CURLEWIS and CITY OF ALBANY

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: CURLEWIS and CITY OF ALBANY [2011] WASAT 85

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 19 MAY 2011

DELIVERED : EDITED REASONS DELIVERED ORALLY ON 19 MAY 2011

FILE NO/S: DR 144 of 2011

BETWEEN: DIANE GAYE CURLEWIS
CLINTON DELAMOTTE
NATALIE DELAMOTTE
ALISON GALANTE
PETER GALANTE
STANLEY LEAM
ANNA LEAM
RAMIN MAJIDI
CAROLYN MICHELLE BELL
PETER JOHN BELL
CLAIRE TWADDLE
PAULA ARCHER
LINDSAY JOYCE
SUZANNE JOYCE SEELEY
MARK RICHARD ROBINSON
GAIL KILPATRICK
VICTORIA EYRE
JONATHAN ERIC HOSKIN
PAMELA MARGARET HOSKIN
Applicants
AND
CITY OF ALBANY
Respondent
GROVE 20 PTY LTD
Intervener

Catchwords:

Practice and procedure Town planning Third party review application Local planning scheme allows 'a person aggrieved by a decision of the Council in the exercise of discretionary powers' to seek review Notice of decision to grant conditinal development approval and of right to seek review of the decision under s 20 of the State Administrative Tribunal Act 2004 (WA) given by decisionmaker to applicant for approval but not to applicants for review Application for review commenced six weeks after notice given to applicant for approval Whether applicants have a right to seek review Whether an extension of the period prescribed by r 9 of the State Administrative Tribunal Rules 2004 (WA) within which an application for review can be brought is required Whether an extension of the period should be granted Whether landowner of site in respect of which development approval subject to review was granted should be allowed to intervene Scope of intervention

Legislation:

City of Albany Town Planning Scheme No 3, cl 5.3.1, cl 6.7
Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 19
Planning and Development Act 2005 (WA), s 236, s 236(3), s 236(4), s 243, Pt 14
Residential Design Codes of Western Australia (2010)
State Administrative Tribunal Act 2004 (WA), s 9, s 20, s 37(3), s 38
State Administrative Tribunal Rules 2005 (WA), r 9, r 10
Town Planning and Development Act 1928 (WA), Pt V

Result:

The applicants have a right to seek review
An extension of the period under r 9 of the State Administrative Tribunal Rules 2004 (WA) is not required
Grove 20 Pty Ltd is granted leave to intervene in the proceeding

Category: B

Representation:

Counsel:

Applicants:     Mr LE James with Mr EF Samec
Respondent:     Mr CA Slarke
Intervener:     Ms BA Moharich

Solicitors:

Applicants:     Samec Legal
Respondent:     McLeods
Intervener:     Flint Moharich

Case(s) referred to in decision(s):

Australian Conservation Foundation Inc v The Commonwealth of Australia & Ors (1981) 146 CLR 493
Gate v City of Fremantle & Anor (1986) 23 APA 361
Genevieve Diggins & Ors and Shire of Busselton & Anor [1999] WATPAT 1
ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104
Kangaroo Point Residents' Association v Brisbane City Council [2006] QPEC 11
North Coast Environmental Council Inc v Minister for Resources (1994) 127 ALR 617
O'Connor and Town of Victoria Park [2005] WASAT 161
Viento Property Ltd and Western Australian Planning Commission [2009] WASAT 229

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

A number of residents who live relatively close to a site where the City of Albany had approved the construction of 28 dwellings applied to the Tribunal for review of the City's decision. Unusually, the local planning scheme allowed 'a person aggrieved by a decision of the Council in the exercise of discretionary powers' to seek review. The right of review was not restricted to the applicant for approval, as is usually the case in Western Australia. The City had given notice of its decision and of the right to seek review to the applicant for approval, but not to anyone else. The landowner of the site the subject of the development approval was not named by the applicants in the application for review as a respondent, and applied to the Tribunal for leave to intervene in the proceeding.
The following preliminary uses were identified for determination:
1)Whether the applicants have a right to seek review of the City's decision.
2)Whether an extension of the period prescribed by r 9 of the State Administrative Tribunal Rules 2004 (WA) within which an application for review of the decision can be brought is required.
3)Whether an extension of the period should be granted.
4)Whether the landowner should be granted leave to intervene.
Following the hearing, the Tribunal adjourned for a short period and then gave an oral decision.
The Tribunal found that each of the applicants is a person aggrieved by the decision and therefore has standing to seek review. They all live within reasonable proximity of the site and the approved development would give rise to a number of amenity impacts that would affect them.
The Tribunal determined that an extension of time in which the applicants could commence an application for review was not required in the circumstances of this case, because they had not been given notice of the decision and of their right to seek review under s 20(1) of the State Administrative Tribunal Act 2004 (WA). The giving of notice by the City to the applicant for approval commenced the 28 day period under r 9 of the State Administrative Tribunal Rules 2004 (WA) for that person, but not for any other person who has a right to seek review of the decision. Section 20(3) of the State Administrative Tribunal Act 2004 (WA) appears to contemplate the very circumstances of this case, where 'the persons who have to be given notice under subsection (1) are not readily identifiable'. The decisionmaker has to take 'steps that are reasonable in the circumstances to give notice'. An obvious example of how a decisionmaker might do this is by placing a notice in a newspaper circulating within the district of the decisionmaker.
Had an extension of time been required, based on the arguments of the City and the landowner, the application for review would have been two weeks out of time. Had an extension been required, the Tribunal would have granted the extension, balancing all relevant considerations. The prejudice to the landowner, the applicant for approval and their builder was not sufficient to outweigh other considerations. In particular, there was an adequate and reasonable explanation for the delay, there was an arguable case for review and the applicant for approval and the landowner were on notice that there were a large number of people who considered themselves aggrieved and were seeking the reversal of the granting of approval.
Finally, the Tribunal granted leave to the landowner to intervene in the proceeding, as it had a material interest in the proceeding and its participation was necessary to enable the Tribunal to meet its objectives to review the decision 'fairly and according to the substantial merits of the case' and to 'act as speedily … as is practicable and minimise the costs to parties'. The landowner would provide information and documentation which underpin the development application and the decision, and the Tribunal could not embark on any meaningful process of mediation without the landowner. While an intervener will ordinarily be allowed only to support or oppose a decision contended for by one or other of the parties to the proceeding, and will not be permitted to expand the issues to be decided, the Tribunal found that it was reasonable and appropriate for the holder of a development approval that is the subject of third party planning review proceeding to be entitled to advance its own case as though it had been named as a party in the application for review.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

On 1 February 2011, Yaran Pty Ltd (Yaran) lodged a development application with the City of Albany (City or Council) for approval under the City of Albany Town Planning Scheme No 3 (TPS 3 or Scheme) for development described on the development application form as 'Grouped Dwelling (Single Bedroom x 28)' at No 20 (Lot 6) Grove Street, Little Grove (site). The development application was lodged with the consent of the owner of the site, Grove 20 Pty Ltd (Grove 20). It appears that prior to the lodgement of the development application there was consultation and discussion between Yaran and the City's planning officers, as well as with the officers of other authorities.
At its meeting on 15 March 2011, the Council received a report from its planning officers recommending approval for the proposed development. The Council, at that meeting, granted approval for the proposed development subject to 16 conditions. The City had not given public notice of the development application prior to its determination.
On 17 March 2011, the City gave notice to Yaran, pursuant to s 20(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), of its decision to grant development approval subject to conditions and of the fact that Yaran had a right to seek review of the decision before the Tribunal within 28 days.
On 29 April 2011, Diane Gaye Curlewis and 20 other people, all of whom live in relatively close proximity to the site, sought review by the Tribunal of the Council's decision to grant development approval pursuant to cl 6.7 of the City of Albany Town Planning Scheme No 3 (TPS 3 or Scheme). That clause states as follows:
A person aggrieved by a decision of the Council in the exercise of discretionary powers conferred on it by the Scheme, may appeal in accordance with Part V of the Town Planning and Development Act.
On 9 April 2006, the Town Planning and Development Act 1928 (WA) (TPD Act) was repealed by the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) (PD(CTP) Act) and replaced by the Planning and Development Act 2005 (WA) (PD Act). The PD(CTP) Act provides in s 19 that:
Unless the context otherwise requires, a reference in a written law to an enactment repealed by this Act includes a reference to the corresponding provision, if any, of the PD Act.
The corresponding provision in the case of what was Pt V of the TPD Act is Pt 14 of the PD Act. Section 236(3) of the PD Act states:
Even if a planning scheme does not expressly give a person a right to apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision or matter, the planning scheme is to be taken to give that right if
(a)the planning scheme is expressed as conferring on the person a right to appeal against the decision, or to refer the matter, under this Act; or
(b)the planning scheme is expressed as conferring on the person a right to appeal or apply for review in respect of the matter and the matter involves the exercise by the responsible authority of a discretionary power.
Section 236(4) of the PD Act provides:
Subsection (3) applies even if the planning scheme provides for the appeal, referral or application to be made otherwise than to the State Administrative Tribunal or, in the circumstances described in paragraph (b) of that subsection, otherwise than in accordance with this Part.
Clause 6.7 of TPS 3 therefore confers a right to seek review in accordance with Pt 14 of the PD Act on a person aggrieved by a decision of the Council in the exercise of a discretionary power conferred on it by the Scheme.
It is to be noted that the City did not give a notice in accordance with s 20 of the SAT Act to the applicants in this proceeding of the decision or of their right to seek review of the decision under cl 6.7 of the Scheme.
At the first directions hearing in the proceeding, which was held on 6 May 2011, Ms BA Moharich appeared on behalf of Grove 20 and sought leave for Grove 20 to intervene in the proceeding pursuant to s 37(3) of the SAT Act. Joinder under s 38 of the SAT Act is not available in the circumstances of this case because of the provision of s 243 of the PD Act.
At the directions hearing, the Tribunal discussed a number of potential preliminary issues which might arise for determination in the proceeding with counsel for the parties and with Ms Moharich. The Tribunal made the following orders at the conclusion of the directions hearing:
1.The following preliminary issues are listed for hearing at 10 am on 19 May 2011 for three hours
(a)Whether the applicants have a right to seek review of the decision of the respondent made on 15 March 2011 to grant development approval to Grove 20 Pty Ltd for the construction of 28 dwellings at 20 Grove Street, Albany (decision).
(b)Whether an extension of the period prescribed by r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) within which an application for review of the decision can be brought is required.
(c)Whether an extension of the period prescribed by r 9 of the SAT Rules within which an application for review of the decision can be brought should be granted under r 10 of the SAT Rules.
(d)Whether Grove 20 Pty Ltd should be granted leave to intervene in the proceeding pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA).
2.Pursuant to s 32(4) of the State Administration Tribunal Act 2004 (WA), Grove 20 Pty Ltd is permitted to present evidence and submissions in relation to the preliminary issues.
…
The Tribunal also made programming orders for the filing and exchange of documents, evidence and submissions in relation to the preliminary issues.
I will address each of the preliminary issues in turn.

A. Whether the applicants have a right to seek review of the decision

The City accepts that the applicants are persons aggrieved by the decision of the Council and therefore have a right to seek review in accordance with cl 6.7 of the Scheme. Grove 20 accepts, having regard to the evidence for the applicants, that at least some of the applicants would be considered aggrieved in accordance with the relevant case law and have a right to seek review of the decision.
The parties agree that, although notice was not given by the City to the applicants pursuant to s 20 of the SAT Act of the decision and of their right to seek review, the right to seek review arises under cl 6.7 of the Scheme and is not dependent on the giving of notice under s 20 of the SAT Act.
The former Town Planning Appeal Tribunal was called upon to consider the expression 'person aggrieved' in two decisions to which Mr CA Slarke, counsel for the City, has referred the Tribunal. In both decisions, the Tribunal reviewed relevant leading authorities. It is sufficient for present purposes to set out a short passage from the concluding part of each of the Town Planning Appeal Tribunal decisions in respect of this issue.
In Gate v City of Fremantle & Anor (1986) 23 APA 361, the Tribunal, chaired by Mr RS French (as the Chief Justice of Australia then was), said:
In the present case it perhaps is sufficient to say that the insertion of the words "feeling aggrieved" in cl 5.11 suggests a limitation on the class of persons entitled to appeal to those with some interests over and above that of ordinary members of the public. …
In Genevieve Diggins & Ors and Shire of Busselton & Anor [1999] WATPAT 1 (Diggins), the Tribunal said the following:
The decisions, read together, indicate that a "person aggrieved" is a person who, because of the legislative scheme that confers upon him [or] her a status or connection with the subject matter, has a special interest. …
In Diggins, the Tribunal referred to the decision in North Coast Environmental Council Inc v Minister for Resources (1994) 127 ALR 617, in which Sackville J said:
The requirement that an applicant be a "person aggrieved" stipulates an involvement in the case greater than the concern of a person who is a mere "intermeddler or busybody".
I am satisfied on the evidence presented by the applicants that each of the applicants is a person aggrieved by the decision in question. They each have some interest over and above that of ordinary members of the public and have a connection with the subject matter and a special interest in relation to it. None of them could be described as merely an 'intermeddler or busybody'.
All of the applicants live within reasonable proximity of the site and, for reasons discussed in the witness statement of Ms Amanda Butterworth, a consultant town planner who has provided an independent review of the development application on behalf of the applicants, it appears that the approved development would give rise to a number of amenity impacts that would affect the applicants. For these reasons, the applicants have a right to seek review of the decision of the City in question.

B. Whether an extension of the period prescribed by r 9 of the SAT Rules is required

Mr LE James, who appeared with Mr EF Samec on behalf of the applicants, submitted that an extension of time under r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) is not required in the circumstances of this case.
Rule 9 of the SAT Rules states as follows:
Subject to these rules, an application to the Tribunal under its review jurisdiction must be made within 28 days of
(a)the day on which the decisionmaker gives a notice under the Act section 20(1);
(b)the day on which the decisionmaker makes the decision under the Act section 20(5); or
(c) if, under the Act section 3(3)(a), the Act applies as if a person had made a decision, the day on which any provision of the enabling Act as to when the decision is taken to have been made has effect.
It is common ground that r 9(b) and r 9(c) of the SAT Rules are not relevant. In relation to r 9(a), Mr James submitted that the 28 day time limit in r 9 has not yet commenced, because the City has not satisfied the notice requirement under s 20(1) of the SAT Act. Mr James submitted that the statutory time period does not commence until the relevant applicant for review has been given a notice of the decision and of their right to seek review in accordance with s 20(1) of the SAT Act. He submitted that this does not mean that an applicant cannot apply for review; rather, it means that an applicant for review cannot be barred from applying for review under r 9 of the SAT Rules.
Before turning to the other parties' positions and submissions in relation to this issue, it is instructive to set out the whole of s 20 of the SAT Act. Section 20 of the SAT Act states as follows:
(1)If this subsection applies to a reviewable decision, the decisionmaker is to give any person who has a right under an enabling Act or section 44(3) to have the decision reviewed by the Tribunal written notice of
(a)the decision; and
(b)that right.
(2)Subsection (1) applies to any reviewable decision unless
(a)the decision does not adversely affect the interests of the person who has that right and
(i)it is a decision not to impose a liability, penalty, or any kind of limitation, on a person; or
(ii)it is made under an enabling Act that establishes several categories of entitlement to a monetary or other benefit, and it determines a person to be in the most favourable of those categories;
or
(b)the decision is prescribed by the regulations for the purposes of this paragraph.
(3)If the persons who have to be given notice under subsection (1) are not readily identifiable, the decisionmaker is to take steps that are reasonable in the circumstances to give the notice.
(4)A contravention of this section does not affect the validity of the decision.
(5)If subsection (1) applies in a case in which a person has failed to make a decision within the time limit for making the decision, the person may, if the enabling Act permits, make the decision instead of giving notice under subsection (1).

The City and Grove 20 each submitted that an extension of the period prescribed by r 9 of the SAT Rules within which an application for review of the decision can be brought by the applicants is required.
Mr Slarke emphasised that, pursuant to r 9(a) of the SAT Rules, an application to the Tribunal under its review jurisdiction must be made within 28 days of 'the day on which the decisionmaker gives a notice under the Act section 20(1)' (emphasis in bold added). Mr Slarke noted that the City has given a notice pursuant to the section to Yaran. The notice to Yaran also referred to Grove 20 as the owner of the land. The notice to Yaran was dated 17 March 2011, and in Mr Slarke's submission, the 28 day period referred to in r 9 of the SAT Rules within which this review application must be made by the applicants should be calculated from the giving of that notice, presumably on the day after it was posted, to Yaran.
Mr Slarke submitted that the primary purpose of providing a time limit for review applications is to provide for administrative certainty. It is consistent with that legislative purpose, he submitted, that the 28 day period commences on the day on which the decision‑maker first gives a notice under s 20(1) of the SAT Act. The alternative outcomes, that either there is effectively no time limit for a review application in a case where the decisionmaker fails to give a notice to all persons who potentially have a right of review, or the time limit runs from 28 days following the giving of a delayed notice under s 20(1) of the SAT Act, 'are both inconsistent with the legislative purpose of a time limit'.
However, in my view, it is implicit in r 9 of the SAT Rules that the 'notice under the Act section 20(1)' referred to in r 9(a) is a notice given to the applicant seeking to make the application for review, rather than to any other person. This is because s 20(1) of the SAT Act obligates the decisionmaker to give:
any person who has a right under an enabling Act or section 44(3) to have the decision reviewed by the Tribunal written notice of
(a)the decision; and
(b)that right. (Emphasis in bold added)
Section 20(1) of the SAT Act applies to the applicants because, on the evidence, the decision does adversely affect their interests (s 20(2)(a)) and the decision is not one prescribed by regulation (s 20(2)(b)). Furthermore, s 20(3) of the SAT Act refers to 'the persons' that is, in the plural 'who have to be given notice under subsection (1)'. This indicates that s 20 of the SAT Act requires each person who has a right to seek review to be given notice.
Furthermore, s 20(3) of the SAT Act, as Mr James observed, appears to contemplate the very circumstances of this case, where 'the persons who have to be given notice under s 20(3)(1) are not readily identifiable'. The decisionmaker in these circumstances has to take 'steps that are reasonable in the circumstances to give the notice'. An obvious example of how a decisionmaker might do this is to place a notice in a newspaper circulating within the district of the decision-maker.
Finally, as Mr James submitted, the purpose of r 9 of the SAT Rules is to bar people who have notice of the decision and the right to seek review, but who do not exercise that right for 28 days after receiving notice, from commencing proceedings. It is not to bar a person who has not been given notice under s 20 of the SAT Act.
Mr Slarke also made the following submission:
The respondent says that section 20(1) does not have any application to a third party review by a "person aggrieved" under clause 6.7 of the Scheme as:
(a)the obligation to give notice only arises where a person has a right of review;
(b)an applicant for planning approval has a review right at the time the decision-maker makes its decision, pursuant to section 252 of the Planning Act;
(c)in the case of a third party, whether a review right arises depends on:
(i)whether the person has a status or connection with the subject matter that gives the person a special interest; and
(ii)the state of mind of that person (ie whether they are aggrieved).
(d)a third party who has a special interest in a discretionary decision made under the Scheme does not have a review right unless and until the third party becomes aggrieved. That is to say, the review right does not, and cannot, crystallize until a point in time after the Council's decision;
(e)the legislative purpose behind section 20(1) is to draw attention to an existing review right. It was not intended that there be an obligation to give notice to people who may, potentially, have a right of review depending on various factors including the person's state of mind;
(f)section 20(1) should be construed in a manner which does not oblige the [r]espondent to speculatively give notices to potentially aggrieved persons, and should be limited to an applicant for approval who has a vested right to review upon the making of the [r]espondent's decision.
In my view, the submissions expressed at paras (a) to (d) and the first sentence of para (e) in the quotation are correct. However, the second sentence of para (e) and para (f) do not follow. Indeed, in my view, these paragraphs are contrary to the legislative purpose of s 20(1) of the SAT Act to draw attention to a review right.
Unless and until a notice is given of the decision and of the right of a person aggrieved by the decision to seek review of the decision pursuant to cl 6.7 of the Scheme, the legislative purpose of s 20(1) of the SAT Act will be defeated. Furthermore, s 20(3) of the SAT Act allows notice to be given in a manner that contemplates the circumstances of the present case and is not onerous.
Mr Slarke submitted alternatively that, in the present case, it was reasonable in all the circumstances for the City to not give any notice pursuant to s 20(1) of the SAT Act other than to the owner or applicant for approval, as:
(a)the Scheme did not require the development proposal to be advertised;
(b)the [r]espondent, through its officers, had formed the view [that] the development was in full compliance with the relevant planning requirements, except for minor matters such as storerooms and courtyards which would have no adverse amenity impacts … ; and
(c)clause 4.1 of the Residential Design Codes requires neighbour consultation only where a proposed development requires the exercise of a discretion under the Codes or under an adopted local planning policy and "may[,] in the opinion of the Council, adversely affect the amenity of an adjoining property"[.]
Mr Slarke submitted that, having concluded that the development would not have any adverse consequences for amenity, it was reasonable to not give any general notice to potentially aggrieved persons.
However, in my view, this alternative submission misconstrues s 20(3) of the SAT Act. The word 'reasonable' in s 20(3) of the SAT Act qualifies the steps that are necessary to give notice, not whether to give notice at all. The section does not exempt a decision-maker from giving notice when it concludes that the development would not have any adverse consequences for amenity. Section 20(2)(a) of the SAT Act does relieve a decisionmaker from the obligation where the decision does not adversely affect the interests of the person who has the right and the two matters in s 20(2)(a)(i) and s 20(2)(a)(ii) of the Act are established. However, the formation of an opinion that the decision in this case would not have any adverse consequences for amenity is not synonymous in my view with this consideration under s 20(2) of the SAT Act. Moreover, it appears on the evidence that the respondent did not turn its mind to s 20(2) of the Act in relation to the applicants in this proceeding.
Finally in relation to this issue, Mr Slarke submitted that there is 'a tension' between s 20(4) of the SAT Act and the applicants' contention in this proceeding that they do not require an extension of time under r 9 of the SAT Rules. Mr Slarke submitted that a developer could complete a development and then face a review application, perhaps years later, in circumstances such as this where the respondent has failed to give notice to a person who is aggrieved by a decision of the Council under the Scheme. Mr Slarke submitted that the delay itself would not be a relevant matter for consideration in the review proceeding.
Ms Moharich adopted Mr Slarke's submission, in addition to her other submissions, to which I will turn shortly. She submitted in this regard that it would be contrary to administrative regularity and certainty for the 28 day period to be enlivened at any time or not enlivened at all if the decisionmaker does not give notice.
However, orderly and proper planning is a broad consideration in all planning review applications. The fact that a development has been lawfully carried out and, indeed, completed in accordance with a development approval that is only sought to be reviewed by a third party later is, in my view, a relevant matter for consideration in the exercise of planning discretion as an element of orderly and proper planning. The consideration of orderly and proper planning therefore mitigates the tension referred to by Mr Slarke.
Furthermore, while there is a public interest in providing certainty for developers to be able to act on development approvals, there is also a public interest in ensuring that review rights are properly afforded. Indeed, the legislative purpose of r 9 and s 20 is to ensure that persons who have a right to seek review of a decision are notified by the decisionmaker of the decision and of that right, and only to bar an application for review where such notice has been given to the applicant for review and the applicant for review has failed to exercise its right for 28 days after the notice was given. The interpretation advanced by the City and Grove 20 would, in my view, undermine the public interest that review rights are properly afforded.
Ms Moharich on behalf of Grove 20 made two alternative arguments in relation to this preliminary issue. The first argument was that the obligation to provide notice under s 20(1) of the SAT Act did not arise because, at the point when the decision was made, the only persons who could have been aggrieved were the applicant for development approval and Grove 20.
Ms Moharich drew in aid of this argument cl 5.3.1 of TPS 3, which requires approval of the development application to be given to the applicant, but noone else:
The Council may grant planning consent with or without conditions or may refuse to grant its consent. The decision shall be conveyed to the applicant.
Ms Moharich submitted that where this occurs, s 20(1) of the SAT Act does not apply in relation to other potential applicants for review and in particular to the applicants in this case. Ms Moharich submitted that if it is accepted that there was no requirement to give notice to the applicants in accordance with her first argument, then the 28 days must run from the date that notice was given to the applicant for approval.
This first argument presented on behalf of Grove 20 is similar to the City's argument. The fact that cl 5.3.1 of the Scheme expressly requires notice of the decision to be given to the applicant for development approval does not mean, however, that the applicant for development approval is the only person who could have been 'aggrieved' by the making of the decision. Indeed, cl 6.7 of the Scheme contemplates that not only the applicant for approval but any person can be aggrieved by a decision of the Council. In this regard, cl 6.7 of TPS 3 is to be contrasted with most planning scheme provisions conferring a right of review.
Section 20(1) of the SAT Act does apply to the applicants, because it applies in respect of any person who has a right under an enabling Act to have a decision reviewed. The applicants in this proceeding have such a right under cl 6.7 of TPS 3. Further, as found earlier, it is implicit in r 9 of the SAT Rules that the 'notice' referred to there is a notice given to the applicant who is seeking review. The giving of notice by the City to Yaran certainly commenced the 28 day period under r 9 of the SAT Rules for Yaran to seek review, but not for any other person who has a right to seek review of the decision.
The alternative argument presented by Ms Moharich on behalf of Grove 20 was that, if there was an obligation to give notice to the applicants for review, there has been a failure by the City to give notice and to discharge its duties pursuant to s 20(1) of the SAT Act as it relates to the applicants in the proceedings, but this does not mean that the 28 day period has not started to run. It would be, she submitted, contrary to administrative consistency and procedural regularity to allow the 28 day period to either not apply or allow it to be enlivened by the giving of notice pursuant to s 20(1) of the Act sometime after the decision was made. Neither interpretation, it was submitted, provides confidence in the development approval system.
However, in my view, s 20(1) of the SAT Act has the very result that notice is required to be given to each person who has a right to seek review under an enabling Act. The SAT Act provides for certainty for landowners, in the circumstances of this case, by conferring on the decision-maker a broad discretion in s 20(3) of the Act to take reasonable steps in all the circumstances.
Ms Moharich submitted as follows in relation to the second alternative argument:
… the proper application of the facts in this matter to the law is that:
[1]There was a requirement to give notice to the [a]pplicants pursuant to section 20(1) [of the SAT Act];
[2]The [r]espondent failed to give notice to the [a]pplicants;
[3]The time within which to commence review proceedings must be calculated in accordance with the date upon which notice was given under section 20(1) [of the SAT Act] to the applicant for development approval in order to provide certainty to the landowner;
[4]To the extent that the [a]pplicants have been prejudiced by the failure of the [r]espondent to give notice as they were required to do, this factor can form part of the consideration as to whether an extension of time should be granted in accordance with rule 10 of the SAT Rules.
However, in relation to the first two points in this quotation, there is no specified period of time within which the decision-maker is required to give a notice under s 20(1) of the SAT Act. The City in this case has an ongoing obligation and can indeed remedy its failure at any time. As to the third point, the argument expressed there would defeat the legislative intention of s 20(1) to which I have referred. If the time within which to commence review proceedings for all persons who have a right to seek review must be calculated according to the date upon which notice was given under s 20(1) of the SAT Act to only one of them, whether the applicant for development approval or anyone else, that would undermine the obligation to give notice to all persons and the legislative intention that it reflects.
As to the providing of certainty to landowners, as I have said, the procedures that could be contemplated under s 20(3) of the SAT Act are not onerous and would achieve the intention of certainty.
For these reasons, in my view, an extension of the period prescribed by r 9 of the SAT Rules within which an application for review of the decision can be brought is not required in the circumstances of this case. The period referred to in r 9 has not, relevantly, commenced.

C. Whether an extension of the period prescribed by r 9 of the SAT Rules should be granted under r 10 of the SAT Rules

This issue does not arise for determination in light of the Tribunal's decision in relation to the preceding issue. However, as the parties presented considerable evidence and submissions in relation to this issue, I will address it on the assumption that an extension of time is required, and that, in accordance with the City's and Grove 20's submissions, the period of time under r 9 commenced in relation to the applicants on the giving of notice by the City to Yaran.
Rule 10 of the SAT Rules states as follows:
(1)The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.
(2)Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time.
On the assumption that the giving of notice pursuant to s 20(1) of the SAT Act by the City to Yaran commenced the period under r 9 of the SAT Rules in respect of the applicants for review, the proceeding in the Tribunal should have been filed by 15 April 2011. On that assumption, the application for review was brought two weeks out of time.
The City did not oppose the granting of leave to extend time.
Grove 20 opposed the application to extend time. Ms Moharich emphasised that, on the evidence of the applicants, at least some of them knew of the decision, or at least knew that a decision in relation to the development application would be made shortly, on or about 11 March 2011 when a councillor doorknocked them. At least some of the applicants also attended the Council meeting on 15 March 2011 and heard the decision being made. Furthermore, on 8 April 2011, Ms Curlewis telephoned the Tribunal and had a conversation with an officer of the Tribunal about an application for review. Ms Moharich also submitted that the applicants did not advise Grove 20 that they contested the finality of the decision, thereby allowing Grove 20 to consider that the matter had been finally concluded.
Ms Moharich acknowledged that the applicants' reasons for not commencing the proceeding in time largely related to their decision to prepare a petition requesting a rescission motion, which was discussed by the Council at its next meeting after 15 March 2011, which occurred on 19 April 2011. The Council, it appears, declined to rescind the motion on the basis of legal advice. Ms Moharich said that, even then, the applicants took another what she said was 13 days but which appears to be 10 days to lodge their application for review.
The four principal considerations in relation to an application to extend time under r 10 of the SAT Rules were said by Barker J in O'Connor and Town of Victoria Park [2005] WASAT 161 at [38] [51] to be:
1)the length of delay;
2)the reasons for delay, including in particular whether there is a reasonable and adequate explanation for the delay;
3)whether there is an arguable case for review; and
4)whether, and if so to what extent, an extension of time would cause prejudice.
As has been emphasised in the decisions in relation to extension of time since then, these categories of consideration are not closed, and I will later refer to two other considerations that, in my view, are relevant. The applicant for an extension of time bears the onus to show that discretion should be exercised to extend time in all the circumstances. Ultimately, each case requires careful consideration of the facts and circumstances, having regard to these four principal considerations and any other relevant consideration in the circumstances, and a careful balancing of the considerations. Care must be taken in referring to other exercises of discretion in other cases, because, necessarily, circumstances will vary from case to case.
In relation to the length of delay, as I have said, the application for review, on the assumption that an extension of time is required, is two weeks out of time. Two weeks is not a minor period, but nor is it a substantial period of delay.

In relation to the reasons for delay, as recognised in Ms Moharich's submission, the principal reason for delay appears to be that the applicants were focussing their energies on a submission signed by many residents in the locality calling for a rescission motion and on prosecuting the rescission motion that was considered by the Council on 19 April 2011.
In my view, although the Council declined to rescind the decision, the championing of a rescission motion was a reasonable and appropriate course of action for the applicants to take that would, if successful, have achieved the same result that the applicants seek in this proceeding. The recission motion was what has been termed, in some of the cases, a 'noncurial means' of resolution of the applicants' grievance. Moreover, by the petition and the rescission motion, Grove 20 and Yaran were clearly put on notice that the applicants considered themselves aggrieved, and contested the decision.
The 10 day period that followed the unsuccessful rescission motion included a weekend and three public holidays. In effect, the proceeding was commenced on the fifth business day after the rescission motion was rejected. The evidence also shows that in late March or early April, Ms Curlewis sought legal representation from four lawyers in relation to this matter but was unable to obtain legal representation because of conflict issues to do with either the City or the developer. A fifth lawyer who Ms Curlewis sought to track down was Mr Samec. Ms Curlewis thought that Mr Samec was still with a former employer, and ultimately found out that he was now practising on his own. However, Mr Samec was overseas from 8 April 2011 until 26 April 2011 or thereabouts. On 26 April 2011, Mr Samec emailed Ms Curlewis, and on the next day, which was the business day after the Anzac Day public holiday, they spoke. The application for review was then filed on 29 April 2011. There is, in my view, in all of these circumstances, a reasonable and adequate explanation for the delay.
I am also satisfied that there is an arguable case for review. Ms Butterworth has not had the opportunity as yet to see the site. However, she has reviewed the plans and the planning framework and prepared a detailed analysis in which she raised a number of planning concerns about the substance of the decision to grant approval. She raised concerns about what she termed 'significant shortcoming of the plans' in relation to contours and siteworks. She expressed the opinion that the changes of level adjacent to streets to which the site has frontage, which she was able to gauge from the plans, 'have the potential to adversely affect the amenity of the adjoining properties, especially in regard to streetscape and character of the area and therefore amenity'.
Ms Butterworth also expressed the opinion that the 28 dwellings that have been approved 'are capable of being used as 28 twobedroom grouped dwellings'. This is because the dwellings, she said, are designed with a bedroom and a 'multipurpose room', both of which have a doorway directly into an en suite bathroom.
Ms Butterworth expressed the opinion that, if the dwellings are not genuine single bedroom dwellings:
… the next question is[,] what is the maximum number of two bedroom grouped dwellings that may be developed on the land?
Ms Butterworth determined that the maximum number of dwellings of two bedrooms that can be developed on the land is seven or eight less than the number of dwellings approved.
Ms Butterworth raised other issues about the form of the development, in particular in terms of the location of the communal open space at the rear of the site and at a topographically significantly higher level than the rest of the site. Ms Butterworth also raised concerns about car parking, and noted that the application has been approved by the City without any visitor car parking on the site and with generally only one car parking space per dwelling. She said:
Inadequate on site car parking will cause significant adverse amenity impacts for the future occupants of the dwellings and the surrounding residents[,] as future occupants['] and visitors['] cars will park in nearby streets and on verges in front of established houses.
Finally, Ms Butterworth raised a concern about whether the proposed development would protect a 5 metre wide vegetative buffer as required by the applicable local structure plan, expressing the view that it will not.
Clearly, in light of Ms Butterworth's evidence, there is an arguable case for review. Indeed, there would appear, although I say this without the other parties, including Grove 20, having had the opportunity to present planning evidence, to be a serious question for assessment on review in relation to some aspects of the approved development.
Ms Moharich submitted, based on observations in certain applicants' evidence, that the substance of the concern expressed by the applicants in this case ultimately and fundamentally rests with the planning framework, rather than with the decision in question. In particular, the planning framework contemplates a significant increase in density on the site.
While Ms Moharich's observation appears to be in part borne out by certain of the opinions expressed by some of the applicants, it clearly, in light of other evidence from the applicants and Ms Butterworth's analysis, does not tell the full story. It is clear that there is an arguable case for review in relation to the merits of the application.
In relation to the question of prejudice and the extent of prejudice, Grove 20 presented evidence from its director, Mr Faryar Gorjy, who is also a director of Yaran. It appears that Yaran and Grove 20 are engaged in a development business run by Mr Gorjy and his brother. Mr Gorjy gave evidence about the experience of Yaran in conducting development, particularly for the provision of affordable housing, and the good reputation that the companies have developed through providing affordable housing in various parts of the State.
Mr Gorjy identified four areas of particular prejudice that would be caused to Yaran and Grove 20 if an extension of time were allowed in this case. The first area of prejudice relates to the National Rental Affordability Scheme (NRAS), which is a Commonwealth Government program which provides a financial incentive to people to invest in affordable rental housing. The incentive is $9,140 per year for the 2010 2011 year for 10 years, indexed to CPI, for investors who develop new rental dwellings and rent them to eligible tenants at 20% below market rent. An eligible tenant is one who satisfies the income criteria. Plainly, this is a very worthwhile government initiative.
Mr Gorjy indicated that Yaran is the largest recipient of the NRAS incentives in Western Australia with 1,114 allocations, including 28 in respect of the 28 dwellings approved on the site. Mr Gorjy expressed the concern that:
… [T]he removal of the incentive would mean that the investments would no longer be cash[ ]flow positive[,] and the attraction to the purchasers of this type of investment would be removed. …
Further, cash flow constraints would mean that many purchasers may not be able or willing to complete their transactions. This, he said, will have serious repercussions for Yaran and for purchasers. For Yaran, revocation of the NRAS incentives for the project would mean that it would lose its investor market for the project and would therefore suffer large losses in terms of profits, which he estimated at approximately $1,200,000. In addition, it was noted by Mr Gorjy that the form of development has been structured specifically to satisfy the requirements of the NRAS. If the NRAS incentive was to be revoked, then Yaran would throw away approximately $680,000 costs already incurred for design, legal and compliance fees and other costs. Mr Gorjy also expressed the concern that the failure to deliver in accordance with the NRAS agreement in the case of this development may affect the way in which Yaran is viewed by the authorities more broadly.
However, as Mr James pointed out, there is no evidence that further applications could not be made under the NRAS scheme in relation to a different form of development on the site. Mr James said that the applicants concede that the site is capable of development for residential purposes, but contest the form and the density of the current development.
Furthermore, I am not satisfied that Yaran would throw away $680,000 in the process simply if the design of the development had to be ultimately different to that which was approved. No details have been provided in relation to the calculation of $680,000, and it would be reasonable to assume that some of those costs would be due to broader planning of the site, such as surveying.
In relation to the broader concern, there would obviously be an explanation for why, if ultimately the development were not approved in the current form, that has occurred; namely, that the application was challenged by third party review.
The second area of prejudice that was highlighted in Mr Gorjy's evidence is in relation to sale contracts. After the development application was granted on 15 March 2011, Yaran immediately commenced marketing the development. Since then, 12 lots have been sold, with 10 contracted and a further two contracts executed by purchasers and currently in transit to Yaran for signature by Yaran.
It is to be noted that six of the contracts were executed prior to the expiry of the 28 day period, on the assumption that the 28 day period in respect of the applicants ran from beginning of notice to Yaran. It is also to be noted that nine of the contracts were executed before the rescission motion was rejected, and that two of the three other contracts were executed by purchasers and are still to be executed by Yaran while the preliminary issues were pending before the Tribunal.
Ms Moharich relied on a decision of Rackemann J in the Queensland Planning and Environment Court in Kangaroo Point Residents' Association v Brisbane City Council [2006] QPEC 11 (Kangaroo Point), in which his Honour considered an application for an extension of time where a developer had commenced sales after the granting of approval but before the expiry of the appeal period.
His Honour said at page 10 of the judgment:
The potential for detriment in the event that the appeal period were extended is not rendered irrelevant by reason of Meragold having 'jumped the gun' prior to the expiration of the submitter appeal period. It is not a sufficient answer to say that Meragold might have suffered similar prejudice had the appellant or another submitter instituted an appeal within time by 9 January 2006 (compare the approach taken to a consideration of prejudice in applications to extend a limitation period Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541). That potential was not realised since no appeal was started within time.
Ms Moharich relied on this quotation to support a submission that, although Yaran had taken a risk in commencing the sale of properties before the expiry of the appeal period, the 'risk paid off' because the review was not commenced within time.
Two points are to be made in relation to this submission. The first is that his Honour, with respect, does not appear to have been deciding the submission that was put by counsel and was recounted on page 9 of the judgment. That submission was:
… that the weight to be afforded to the potential detriment should be reduced because, it was said, that Meragold is the author of its own misfortune …
It appears that the argument that was put by counsel was not that the potential for detriment is rendered irrelevant by reason of having acted prior to the expiry of the limitation period, but rather, that the weight to be afforded to potential detriment should be reduced in the circumstances.
Secondly, his Honour did not decide that, where a developer takes a risk and the appeal period expires, then the risk has 'paid off'. It does not appear from the decision that the consideration that the appeal period has expired becomes overwhelming; rather, it appears from his Honour's later reasoning that he carefully weighed all circumstances in the exercise of discretion, and in the circumstances of that case, declined to exercise the power to extend time.
It does appear that, to some extent at least, Yaran is the author of any prejudice in relation at least to some of the contracts. However, as Mr James submitted, the potential for prejudice is not as great as Yaran and Grove 20 have argued, because the standard form of contract which is part of the evidence contains a clause as follows:
2.3.8If in our sole opinion the PreSales Condition is unlikely to be satisfied by the PreSale Satisfaction Date then at any time after we come to that opinion:
2.3.8.1this Agreement may be terminated by us by notice to you;
2.3.8.2whereupon any monies paid by you under this Agreement will be refunded to you[,] together with interest, if any, accrued therein; and
2.3.8.3subject to any claim which arose prior to the termination[,] neither of us will have any claim against the other.
The term 'PreSales Condition' is defined in cl 2.3.1 of the standard contract as 'our obtaining the minimum presales by the PreSales Satisfaction Date', and the term 'PreSales Satisfaction Date' is defined in the same clause to mean 'the date six months after the date of this agreement'. It appears therefore, as Mr James submitted, that Yaran has considerable discretion under cl 2.3.8 of the standard contract to terminate within six months of the contract. This capacity, in my view, mitigates the potential for prejudice.
The third aspect of prejudice referred to by Mr Gorjy related to contracting with third parties. He said that since the approval was given, Yaran has entered into contracts with third parties to undertake work in furtherance of the approval. Mr Gorjy expressed the concern that Yaran's good standing with the builders in the project and others, if the project is delayed or jeopardised, will be undermined or adversely affected.
In this regard, Yaran and Grove 20 also presented evidence from Mr Glen Smith, who is the building manager and general manager with Daly and Shaw Building Pty Ltd, which has been contracted by Yaran to construct the dwellings the subject of the development approval. Mr Smith similarly expressed concerns about the effect of the extension of time, if granted, for his company. Mr Smith noted that the subject development is to commence construction in October/November this year and that, without the ability to bring forward another project in Denmark, which is unlikely to be the case, his company will be left with a 'gaping hole in our construction schedule', which would significantly affect the pricing that it is able to obtain and the capacity to retain subcontractors in the interim period. He noted that the project itself is worth about $3,600,000, including GST, to his company.
In relation to Mr Gorjy's concern, I do not accept that there would be any significant impact on the reputation of Yaran or Grove 20, given that the reason for delay, if an extension of time were granted in this case, or for change in the form of the project, would be that the applicants have sought review not any fault on the part of Yaran or Grove 20. In relation to the builder, I accept that, unless the proceeding is concluded by October 2011, there would be prejudice in the form of financial loss to that company.
The fourth and final area of prejudice identified by Mr Gorjy related to the ceding of public open space on the site which occurred after the granting of approval to the development by the Council. Yaran, or more correctly Grove 20, ceded an area of 4,536 square metres, comprising 505.3 square metres required to satisfy a condition of another survey strata subdivision approval of land in the area, 1,490 square metres likely be required based on a requirement to give up 10% of the site in relation to survey strata subdivision approval of the site, and an extra 2,540.7 square metres. Mr Gorjy said that this last component has been 'given over gratuitously to provide a better design outcome for the site'. He explained:
… This extra area is quite elevated and while it would create lots with views, it would have required the removal of vegetation along the ridgeline which would have had a significant visual impact on the area.
Mr Gorjy said that it will be almost impossible to reverse the ceding of this land, should the development approval be ultimately revoked in this proceeding. However, insofar as the land was ceded in response to a requirement of another subdivision approval, there is no prejudice. Insofar as 10% of the site area of the land has been ceded, that dedication is likely to be required in the case of any subdivision of the land in the form of more than five grouped dwellings. As noted earlier, the applicants do not contest that the land is capable of residential development.
In relation to the third category, the evidence suggests that it was given over to provide a better design outcome for the site. The area in question ceded is at a topographically higher level than the area of the site that is proposed to be developed for residential purposes and, as Mr Gorjy noted, would have required the removal of vegetation along the ridge line, which would have a significant visual impact on the area. These considerations are likely to be relevant in relation to any residential development of the site.
While I accept that the dedication only occurred after the granting of development approval and based on confidence that the development approval could be acted upon by Yaran, nevertheless, I do not consider that there is any substantial prejudice in this respect as a consequence of the extension of time, if an extension were granted.
I mentioned earlier that there are two further considerations that appear to be relevant in the circumstances of this case. They are firstly, a consideration that the Council has not given notice pursuant to s 20(1) of the SAT Act to the applicants of the decision, nor of the right to seek review. While on the assumption that the notice to Yaran was sufficient to commence the period, an extension of time is required, nevertheless, in my view, the fact that there has not been notice given to the applicants is a relevant factor in favour of the granting of an extension of time, given the intent of s 20 of the SAT Act to which I have referred earlier.
The final consideration, in my view, is a factor raised by Ms Moharich, namely that, particularly in the circumstances of a third party review, generally landowners should be free to act on a development approval granted after the time period for the commencement of an application for review has expired. I accept that a third party cannot simply sit on its hands while the developer that has an approval would reasonably think that it is free of challenge and can be acted upon. However, in this case, the landowner was clearly on notice that there were a large number of residents who felt aggrieved by the decision and sought actively to have the decision reversed.
The Tribunal's task, under r 10 of the SAT Rules, is to balance each of these considerations and weigh them carefully. As Rackemann J said in Kangaroo Point at page 12:
The circumstances of this case are regrettable. Neither a decision to allow or to refuse an extension will deliver an entirely satisfactory outcome. There are countervailing factors to be considered. …
If an extension of time were required, a similar refrain could be expressed in the circumstances of this case. Ultimately, however, if an extension of time were required, I would come to the view that the prejudice to Yaran, Grove 20 and the builder is not sufficient to outweigh the other circumstances to which I have referred. This is because the prejudice is, as I have indicated, not as significant as that considered by Yaran when properly analysed, and because of the strength of other considerations. In particular, there is, as I have said, an adequate and reasonable explanation for the delay. There is certainly an arguable case for review in light of the evidence of Ms Butterworth, and the developer in this case was clearly on notice that there were, and are, a large number of persons in the locality considering themselves aggrieved and seeking the reversal of the granting of approval.

D. Whether Grove 20 should be granted leave to intervene in the proceeding pursuant to s 37(3) of the SAT Act

The application to intervene was not opposed by the City, but was opposed by the applicants. The applicants submitted that they would not oppose the application to intervene if Grove 20 could satisfy the principles set out in the Tribunal's decision in Viento Property Ltd and Western Australian Planning Commission [2009] WASAT 229 at [13] [17], in which the Tribunal summarised the principles in other cases, most notably the leading decision of Chaney J in ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104 (ING) at [28].
I am satisfied that the principles set out in ING are met by Grove 20's application for intervention. I do not consider, as Mr James submitted, that the application is premature in this most unusual case of a third party review. As Ms Moharich submitted, Grove 20 certainly satisfies the requirement for a 'sufficient' interest, by being the landowner of land to which the benefit of the development approval under scrutiny attaches, and will therefore be directly affected by the outcome of the matter. Grove 20 would plainly have standing to seek judicial review in accordance with the test set out by the High Court of Australia in Australian Conservation Foundation Inc v The Commonwealth of Australia & Ors (1981) 146 CLR 493 at 530 per Gibbs J and at 547 per Mason J.
Furthermore, as Ms Moharich also submitted, the intervention by Grove 20 is necessary to enable the Tribunal to meet the objectives of the SAT Act and of the PD Act. The objectives of the SAT Act set out in s 9 include 'to achieve the resolution of questions, complaints or disputes and to make or review decisions fairly and according to the substantial merits of the case' and 'to act as speedily and with as little formality and technicality as is practicable and minimise the costs to parties'.
I am satisfied that in order to undertake its task fairly and according to the substantial merits of the case, the Tribunal will require the involvement of Grove 20 as a full party in the proceeding. Grove 20 will, as Ms Moharich submitted, provide information and documentation which underpin the development application and decision under review. In addition, the Tribunal places great reliance in its task of dispute resolution on facilitative dispute resolution. While not all matters can be resolved by facilitation, it would be impossible to embark on any meaningful process of mediation without the involvement of the holder of the consent as an active and full party. Facilitative dispute resolution, including mediation, is an important means by which the Tribunal seeks to act as speedily as is practicable and minimise costs to parties.
I recognise that intervention will likely add to the length of the proceeding if the matter goes to a hearing and may result in some additional costs to the parties. However, in my view, having regard in particular to s 32(1) of the SAT Act, which obligates the Tribunal to afford natural justice to not only parties but others potentially affected by proceedings, it is appropriate and, indeed, arguably critical to allow intervention.
I also find that the contribution that the applicant for intervention is likely to be able to make to the proper disposition of the issues before the Tribunal is significant in light of the matters to which I have referred, that the interests of Grove 20 will not be adequately dealt with by the parties, and that the material to be advanced by Grove 20 will not be adequately dealt with by the parties.
Finally I note that, as Chaney J said in ING:
… An intervener, unlike a party, will ordinarily be allowed only to support or oppose a decision contended for by one or other of the parties to the proceedings and will not be permitted to expand the issues to be decided …
This case is, however, hardly an ordinary case. So far as I am aware, this is the only third party planning review proceeding that has been commenced in the Tribunal since its establishment in 2005. The interests of Grove 20 and of Yaran are materially affected by this proceeding in a way that simply would not arise in the case of a typical third party in ordinary planning review proceedings in which an applicant for review is the applicant before the original decisionmaker. In my view, it is reasonable and appropriate, having regard to the Tribunal's obligation under s 32(1) of the SAT Act to afford procedural fairness, for the holder of the development approval that is the subject of third party planning review proceedings to be entitled to advance its own case as though it had been named as a party in the application for review. In my view, it is appropriate and reasonable for Grove 20 in particular to be able to raise and respond to any issues, to call evidence and to challenge other parties' evidence, and to make submissions on any issue that arises in the proceeding, whether raised by itself or by another party.
For these reasons, Grove 20 should be granted leave to intervene in the proceeding.

Orders

[There was discussion between the Tribunal and the parties in relation to programming orders.]
The Tribunal orders as follows:
1.The applicants have a right to seek review of the decision of the respondent made on 15 March 2011 to granting development approval to Yaran Pty Ltd for construction of 28 dwellings at No 20 Grove Street, Little Grove, Albany.
2.An extension of the period prescribed by r 9 of the State Administrative Tribunal Rules 2004 (WA) within which an application for review of the decision can be brought by the applicants is not required.
3.Pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA), Grove 20 Pty Ltd is granted leave to intervene in the proceeding.
4.By 7 pm on 19 May 2011, the intervenor is to email scalable plans of the development the subject of this proceeding capable of being printed on A3 paper to the applicants and the respondent, and by 24 May 2011, the intervenor is to file four scalable hard copies of the plans.
5.By 27 May 2011, the applicants must file with the Tribunal and give to the other parties the following documents not the respondent's bundle:
(a)a statement of issues, facts and contentions they say arise in the proceeding; and
(b)an indexed and paginated bundle in chronological or other logical order of the documents on which they propose to rely in the proceeding.
6.By 27 May 2011, the applicants must file with the Tribunal and give to the other parties an indexed and paginated bundle in chronological or other logical order of any documents on which they propose to rely in the proceeding not in the respondent's bundle.
7.By 3 June 2011, the respondent must file with the Tribunal and give to the parties its own statement of issues, facts and contentions setting out:
(a)by reference to each paragraph number in the applicants' statement, whether the respondent accepts or rejects the issue, fact or contention identified by the applicants; and
(b)any other issues, facts and contentions it says arise in the proceeding.
8.By 3 June 2011, the respondent is to file three additional copies of the section 24 bundle.
9.By 10 June 2011, the intervenor must file with the Tribunal and give to the other parties its own statement of issues, facts and contentions setting out:
(a)by reference to each paragraph number in the applicants' and respondent's statements, whether the intervenor accepts or rejects the issue, fact or contention identified by the applicants and the respondent; and
(b)any other issues, facts and contentions it says arise in the proceeding.
10.By 10 June 2011, the intervenor must file with the Tribunal and give to the other parties an indexed and paginated bundle in chronological or other logical order of any documents on which it proposes to rely in the proceeding not in the applicants' or respondent's bundles.
11.The proceeding is adjourned to a further directions hearing at 9 am on 3 June 2011 in order to list the matter for mediation, final hearing or both.

I certify that this and the preceding [121] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER

[2011] WASAT 85

19/05/2011