CNES PROPERTY PTY LTD and CITY OF GOSNELLS
[2018] WASAT 30
•30 APRIL 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985
CITATION: CNES PROPERTY PTY LTD and CITY OF GOSNELLS [2018] WASAT 30
CORAM: MS L EDDY (MEMBER)
HEARD: 4 & 5 DECEMBER 2017
DELIVERED : 30 APRIL 2018
FILE NO/S: CC 1956 of 2016
BETWEEN: CNES PROPERTY PTY LTD
First Applicant
CASOLI INVESTMENTS PTY LTD
Second Applicant
QUISTA PTY LTD
Third Applicant
AND
CITY OF GOSNELLS
Respondent
Catchwords:
Strata titles - Strata subdivision ‑ Certificate of approval required to accompany strata plan - Review of decision to grant certificate subject to condition ‑ Condition requiring provision of public open space ‑ Power to extend time to commence application ‑ Where invitation to reconsider decision prior to determination of application to extend time to commence application
Legislation:
Planning and Development Act 2005 (WA), s 138, s 152, s 153, s 153(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 17(1), s 17(3), s 29, s 31, s 31(1), s 31(3), s 42, s 44, s 44(2), s 44(3), Div 2 Pt 4
State Administrative Tribunal Rules 2004 (WA), r 7, r 7(1), r 10
Strata Titles Act 1985 (WA), s 4, s 5, s 5A, s 5B, s 8, s 8A(g), s 16, s 19(1), s 25, s 27, s 39A(5), s 100, s 103, Pt iv
Strata Titles General Regulations 1996 (WA), r 15, r 46, Sch 2
The Strata Titles Act 1966-1978 (WA), s 27
Town Planning and Development Act 1928 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | Mr GR Ritter & Ms E Pendlebury |
| Second Applicant | : | Mr GR Ritter & Ms E Pendlebury |
| Third Applicant | : | Mr GR Ritter & Ms E Pendlebury |
| Respondent | : | Mr DW McLeod |
Solicitors:
| First Applicant | : | HopgoodGanim Lawyers (Perth) |
| Second Applicant | : | HopgoodGanim Lawyers (Perth) |
| Third Applicant | : | HopgoodGanim Lawyers (Perth) |
| Respondent | : | McLeods Barristers & Solicitors |
Case(s) referred to in decision(s):
Claddagh Holdings WA Pty Ltd and City of Gosnells [2014] WASAT 126
Director General of Department of Transport v McKenzie [2016] WASCA 147
Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554
Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Cnes Property Pty Ltd, Casoli Investments Pty Ltd and Quista Pty Ltd (applicants) are the owners of land situated at 9 Central Terrace, Beckenham (site). In 2014 the applicants received development approval to construct 54 multiple dwellings on the site. In 2015, construction of the multiple dwellings commenced. In May 2016, the applicants lodged an application with the City of Gosnells (City or respondent), as the Commission's delegate, for a certificate of approval for strata subdivision of the site in accordance with s 25 of the Strata Titles Act 1985 (WA) (ST Act). A certificate certifying the Commission's approval of a strata subdivision is required to be lodged with a strata plan that an owner wants registered by the Registrar of Title so as to obtain titles for each of the strata lots.
At the time the application for the certificate was lodged, construction of the building having already commenced, the City had a discretion as to whether or not it would accept the application for a certificate: s 25(3) of the ST Act.
By letter dated 9 August 2016, the City advised the applicants that:
The City, acting under Delegation (DEL2009/03) from Western Australian Planning Commission, will consider your application in the context of s 25(3) of the Strata Titles Act 1985, which states as follows:
An application for a certificate under this section shall be made to the Commission in the prescribed form and manner and, where a building is to be constructed or modified for the purposes of the strata scheme or a proposed strata scheme, the application shall be made prior to the construction or modification of the building unless the Commission otherwise agrees in a particular case.
As construction of the development has already commenced, the City must explicitly agree, pursuant to Section 25(3) to accept the application. The City is prepared to agree to accept the application, but imposes the following conditions on that acceptance.
Condition(s)
…
2.The subdivider is to make a public open space contribution to the City, being a cash-in-lieu payment equivalent to 10% of the value of the land, pursuant to Sections 152 and 153 of the Planning and Development Act 2005.
Although the applicants objected to the imposition of condition 2 of the decision of August 2016, in October 2016, 'under protest', they paid to the City $332,000 in lieu of a public open space contribution as required by that condition.
Subsequently, on 13 October 2016, the City issued a 'Form 26 clearance of the conditions of strata subdivision': Exhibit 1 paragraph 30.
Regulation 46 of the Strata Titles General Regulations 1996 (WA) (ST Regulations) provides for the prescription of a number of forms to be used in relation to various provisions of the ST Act, as identified in the table in Sch 2 of the ST Regulations. Relevantly, Forms 24 and 26 are prescribed for the purposes of s 25 of the ST Act: Sch 2 of the ST Regulations. Form 24, prescribed for the purposes of s 25(3) of the ST Act, is identified as 'Application to Western Australian Planning Commission for Approval to Strata Plan' and Form 26, prescribed for the purposes of s 25(1) and (4) of the ST Act, is identified as 'Certificate of Grant of Approval by Western Australian Planning Commission to a Strata Plan'. Thus, despite the description given to the form issued by the respondent on 13 October 2016 by the parties, the form issued was in fact the certificate of approval of the strata subdivision under s 25 of the ST Act, which was required to be lodged with the strata plan in order to obtain registration of the strata plan under the ST Act.
In October 2016, the relevant strata plan for the site was registered with the Registrar of Titles, thereby creating individual titles: Exhibit 1, paragraph 31. Although there is no direct evidence to this effect, the applicant must have caused the Form 26 certificate of approval issued by the respondent to be lodged, together with the strata plan, with the Registrar of Titles. This is because, pursuant to s 25 of the ST Act, the strata plan would not have been able to be registered, and consequently individual titles issued, unless this had occurred. Although s 25(2) of the ST Act does provide for the ability to exempt a proposed subdivision from the requirement to lodge a certificate of approval, the only such exemption that has been prescribed cannot apply in this case as the strata subdivision involved more than five lots: see r 15 of the ST Regulations.
On 30 November 2016, the applicants lodged an application under s 27(3)(b) of the ST Act seeking review of what they said was a decision of the City, as delegate of the Commission, to attach a condition to a certificate of approval to the proposed strata subdivision under s 25(4) of the ST Act. Assuming for the moment that the City's letter of 9 August 2016 was notice of a decision to approve the proposed strata subdivision subject to conditions, that application was lodged approximately eight weeks after the time allowed to make an application for review: s 27(6) of the ST Act.
The question of whether there is any discretion to extend the time allowed to make an application under s 27(6) of the ST Act, and, if there is, whether such an extension ought to be granted in the circumstances of this matter, has not been addressed in the course of the proceedings to date.
In April 2017, the matter was referred to mediation. At the conclusion of the mediation, an order was made inviting the respondent to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). By letter dated 26 May 2017, the applicants' representatives were advised that:
…
3.On the assumption that:
(a)there is a right of appeal against a condition on the local government's agreement under s 25(3) of the Strata Titles Act 1985 (WA) (ST Act); and
(b)the initiation Application is an Application for Review, and not simply an application for extension of time; and
(c)time for the application has been extended.
The respondent has reconsidered its decision to require a POS contribution in respect of the Applicant's built strata subdivision application creating 54 residential strata lots. …
5.The Respondent pursuant to the s 31 invitation having considered the issues has decided as follows:
…
5.3The Respondent therefore again agrees to accept the application under s 25 of the ST Act (being after construction of the relevant building), the Respondent's agreement being subject to conditions including the following as Condition 2:
The Applicant contribute 10% of the subdivision land area by setting aside that 10% proportion of the subject land and vesting the same in the Crown free of costs for parks, recreation grounds and open spaces generally,
BUT
Pursuant to s 153(1)(b) of the Planning and Development Act 2005, the respondent requires the applicant to contribute the sum of $322,000 as cashinlieu of the POS land contribution.
By order made on 2 June 2017, the applicants were required to file 'their amended application' by a date specified in the order. The applicants lodged an amended application which identified the reviewable decision the subject of these proceedings as the decision made on 26 May 2017.
The applicants identified the issues necessary to be determined by the Tribunal in these proceedings as follows (Applicant's amended statement of issues, facts and contentions dated 9 June 2017 at paragraph 1):
The Respondent's (City) 9 August 2016 and 27 May 2017 condition of acceptance of the Applicant's [sic Applicants'] Application for a Certificate of Approval for a strata plan, plan of re-subdivision or consolidation (Built Strata Application) requiring a cash-in-lieu Public Open Space (POS) contribution equivalent to 10% of the value of the Land (POS condition):
1.1as a precondition to the issuing of a section 25 [ST Act] certificate;
1.2as a condition at all; and/or
1.3in the percentage claimed
was:
1.4An unfair condition in the circumstances; and/or
1.5A condition made for an improper purpose; and/or
1.6A condition which constituted an improper exercise of the function delegated to the [respondent] under section 25 of the Strata Titles Act 1985 and section 153 of the Planning and Development Act 2005.
The respondent identified the issues differently (respondent's amended statement of issues, facts and contentions dated 23 June 2017 at paragraphs 39 - 42):
39.Whether or not there is a legitimate right of appeal [to the Tribunal] in this case.
40.Whether the Respondent's imposition of the POS/ cash-in-lieu of POS condition in the circumstances of the case is valid.
41.If the Respondent could validly impose the condition requiring POS/cash-in-lieu in relation to the Applicants' built strata application, whether it was appropriate for the Respondent to impose such a condition in the circumstances of the case.
42.If the condition is valid in principle, and reasonable/fair in principle, is the 10% requirement excessive?
In light of the history of this matter, the Tribunal identified to the parties that it considered that it was also required to deal with the following preliminary issues.
1)In circumstances where the initial application to the Tribunal was lodged out of time and the application for an extension of time to commence the application had not been dealt with by the Tribunal at the time when an order was made pursuant to s 31 of the SAT Act, what is the decision under review in these proceedings?
2)If the decision under review is the respondent's decision made on 9 August 2016, does the Tribunal have power to consider granting an extension of the time allowed to lodge an application for review in light of s 27(6) of the ST Act?
3)What powers does the Tribunal have in the circumstances of this matter, where the decision to issue a certificate of approval under s 25 of the ST Act has been acted upon and separate legal titles for the subdivided lots obtained?
Is there power to extend time to commence an application under s 27 of the ST Act?
The applicants' original application to the Tribunal for review identified the decision of the respondent made on 9 August 2016 as the decision sought to be reviewed under s 27(3)(b) of the ST Act. The orders sought were identified in the application as:
1. That, pursuant to section 27(3) of the Strata Titles Act 1985, the Applicant have leave to apply for a review of the attachment of Condition 2 of the City of Gosnells Built Strata Decision dated 9 August 2016. 2. That pursuant to regulation 10 of the State Administrative Tribunal Rules 2004 the time fixed under section 27(6) of the Strata Titles Act be extended to 30 November 2016. 3. Such further orders as the Tribunal [sees] fit.
Section 27(6) of the ST Act relevantly provides that an application to the Tribunal for a review of a decision of the Commission made under s 25(4) of the ST Act may be made within 30 days of the day on which the applicant received notice of the decision.
The copy of the letter from the Shire to the applicants' agent at the time, MNG Survey, is endorsed with a stamp that indicates that document was received on 11 August 2016: Exhibit 2 page 140. As stated above, the application lodged with the Tribunal seeking review of that decision was lodged on 30 November 2016, approximately 80 days out of the time allowed under the ST Act.
The applicants relied on r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) as the basis for their application for an extension of time within which to lodge its application for review.
Although the issue was raised by the Tribunal, the parties chose not to address the question of whether this rule can be relied upon where a limitation of time within which an application may be made is contained in an enabling Act, and no discretion to extend time is contained in the enabling Act, other than to submit that it can because r 10 of the SAT Rules says the Tribunal may extend any time fixed 'under the Act, an enabling Act or these rules for the commencement of a proceeding'.
Whether or not the power to extend time contained in the SAT Rules is able to be used to allow an application under s 27 of the ST Act to be commenced more than 30 days after the time allowed in s 27(6) of the ST Act depends on whether, properly understood, s 27(6) of the ST Act only allows such an application to be made within that time.
A convenient summary of the well settled principles of statutory interpretation is contained in Director General of Department of Transport v McKenzie [2016] WASCA 147, at [45] [48]:
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
Section 4 of the ST Act provides that land may be subdivided into lots, or lots and common property, by the registration of a strata plan or a survey-strata plan. The requirements for a strata plan or survey-strata plan are contained in s 5 and s 5A of the ST Act respectively. Section 5B of the ST Act provides that a strata or surveystrata plan lodged for registration 'shall' be accompanied by various things, including, relevantly, a certificate given by the Commission where required under s 25(1) of the ST Act in the case of a strata plan or in the case of a survey-strata plan under s 25B(2) of the ST Act.
Lots or common property, or lots and common property, may be resubdivided by a strata plan of re-subdivision or by a survey-strata plan of re-subdivision, as the case may be: s 8 of the ST Act. Similarly to a plan of subdivision, a plan of re-subdivision 'shall' 'where s 25(1) requires or s 25B(2) applies, be accompanied by a certificate of approval of the re-subdivision given by the Commission': s 8A(g) of the ST Act.
Sections 25, 25B and 27 of the ST Act provide:
25.Certificate of Commission
(1)Subject to this section, every strata plan and every plan of resubdivision or consolidation for a strata scheme lodged for registration under this Act shall be accompanied by a certificate of approval given by the Commission unless the proposed subdivision, re-subdivision or consolidation is exempt from the requirement of such a certificate by reason of regulations made under this section.
(2)The Governor may make regulations providing for the exemption of a proposed subdivision, re-subdivision or consolidation, or subdivisions, re-subdivisions or consolidations of any class or description or in any geographical area, from the requirement of a certificate of approval given by the Commission for the purposes of section 5B, 8A or 9.
(3)An application for a certificate under this section shall be made to the Commission in the prescribed form and manner and, where a building is to be constructed or modified for the purposes of the strata scheme or a proposed strata scheme, the application shall be made prior to the construction or modification of the building unless the Commission otherwise agrees in a particular case.
(4)A certificate granted by the Commission under this section shall certify the approval of the Commission to the subdivision, resubdivision or consolidation, as the case may be, and shall be in the prescribed form and in the case of an application made prior to construction or modification of a building proposed to be divided into lots under the scheme, the Commission may grant a certificate unconditionally or subject to such conditions as are specified in the certificate.
(5)Without limiting section 25A, sections 135, 136, 146 and 147 of the Planning and Development Act 2005 do not apply to
(a)a subdivision effected by the registration of a strata plan; or
(b)a re-subdivision effected by a plan of re-subdivision for a strata scheme; or
(c)a consolidation effected by the registration of a plan of consolidation for a strata scheme; or
(d)a transfer converting a lot within a strata scheme to common property.
(6)deleted
(7)This section and the giving of a certificate of approval by the Commission for the purposes of this section shall be subject to the requirements of section 78 of the Heritage of Western Australia Act 1990.
(8)No exemption from the requirements of this section shall take effect where the land or any part of the land to which the strata scheme relates is land to which section 78 of the Heritage of Western Australia Act 1990 applies.
25B.Subdivision in survey-strata scheme requires approval by Commission
(1)The provisions of Divisions 1, 2 (other than section 141) and 3 of Part 10 of the Planning and Development Act 2005, and section 166 of that Act, apply to
(a)the subdivision or re-subdivision of land by a surveystrata plan or a plan of re-subdivision for a survey-strata scheme; and
(b)the consolidation of lots by a plan of consolidation for a survey-strata scheme.
(2)Every survey-strata plan and every plan of re-subdivision or consolidation for a survey-strata scheme lodged for registration under this Act shall have endorsed on it a statement that the approval of the Commission, required by the provisions referred to in subsection (1), has been granted.
(3)deleted
(4)The Registrar of Titles may accept for registration a plan referred to in subsection (1) notwithstanding that it does not comply with subsection (2) if the plan
(a)is accompanied by a certificate of the executive officer of the State Administrative Tribunal to the effect that a successful application has been made to the State Administrative Tribunal for a review of the Commission's refusal or failure to give an approval referred to in subsection (2); and
(b)otherwise complies with this Act.
27.Review of Commission decision
(1)In this section, application means an application to the Commission for approval or a certificate of approval, as the case may be
(a)under section 25 that the Commission approves the proposed subdivision in a strata plan or a plan of resubdivision for a strata scheme or approves the proposed consolidation in a plan of consolidation for a strata scheme;
(b)under section 19(10) that the Commission approves a transfer, mortgage or other disposition as referred to in that provision of common property within a strata scheme;
(c)under section 6(3) that the Commission approves a resolution of a strata company varying or removing a restriction as to use endorsed on a registered strata plan under that provision.
(2)The Commission shall cause notice of its decision on an application made to it under this Act to be given in writing to the applicant.
(3)Subject to this section, an applicant may apply to the State Administrative Tribunal for a review, in accordance with Part 14 of the Planning and Development Act 2005, of
(a)a refusal by the Commission to approve of an application of the kind referred to in subsection (1)(a) to (c); or
(b)the attachment of a condition under section 25(4) to the approval of the Commission.
(4)For the purposes of subsection (3), if the Commission fails to notify its approval of an application to the applicant within 40 days of receiving the application, it is taken to have refused the application at the end of that period.
(5)deleted
(6)An application under this section to the State Administrative Tribunal may be made within 30 days of the day on which the applicant received notice of the refusal or attachment of a condition or within 30 days of the expiration of the period of 40 days referred to in subsection (4), as the case may be.
It is relevant to note that there are a significant number of other types of applications that may be made to the Tribunal under the ST Act: see s 16, s 39A(5) and Part VI of the ST Act. Of those applications, only five specify a time limit for the commencement of proceedings in the Tribunal: s 100, s 103D, s 103L, s 103N and s 103O of the ST Act. All other provisions that provide for applications to be made to the Tribunal under the ST Act are silent in relation to the time within which any such application may be made.
Section 27(6) of the ST Act is phrased in a permissive way, that is, an application 'may be made within 30 days …' (Tribunal emphasis). The right to apply to the Tribunal is contained in a separate subsection: s 27(3) of the ST Act. Thus the use of the permissive 'may' in s 27(6) of the ST Act does not arise because that paragraph also confers the ability to apply to the Tribunal.
In contrast, the time limit imposed on the ability to apply to the Tribunal for an order that a resolution of a strata company is a nullity is expressed in more absolute terms in s 100(2) of the ST Act:
An application for an order under subsection (1) may not be made later than 30 days after the day of the meeting at which the resolution was passed.
Similarly, an application to the Tribunal for an order declaring that a special resolution of a strata company is deemed not to have been passed 'cannot be made by a proprietor later than [the first to occur of two identified time periods]': s 103D(2) of the ST Act.
Sections 103L(1a), s 103N(2) and 103O(2) of the ST Act all provide that an application for an order under each of those sections 'is to be made within [the identified time period]'.
The legislative history of these provisions is such that the difference in terminology used may, at least in part, be a result of the differences in when the provisions were inserted into the ST Act rather than a deliberate use of different terminology.
A version of the current s 27 was contained in the ST Act as originally passed, Strata Titles Act 1966-1978 (WA), (original ST Act). In the original ST Act, s 27(3) provided, amongst other things, for an appeal to the Minister or to the Town Planning Appeal Tribunal of a refusal by the original decisionmaker (then the Town Planning Board) to approve a proposed subdivision in a strata plan, to attach a condition to an approval of a proposed subdivision in a strata plan or the failure of the decisionmaker to notify the applicant of its approval of an application to approve a proposed subdivision in a strata plan within 40 days. Subsections (5) and (6) of s 27 of the original ST Act provided:
(5)An appeal under this section, other than an appeal to the Town Planning Appeal Tribunal, may be commenced within 30 days of the day on which the applicant received notice of the refusal or attachment of a condition or within 30 days of the expiration of the period of 40 days referred to in subsection (3), as the case may be, in such manner and upon payment of such fees as may be prescribed.
(6)An appeal under this section to the Town Planning Appeal Tribunal may be commenced within 30 days of the day on which the applicant received notice of the refusal or attachment of a condition or within 30 days of the expiration of the period of 40 days referred to in subsection (3), as the case may be, in such manner and upon payment of such fees as may be provided for under the Town Planning and Development Act 1928 in respect of appeals arising under that Act.
Section 27 of the original ST Act was amended a number of times to reflect a number of changes including, amongst other things, replacement of the Town Planning Board with the Western Australian Planning Commission, the replacement of the Town Planning and Development Act 1928 (WA) with the Planning and Development Act 2005 (WA) (PD Act) and the introduction of the State Administrative Tribunal. The only substantive amendments in relation to the provisions specifying the time within which an appeal (later an application for review) from a decision to refuse to approve subdivision by way of strata plan, the attachment of a condition to an approval or the failure to notify an applicant of approval within 40 days were in relation to:
(a)the description of the bodies to whom the appeal could be made,
(b)the removal of the option of two different avenues of appeal;
(c)reference to an application for review rather than an appeal;
(d)replacement of the word 'commenced' with 'made'; and
(e)removal of the end of the subsection that originally specified 'in such manner …'
Section 100(2) of the ST Act remains in the exact same terms as that subsection stood at the time of commencement of the original ST Act. Thus, at the time of the introduction of the original ST Act, there was, within the same Act, two very differently worded time limitation provisions.
Sections 103D and 103L of the ST Act were introduced into the ST Act 1995. At that time, s 103D of the ST Act contained a time limit on commencing an application under that section, but s 103L of the ST Act did not. The time limitation in s 103L was introduced by amendments made in 1996. The same amending Act introduced sections 103N and 103O of the ST Act. As indicated above, all three of these provisions contain the same form of words of time limitation, albeit different time periods are specified in each of the provisions.
The decisions that may be made the subject of review in the Tribunal pursuant to s 100 and s 103D of the ST Act are both resolutions that may be made by a strata company. Review in the Tribunal under either of these sections can potentially result in the resolution under review being declared a nullity or deemed to not have been passed. It seems to me that it is highly desirable that all of the members of a strata company have certainty in knowing what resolutions have, or have not, been passed by the strata company. In addition, many resolutions may require actions to be taken in order to carry out the resolution. If there was uncertainty in relation to how long after a resolution was made that it can be challenged, it would be difficult for any members of the strata company, other than a person(s) who intends to apply for review, to know when one might safely act in relation to a resolution. In that context, it is understandable, in my view, why there would need to be a strict time limit on the right to challenge a resolution of the strata company. The fact that these applications 'may not be made', or 'cannot be made' after the time period specified in s 100 and s 103D of the ST Act respectively is consistent with the context of the types of decisions that may be reviewed.
In contrast, the decision that may become the subject of review under s 27 of the ST Act, is a decision that really only substantially impacts the person who may exercise the right of review. If a certificate approving a proposed subdivision by way of strata scheme is refused or is issued subject to conditions that the owner objects to, the owner may choose to apply for review of the decision. The Commission may have some uncertainty as to whether or not an owner is going to apply for a review of its decision under s 27 of the ST Act, however it is difficult to see how that uncertainty has any likely significant impact on the Commission. If the decision was to refuse the proposed subdivision, a decision to apply for review of that decision at a time after 30 days does not, at least on the face of it, necessarily change anything. If it did, on the facts of a particular case, that might be a reason why leave to commence an application for review out of time might be refused. In general terms though, it does not raise any obvious reason why the legislature might have intended to strictly limit the time within which such applications may be made.
The second reading speeches in relation to the then Strata Titles Bill 1985 (WA) (Bill) do not assist in understanding Parliament's intent in relation to the time limit imposed in s 27(6) of the ST Act, other than to indicate that the reforms introduced by the Bill are substantially based on the recommendations made by the Law Reform Commission in its review of the Strata Titles Act 1966-1978 (WA) (Project No 56) published in December 1982 (LRC Report No 56): see Hansard 20 March 1985 at pages 1079 1080 (Council) and Hansard 16 April 1985 at page 2018 (Assembly). In Part 2 of Chapter 7 of LRC Report No 56 consideration was given to the issue of appeals from decisions of the Town Planning Board, which was the body that was responsible for issuing a certificate of approval of a proposed strata subdivision under the Strata Titles Act 1966 1978 (WA). The Law Reform Commission (LRC) was of the view that appeals from the Town Planning Board's decisions in relation to strata title subdivision should be treated no differently than appeals from its decisions in respect of other subdivision. The LRC therefore recommended that the Strata titles Act 1966-1978 be amended so as to provide for appeals from the decisions of the Town Planning Board under the Strata Titles Act to lie, at the option of the appellant, either to the Minister for Urban Development and Town Planning or to the Town Planning Appeal Tribunal: LRC Report No 56 at Part 5 of Chapter 7, page 82. There is no discussion in the LRC Report No 56 about the time within which any such appeal should be made.
Returning to the text used in s 27(6) of the ST Act, it is significant, it seems to me, that the word 'may' is used. This is particularly so in light of much stronger language used in similar provisions within the ST Act. In addition, as there is a separate subsection that provides the ability to seek review, the 'may' used in subsection (6) can only relate to the time within which an application can be commenced.
The ability to review a decision under s 27 of the ST Act is one that affects only the applicant for review and the decisionmaker. Unlike other time limited rights of review contained in the ST Act, the decision the subject of review is not one that others may be relying on, and as such, there seems to be less need for there to be certainty, in terms of being able to know, after a specified period of time, that the decision is not able to be set aside in a review application.
For all of these reasons, although there is a time limit for the commencement of a review under s 27 of the ST Act specified in subsection (6), properly understood this does not mean that the ability to seek a review under this section is lost after that time period has passed. Section 27(6) of the ST Act does not oust the ability to seek an extension of time under the Tribunal's procedural rules. Where Parliament has given a Court or Tribunal jurisdiction to determine a matter, it is presumed, subject to a contrary intent expressed in the legislation, that it intended for the Court or Tribunal's usual procedures to apply to the matter: Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554.
What decision is the subject of review in these proceedings?
As stated above, the application for an extension of time in which to commence the review proceeding was not dealt with by the Tribunal before an order was made under s 31 of the SAT Act inviting the respondent to reconsider its decision. Pursuant to s 31(3) of the SAT Act, if the decision-maker, in response to such an invitation, varies its decision or sets aside its decision and substitutes a new decision, the new decision automatically becomes the decision the subject of review in the proceedings in the Tribunal.
Section 31(1) of the SAT act provides that 'at any stage of a proceeding for the review of a reviewable decision, the Tribunal may invite the decision-maker to reconsider the decision'. What is the effect then, if an application has been lodged but the time limit for making such an application has passed and an extension of time has not been granted?
The term 'proceeding' is not defined in the SAT Act. However, Div 2 of Pt 4 of the SAT Act provides for preliminary procedures including when a proceding is commenced. Relevantly, s 42 of the SAT Act provides:
(1)A person applying to the Tribunal for review, or otherwise bringing a matter before the Tribunal by referral or other means, has to do so in accordance with this Act except to the extent that the enabling Act states otherwise.
(2)The executive officer is to ensure that a person wishing to commence a proceeding before the Tribunal is given reasonable assistance that the person seeks.
(3)A proceeding before the Tribunal commences when the application is accepted by the executive officer.
(4)Proceedings before the Tribunal cannot be commenced by 2 or more persons jointly unless the facts or circumstances relating to each person's interests are the same or related.
Section 44 of the SAT Act provides for the rejection or conditional acceptance of applications as follows:
(1)Unless otherwise stated in the rules, the executive officer may reject an application on the ground that
(a)it is made by a person not entitled to make it; or
(b)it is made after the time limit before which the application is required by the rules or the enabling Act to be made; or
(c)it does not otherwise comply with this Act or the enabling Act.
(2)If the executive officer accepts an application, the executive officer may impose conditions of a kind specified by the rules on the acceptance.
(3)If, under subsection (1) or (2), the executive officer rejects an application or accepts an application on conditions
(a)the applicant may request the executive officer to refer to the Tribunal for a review of the decision to reject the application or accept the application on conditions or a review of any condition imposed; and
(b)the executive officer is to refer the decision or condition to the Tribunal for a review if requested under paragraph (a) to do so.
(4)If the executive officer believes that an application could be rejected under subsection (1), the executive officer may, instead of deciding whether or not to reject the application, refer the question to the Tribunal.
(5)An appeal cannot be made under Part 5 from a decision of the Tribunal on a matter referred to it under subsection (3) or (4).
(6)No fee is payable for requesting a matter to be referred under subsection (3).
(7)The rules may prescribe to whom, and provide for the manner in which, notice of the acceptance or rejection of an application is to be given.
Rule 7(1) of the SAT Rules provides that:
For the purposes of section 42(3) of the Act, an application is accepted by the executive officer
(a)if filed under rule 4(1)(a) or (b), when the Tribunal's seal is affixed to it; and
(b)if filed under rule 4(1)(c), (d) or (e), when the Tribunal's seal is affixed to a print out of it.
There is nothing prescribed in the SAT Rules for the purposes of s 44(2) of the SAT Act.
Thus, where an application is made after the time limit before which the application is required to be made, the executive officer may reject the application but in the absence of any kinds of conditions specified in the SAT Rules it would seem that it would not be possible to accept the application conditionally.
In this case, the application has a stamp affixed to the front page that indicates it was received on 30 November 2016. It is not clear whether this is the 'Tribunal's seal' for the purposes of r 7 of the SAT Rules, but in any event the matter proceeded to a directions hearing, mediation and ultimately to a final hearing so there can be no doubt that for all practical purposes the application was accepted and the proceeding commenced within the meaning of the SAT Act.
However, while the proceeding commenced once the application was accepted, as the power to review the decision in question arises under the ST Act, and because the ability to make an application for review is required by s 27(6) of the ST Act to be made within 30 days of the date the applicant received notice of the decision, it must be that unless and until an extension of time was granted to the applicant to commence a review outside of that time, the proceeding that had been commenced did not provide the Tribunal with any power to review the Commission's decision. The question arises then, was there power to invite the decision-maker to review its decision under s 31(1) of the SAT Act?
An invitation under s 31(1) of the SAT Act may be made '[a]t any stage of a proceeding for the review of a reviewable decision'. The first part of this phrase would tend to indicate that so long as a proceeding has been commenced there is power to invite reconsideration even if the Tribunal does not at that point in time have any power itself to review the decision-maker's original decision. However, it is necessary, having regard to the second part of that phrase to consider whether the proceeding that had been commenced was, prior to any grant of an extension of time to commence an application under s 27 of the ST Act, a 'proceeding for the review of a reviewable decision'. The term 'reviewable decision' is defined in s 17 of the SAT Act, which provides:
(1)If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
(2)A matter referred to the Tribunal under section 44(3) comes within the Tribunal's review jurisdiction.
(3)Where subsection (1) or (2) applies the decision is a reviewable decision for the purposes of this Act.
As indicated above, s 44 of the SAT Act provides the Executive Officer with the discretion to reject an application that is lodged after the time limit before which the application is required by the rules of the enabling Act to be made. That decision is able to be referred to the Tribunal for review under s 44(3) of the SAT Act and that referral is a 'reviewable decision' as defined by s 17(3) of the SAT Act. I do not think that this necessarily leads to any conclusion that where the Executive Officer does not exercise the discretion to refuse an out of time application that the proceeding that is commenced is something other than a proceeding for the review of a reviewable decision. The text used to describe a reviewable decision in s 17(1) of the SAT Act is quite broad. One is to look at the 'matter' that an enabling Act gives the Tribunal jurisdiction to deal with and determine whether that matter expressly or necessarily involves the review of a decision.
The matters that s 27 of the ST Act gives the Tribunal jurisdiction to deal with are 'a refusal by the Commission to approve of an application [under s 25 or under s 19(1) of the ST Act]' or 'the attachment of a condition under section 25(4) to the approval of the Commission'. Such an application 'may be made' within the time specified in s 27(6) of the ST Act.
If the matter that an enabling Act gives the Tribunal jurisdiction to deal with may only be made within a specified time limit, that is, if there is no ability to commence such an application outside of the time limit specified in an enabling Act, then in my view there is no matter that the enabling Act gives the Tribunal jurisdiction to deal with after that time period has passed. A proceeding commenced in the Tribunal in such a case would not be a 'proceeding for the review of a reviewable decision'. However, if, properly understood, an enabling Act allows for an extension of time to be granted to commence the application despite the time period specified in the enabling Act having passed, then there is still a matter that the enabling Act gives the Tribunal jurisdiction to deal with.
On this basis, given that I have formed the view that s 27(6) of the ST Act does not remove the ability to seek review under s 27 after the time period specified has passed, the proceeding that was commenced when the application made under s 27(3)(b) of the ST Act was accepted (assuming for the moment that the decision sought to be reviewed was in fact a decision made under s 25(4) of the ST Act) was a proceeding for review of a reviewable decision. Accordingly, it was possible to invite the decision-maker to reconsider its decision pursuant to s 31 of the SAT Act despite the fact that an extension of time to commence the proceeding had not yet been granted.
In such a case, it may be that the decision-maker decides to decline the invitation to reconsider its decision prior to the determination of the application for an extension of time to commence the application if the decision-maker intends to oppose an extension of time. However, if the decision-maker decides to reconsider the decision, and if the decision is one that is a variation or substitution of the original decision, the practical effect will be that the applicant will no longer need any extension of time.
In this case, following the making of the order inviting reconsideration under s 31 of the SAT Act, the respondent purported to reconsider its decision on the basis of three identified assumptions. The respondent stated what it had done as follows (Exhibit 3):
3.On the assumption that:
(a)there is a right of appeal against a condition on the local government's agreement under s 25(3) of the [ST Act];
(b)the initiating application is an Application for Review, and not simply an application for an extension of time; and
(c)time for the application has been extended,
the Respondent has reconsidered its decision to require a POS contribution in respect of the Applicant's built strata subdivision application creating 54 residential strata lots. …
Contrary to the 'assumptions' stated, as will be discussed below, there is no ability to apply to the Tribunal to review a decision made under s 25(3) of the ST Act.
In addition, although I do not think it is quite correct to say that the proceeding that had been commenced in the Tribunal was 'simply an application for extension of time', as stated above, unless or until an extension of time had been granted, the Tribunal did not have any power to review any decision made under s 25(4) of the ST Act. There is no dispute between the parties that the Tribunal did not, prior to the making of the order under s 31 of the SAT Act inviting reconsideration, determine whether or not the applicants should be granted an extension of time within which to apply for a review under s 27 of the ST Act.
The language used in Exhibit 3 quoted above is somewhat infelicitous, but it seems to me that the respondent was identifying that if the situation was different to what was in fact the case, then it would have reconsidered its decision and varied the original decision in the way stated in its letter to the applicants' representatives. Although the parties stated, as an agreed fact, that the 'pursuant to s 31 of the [SAT Act] the City was invited to reconsider the Built Strata Decision, and on 26 May 2017 the City decided as follows ….' (exhibit 1, paragraph 32), I do not think that it can be said that the respondent in fact reconsidered its decision. This is because the basis on which the reconsideration was said to occur was so patently incorrect as to make a nothing of the purported reconsideration on that basis. Thus, in the circumstances of this case, there was no automatic replacement of the decision the subject of review by the application of s 31(3) of the SAT Act.
However, by order made on 2 June 2017, the applicants were given leave to file and serve an amended application by 9 June 2017. The amended application that was filed on 9 June 2017 identified the decision the subject of review as the decision made by the respondent on 26 May 2017. While I have great difficulty understanding the 'decision' made by the respondent on 26 May 2017 as a decision at all given the patently incorrect basis on which it was stated to be made, nonetheless the Tribunal allowed the applicant to amend its application in this way and the amendment was not opposed by the respondent. Both parties proceeded at the final hearing on the basis that it was the May 2017 decision that was the subject of the review and, despite the questions raised by the Tribunal, neither party sought to resile from that position.
In the circumstances it is appropriate, despite my reservations, that I accept that it is the May 2017 decision that is the subject of review in these proceedings. The amended application was filed less than 30 days after the applicants' received notice of the decision. As such, there is no need for any extension of time.
For the sake of completeness, I note that if the applicants had needed an extension of time to commence their application, I would have refused that application. The applicants chose to comply with the condition imposed by the respondent and used the certificate of approval that was consequently issued in order to obtain separate titles to each of the strata lots in the strata plan. In doing so, it completed the subdivision. Even assuming there remained after that time a power in the decisionmaker, or the Tribunal standing in its shoes, to re-exercise the power in s 25 of the ST Act after subdivision has in fact occurred, which I do not accept, to allow the decision to be reviewed in circumstances where there is no longer any ability for the Tribunal, to refuse to approve the strata subdivision, effectively removes the ability for the Tribunal to properly and fully consider what is the correct and preferable decision on review. An applicant for a certificate of approval who is granted that approval subject to conditions it wishes to dispute may choose to apply for review of that condition, or may chose, for commercial or other reasons, to accept the condition even though it disagrees and proceed to obtain titles and complete the subdivision. It cannot, however, in my view, 'have its cake and eat it too' by registering an 'objection' to the condition but nonetheless complying with it and using the subsequent unconditional approval to obtain its subdivision.
Power to review decision to impose condition
Section 25 of the ST Act provides at least two discretions. Firstly, to accept an application for a certificate of approval after construction or modification of a building that is being constructed or modified for the purposes of the proposed strata scheme has commenced: s 25(3) of the ST Act. Secondly, where a decision is made to grant a certificate of approval, to do so conditionally or unconditionally: s 25(4) of the ST Act.
Each of the decisions made by the respondent, in August 2016 and in May 2017, is phrased as a decision to conditionally accept the application for a certificate of approval after construction of the building built for the purpose of the proposed strata scheme had commenced.
There is nothing in s 27 of the ST Act, or indeed anywhere within the ST Act, that provides for an application to be made to the Tribunal for review of a decision to refuse to accept an application for a certificate made after construction or modification of a building or to accept such an application subject to conditions.
Luke Stephen Gibson, the Manager Planning implementation at the City of Gosnells, gave evidence by way of a witness statement (Exhibit 7) and oral evidence at the final hearing. Mr Gibson was the author of the letter dated 9 August 2016 which conveyed the respondent's decision in response to the applicants' submission of a Form 24 application for certificate of approval for proposed subdivision (see Exhibit 2 pages 140-141). Mr Gibson's understanding of the decision that had been made, and was being conveyed in that letter was explored during the hearing as follows (ts 60 62; 4 December 2017):
Ritter, Mr: now, just things falling out, but let's go a little more specific. You know that the act provides for conditions which may be applied on the grant of approval?
Gibson, Mr: yes.
Ritter, Mr: is it your view that you can apply the same conditions to an application if it's a built Strata application?
Gibson, Mr: so long as either a yes. So long as the construction of what you commenced, or in the case of construction having already commenced, with a city has otherwise agreed to accept that application notwithstanding the timing of application.
Ritter, Mr: perhaps I (indistinct) that again. Dealing with the circumstances where a building has not commenced, is it your view that you can condition the application with a POS requirement?
Gibson, Mr: that we can I believe we can impose conditions on the approval - - -
Ritter, Mr: yes.
Gibson, Mr: in response to the application being lodged.
Ritter, Mr: yes. And in relation to something which has commenced, is that different and you can go to a different – you can condition something else. Is that right?
Gibson, Mr: well, we can similarly impose conditions
Ritter, Mr: yes.
Gibson, Mr: on the basis that the city has otherwise agreed to accept the application, notwithstanding the commencement of construction.
Ritter, Mr: yes. So it's a condition which is imposed on what?
Gibson, Mr: it's impose on the built Strata approval
Ritter, Mr: right.
Gibson, Mr: in relation to as part of the city's acceptance of the application notwithstanding it being lodged following construction.
Ritter, Mr: so it is imposed on the approval.
Gibson, Mr: yes.
Ritter, Mr: but it's impose, did you say
Gibson, Mr: imposed by way of a letter to the applicant setting out that the city has otherwise agreed to accept the application notwithstanding it being lodged following construction.
Ritter, Mr: Right. So then what has happened is it's a condition imposed on approval, a condition of approval, but it is not it doesn't find its way into the certification of approval. That is, its not in written into under section I will just get the precise terminology for you. Its not specified in the certificate which is the certificate of approval?
Gibson, Mr: that's correct.
Ritter, Mr: Right. But its still a condition?
Gibson, Mr: Its conveyed by way of letter that (indistinct) get approval. That's correct.
Ritter, Mr: Yes. But in that letter you say that as far as the practice is your practice is concerned, that is imposing sorry. Yes, its imposing a condition of approval notwithstanding that its not written there?
Gibson, Mr: Its written there in the city's conditional response - - -
Ritter, Mr: in the letter.
Gibson, Mr: - - - in the letter. Correct.
Ritter, Mr: Yes, but its not you also granted what I would like to call a blank certificate. Can I call it that? An unconditioned certificate of approval?
Gibson, Mr: in due course, yes.
Ritter, Mr: yes. okay.
Gibson, Mr: once the conditions that the city sets out in its letter that subject to certain things being done the city is prepared to grant a certificate of approval.
Ritter, Mr: an unconditional - - -
Gibson, Mr: that's correct.
Ritter, Mr: an otherwise unconditional certificate.
Gibson, Mr: that's correct. That's correct.
Ritter, Mr: yes.
Gibson, Mr: which is what the city did in this case.
Ritter, Mr: sorry?
Gibson, Mr: so the city, in responding to the application, issued letter back to the applicant saying construction has already commenced. The city must explicitly agree to otherwise accept the application.
Ritter, Mr: I think we've seen the letter of the type you mentioned.
Gibson, Mr: which you would agree to do so, that letter, effectively, committed that once certain things were done to the city's satisfaction, the city would commit to issuing a form 26 certificate, which it did.
Ritter, Mr: yes.
Gibson, Mr: it enabled the lots to be created and on sold.
Ritter, Mr: yes. So you weren't saying, 'we will then consider the application.' You were treating that is done in the sense of, 'we will give you certificate if these things are done?'
Gibson, Mr: effectively so, yes
Thus it would seem that the respondent, through Mr Gibson, in August 2016, effectively made the decision to accept the application for a certificate of approval after construction of the building had been commenced and to issue a certificate of approval once certain things had been done at the same time.
The applicants' submitted that the condition imposed by the respondent was in reality a condition imposed on its decision to approve the proposed subdivision. The difficulty with this submission is that, while it does appear that in August 2016 the decision-maker made a decision to accept the application after construction had been commenced and at the same time made a decision to approve the proposed subdivision, the condition imposed was stated to be, and was on the evidence of Mr Gibson intended to be, imposed on the decision to accept the application.
The applicants submit that the ST Act does not allow for conditions to be imposed on a decision to accept an application for a certificate of approval of a proposed subdivision after construction has commenced. Therefore, it is submitted, the conditions imposed must have in fact been conditions on the approval.
Whether or not s 25 of the ST Act allows for conditions to be imposed on the decision to accept an application for a certificate of approval after construction has commenced is not a matter that the Tribunal has any power to determine as there is no right of review to the Tribunal in relation to that decision.
The Tribunal is given power, by s 27 of the ST Act, to review a decision to attach a condition to an approval of a proposed subdivision. Section 25(4) of the ST Act requires that if the certificate certifying approval is subject to conditions they are to be specified in the certificate. The respondent in this case issued a certificate of approval that did not specify any conditions in the certificate.
In my view, the documentary and oral evidence establish that the respondent decided to attach a condition to its willingness to accept the application for approval of the proposed subdivision. It also decided that, subject to that condition being fulfilled, and the application therefore accepted, it would issue an unconditional certificate of approval of the proposed subdivision. If I am correct in this conclusion, the application made to the Tribunal was misconceived and the Tribunal had no power to review the respondent's original decision to impose the condition in question.
However, following the amendment of the application in June 2017, it is the respondent's decision of May 2017 that became the subject of review in these proceedings. The only evidence of that decision before the Tribunal is the copy of the letter addressed to the applicants' representatives dated 26 May 2017 (Exhibit 3). Relevantly, it is stated at point 5 in that letter:
The Respondent pursuant to the s 31 invitation having considered the issues has decided as follows:
5.1The Respondent still considers it appropriate the Applicant make the usual contribution of POS in the ordinary terms of a requirement that the Applicant contribute 10% of the subdivision land area by setting aside that proportion of the land and vesting the same in the Crown free of cost for parks, recreation grounds or open spaces generally.
5.2The Respondent as delegate of the WAPC (pursuant to s 153(1)(a) of the Planning and Development Act 2005), having notionally consulted with itself as to the problem that would be caused for the Applicant by the normal setting aside and vesting in the Crown free of cost of 10% of the land area in the strata scheme (which would require the Applicant to adopt a modified strata plan), accepts that it should require a payment of cashinlieu of setting aside land for POS.
5.3The Respondent therefore again agrees to accept the application under s 25 of the ST Act (being after construction of the relevant building), the Respondent's agreement being subject to conditions including the following as Condition 2:
The Applicant contribute 10% of the subdivision land area by setting aside that 10% proportion of the subject land and vesting the same in the Crown free of cost for parks, recreation grounds and open spaces generally,
BUT
Pursuant to s 153(1)(b) of the Planning and Development Act 2005, the Respondent requires the Applicant to contribute the sum of $322,000 as cashinlieu of the POS land contribution.
The respondent was still stating that it was imposing a condition on its willingness to accept the application for approval of the proposed subdivision. However, at the time that the May 2017 decision was made, the application had been accepted, the conditions of acceptance complied with (albeit under objection, at least in relation to the requirement for public open space), an unconditional certificate of approval issued and that certificate had been lodged with the Registrar of Titles together with the strata plan with the result that separate titles had issued for each of the lots within the strata plan. That is, the proposed subdivision had in fact occurred. What then was the nature of the decision made in May 2017? Was it a decision to attach a condition to the approval of a proposed stata subdivision?
In my view, once an unconditional certificate of approval of a proposed subdivision has been acted upon so as to cause the subdivision to come into effect, it is not then open to the decisionmaker to reconsider its decision in relation to the proposed subdivision under s 25 of the ST Act. There is no mechanism in the ST Act that would allow the titles issued to be clawed back, or for the subdivision effected to be somehow reversed. As such, the decisionmaker no longer has any substantive ability to exercise the discretion contained in s 25 of the ST Act.
The applicants submitted that the decision to impose a condition on an approval of a proposed subdivision remained a decision that it was open to the decision-maker to re-consider and this was not affected by the fact that the subdivision had been completed. I am not persuaded by this submission. It seems to me that the heart of the discretion in s 25 of the ST Act is essentially to approve a proposed subdivision or to refuse it. If the decision is to approve, that approval may be conditional or unconditional, but if there is no longer any ability to decide whether to approve or to refuse approval there is no real discretion. A decisionmaker may be willing to approve a proposed subdivision only if one or more conditions are imposed, without which the decisionmaker would not be prepared to approve the proposed subdivision. In addition, when one has regard to the types of conditions that may potentially be imposed in relation to subdivision, by the time a condition has been complied with and separate titles issued, there may no longer be any ability to effectively reverse the condition, or no ability to reverse it without impacting on the interests and/or rights of subsequent holders of the titles to the separate lots within the strata subdivision.
On this basis, the May 2017 decision could not have been a decision to attach a condition to an approval of a proposed strata subdivision because there was no proposed strata subdivision at that time. Rather, there was a completed subdivision. There was no longer any discretion under s 25 of the ST Act remaining with the respondent. In that circumstance, the respondent can only really have been deciding that its original decision to impose a condition on its willingness to accept the application for a certificate of approval remained the correct decision and it was not willing now to return the money paid by the applicants pursuant to the condition imposed in the August 2016 decision. That is not a decision that the ST Act gives the Tribunal any power to review.
Having come to this view, it is not open for the Tribunal to consider whether the respondent's decision should be affirmed, varied or set aside and a new decision substituted pursuant to s 29 of the SAT Act. However, as this was the focus of the parties' submission in this matter, I consider it appropriate to make a few short comments.
One of the applicants' arguments was that the imposition of a requirement to contribute either land, or cashinlieu, for public open space at the time of approving a strata subdivision is unfair because at that time all of the development has been completed with lots potentially pre-sold, which removes the developer's ability to predetermine the economic viability of the development and/or recoup any additional expenses through the sale price of the lots. From the evidence before the Tribunal, it would appear that it may be a widespread practice for developers to regularly wait until after a grouped or multiple dwelling development has been constructed before making an application for approval of the strata subdivision. This approach, if it is a widespread practice, is patently inconsistent with the intention evinced by the ST Act. The plain text of s 25 of the ST Act requires the application for a certificate of approval, where there is to be construction or modification of a building, to be made prior to the commencement of that construction or modification.
This intention is confirmed when regard is had to LRC Report No 56. The discussion in that report concerning the requirement for a certificate of approval for strata subdivision (at the time, the approval required was of the town planning board) started with discussion about submissions that had been made urging that the need for that approval should be abolished. These submissions were addressed in LRC Report No 56 at paragraph 3.37 as follows:
In considering this issue, the commission noted that in 1969 Parliament, on the advice of the Town Planning Board, repealed the requirement for Town Planning Board approval to a strata title subdivision. However, it appears that as soon as the requirement had been repealed, a number of developers put in train plans for large scale strata title developments both within the area covered by the Metropolitan Region Scheme and in other parts of the state. In some cases, it appeared that the developers did not intend to set aside land for public open space or for schools or community facilities. It was feared that the local authorities concerned may have approved such schemes without due regard 'to the orderly and proper planning of the State and the preservation of the amenities of the localities affected' or been powerless to prevent them. Accordingly in 1970, again on the advice of the Board, the requirement was reimposed.
Ultimately, it was recommended that the requirement for the approval of the Town Planning Board for strata subdivision should continue, however there should be inserted in the legislation a provision that allowed for exemptions from the need to obtain that approval in specified circumstances to be prescribed. That provision can be seen in what is now s 25(2) of the ST Act.
In relation to the time when application should be made for the Town Planning Boards approval, LRC Report No 56 stated at paragraph 3.41 3.43 as follows:
The owner of land proposing a subdivision, whether involving ordinary freehold lots or strata title lots, may apply to the Town Planning Board for conditional approval to the subdivision. The Board may indicate to the applicant in writing that it will approve the subdivision provided certain conditions are attended to within a stated time. In the case of a proposed subdivision into ordinary freehold lots, these may include, for example, the preparation of a diagram of survey and the construction of roads.
The Board has informed the Commission that in contrast to the practice in relation to ordinary freehold lots, application to the Board for approval of a proposed subdivision into strata lots is usually made after the building has been erected or, in the case of an existing building, after it has been modified. This is clearly inappropriate because by then the developer has invested a considerable amount of money in the project. The Board considers that it should be involved before construction commences so that has adequate time to consider the proposal without unduly inconveniencing the developer.
The commission agrees and accordingly recommends that the Act should be amended to provide that where the Board's approval to a strata subdivision is to continue to be required, a person who intends to construct or modify a building with a view to strata titling it should be required to apply to the Board for conditional approval before he commences construction or modification. The form of the application and the documents which should accompany it should be prescribed by regulation.
To submit that it would be unfair to impose a condition on the approval of a strata subdivision because the application had been made, contrary to the clear intent of the ST Act, after the commencement of development that forms part of that subdivision is inapposite. The point is that the application for approval should have been made prior to the development occurring. If an application is made at a later point in time and it is no longer possible to impose what would otherwise have been considered appropriate and reasonable conditions would be a reason why such a late application might not be accepted, or be accepted and then refused.
The respondent submitted that the imposition of conditions on a certificate of approval issued under s 25 of the ST Act is unworkable in reality because there is nothing to prevent the Registrar of Titles from registering a strata plan accompanied by a certificate of approval which specifies conditions on which the approval is granted without being aware of whether or not the conditions have been fulfilled. There was no evidence before the Tribunal in relation to how the Registrar of Titles does or would treat such a certificate of conditional approval. However, as a matter of common sense I would have thought that the Registrar of Titles would not register a strata plan accompanied by a certificate of conditional approval until he/she had been notified that the conditions had been complied with. If that is in fact not the case, then it would seem that there may be a need for legislative amendment to allow the system that was intended by Parliament to work effectively.
In relation to the nature of the power in s 25 of the ST Act, there is nothing in the ST Act which would support any reading of that power as being any different in nature to the Commission's power to approve a green title subdivision subject to conditions pursuant to s 138 of the PD Act. That this was indeed the intent of Parliament is, I think, confirmed by the excerpts from LRC Report No 56 referred to above. I agree with the comments of Senior Member McNab in Claddagh Holdings WA Pty Ltd and City of Gosnells [2014] WASAT 126 at [9] [10] which are to similar effect. I also agree with Senior Member McNab's statement in that same decision, at [12], that the appropriate test for validity of a condition attached to the approval of a strata subdivision is the test articulated in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30, at [57].
The applicants submitted that the power in s 153 of the PD Act to allow a payment of cashinlieu of the setting aside of land for public open space was not able to be exercised by the respondent in this case as there had never been any plan of subdivision that identified a portion of land as set aside for public open space. It was submitted that power in s 153 of the PD Act was conditioned this way because of the text of subsection (1), which states:
If the Commission has approved a plan of subdivision of land on condition that a portion of the land be set aside and vested in the Crown for parks, recreation grounds or open spaces generally and
(a)the Commission, after consultation with the local government in whose district the portion is situated, so requires; or
(b)the Commission, the local government in whose district the portion is situated and the owner of the land so agree,
the owner of that land is to, in lieu of setting aside the portion, pay to that local government a sum that represents the value of the portion.
(Tribunal emphasis)
The respondent points to the fact that s 152 of the PD Act expressly contemplates that a condition may be imposed on an approval of a proposed strata subdivision that requires 'one or more portions of land shown on a … plan … under the Strata Titles Act 1985 [is] to vest in the Crown for one of the purposes identified in s 152 of the PD Act]' in support of its submission that the mechanism of automatic vesting of land or alternatively providing for payment of cash-in-lieu of the provision of land provided for in s 153 of the PD Act are applicable to circumstances where the respondent, as delegate of the Commission has imposed a condition to an approval of a strata subdivision. So much might readily be accepted.
The respondent goes on to submit that the condition imposed by the respondent required land to be set aside and vested in the Crown for parks, recreation grounds or open spaces generally, and as such was a condition to which the cash-in-lieu process in s 153 of the PD Act could be applied. The difficulty with this contention is that the condition imposed in the May 2017 decision was not a condition imposed on an approval of a plan of strata subdivision.
The opening words of s 153 of the PD Act condition the ability to require payment of cash-in-lieu on the Commission having approved a plan of subdivision of land on the condition that a portion of the land be set aside and vested in the Crown. In this case, it was the acceptance of the application for a certificate of approval to which the condition was stated to be attached. Even though the condition cannot have attached to the acceptance of the application in the circumstances, it could also not have been a condition of approval of the strata subdivision, because that subdivision had, at the time of the decision, already been completed.
If the condition imposed in May 2017 had in fact been a condition of approval of the strata subdivision, it would not, in my view, have been fatal to the application of s 153 of the PD Act that the respondent may have accepted the condition as having been complied with despite the fact that the strata plan had not been amended to identify the portion of land to be set aside for public open space. The text of s 153 of the PD Act, in its context, does not lead to any such conclusion.
It is correct, in my view, that for s 153 of the PD Act to apply, the condition has to actually require the setting aside of a portion of land to be vested in the Crown, and that it would be ordinarily expected that that condition would not be 'cleared' as having been complied with unless the strata plan had been amended as required by the condition. However, the trigger for the application of s 153 of the PD Act is the imposition of the condition, not on compliance with the condition. Having said that, another issue that would have to be considered before determining the applicability of s 153 of the PD Act where such a condition has been imposed by a person who has been delegated the Commission's powers under s 25 of the ST Act, is whether or not the reference to the Commission in s 153 of the PD Act should be properly understood to include the person who has been given the Commission's delegated authority. As this issue was not argued by the parties in these proceedings it is not appropriate that I do anything more than raise the question for determination in the appropriate circumstances.
Conclusion
The proceeding of this matter has been somewhat unfortunate resulting in the need to consider a number of technical issues. Ultimately the Tribunal is not able to deal with the merits of the application because the decision sought to be reviewed is not a decision made under s 25(4) of the ST Act and is not one that the ST Act otherwise gives the Tribunal power to review. The Tribunal has been given no authority by the ST Act to review decisions of the type made by the respondent in May 2017 and therefore the only thing the Tribunal can do is to dismiss the application.
Order
The Tribunal makes the following order:
1.The amended application for review of the respondents decision made on 26 May 2017 purporting to impose a condition upon the respondent's acceptance of the application for a certificate of approval of strata subdivision of land at 9 (Lot 30) Beckenham Terrace, Beckenham is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, MEMBER
2 MAY 2018
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