DCSC PTY LTD and PRESIDING MEMBER OF THE REGIONAL JOINT DEVELOPMENT ASSESSMENT PANEL

[2022] WASAT 68

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   DCSC PTY LTD and PRESIDING MEMBER OF THE REGIONAL JOINT DEVELOPMENT ASSESSMENT PANEL [2022] WASAT 68

MEMBER:   DR S WILLEY, SENIOR MEMBER

HEARD:   15 JULY 2022

DELIVERED          :   15 JULY 2022

PUBLISHED           :   5 AUGUST 2022

FILE NO/S:   DR 11 of 2022

BETWEEN:   DCSC PTY LTD

Applicant

AND

PRESIDING MEMBER OF THE REGIONAL JOINT DEVELOPMENT ASSESSMENT PANEL

Respondent

DUNSBOROUGH CELLARS

EMPIRE HOUSE

HUMIDITY LIFESTYLE

QUICKSILVER

COASTAL KIDS

Proposed Submitters

Catchwords:

Town planning - Practice and procedure - Application by non-party to make submissions - Parties wish to withdraw proceeding by consent - Application for leave to withdraw proceeding - Whether discretion should be exercised to receive submissions - Whether leave should be granted to withdraw proceeding

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(2)
Planning and Development Act 2005 (WA), s 242, s 243, Pt 14
State Administrative Tribunal Act 2004 (WA), s 31, s 38, s 46, s 46(1)
State Planning Policy 7.3 - Residential Design Codes Volume 1

Result:

Application to make submissions dismissed
Leave to withdraw granted

Category:    B

Representation:

Counsel:

Applicant	:	J Skinner
Respondent	:	C Ide
Proposed Submitters	:	P Kyle

Solicitors:

Applicant	:	Thomson Geer - Perth
Respondent	:	State Solicitor's Office
Proposed Submitters	:	Kyle and Company

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

Australian Conservation Foundation Inc v Commonweatlh of Australia (1980) 146 CLR 493

Clark and Western Australian Planning Commission [2007] WASAT 33

Pitt v Environment Resources and Development Court (1995) 66 SASR 274

Purser and City of Nedlands [2022] WASAT 51

Shire of Augusta-Margaret River v Gray [2005] 143 LGERA 55

Steve's Nedlands Park Nominees Pty Limited and City of Nedlands [No 2] [2006] WASAT 54

Stockdale and Shire of Mundaring [2007] WASAT 34

Yum Restaurants International and City of Rockingham [2008] WASAT 136

REASONS FOR DECISION OF THE TRIBUNAL:

(This application was heard and determined on 15 July 2022 with oral reasons provided at the conclusion of the hearing.  The following reasons comprise the reasons that were delivered orally, subject to minor editing to correct grammar and infelicity of expression.  Details of the proposed development the subject of the review, together with the applicable planning framework, have been added for clarity).

Introduction

1. This is an application lodged by Kyle and Company on behalf of a number of retail businesses (Proposed Submitters) in close proximity to the review site the subject of this proceeding (being Lot 108 (HN 57) Dunn Bay Road and Lot 109 (6) Cyrillian Way, Dunsborough) (Review Site). 

2. The application for review relates to a proposed mixed use development (comprising a mixture of commercial and residential uses).  The Review Site is zoned 'Centre' under the City of Busselton Local Planning Scheme No 21 (LPS 21). 

3. The application the subject of these reasons is an application to make submissions pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act). Section 242 of the PD Act provides that the Tribunal may receive a submission from a person who is not a party, provided I am of the opinion that the person has a sufficient interest in the matter.

Relevant background

1. The relevant background of this matter is that, pursuant to orders made by the Tribunal under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the respondent has reconsidered revised plans that were put forward by the applicant and approved those plans subject to conditions. None of the approval conditions are in contest and, therefore, the parties now seek an order to withdraw the matter pursuant to s 46 of the SAT Act.

2. The submission lodged by the Proposed Submitters provides that inter alia elements of the State Planning Policy 7.3 - Residential Design Codes Volume 1 (R­Codes) have not been satisfied, as well as aspects of cl 67(2) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions). 

3. There is also a concern about the impacts of the development on the desired scale and character of the street and local area.  The submission identifies a range of perceived deficiencies in the Responsible Authority Report prepared by the City of Busselton (City). 

4. Traffic and access issues are also identified, including the potential for a new roundabout, which the Proposed Submitters were not informed about, which may impact existing access and egress arrangements.  There is also a concern that the revised proposal was not advertised.

Relevant principles

1. In terms of the case law and relevant principles that inform the discretion under s 242 of the PD Act, these are well known and settled. The leading authority is perhaps Pitt v Environment Resources and Development Court.[1]  Western Australian authorities include the Shire of Augusta­Margaret River v Gray,[2] Clark and Western Australian Planning Commission[3] (Clark); Stockdale and Shire of Mundaring,[4] Yum Restaurants International and City of Rockingham.[5]

   [1] Pitt v Environment Resources and Development Court (1995) 66 SASR 274 at 275.

   [2] Shire of Augusta-Margaret River v Gray [2005] 143 LGERA 55, [139].

   [3] Clark and Western Australian Planning Commission [2007] WASAT 33.

   [4] Stockdale and Shire of Mundaring [2007] WASAT 34.

   [5] Yum Restaurants International and City of Rockingham [2008] WASAT 136.

2. The relevant considerations for the purposes of s 242 of the PD Act include:

   a)the nature and strength of the interests of the proposed submitter;

   b)the contribution which the proposed submitter is likely to be able to make to the proper resolution of the issues before the Tribunal;

   c)whether the interests which the proposed submitter represents and the material to be advanced by that person will be adequately dealt with by the parties already before the Tribunal;

   d)the impact upon the proceedings;

   e)the interests of the parties before the Tribunal as a right and the public interest in the prompt and efficient dispatch of proceedings; and

   f)any other factors particular to the case.

3. I am satisfied that the Proposed Submitters, as retail operators in close proximity to the Review Site, would meet the test for standing set out in the Australian Conservation Foundation Inc v Commonwealthof Australia[6] and, therefore, the discretion under s 242 of the PD Act is enlivened.

   [6] Australian Conservation Foundation Inc v Commonweatlh of Australia (1980) 146 CLR 493.

4. However, as former President Barker observed in Steve's Nedlands Park Nominees Pty Limited and City of Nedlands [No 2]:[7]

   … The status however of a submission-maker does not give the interested person the right to give evidence, call witnesses, examine or cross­examine witnesses, or appeal against the Tribunal's decision.

Disposition and result

[7] Steve's Nedlands Park Nominees Pty Limited and City of Nedlands [No 2] [2006] WASAT 54, [67].

1. Having regard to the fact that both parties to the review no longer wish to be heard on the proposed development, the Proposed Submitters, in my view, in the circumstances of this case, would not be able to make any substantive contribution to the proper determination of the issues now before the Tribunal.

2. Furthermore, the impact on the proceeding and the interests of the parties, of receiving and hearing submissions in respect of the application from the Proposed Submitters, would be to extend the proceeding in circumstances where the parties, in effect, jointly apply for the proceeding to come to an end.  

3. To grant the Proposed Submitters' application in the circumstances of this case would be contrary to one of the central objectives of the Tribunal, namely, to act as speedily as is practicable and to minimise the costs to the parties.

4. I also observe, as was noted by Senior Member Parry, as he then was, in Clark, the considerations that I have just outlined above, at [9], are not exhaustive.[8]  

   [8] Clark, [27].

5. The circumstances that arise in this case are almost identical to those that arose in Clark.  In Clark, an application to hear submissions under s 242 of the PD Act was made in circumstances where the applicant and the respondent both sought orders to withdraw the review application. Senior Member Parry commented that:

   … relevant and material factors to be taken into account in the exercise of discretion are that the party who had standing to commence and brought the application wishes to withdraw it whereas the non-parties do not have standing to seek review [of the proposed development].[9]

   [9] Clark, [29].

6. With respect, I agree with Senior Member Parry's analysis.  While I can certainly understand and appreciate the frustrations of the Proposed Submitters that what they consider to be an unmeritorious development, which will be proximate to and undoubtedly impact these businesses at some level has been approved, under the Western Australian planning system they are left with few options.

7. In Purser and City of Nedlands,[10] I recently commented that the reality is in Western Australia there are no third-party appeal rights and that joinder under s 38 of the SAT Act is expressly excluded perforce of s 243 of the PD Act. It is not my role to manufacture broad third-party appeal rights for participation in planning reviews in a manner that is inconsistent with the framework established by Parliament.

   [10] Purser and City of Nedlands [2022] WASAT 51, [43].

8. Finally, I also turn to the substance of the submission from the Proposed Submitters.  While I can appreciate the concerns expressed, these concerns ultimately go to the merits of the proposed development.  Under the land use planning system as it stands in Western Australia, it is solely for the respondent to consider and evaluate the merits of the proposed development (subject to any review rights afforded to an applicant).

9. The fact that the Proposed Submitters disagree with the conclusions reached by the respondent, the effect of which is that the proposed development warrants approval, does not mean any such conclusions were wrong, nor that the issues identified were not considered.  

10. In effect, the impacts of the proposed development on its immediate context are a matter of planning judgment.  The Proposed Submitters' actual complaint is that the discretion should not have been exercised in the way that it was by the respondent panel.

11. Furthermore, the decision as to whether or not the amended proposal put forward for reconsideration was to be advertised, which is a further complaint made by the Proposed Submitters, was a decision not for the respondent, but for the City.

12. In the exercise of discretion and in the circumstances of this case, I decline to receive or hear submissions from the Proposed Submitters. The application to make submissions under s 242 of the PD Act will be dismissed.

Question of leave to withdraw

1. In Clark the Tribunal set out that ordinarily where all the parties to a proceeding consent to withdraw, the discretion in s 46(1) of the SAT Act will be exercised in favour of leave.[11]

   [11] Clark [37].

2. I am also mindful that, as Senior Member Parry explained in Clark, in considering a request to withdraw under s 46(1) of the SAT Act, the Tribunal is not determining an application under Pt 14 of the PD Act.[12]  

   [12] Clark [39].

3. Therefore, contrary to the submissions of Mr Kyle, counsel for the Proposed Submitters, the consequence of that is that it is not for me, in exercising the discretion under s 46(1) of the SAT Act, to undertake a close evaluation of the merits of the development, or any related conditions, as if I was determining the application on review under Pt 14 of the PD Act.

4. In this instance, the Proposed Submitters oppose the grant of leave to withdraw to enable them to be able to advance their private interests (that the proposed development does not warrant approval). 

5. In these circumstances, I find it would be inappropriate not to exercise discretion under s 46(1) of the SAT Act so as to allow the proceeding to be finalised. I, therefore, make orders granting leave and allowing the applicant to withdraw the proceeding.

Orders

The Tribunal orders:

1.The application lodged by Kyle and Company to make submissions pursuant to s 242 of the Planning and Development Act 2005 (WA) is dismissed.

2.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw the proceeding and the proceeding is withdrawn.

3.There is no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR S WILLEY, SENIOR MEMBER

5 AUGUST 2022