Clark and Western Australian Planning Commission
[2007] WASAT 33
•8 FEBRUARY 2007
CLARK and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 33
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 33 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:97/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 7/02/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application by non-parties for Tribunal to receive or hear submissions in respect of the application dismissed Leave granted to withdraw proceedings | ||
| B | |||
| PDF Version |
| Parties: | RICHARD CLARK WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Practice and procedure Application by non-party to make submissions Application for leave to withdraw proceedings Town planning Review of conditions of subdivision approval of a survey strata lot requiring construction of roads on common property Owners of other survey strata lots wish to make submissions in relation to application Parties wish to resolve proceedings by withdrawal of application Whether Tribunal should exercise discretion to receive or hear submissions in respect of application from other survey strata lot owners Whether leave to withdraw proceedings should be granted Discussion of why leave is required |
Legislation: | Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4, Sch 1 Planning and Development Act 2005 (WA), s 241, s 241(1), s 242, s 251(2), Pt 14 State Administrative Tribunal Act 2004 (WA), s 32(4), s 37(3), s 46, s 46(1), s 46(2), s 46(5), s 49, s 60(2), s 87(2), s 88(2) Town Planning and Development Act 1928 (WA), s 26(1)(a)(ii), s 62 Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 74(1) |
Case References: | Kameel Pty Ltd v Casey CC [2006] VCAT 526 Pitt v Environment, Resources & Development Court (1995) 66 SASR 274 Rennet Pty Ltd and City of Joondalup [2006] WASAT 183 Shire of Augusta-Margaret River v Gray [2005] WASCA 227 Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54 Trajkovski and Wyndham CC [2000] VCAT 1671 |
Orders | 1. The application made by Mr JM Irvine, Ms C McGeachie, Mr R Rowell, Mr W and Mrs L Nash, Mrs G Rowell, Mr G Benstead and Mr E Mazzoleni for the Tribunal to receive or hear submissions in respect of the application under s 242 of the Planning and Development Act 2005 (WA) is dismissed.,2. Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA), the applicant has leave to withdraw these proceedings and the proceedings are hereby withdrawn.,3. Each party is to pay its own costs of the proceedings. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : CLARK and WESTERN AUSTRALIAN PLANNING COMMISSION [2007] WASAT 33 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 8 FEBRUARY 2007 FILE NO/S : DR 97 of 2006 BETWEEN : RICHARD CLARK
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Practice and procedure - Application by non-party to make submissions - Application for leave to withdraw proceedings - Town planning - Review of conditions of subdivision approval of a survey strata lot requiring construction of roads on common property - Owners of other survey strata lots wish to make submissions in relation to application - Parties wish to resolve proceedings by withdrawal of application - Whether Tribunal should exercise discretion to receive or hear submissions in respect of application from other survey strata lot owners - Whether leave to withdraw proceedings should be granted - Discussion of why leave is required
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Legislation:
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4, Sch 1
Planning and Development Act 2005 (WA), s 241, s 241(1), s 242, s 251(2), Pt 14
State Administrative Tribunal Act 2004 (WA), s 32(4), s 37(3), s 46, s 46(1), s 46(2), s 46(5), s 49, s 60(2), s 87(2), s 88(2)
Town Planning and Development Act 1928 (WA), s 26(1)(a)(ii), s 62
Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 74(1)
Result:
Application by non-parties for Tribunal to receive or hear submissions in respect of the application dismissed
Leave granted to withdraw proceedings
Category: B
Representation:
Counsel:
Applicant : Mr G Kelly
Respondent : Ms F Seaward
Solicitors:
Applicant : Wojtowicz Kelly
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Kameel Pty Ltd v Casey CC [2006] VCAT 526
Pitt v Environment, Resources & Development Court (1995) 66 SASR 274
Rennet Pty Ltd and City of Joondalup [2006] WASAT 183
Shire of Augusta-Margaret River v Gray [2005] WASCA 227
Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54
Trajkovski and Wyndham CC [2000] VCAT 1671
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- </CRJ>
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Summary of Tribunal's decision
1 Mr Richard Clark sought review of two conditions of subdivision approval which required the approval by the local government and the construction of roads on common property in a survey strata scheme. Following discussions, culminating in a Deed, between Mr Clark, the local government and the Western Australian Planning Commission in relation to the requirements of the conditions, Mr Clark sought the Tribunal's leave to withdraw the proceedings. The Commission consented to the withdrawal.
2 The proprietors and co-proprietors of a number of lots in the survey strata scheme applied to the Tribunal to make submissions in respect of the application and also opposed leave being granted to withdraw the proceedings. The Tribunal considered both applications together on the documents.
3 The Tribunal determined that the non-parties had a sufficient interest in the matter. However, in the exercise of discretion, the Tribunal refused their application to make submissions, because they would not be able to make a substantive contribution to the proper determination of the proceedings, the proceedings would be extended, against the wishes of both parties, and the party that had standing to bring the proceedings wished to withdraw it, whereas the non-parties did not have standing to bring the proceedings.
4 The Tribunal also determined to grant leave to Mr Clark to withdraw the proceedings. The Tribunal considered that, where all parties to a proceeding consent to its withdrawal, the Tribunal's discretion should normally be exercised in favour of leave. The Tribunal was not asked by either party to exercise a planning discretion to endorse, delete or vary the conditions and consequently was not required to have regard to planning considerations which would be relevant in determining a planning application.
Introduction
5 On 21 March 2006, Mr Richard Clark filed an application for review, pursuant to s 26(1)(a)(ii) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) (PD Act) s 251(2)), of two conditions affixed by the Western Australian Planning Commission (Commission) to the granting
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- of approval on 28 February 2006 of a survey strata plan of Lot 25 on Strata Plan 35452 (site) (subdivision approval). The site is a lot within a survey strata plan comprising 70 survey strata lots and common property known as Rosneath Farm (Rosneath Farm survey strata plan). Rosneath Farm is located between Dunsborough and Yallingup within the Shire of Busselton (Shire).
6 In his application to the Tribunal, Mr Clark sought the deletion of conditions 1 and 4 affixed by the Commission to the granting of subdivision approval. These conditions state as follows:
"1. Construction should not commence until Council has approved detailed engineering plans and specifications of the works, including earthworks, roads and paths, drainage, clearing, landscaping/rehabilitation and soil stabilisation measures, both during and after construction. (Local Government)
…
4. All survey strata lots being serviced by a suitable constructed road access way which is connected to the local public road system, and such road(s) being constructed and drained at the subdivider's cost and to the satisfaction of the Western Australian Planning Commission. The road pavement width is to provide for two-way access, where required. (Local Government)"
7 The subdivision approval states that the conditions "are to be fulfilled to the satisfaction of the [Commission]". It also states that "[t]he agency/authority or local government noted in brackets at the end of the condition(s) identified the body responsible for providing written advice confirming that the [Commission's] requirement(s) outlined in the condition(s) have been fulfilled".
8 The subdivision approval also contains the following advice note:
"In relation to Condition 4, the subdivider is advised to liaise with the Shire of Busselton on the standard of roadworks and the width of the road pavement."
9 It appears that, following the commencement of the proceedings, longrunning discussions took place between Mr Clark, the Shire and the
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- Commission in relation to the requirements of Conditions 1 and 4, culminating in the execution of a Deed between them.
10 On 31 March 2006 and 3 April 2006, Ms JM Irvine, Ms C McGeachie, Mr R Rowell, Mr W and Mrs L Nash, Mrs G Rowell, Mr G Benstead and Mr E Mazzoleni (non-parties), who are each proprietors or co-proprietors of survey strata lots in the Rosneath Farm survey strata plan, applied to the Tribunal to make submissions in respect of the application under s 62 of the TPD Act. On 9 April 2006, the TPD Act was repealed by s 4 and Sch 1 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) and was replaced by the PD Act. Section 242 of the PD Act is in the same terms as s 62 of the TPD Act and provides as follows:
"The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter."
11 At a directions hearing on 21 April 2006, the Tribunal ordered the parties to provide copies of the application and of their respective statements of issues, facts and contentions to the non-parties' representative. The Tribunal also ordered that the non-parties' representative was to be given a copy of the orders made on that day and notice of the next directions hearing on 9 June 2006.
12 At the directions hearing on 9 June 2006, the matter was adjourned for further directions on 21 July 2006. The Tribunal also made the following order:
"In the event that the parties propose consent orders, notice of that proposal is to be provided to [the non-parties' representative] and no orders are to issue without those applicants being first given the opportunity to make a formal application."
13 At the directions hearing on 21 July 2006, the proceedings were adjourned to a further directions hearing on 18 August 2006 "in order to enable the parties to formulate consent orders" and the Tribunal made a similar order to the order made at the previous directions hearing requiring notice of any proposed consent orders to be provided to the nonparties' representative.
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14 Ultimately, in October 2006, the parties filed a signed minute of consent orders in which they sought the following orders from the Tribunal:
"1. Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw these proceedings and the proceedings are hereby withdrawn pursuant to s 46(2) of the State Administrative Tribunal Act.
2. There be no order as to costs."
15 Section 46 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states, in part, as follows:
"(1) If the Tribunal gives leave, the applicant may withdraw or agree to the withdrawal of a proceeding or a part of a proceeding.
(2) The Tribunal may make an order dismissing or striking out all, or any part, of a proceeding before it if the applicant withdraws or agrees to the withdrawal of the proceeding or that part of it.
…
(5) The Tribunal may make an order under this section on the application of a party or on its own initiative."
16 On 9 November 2006, the non-parties filed submissions in support of their application to make submissions in respect of the application under s 242 of the PD Act and in opposition to Mr Clark's application for leave to withdraw the proceedings under s 46(1) of the SAT Act. On 23 November 2006, the Commission filed submissions in which it opposed the non-parties' application to make submissions and supported Mr Clark's application for leave to withdraw the proceedings.
17 At the final directions hearing on 1 December 2006, the Tribunal was unable to determine the non-parties' application under s 242 of the PD Act and Mr Clark's application for leave to withdraw the proceedings under s 46(1) of the SAT Act, because the non-parties' representative indicated that he wished to make further submissions. The Tribunal made orders enabling the non-parties to file further submissions, the parties to file submissions in reply, and the non-parties to file a reply to the reply.
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- The Tribunal also ordered that the application to make submissions and the application for leave to withdraw the proceedings shall be dealt with entirely on the documents pursuant to s 60(2) of the SAT Act.
18 Ultimately, the non-parties filed further submissions on 11 January 2007 and supplementary submissions on 24 January 2007. The supplementary submissions attached documents relating to an application made by the non-parties to the Shire under the Freedom of Information Act 1992 (WA).
Order of determination of applications
19 The Commission's and the non-parties' submissions deal with the application to make submissions and the application for leave to withdraw the proceedings together. Logically, the application for leave to withdraw the proceedings should not be dealt with before the application to make submissions, as if leave to withdraw the proceedings were granted, there would be no application in respect of which submissions could be received or heard. However, the fact that Mr Clark no longer wishes to contest the conditions which are the subject of the application for review and seeks leave, with the consent of the Commission, to withdraw the proceedings, is a relevant and material consideration in relation to the exercise of discretion as to whether to receive or hear submissions, if the non-parties have a sufficient interest in the matter. Equally, the fact that the non-parties wish to make submissions in respect of the application which Mr Clark serves leave to withdraw is relevant in relation to whether leave to withdraw should be granted.
20 In the circumstances, the Tribunal has considered both applications together, each in the context of the circumstances pertaining to the other. However, as in written reasons the consideration of one application must precede the other, the Tribunal will at first discuss the application to make submissions and then the application for leave to withdraw the proceedings.
Application to make submissions
21 In Rennet Pty Ltd and City of Joondalup [2006] WASAT 183, Deputy President Judge Chaney stated at [5] as follows:
"In order for the Tribunal to grant an application for leave to make submissions [under s 242 of the PD Act], [the non-party] needs to establish two matters. The first is that it has a sufficient interest in the matter the subject of the review,
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- and the second is that, if so, the Tribunal should exercise its discretion to permit the making of submissions."
22 In Shire of Augusta-Margaret River v Gray [2005] WASCA 227 at [139, Pullin JA, with whom Le Miere AJA relevantly agreed, discussed the meaning of the expressions "sufficient interest" in s 62 of the TPD Act and held that it requires "an interest which would give standing for judicial review and which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v Commonwealth [(1980) 146 CLR 493]".
23 The Tribunal is satisfied that the non-parties have a sufficient interest in the matter, because the conditions which are the subject of the review involve work on common property in the Rosneath Farm survey strata plan and the non-parties are proprietors or co-proprietors of lots within that strata plan. Consequently, the Tribunal's discretion to receive or hear submissions in respect of the application from the non-parties is enlivened.
24 In Shire of Augusta-Margaret River v Gray & Anor, Pullin JA held that "[f]actors such as those referred to in Pitt's case would then be taken into account in deciding whether to permit a person, not a party, to make submissions". Factors identified in the judgment of Doyle CJ in Pitt v Environment, Resources & Development Court (1995) 66 SASR 274 at 275 include:
• "the nature and strength of the interest" of the proposed submitter;
• "the contribution which the [proposed submitter] is likely to be able to make to a proper resolution of the issues before the [Tribunal]";
• "whether the interest which the [proposed submitter] represents and the material to be advanced by that person will be adequately dealt with by the parties before the [Tribunal]"; and
• "the impact upon the proceedings" and the "interests of the parties before [the Tribunal] as of right and the public interest in the prompt and efficient despatch of proceedings".
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25 The non-parties have a direct interest in relation to the conditions which are the subject of the review and their interests would not be dealt with by the parties.
26 However, as the President observed in Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54 at [67]:
"The status however of a submission-maker does not give the interested person the right to give evidence, call witnesses, examine or cross-examine witnesses, or appeal against the Tribunal's decision."
27 Given that neither party now seeks the deletion or variation of the conditions which are the subject of the review and that a submitter is limited by s 242 to make submissions in respect of the application, the non-parties would not be able to make any substantive contribution to the proper determination of the proceedings.
28 Furthermore, the impact on the proceedings and on the interests of the parties of receiving or hearing submissions in respect of the application would be to extend the proceedings in circumstances where the parties, in effect, jointly apply for the proceedings to come to an end. To grant the non-parties' application in the circumstance of this case would be contrary to a main objective of the Tribunal, namely "to act as speedily … as is practicable, and minimise the costs to parties".
29 Finally, neither Doyle CJ in Pitt v Environment Resources and Development Court nor Pullin JA in Shire of Augusta-Margaret River v Gray said that the factors referred to in those cases are an exhaustive list of the considerations which may be taken into account in the exercise of discretion. The Tribunal considers that, in the circumstances of this case, relevant and material factors to be taken into account in the exercise of discretion are that the party who had standing to commence and brought the application wishes to withdraw it whereas the non-parties do not have standing to seek review of the conditions.
30 For these reasons, the Tribunal considers that, in the circumstances of this case, the discretion under s 242 of the PD Act should be exercised to not receive or hear submissions in respect of the application from the non-parties.
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Application for leave to withdraw proceedings
31 The non-parties do not have standing to make submissions against leave being granted to withdraw the proceedings. However, in accordance with its power to "inform itself on any matter as it sees fit" (SAT Act s 32(4)), the Tribunal considers it appropriate to grant leave to the non-parties to make submissions as to whether Mr Clark should be allowed to withdraw.
32 The non-parties contend that the Tribunal should refuse to grant leave to Mr Clark to withdraw the application, because they and the Tribunal would be "left in the position where they have insufficient information to be able to ascertain whether the terms of condition 4, or any agreed variation of it, or the effects of the confidential agreement between [Mr Clark] and the Shire are consistent with relevant planning considerations and the proper application of those principles to their property interest". Moreover, the non-parties contend that the Tribunal "has an obligation to ascertain whether what has been agreed [between Mr Clark, the Shire and the Commission] is in accordance with the relevant planning considerations: s 241 of the [PD Act]".
33 Section 46(1) of the SAT Act precludes an applicant from withdrawing a proceeding without the leave of the Tribunal and confers a discretion on the Tribunal as to whether to grant leave. However, the SAT Act does not expressly disclose the reason why leave to withdraw is required and does not set out considerations that the Tribunal must take into account in exercising its discretion.
34 Section 46(2) of the SAT Act suggests that one reason for the requirement to obtain leave is to enable another party to seek an order dismissing or striking out all, or any part, of a proceeding before withdrawal and to enable the Tribunal to make such an order on its own initiative: s 46(5). The dismissal or striking out of a proceeding is significant, because s 49 of the SAT Act requires the leave of a judicial member in order to commence another proceeding of the same kind in relation to the same matter. Another likely reason why leave is required is to enable another party to make an application for costs against the applicant or a third party under s 87(2) of the SAT Act and to enable the Tribunal to make an order that a party pay the costs of a proceeding under s 88(2) of the SAT Act. If a party could withdraw a proceeding without leave, it could arguably preclude a costs order from being made against it or another party in the proceeding.
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35 Section 74(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) is expressed in similar terms to s 46(1) of the SAT Act. The VCAT Act also does not expressly disclose the reason why leave is required or set out considerations to guide the exercise of discretion. VCAT does not appear to have addressed these issues, although factors which it has taken into account in the exercise of its discretion to grant leave include whether the other party or parties have incurred costs in the proceedings (see Trajkovski and Wyndham CC [2000] VCAT 1671 at [11]) and whether the other party or parties consent to the withdrawal (see Kameel Pty Ltd v Casey CC [2006] VCAT 526 at [2]).
36 Mr Jason Pizer, the author of Pizer's Annotated VCAT Act (JNL Nominees Pty Ltd (Melbourne), 2nd ed, 2004), states that "it is expected that the VCAT will grant leave to withdraw in most cases and that, where appropriate, such leave will be granted subject to conditions".
37 The Tribunal considers that, where all parties to a proceeding seek or consent to its withdrawal, the discretion in s 46(1) of the SAT Act as to whether to grant leave should normally be exercised in favour of leave, unless the Tribunal considers, on its own initiative, that an order dismissing or striking out the proceedings is warranted or until an order for the payment of the costs of the proceedings is made under s 88(2), where appropriate.
38 In relation to the non-parties' submissions set out at [32] above, the Tribunal is not being asked by either party to exercise a planning discretion to endorse, delete or vary conditions 1 and 4. Rather, it is being asked to grant leave to Mr Clark, with the Commission's consent, to withdraw the proceedings. The effect of withdrawal is that the conditions which were originally the subject of the review remain as part of the subdivision approval.
39 Furthermore, s 241(1) of the PD Act provides that "in determining an application in accordance with [Pt 14] the State Administrative Tribunal is to have due regard to relevant planning considerations … ". However, the granting of leave to withdraw a proceeding does not involve the determination of an application in accordance with Pt 14 of the PD Act. The Tribunal does not, therefore, have an obligation to ascertain whether the conditions which are the subject of the review or any variation to those conditions accord with planning considerations which would be relevant if the Tribunal were called upon to determine an application under Pt 14.
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40 In this case, the non-parties oppose the grant of leave to withdraw in order to enable their private interests to be advanced. It would be an inappropriate exercise of the discretion under s 46(1) of the SAT Act to refuse leave to withdraw in these circumstances.
Conclusion
41 The Tribunal determined that the non-parties have a sufficient interest in the matter. However, in the exercise of its discretion, the Tribunal refused to receive or hear submissions in respect of the application from the non-parties, because they would not be able to make any substantive contribution to the proper determination of the proceedings, the proceedings would be extended, contrary to the wishes of both parties, and the party that had standing to bring the proceedings wishes to withdraw it, whereas the non-parties do not have standing to bring the proceedings.
42 The Tribunal also determined to grant leave to Mr Clark to withdraw the proceedings. Importantly, the Tribunal was not asked by either party to exercise a planning discretion to endorse, delete or vary the conditions. The granting of leave to withdraw a proceeding is not equivalent to the determination of a planning application.
Orders
43 The Tribunal makes the following orders:
1. The application made by Mr JM Irvine, Ms C McGeachie, Mr R Rowell, Mr W and Mrs L Nash, Mrs G Rowell, Mr G Benstead and Mr E Mazzoleni for the Tribunal to receive or hear submissions in respect of the application under s 242 of the Planning and Development Act 2005 (WA) is dismissed.
2. Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA), the applicant has leave to withdraw these proceedings and the proceedings are hereby withdrawn.
3. Each party is to pay its own costs of the proceedings.
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- I certify that this and the preceding [43] 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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