Deane and City Of Mandurah - [2014] WASAT 165

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: DEANE and CITY OF MANDURAH [2014] WASAT 165

MEMBER: MR J JORDAN (MEMBER)
DR A HINWOOD (SESSIONAL MEMBER)

HEARD: 16 SEPTEMBER 2014

DELIVERED : 8 DECEMBER 2014

FILE NO/S: DR 226 of 2013

BETWEEN: GRAEME JAMES DEANE
LILLIAN DEANE
Applicants
AND
CITY OF MANDURAH
Respondent

Catchwords:

Town planning Development application Preliminary issue Whether plan identified as Annexure A was a plan tendered by or on behalf of applicants Whether approval of respondent to the plan in that form renders application for review nugatory Planning consultant acting as agent for applicants Orders issued for s 31 of the State Administrative Tribunal Act 2004 (WA) reconsideration Whether principal bound by action of planning consultant as agent throughout the process Annexure A plan prepared by applicants' planning consultant Silence of planning consultant and applicants on acceptance of plan after plan sent to respondent Custom and practice of agents in town planning review matters Implied authority of agent Carve out of agent's authority Whether respondent was alive to questions about scope of agent's authority Was express ratification of Annexure A plan by applicants necessary Whether endorsements on Annexure A plan agreed by applicants

Legislation:

City of Mandurah Town Planning Scheme No 3
Peel Region Scheme
State Administrative Tribunal Act 2004 (WA), s 24, s 31

Result:

The preliminary issue is determined as follows:
1) the plan forming annexure A was not a plan tendered by or on behalf of the applicants; and
2) the approval by the respondent of the plan in that form does not render the application for review nugatory

Summary of Tribunal's decision:

The City of Mandurah granted retrospective planning approval for the placement of fill on a lot at Herron after being invited by the Tribunal pursuant to s 31 of the State Administrative Tribunal Act2004 (WA) to reconsider its original refusal of the development application. The approval included a plan, 'Attachment A', to illustrate conditions drafted by a City officer and imposed by the City. The Annexure A plan was prepared by the applicants' consultant town planner, who had initially acted as the applicants' agent.
The applicants sought review of certain conditions imposed by the respondent. At the commencement of the hearing, the Tribunal brought to the attention of counsel that it appeared on the face of it that the applicants were asking for review of the approval of a plan, Attachment A, that the applicants apparently had asked the respondent to approve. The hearing was adjourned and when it reconvened the parties asked that the preliminary issue be addressed.
The preliminary issue was stated to be:
'The issue for determination by this Tribunal as a preliminary issue is whether the plan forming Annexure A was a plan tendered by or on behalf of the applicants and, if so, whether the approval of the respondent to the plan in that form by the respondent renders the application for review to this Tribunal nugatory'.

The parties made submissions on the role of the applicants' town planning consultant as agent, on whether the planning consultant ceased to be clothed with an agent's authority during the process and whether the conduct of the planning consultant and the applicants could be properly construed as an endorsement by the applicants of the plan, Annexure A.
The Tribunal determined the preliminary issue by finding that the plan forming Annexure A, while prepared and filed by the applicants' planning consultant, was not a plan tendered by or on behalf of the applicants and that the approval by the respondent of the plan in that form did not render the application for review nugatory.

Category: B

Representation:

Counsel:

Applicants: Mr MJ Hardy
Respondent: Mr CA Slarke

Solicitors:

Applicants: Hardy Bowen
Respondent: McLeods Barristers & Solicitors

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

Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 41
Snook and Western Australian Planning Commission [2012] WASAT 38

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

A preliminary issue has arisen in connection with the application filed by Mr Graeme James Deane and Ms Lillian Deane (applicants) for review of certain conditions imposed by the City of Mandurah (City or respondent) on 28 November 2013 when granting retrospective planning approval for the placement of fill on No 145 Southern Estuary Road, Herron (site). The City had reconsidered the development pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Two of the conditions imposed by the respondent were of particular concern to the applicants. Condition 7 would require plants and trees selected from lists included in the condition to be planted at specified densities within the area of the battered slope of the fill on the site within the buffer of a Conservation Category Wetland (CCW) and condition 8 would require plants from a provided list to be planted on the fill at particular densities within the remainder of the buffer zone on the site.
The preliminary issue is stated to be:
The issue for determination by this Tribunal as a preliminary issue is whether the plan forming Annexure A was a plan tendered by or on behalf of the applicants and, if so, whether the approval of the respondent to the plan in that form by the respondent renders the application for review to this Tribunal nugatory.

How the issue arises

The review of the conditions in question was first listed before the Tribunal for a final hearing on 30 July 2014. The conditions under review are principally those that explicitly set out requirements for revegetation and landscaping of the areas of the site on which fill had been deposited.
On reading the papers filed by the respondent, it appeared to the Tribunal that, on the face of it, the plan with annotations attached to the City's approval (Annexure A plan) and to which the conditions in question in dispute referred, and cited, was a copy of a plan provided to the respondent by the applicants for the purpose of the s 31 SAT Act reconsideration. At the commencement of the hearing, the Tribunal brought to the attention of counsel its concern that the applicants were asking for review of a plan that the applicants apparently had asked the respondent to approve. The hearing was adjourned and when it reconvened on 16 September 2014 it was then that the parties asked that the preliminary issue be addressed.

Background and facts

The parties identified the context in which the planning approval is being considered. There are some four other processes that have either recently been completed or are in the process of being completed associated with the site in addition to the application for planning approval for the deposit of the fill. Each of these other processes also has plans associated with it prepared for different purposes. The other processes that touch on the land are:
1)Amendment 110 to City of Mandurah Town Planning Scheme No 3 (TPS 3) to rezone the land from 'Rural' to 'Special Use';
2)amendment to the Peel Region Scheme to change the zoning of the land from 'Rural' to 'Urban';
3)an application for approval to subdivide the land into three lots of about 4 hectares each; and
4)an approval of an adjustment to the boundary between the CCW within the site adjacent to the eastern boundary, and the Multiple Use Wetland between the CCW and the Southern Estuary Road road reserve to the west.
The parties assisted the Tribunal by providing an agreed set of facts. The Tribunal was also assisted by oral submissions by experienced counsel. The facts agreed by the parties are as follows:
1.The original application for retrospective approval made to the respondent was made by Greg Rowe & Associates (as that firm was then known).
2.The original application for review made to the State Administrative Tribunal was made by Graeme Deane and Lillian Deane.
3.Greg Rowe & Associates (subsequently the Rowe Group) continued to act as agent for the applicants.
4.By email dated 18 September 2013,[Ms] Nicola Leishman, an officer of the City, advised [Mr] Doug Smith, a Senior Town Planner with the Rowe Group for the applicants, that details of revegetation for the subject site were required to be endorsed upon the then proposal for reconsideration by the respondent, arising from mediation.
5.On 24 October 2013 Ms Leishman advised Mr Smith that the draft conditions had been prepared and that conditions had been recommended relating to revegetation.
6.On 24 October 2013 Mr Smith advised Ms Leishman that the materials provided by her would be forwarded to the applicants for approval but that Mr Smith was 'pretty confident that this will be agreed'.
7.By her email of 29 October 2013 to Mr Smith, Ms Leishman stated:
'I still however require the amended plan as requested in my earlier email and also your client's agreement or otherwise to the planning conditions. Please could you provide the above as soon as possible'.
8.…
A plan titled 'Modified DA' was attached to the email from Mr Smith. A copy of that plan is Annexure A. No mention was made of the approval or otherwise of the applicants.
9.On 3 December 2013, Mr Smith advised Ms Leishman by email that the applicants were not prepared to accept the conditions which, by that stage, had been endorsed upon the approval the subject of reconsideration by the Council of the respondent.
10.The plan approved by the Council of the respondent (attached as Annexure A) has endorsed upon it detail in relation to revegetation and is accepted as the plan both approved by the respondent and the plan the subject of this application for review.
In respect to facts, the Tribunal would add that the application for review was originally filed on 15 June 2013. At the first directions hearing on 10 July 2013, the Tribunal ordered that the matter be referred to mediation.
Following mediation, the mediator, Senior Sessional Member Peter Curry, on 7 August 2013 issued orders that included the following (copy provided by the parties):
1.By 6 September 2013, the applicant[s] shall provide an amended development proposal, including vegetation rehabilitation measures to be undertaken.
2.The respondent shall provide initial comments to the applicant[s] by 20 September 2013.
3.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent is invited to reconsider its decision on or before 26 November 2013.
…
An examination of the background shows that on 6 September 2013 there was filed with the Tribunal a letter dated 5 September 2013 from the Rowe Group, signed by Mr Smith, addressed to the Tribunal and the City of Mandurah. This letter refers to Mr Curry's order 1 and discusses features of an amended development proposal (Item 3.7 of the s 24 bundle of documents).
The 5 September 2013 letter referred to and had attached two plans. One plan referred to as 'Gem Surveys Map of Filled Area' and dated 5 September 2013 was an orthophoto with coloured lines superimposed showing boundaries of the site, the CCW and the area of fill.
The second plan was headed 'Proposed Subdivision Guide Plan TPS 3 Amendment 110'. This showed the site, proposed subdivision lot boundaries, building envelopes, extent of fill and included a box headed 'Revegetation within 50 metre buffer of CCW'. Under the heading in the box was a list of plants repeated from a list in the 5 September 2013 letter.
The Tribunal notes that neither of these plans is the plan known as Annexure A, which was attached to the City's conditional approval in its decision letter of 28 November 2013.

Discussion

Mr Michael Hardy, counsel for the applicants, pointed out it is 'common' in the Tribunal that the true applicants in other words the people who were ultimately to be conferred with the benefit of an approval are correctly noted on the application for review made to the Tribunal.
It is common ground between the parties that at least until 18 September 2013, the Rowe Group was agent for the applicants and was 'clothed' with the authority to act on behalf of the applicants.
On 18 September 2013 and subsequently there was an exchange of emails between Ms Leishman and Mr Smith. An email from Ms Leishman to Mr Smith on 18 September 2013 set out issues Ms Leishman considered had not been adequately addressed in the 5 September 2013 letter, together with further matters that she considered needed to be addressed. Mr Hardy pointed out that, relevantly, in the first bullet point, second sentence, Ms Leishman stated:
The [subdivisional guide plan] cannot be used as part of the reconsideration as it cannot be endorsed as an approved plan, unless detail such as the proposed lot boundaries and the proposed building envelopes are removed.
Ms Leishman would appear to be pointing out that the plan attached to Mr Smith's letter of 5 September 2014 was inappropriate because it included references to other issues that were between the parties at the time. Ms Leishman listed, as required a revegetation plan to include detail to indicate which species would be planted, where and in what densities.
Ms Leishman reminded Mr Smith that if it is intended to provide the outstanding information it would need to be forwarded by 1 October 2013 in order to be properly assessed ahead of the report deadline necessary for the City's reconsideration on 26 November 2013 dictated by the terms of Mr Curry's orders.
It would appear that Ms Leishman at this point remained of the view that Mr Smith continued to be the applicants' agent.
Counsel then referred to an email of 16 October 2013 from Mr Smith to Ms Leishman. Mr Smith referred to difficulties associated with accurately defining fill areas and CCW boundaries on the site, and then stated:
Our client Graeme Deane has confirmed he will remove the minor encroachments into the CCW revised boundary in order to resolve the matter. Graeme has also confirmed that it is OK for Eryn to go onsite to inspect the density of vegetation in the wetland buffer areas so as to be specific about Council's density of replanting requirements.
The Tribunal notes this email is an express deferment by Mr Smith to his clients. As stated by Mr Hardy, this is the 'only substantive reference to what Mr Deane may or may not have determined in relation to the matters referred to in the earlier email' (T:28; 16.09.14).
On 24 October 2013 Ms Leishman emailed Mr Smith including a copy of her draft report that was to go to the Council's planning committee, which included recommended conditions of approval. She sought further information from Mr Smith by Monday 28 October 2013 to meet the deadline for the City's November committee meeting.
The Tribunal would add that Ms Leishman's email of 24 October 2013 also asked that the requested modifications to the applicants' plan attached to the 5 September 2013 letter be provided by 28 October 2013.
It was common ground between the parties that the conditions Ms Leishman suggested were to properly form part of her report for consideration by the Council. Ms Leishman's draft included condition (g) and condition (h) which eventually became the Council's conditions 7 and condition 8 respectively. Ms Leishman stated:
Please note that the City has formulated these conditions to assist your client given that no adequate revegetation was provided with the application to achieve the required rehabilitation outcomes on Lot 1 Southern Estuary Road, Herron.
Ms Leishman, giving reasons, pointed out that the conditions are based on generic revegetation methods. Her email included '… should your client not be agreeable [to] the above conditions a revegetation plan will be required to be submitted …'. In the last sentence of the paragraph Ms Leishman said:
I would be grateful if you could advise of your agreement or otherwise to these conditions as soon as possible.
On the same day, some three minutes later, Mr Smith thanked Ms Leishman for the email and said 'we will forward this to the client for his OK however I am pretty confident this will be agreed'.
On 29 October 2013 Ms Leishman said to Mr Smith that her report was with her director for 'sign off' adding, as set out in the agreed facts above:
I still however require the amended plan as requested in my earlier email and also your clients' agreement or otherwise to the planning conditions. Please could you provide the above as soon as possible.
In the applicants' submission there is no doubt that any time after 24 October 2013 that confirmation of Mr Deane's agreement or otherwise to the matters set out in the full email from Ms Leishman of 24 October 2013 is required.
On the same day, one and a half hours later, Mr Smith responded and said:
My apologies this was 95 percent done last Friday however, I couldn't finalise it or send [it] because our system was out of action ….
Mr Smith attached a 'modified version' of the plan (which became Annexure A) that illustrates Ms Leishman's draft conditions and states:
If further adjustments need to be made our drafties in Perth will make these next week ….
There was no reference in Mr Smith's email to the agreement or otherwise of Mr Deane, and indeed there is no further correspondence which touches upon that.
The next email identified by the parties is that of 3 December 2013 from Mr Smith informing Ms Leishman that the applicants were not prepared to accept the conditions imposed in the decision issued by the respondent.
Mr Craig Slarke, counsel for the respondent, said that the plan that became Annexure A was prepared by Mr Smith, Mr Smith put the annotations on it consistent with Ms Leishman's draft condition 7 and condition 8, the plan was then given to the City and was ultimately attached to the respondent's conditional approval.
Mr Slarke said the question comes down to construing the entire transaction. This includes the terms of the various emails in the entire email thread, the modified development application plan prepared by Mr Smith incorporating the proposed conditions, that there was no disagreement or issue taken with Ms Leishman's report with its draft conditions and the silence of the applicants and Mr Smith between 29 October and 26 November 2013. In the respondent's submission it is these positive indications and 'things which are implied' that the City relies upon in total for its ultimate proposition. The respondent cited Snook and Western Australian Planning Commission [2012] WASAT 38 (Snook) at [41] where the Tribunal said:
It is incumbent on a party to indicate to the Tribunal and to other parties if a settlement or agreement is reached in a Tribunal process that further approval from some other person is required in order to affect the agreement.
The respondent's submission was that Mr Smith was clothed with the necessary authority to confirm to the City agreement with the document prepared and forwarded to the City and ultimately a subject of the approval. If there was no agreement there should have been a protest. The respondent argued that the City's construction of the conduct of the parties is not just a reasonable construction but it is supported by the factual trail.
The applicants accept that there is a wide and generalised authority that custom and usage in planning matters necessarily encompasses agencies acting for and on behalf of principals, landowners or applicants in the conduct of such matters. Those agents may include planners and they may include lawyers.
The applicants' submission was that the factual trail reveals in the exchanges of emails that Mr Smith was cognisant of the need to obtain Mr Deane's approval to this issue. Such was expressly set out in an email to Ms Leishman, and Ms Leishman expressly acknowledged the necessity of Mr Deane's approval, and thereafter there was nothing.

Counsel for the applicants referred to GE Dal Pont, Law of Agency (1^st edition, 2001, LexisNexis Butterworth) (Dal Pont) at [8.3]. He submitted that, as a matter of law, to determine the scope of an implied authority it is necessary to investigate those things that are necessarily or ordinarily incidental for the purpose of effecting the object for which the express authority is given, coupled with custom so as to determine what is necessarily implied. In respect to the principles of agency, if there is an agency relationship it is to be implied by the conduct of the parties.
This gives rise to the question of whether there was, as Mr Hardy put it, 'an express derogation from an otherwise wide implied authority to do all things necessary to bring this mediation outcome to fruition and satisfaction under the s 31 proposal'. If there are any constraints it is necessary to identify those constraints and how they have been affected.
Mr Hardy's submission was that in this matter, there was a factual express 'carve out' from the otherwise wide and perhaps generalised authority which would be normally and customarily encountered in these circumstances or which may be implied as a consequence of Mr Smith's conduct. For the purposes of overcoming the obstacle created by the express carve out in relation to the consent of Mr Deane there needs to be an express ratification given to the City. As there was no express ratification from Mr Deane, as an alternative there needs to be an implied or inferred ratification of the planning conditions.
This leads to the question which was posed by the respondent: can there be ratification by acquiesce or delay? The applicants did not accept the respondent's submission that silence at all material times ought to be properly constituted as an acceptance. It was the applicants' submission that the silence has been conflated to acceptance and ought not to be construed that way. Mr Hardy stated, referring to [5.28] in Dal Pont:
Where there is a transaction effected by an agent outside his or her authority and there are leads to a question of validity because of a claim that there is no proper authority, it is implicit in the principal's actions that he or she has ratified the agent's unauthorised transaction.
(T:32; 16.09.14)
Dal Pont was again referred to, at [5.30], with the applicants' counsel stating:
Proof of the requisite unequivocality for the purposes of determining that there has been acceptance is more difficult where the alleged act constituting ratification is the principal's silence or lack of action. Ratification of the agent's unauthorised act can be implied from silence or acquiescence of the principal provided that the principal's silence or acquiescence cannot be explained sensibly on grounds other than an intention to adopt the agent's act.
(T:32; 16.09.14)
The applicants acknowledged there was silence, but argued that there was nothing in the silence that properly ought to be construed as consent by Mr Deane. There was no evidence that this issue had been put squarely to Mr Deane and he had agreed to it. Rather, in the applicants' submission, the evidence points to a quite different conclusion; that is, Mr Smith has carved out the scope of his authority by reference to a necessity for Mr Deane's approval. This was also expressly recognised by Ms Leishman. Nothing else occurred save for practical issues associated with the finalisation of the plan.
The applicants said there is no proper construction which can be said to be called in aid by the respondent to say that the applicants are bound by what took place in October between Ms Leishman and Mr Smith. Mr Smith clearly indicated to Ms Leishman that the agreement of Mr Deane would be required and it was never provided. Counsel made reference to the comment by Judge Parry in Snook at [43] which states:
Clearly, the representatives of the Commission who attended that mediation had apparent authority and, as I say, it was incumbent on the Commission to indicate any limits to that authority. When considering the exercise of discretion to expand the scope of issues some two months after they were limited at mediation, it is not good enough to advise the Tribunal that, by the way, the people who attended three sessions of the Tribunal did not have authority they appeared to have.
The applicants said that in this matter there was not an unqualified and apparently unequivocal authority vested in the representative of the applicants who purported to enter into agreement in mediation and subsequently disavowed the scope of the agreements that had been reached. The applicants said Snook can clearly be distinguished from the current proposal because there was an express prior necessity for Mr Deane to agree to what had been prepared and subsequently presented by Mr Smith, and it was never obtained.
The applicants' submission was that the evidentiary trail and the law clearly supports the proposition that at no time could it be properly said that Mr Deane was bound by the document which was prepared by Mr Smith and which was then incorporated into the report of Ms Leishman. It formed part of the procedural exercise undertaken by the respondent leading to its decision, subsequently, under s 31 of the SAT Act.
The applicants' submission was that the material before the City, which was endorsed by the City, was not a plan that could be properly said to be a plan of the applicants. Mr Smith had prepared the plan, but again there was no consent of the applicants to the plan. It was always an open question and this continued right until the date on which the City's decision was made.
The applicants added that no amendment to the Annexure A plan before the Tribunal was necessary. This is because the Annexure A plan, which is the decision of the Council, bears the endorsements in relation to vegetation and it is this with which the applicant disagrees; that is, the approved Annexure A plan is not a plan by Mr Deane. The applicants are asking for a review of it and that if ultimately successful, the conditions of approval would have to be changed or deleted and endorsements on the plan would have to be changed or removed.

Conclusion

The documents show that at some point soon after Ms Leishman's 18 September 2013 email to Mr Smith, Mr Smith went to Mr Deane for instruction on how to proceed and informed Ms Leishman of Mr Deane's instruction on 16 October 2013. This is viewed by the Tribunal as a change from the previously accepted position, that Mr Smith could act as an agent to affect the relationship between his clients and the City.
The Tribunal also notes that on 24 October 2013 Ms Leishman provided Mr Smith with the draft conditions she had composed, as well as again asking for the modified plan she first requested on 18 September 2013.
Ms Leishman refers to approval by Mr Deane and the use of 'your agreement' in the context is considered by the Tribunal to be a reference to the applicants as comprising Mr and Mrs Deane expressing an opinion through Mr Smith.
Mr Smith prepared a plan to reflect the conditions composed by Ms Leishman. As pointed out by the respondent, Mr Smith did not express any objection either to the draft conditions or attempt to withdraw or adapt the plan he prepared that became Annexure A.
It is the significance of the silence that is the most challenging in this matter. The Tribunal has concluded, however, that Mr Smith was expressly conscious of the need to get the clearance of Mr Deane for the plan, and the draft conditions. The respondent received nothing. Mr Smith then, in December 2013, expressed surprise at the applicants' objections to the conditions imposed by the City on 26 November 2013. The Tribunal interprets this as Mr Smith having assumed that he was once again in a position to decide what the view of the applicants was at a time when it was clear he did not have the authority to act as their agent. The Tribunal considers it most unlikely that Mr Smith consulted the applicants but simply failed to inform the respondent of the applicants' comments.
It is not apparent from the papers why Mr Smith would have assumed he was again clothed with the authority of an agent to speak, or not speak as eventuated, for the applicants after 24 October 2013. Ms Leishman was in the meantime proceeding to prepare her reports for the Council committee so that the respondent could comply with Mr Curry's order to reconsider its decision on 26 November 2013. Ms Leishman showed she was committed to taking necessary procedural steps so that the respondent could comply with Mr Curry's orders, and the lack of comment from the applicants did not cause her to pause.
The Tribunal would comment in passing that if Mr Smith had not provided any replacement plan, this need not have deflected Ms Leishman from her course. This is said because a carefully crafted decision would make it clear what is and is not approved on any plan accompanying a decision: Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 41 at [3].
The Tribunal finds that Ms Leishman's report with the accompanying plan and the City's decision is readily explainable in the circumstances, but that it cannot be construed that the City was endorsing a plan that the applicants, either expressly or implied, had requested be approved.
The Tribunal finds that the plan forming Annexure A was not a plan tendered by or on behalf of the applicants. The Tribunal determines that the approval to the plan, Annexure A, in that form by the respondent does not render the application for review to the Tribunal nugatory.
There remains before the Tribunal a live dispute as to whether condition 7 and condition 8 should stand.

Further comment

In light of the Tribunal's finding on the preliminary issue, the Tribunal considers it appropriate to make further comment on the issues before it for determination.
The Tribunal's reading of the applicants' statement of issues, facts and contentions is that the applicants are seeking to have condition 7 and condition 8 deleted from the approval; that is, that no conditions be imposed requiring revegetation within the battered slope or buffer of the CCW on the site.
As stated above, it was common ground between the parties that the Rowe Group was acting as agent for the applicants when it filed its letter of 5 September 2014. This letter refers to Mr Curry's orders of 7 August 2014 in which order 1 requires that the applicants shall provide an amended development proposal 'including vegetation rehabilitation measures to be undertaken'.
The Tribunal notes that the letter of 5 September 2013 on behalf of the applicants states that 're-vegetation will be undertaken by the landowner in the filled area within the 50 metre buffer area of the revised CCW boundary, using local species suited to the estuarine environment'. The letter states that for 'contextual purposes, we show the filled area and rehabilitation of the CCW buffer area therein'. Reference is also made to the hope that the respondent will deal with Amendment 110 TPS 3 and 'revegetation of the filled area' on the same agenda. The letter goes on to 'propose that the 50 metre buffer area is revegetated with a mix of the following species (at a density consistent with the surrounds) documented as existing … '. The letter includes a list of local plants and trees.
The Tribunal raised with the parties on 16 September 2014, that on the papers currently before the Tribunal, the applicants would appear to have asked the respondent in the 5 September 2013 submission for the s 31 SAT Act reconsideration to approve a particular form of development that included some form of revegetation, but are now seeking from the Tribunal a development approval, not with conditions imposed amended in some way, but with conditions imposed deleted so that there is no requirement at all for revegetation.
Mr Slarke made the comment that the City understood the proposal at 5 September 2013 as involving some sort of revegetation, yet the application for review asks that there be no revegetation. In his submission that raises some questions about whether it is a different proposal and whether leave should be given to modify the application.
The Tribunal has not heard from the parties on this point, but would make a provisional comment that it is not clear how the particular form of development the applicants now want the Tribunal to approve can be readily reconciled as consistent with the form of development applied for on 5 September 2013, and which was given conditional approval. As put by counsel for the applicants, consideration might be given to whether 'the entirety of the conditions should be subject of attack or whether there is some more ameliorative position which can be obtained'.
The Tribunal considers a further directions hearing is necessary to establish how this matter might proceed within the first instance, the applicants revisiting their statements of issues, facts and contentions and the respondent being provided the opportunity to prepare its responsive statement.

Orders

The preliminary issue is determined as follows:
1.The plan forming annexure A was not a plan tendered by or on behalf of the applicants; and
2.The approval of the respondent of the plan in that form by the respondent does not render the application for review nugatory.
The Tribunal further orders that by 12 December 2014 the parties file with the Tribunal advice of their respective unavailable days for December 2014 so that a directions hearing can be listed in this matter.

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER