with statements in the McLeods letter that the planning consent imposed no restrictions to the accommodation numbers and that it provided no basis for imposing a 20 person limit. It is also noteworthy that Mr Clark did not take any action in relation to the negative response he received to submitting the planning application form. In my view, the likely intent of the letter was as a further attempt, of a somewhat token nature, to obtain a different decision on the planning issue, and in the expected event that did not succeed, to pursue the certificate of approval issue from a new angle, by arguing that it was not affected by the conditions of the planning consent as had previously been generally understood.
I have formed the view that the McLeod's letter did constitute a valid application for variation of the certificate of approval. In arriving at that view, I have decided that there was substantial compliance with the requirements of the Regulations, and in particular that the letter did state "the reason for the variation". This is despite the facts that the same reason could have been relied upon by Mr Clark to seek a review of the decision on or about 6June 2006 to issue the certificate of approval and that no reason has been advanced as to why that course was not taken. The crucial point, I think, is that the Regulations impose no restrictions on the types of reasons which may be relied upon in making an application for variation. I am also satisfied that the Shire's letter constituted a decision refusing the application, and that Mr Clark is entitled to the benefit of the presumption of regularity so that any want of delegated authority on the part of the signatory to the letter (which, as Mr Clark pointed out, has not been the subject of any affidavit evidence, despite a direction requiring such evidence if relied upon to be filed and served) does not remove his right of review.
Conclusion
There will be an order to the effect that the preliminary issue is determined affirmatively. My consideration of the preliminary issue has however persuaded me that, to the extent that the applicant's case is based solely on the argument that the planning consent as it currently exists does not impose a limit on maximum accommodation numbers at Windmill Farm such that no basis exists for the accommodation limitation in the certificate of approval, it has no prospect of success. The planning approval limits the use of the function centre to farmstay guests of Windmill Farm. That planning approval has the capacity to regulate patronage numbers, would appear to be a self evident truth, support for which appears in at least one decision of the Tribunal: Randall v Town of Vincent [2005] WASAT 129 at [98]. Mr McNab in his reasons indicated that the planning approval in this case imposed in effect a maximum accommodation limit of 24 persons, rather than the limit of 20 persons stipulated in the certificate of approval, the genesis for which appears to have been the maximum number sought by Mr Clark. The applicant's application to vary the maximum accommodation to 69 is well above both limits.
The matter will be listed for directions to determine whether any further basis for the desired variation of the certificate of approval exists. If not, the proceeding will be dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA).
Order
1.The preliminary issue is determined as follows:
There was a reviewable decision constituted by the respondent's letter, dated 17 April 2007, namely, a decision to refuse the applicant's application to vary the maximum number of persons that a public building may be used to accommodate as it appears in the certificate of approval issued under s 178(1) of the Health Act 1911 (WA).
2.The proceeding is listed for a directions hearing on 13 September 2007.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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