Cooper and City Of Melville
[2006] WASAT 104
•12 APRIL 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: STATE ADMINISTRATIVE TRIBUNAL RULES 2004 (WA)
CITATION: COOPER and CITY OF MELVILLE [2006] WASAT 104
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 12 APRIL 2006
DELIVERED : 12 APRIL 2006
FILE NO/S: DR 104 of 2006
CC 479 of 2006
BETWEEN: AFSANEH COOPER
Applicant
AND
CITY OF MELVILLE
Respondent
Catchwords:
Practice and procedure Application for extension of time in which to commence an application for review of a decision to give a direction under Town Planning and Development Act 1928 (WA), s 10 and a decision to give a notice under Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401 No satisfactory reason for delay No arguable case Application for extension dismissed
Legislation:
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 401
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Town Planning and Development Act 1928 (WA), s 10, s 10AA
Result:
Application for extension of time dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr G Owen
Solicitors:
Applicant: Self-represented
Respondent: McLeods
Case(s) referred to in decision(s):
KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Ms Cooper applied for an extension of time in which to seek review of a direction and a notice which required compliance with a development consent and building licence for the erection of a pre‑cast concrete post and panel retaining wall.
Following the hearing, the Tribunal gave an oral decision in which it dismissed the application to extend time. While the length of delay was not so great as to in itself warrant refusal of the application, and there would be no prejudice to the City, it was not appropriate to extend time in the exercise of discretion, because there was no reasonable explanation for the delay and there was no arguable case for review of the direction or notice.
On 21 April 2006, Ms Cooper applied for written reasons for the Tribunal's decision. The following reasons, which were taken from the transcript and edited in minor respects to aid clarity, constitute the Tribunal's written reasons for decision.
Introduction
This is an application made by Ms Cooper, pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA), to extend the time in which she can bring applications for review in relation to a direction under s 10 of the Town Planning and Development Act 1928 (WA) and a notice under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA).
The direction requires Ms Cooper to essentially comply with a development approval for the erection of a pre‑cast concrete post and panel retaining wall. The s 401 notice states that the same wall was not constructed in accordance with the approved plans and specifications the subject of a building licence, and essentially requires Ms Cooper to ensure compliance with the building licence.
The s 10 direction and the s 401 notice were each dated the 1st of February 2006. It is not apparent on the evidence when they were received. However, assuming that they were put into the post on the day that they were issued, they were received by the 2nd of February 2006.
The application to the Tribunal to extend time was filed on 30 March 2006. The application to extend time was therefore made approximately 4 weeks out of time.
Consideration of application to extend time
As the Tribunal recognised in KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297, the discretion to extend time under r 10 is guided by four principal considerations, although the range of considerations is not closed. The four considerations are the length of delay, the reasons for delay, whether there is an arguable case and the extent of prejudice to the respondent. I will address each of those considerations.
Length of delay
As to the length of delay, a delay of four weeks or, as Ms Cooper has interjected in the course of these reasons, perhaps three weeks if she filed her application in the Tribunal on the 24th of March as she says, notwithstanding the Tribunal's date stamp of the 30th of March, in either case a delay in that order is not in itself sufficient to outweigh other considerations and would not in itself warrant refusal of the application to extend time.
Explanation for delay
The second issue is the reasons for delay. Ms Cooper maintains in her written material before me in exhibit 1 essentially six reasons for the delay, which she did not expand upon in the course of her lengthy oral submissions today. The first two reasons relate to events before the 1st of February 2006 and can't possibly bear on whether there is a reasonable explanation for the delay which occurred essentially in March 2006.
The third and fourth reasons concern her giving priority to her children commencing in school in February 2006 and academic problems with the school.
Those reasons do not, in my opinion, amount to a reasonable explanation for the delay which occurred, as I said earlier, essentially in March 2006.
The fifth reason put forward by Ms Cooper is that she was building a fence to provide security to her rear yard. I do not consider that this is a reasonable or in fact an explanation at all for the failure to commence these proceedings within time.
The final reason put forward by Ms Cooper is that her solicitor previously advised her that due to the complexity of her matters only a magistrate at the Local Court could resolve these disputes. However, the s 10 direction and the s 401 notice both clearly stated that Ms Cooper had a right of review before the Tribunal, not in the Local Court. It follows that I do not consider that there is a reasonable explanation for the delay.
Arguable case
The third consideration is whether there is an arguable case. In her applications, Ms Cooper wishes to advance a great many issues, most of which plainly, on their face, do not fall within the jurisdiction of the Tribunal. They include allegations of bias and bad faith on the part of the respondent and its officers, as well as allegations and arguments concerning neighbours. The only aspects of the applications which fall within the jurisdiction of the Tribunal are applications for review of the s 10 direction and the s 401 notice.
I do not consider on the evidence and submissions presented to me that there is an arguable case for review of those instruments. It appears that Ms Cooper applied for development approval and a building licence, as she was required to do, to construct the retaining wall, and she received approvals. The Council's allegation is that the structure as built does not comply with the approvals in relation to height and the ability to support fencing.
No meaningful argument has been put to me which would support an arguable case as to why the direction and the notice should be set aside by the Tribunal. In particular, no argument has been put or appears to be open on the material that I have been provided with to the effect that the structure complies with the development approval and building licence, and no argument of discretion has been advanced in any meaningful way to support a conclusion that there is an arguable case in the exercise of discretion as to whether or not the direction and notice should be endorsed.
Prejudice
The final consideration is whether there is any prejudice to the respondent. Mr Owen, who appears on behalf of the respondent, does not submit that there is any prejudice to his client, but does submit that there is a wider prejudice to adjoining neighbours, some of whom do not have proper dividing fences between their properties and Ms Cooper's property in consequence of the failure to finalise the construction of the retaining wall the subject of the applications, or proposed applications for review.
This raises an interesting question of the extent to which the Tribunal can or should refuse an application for extension of time because of prejudice not to the respondent but to third parties. Ultimately I do not need to decide that issue in this case as I am satisfied that the application to extend time should be refused, even assuming that the prejudice consideration is restricted to the respondent and that there is no prejudice.
Conclusion
Taking into account each of the conclusions which I have expressed in relation to the four principal considerations, I do not consider that an extension of time should be granted. In particular, there is no adequate reason provided for the delay, although the delay is not in itself so significant that its length would outweigh other considerations. Most fundamentally, I do not consider that there is an arguable case for review of the direction and notice.
For these reasons I make the following order in both proceedings DR104 of 2006 and proceedings CC479 of 2006:
The application made pursuant to r 10 of the State Administrative Tribunal Rules 2004 to extend the time for the commencement of these proceedings is dismissed.
Costs
Mr Owen has made an application for costs of the application to extend time. I do not consider that this is an appropriate case for making an order for costs. The general position in this Tribunal is that in its review jurisdiction each party should bear its own costs. While Ms Cooper expressed herself in her written and oral submissions in a way which extended well and truly beyond the issues properly before the Tribunal, I recognise that she is self‑represented and that she is entitled to make an application to extend time, which she has. I do not consider that there are circumstances which warrant a departure from the Tribunal's general approach to the question of costs and so I make the following second order:
Each party is to pay its own costs of the application.
I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER