| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : FAIRBORN and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 166 MEMBER : MR M SPILLANE (SENIOR MEMBER) HEARD : 25 MAY 2011 DELIVERED : 18 OCTOBER 2011 FILE NO/S : DR 50 of 2011 BETWEEN : PUNITO FAIRBORN Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords: Practice and procedure - Abuse of process - Subdivision application - Similar previous application decided by Tribunal - Re-litigation of decided matter Legislation: City of Albany Town Planning Scheme No 3
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(c), s 47(4)
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Result: Application to strike the matter out for abuse of process dismissed Category: B
Representation: Counsel:
Applicant : Mr J Skinner
Respondent : Mr B Nelson
Solicitors:
Applicant : Jackson McDonald
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Fairborn and Western Australian Planning Commission [2007] WASAT 266
Russo v Kogarah Municipal Council [1999] NSWCA 30
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Mr Punito Fairborn sought a review of a decision by the Western Australian Planning Commission dated 13 January 2010 refusing him approval to subdivide his property at Lot 189 Lower Denmark Road, Bornholm into two lots. 2 Mr Fairborn had sought a similar approval in 2007 which was also refused and following a review hearing this Tribunal affirmed that refusal. 3 On this occasion due to the outcome of the 2007 review and as the applications were largely similar the Western Australian Planning Commission submitted that Mr Fairborn's new application for review should be dismissed as an abuse of process on the basis that he was attempting to relitigate something that had already been decided. 4 The Tribunal decided that as no evidence had been led by either party in 2007 in respect of the agricultural capability of the land and as that issue and the relevant State policies dealing with it formed part of the reasons for refusal on both occasions, the matter should not be dismissed as an abuse of process but should be allowed to proceed to a final hearing to enable both parties to present evidence on the issue and allow the Tribunal to come to the correct and preferable decision.
Background and agreed facts 5 Mr Punito Fairborn (applicant) is the owner of Lot 189 Lower Denmark Road, Bornholm (land) which is 11.6094 hectares in size and situated approximately halfway between Denmark and Albany and 6 kilometres east of the Youngs Siding townsite. 6 The land is zoned Rural under the City of Albany Town Planning Scheme No 3 (TPS 3) and is within the 'Wilson Inlet 1 Policy Area' of the City of Albany's Local Rural Strategy (LRS). 7 The land is included within the 'priority agriculture' area of the Albany Local Planning Strategy (ALPS). 8 The land contains some remnant vegetation, some replanted vegetation, a tributary of Cuppup Creek which flows into the Wilson Inlet and a number of dams and outbuildings. (Page 4)
9 The land has limited agricultural capability, and historically, has not been used for agriculture. 10 In 1995, the applicant applied to subdivide the land into two lots, of 2.5 hectares and 9 hectares. The application was refused, and an appeal was lodged with the Minister for Planning. That appeal was dismissed. 11 In 1999, the applicant again applied to subdivide the land into two lots of approximately 5.2 hectares and 6.4 hectares and again the application was refused. No appeal was lodged on that occasion. 12 On 7 November 2006, the respondent received a further application from the applicant to subdivide the land into two lots, each of a size of 5.8047 hectares, with a north-south boundary at about the centre of the site (2007 application). 13 The 'current land use' was described in that application as 'vacant' and the 'proposed land use' was described as 'residential/art studio'. 14 By letter dated 2 April 2007, the respondent advised the applicant it had refused the 2007 application, and cited 11 reasons for refusal. 15 The applicant filed an application for review of the respondent's decision with this Tribunal, dated 16 April 2007, and elected that no party be represented by a lawyer. 16 Those review proceedings were listed as matter number DR 141 of 2007 and the hearing of the review took place on 22 June 2007, when the Tribunal reserved its decision. 17 On 15 October 2007 the Tribunal published its reasons for decision (see: Fairborn and Western Australian Planning Commission [2007] WASAT 266) in which the application for review was dismissed and the decision of the respondent affirmed. 18 On 10 September 2010, the applicant lodged a further 'Application for Approval of Freehold or Survey Strata Subdivision' with the respondent. 19 That application again sought to subdivide the subject land into two lots, each of a size of 5.8047 hectares, with a north-south boundary at about the centre of the site (2010 application). 20 The lot configuration of both the 2007 application and 2010 application are the same. (Page 5)
21 The designation of the land under TPS 3 and the LRS has not changed since the 2007 application. 22 The designation of the land under the ALPS has also not changed since the 2007 application, although it is noted that the strategy which was a draft at the time of the 2007 application was finalised prior to the 2010 application. 23 The 2010 application stated that the current land use was 'vacant land' and the proposed land use would be 'residential/studio'. 24 By letter dated 13 January 2011, the respondent advised the applicant that the 2010 application was refused for reasons which were in essence the same as the reasons for refusal of the 2007 application and stated: (Page 6)
fragmentation of rural land and would result in land uses unrelated to agriculture being located on agricultural land. 4. The proposal is contrary to Section 4.3 of State Planning Policy2.5 'Agriculture and Rural Land Use Planning', by reason that the proposed lot sizes increase the risk of the land being used for a primarily residential purpose. This increases the potential for conflicts of land use with existing agricultural enterprises in the area. 5. Approval of the proposal would set an undesirable precedent for subdivision of other Rural zoned land where it is contrary to the objectives of State Planning Policy 2.5 'Agriculture and Rural Land Use Planning'. 6. The proposal is contrary to the Albany Local Rural Strategy (LRS), by reason that the proposal does not meet any of the criteria under General Policy 30 (Criteria for Support for Subdivision of Rural Land) of the LRS to warrant support. 7. Approval of the proposal would set an undesirable precedent for subdivision of other Rural land in the City of Albany where it does not meet criteria under General Policy 30 of the Albany LocalRural Strategy. 8. The proposed subdivision is inconsistent with the Albany Local Planning Strategy (ALPS). ALPS identifies the subject land and surrounding land as agricultural land. Subdivision as proposed will increase the risk of a noncompatible, primarily residential land use being introduced to the area with the potential to adversely impact on existing agricultural enterprises through land use conflicts. 9. The proposal is contrary to the objectives of the City of Albany Town Planning Scheme No. 3 relating to Rural zoned land, which aim to regulate uses which might conflict with farming interests. 25 On 10 February 2011, an application for review of the respondent's decision to refuse the 2010 application was received by this Tribunal in which the applicant seeks to have the respondent's decision set aside and substituted with a decision to grant subdivision approval. 26 On 9 March 2011, the respondent made an application under s 47(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for an order that the review of the 2010 application be struck out as an abuse of process pursuant to s 47(1)(c) of the SAT Act. That application was heard on 25 May 2011. (Page 7)
Issue 27 Whether the application for review is an abuse of process pursuant to s 47 of the SAT Act.
Submissions 28 Both the applicant and respondent were legally represented at the hearing of the application and both made written and oral submissions.
Respondent's submissions 29 Some of the principle submissions of the respondent were as follows: 1. The respondent submits that the key matters in determining whether the 2011 application constitutes an abuse of process are: (a) whether the matters the Applicant is seeking to have determined were, as a matter of substance determined in the 2007 application; (b) whether there has been no significant change in the circumstances between the 2007 application and 2011 application; (c) whether the application for review would undermine the public interest in finality in litigation and be inconsistent with the Tribunal's emphasis on efficiency and economy in the conduct of litigation. 2. Principles relating to abuse of process in a court of record, including by relitigation of a matter already determined, are properly applied to the Tribunal. 30 In this regard the respondent referred to the comments of Allanson J in Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 at [56] where he stated: … In my opinion, the principles relating to abuse of process in a court of record, including abuse of process by re-litigation of a matter that has been finally determined, are properly applied to SAT. 31 The respondent further submitted: Although the Applicant may have a statutory right to seek review of the Respondent's decision, that does not deprive the Tribunal of its statutory power to protects its processes from abuse. (Page 8)
32 The respondent referred to the comments of this Tribunal in Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29 at [54] and submitted: In Russo v Kogarah Municipal Council [1999] NSWCA 303 Davies AJA considered circumstances in which, although a new cause of action existed due to a fresh reviewable decision, the application to the Land and Environment Court sought to re-agitate issues which had already been determined. At [13] - [15] of Russo, Davies AJA held - 'In the present case, the principle of res judicata [does] not apply because the application to the Land and Environment Court was brought from a fresh decision of the Kogarah Municipal Council. There was a new cause of action. The principle of issue estoppel is also difficult to apply in the field of town planning. In a case such as the present it may be difficult to find a point of fact which should be determined once and for all. Circumstances change. The issue whether a development is consistent with a zoning may turn upon the facts as they exist when the issue comes to be decided. Nevertheless, it is an abuse of process for an applicant to bring repeated applications to a Court, such as the Land and Environment Court, seeking to reagitate issues which have as a matter of substance already been determined in prior decisions. The application of this principle is not precluded by the making of some minor changes to a town planning application or by reliance upon an argument or arguments which could have been put [but] were not previously put. If there has been no significant change in circumstances, the new application ought not to be brought. Otherwise, the application will appear to be a collateral attack upon the prior decision or decisions of the Court.' Applying the above, fresh litigation in a town planning context may constitute an abuse where the issues involved have 'as a matter of substance' been determined. The matters in the respective applications need not be precisely the same. … In the 2007 application, the Applicant sought review on a number of grounds, including, amongst others, that the planning framework did not cover his individual circumstances; support from local authority; financial hardship; and that the subject land was not viable agricultural land. … (Page 9)
The Tribunal considered and reached conclusions on the issues of the agricultural capability of the subject land, precedent, potential for land use conflict, hardship, and the change of use of Lot 190 (a neighbouring property) from studio to chalet. In the 2011 application, the Applicant states it will raise expert evidence that will address the agricultural capacity of the subject land and any loss of any productive agricultural land; the potential for land use conflict; the ability to distinguish the subject land from other lots in the locality; and the grant of development approval to Lot 190. … The Applicant is seeking to produce fresh evidence in the 2011 application on issues which were, as a matter of substance, considered and determined as part of the 2007 application. In doing so, the Applicant is, in effect, seeking to relitigate and reagitate issues which have been previously, as a matter of substance determined by the Tribunal. 33 Under the heading 'Has there been a significant change in circumstances between the 2007 application and the 2010 application?' the respondent submitted: Significant changes in circumstances will be relevant in considering whether relitigation constitutes an abuse. Russo v Kogarah Municipal Council (supra) at [13] - [15] The addition of further expert evidence will not constitute a change in circumstance, in the sense discussed in Russo (supra), where the evidence could have been adduced as part of the earlier proceedings. If such expert evidence were to be construed as a change in circumstance, it has the potential to raise 'the unattractive spectre of multiple successive proceedings in which evidence is adduced that could have been called in earlier proceedings'. Edwards v The Hills Shire Council [2009] NSWLEC 187 at [12] per Biscoe J cited in Erujin Pty v Western Australian Planning Commission [2011] WASAT 50 at [37] The fresh evidence which the Applicant proposes to adduce as part of the 2011 application ought not to be considered a significant change in circumstance given the evidence will centre on matters that were raised, and determined as part of the 2007 application; and there is nothing to suggest that the additional evidence could not have been obtained and advanced as part of the 2007 application. (Page 10)
Applicant's submissions 34 In respect of the question of change of circumstances the applicant stated: There has been a genuine change in circumstances between the 2007 Review and the present appeal, in that the Applicant has: (a) obtained expert town planning advice from a private town planning consultant, supporting the proposed subdivision on various grounds but particularly in relation to the actual potential for land-use conflict as a result of the proposed subdivision. This was one of the main grounds, relied upon in-principle by the Tribunal in the 2007 Review, but in respect of which the Applicant did not adduce any expert evidence; (b) obtained expert land capability advice in respect of the subject land from a private land use consultant - the absence of which in the 2007 Review was specifically commented on by the Tribunal; (c) obtained information and advice from several government departments in support of the proposed subdivision, on matters referred to by the Tribunal in 2007 Review, but who were not consulted by the Respondent in relation to the application the subject of the 2007 Review; and (d) engaged legal representation. The present change in circumstances goes beyond the situation in cases where it has been held that a mere wish to adduce new evidence or arguments did not amount to changed circumstances. (See, for example, Russo v Kogarah Municipal Council(1999) 105 LGERA 290 per Davies AJA at [15] and Edwards v The Hills Shire Council[2009] NSWLEC 187 per Biscoe J at [12] relate.)
Consideration 35 In considering this matter, the Tribunal accepts the reasoning of Davies AJA in Russo v Kogarah Municipal Council[1999] NSWCA 30 (Russo) outlined above and agrees that: If there has been no significant change in circumstances, the new application ought not to be brought. 36 The principal question therefore is whether in the Tribunal's view there is such a change in circumstances since the decision in the 2007 application that should allow the applicant to have the 2010 application reviewed by this Tribunal. (Page 11)
37 The respondent's reasons for refusing the 2007 application were all but identical to its reasons for refusing the 2010 application. In particular, reasons 2, 3, 4 and 5 which dealt with policy DC 3.4 'Subdivision of Rural Land' and State Planning Policy 2.5 'Agriculture and Rural Land Use Planning' were repeated in both decisions. 38 Further, it is clear from a reading of the Tribunal's reasons in the 2007 application that agricultural land and the issues arising in respect of it and the relevant policies were issues in that review. 39 At the conclusion of the hearing of this matter on 25 May 2011 when counsel for both the applicant and respondent had finished their submissions and the Tribunal was making some closing remarks the following exchange took place with the applicant. 40 The applicant spoke from the body of the hearing room stating 'I would like to say something' which the Tribunal allowed him to do. 41 The applicant then commented on the 2007 application and referred to submissions by the respondent in this matter regarding the fact that he was selfrepresented in 2007 and stated: I think it's a cynical comment to say and to couple me - that I had a choice in this matter of selfrepresentation in 07. It was a matter of my circumstances. It was a matter that I was on a pension. I get, I think it was about $13,000 a year. That's what I get, and I naively went - when I looked at how I could make some money on the one piece of thing that I owned, this piece of land - I followed a publication of a lease by the WAPC. It's called a flow chart. In that flow chart, it says that you make your application and the WAPC will send it to the relevant government departments. Now, I naively took them at their word for that. This was a government department. We're in Australia. I really thought that that sort of - that that would happen. I didn't realise that they would not sent it to the relevant departments, the agricultural department and the department of rivers - rivers and waters commission, I think it was, in those - at the time. They did not do that, and I got into the hearing and Mr Jordan makes the observation there was no experts there to give evidence. I went in there believing that I was going to get a fair go. I did not get a fair go. They did not send that application to the most relevant department. It's an agricultural policy. It should have gone to the agricultural department and I think it's reasonable - I realised that and I went round and took it to them myself afterwards. 42 The Tribunal then asked the question: (Page 12)
Can I ask this question, and Mr Skinner and Mr Nelson, is the contention that Mr Fairborn is putting up correct on that occasion? 43 Counsel for the respondent replied: My understanding is that it wasn't referred, but I can't comment as to why. 44 The Tribunal: No, I am not asking, but it was not referred? 45 Counsel for the Respondent: My understanding is, yes, it was not referred, at least the Department of Agriculture. 46 In its submissions referred to above the respondent contended: The Tribunal considered and reached conclusions on the issues of the agricultural capability of the land … 47 In support of that proposition the respondent referred to [70] of the Tribunal's reasons in 2007 which stated: No expert land capability information for the site was put into evidence. The aerial photograph showed that the clearing and dams indicate some earlier attempt at farming, perhaps grazing. The Tribunal is inclined to favour the applicant's position on the horticultural potential of the site. If the site had any horticultural potential there would be more evidence of it, especially in a locality where there was a history of intense agricultural activity, such as potato growing. In this regard, the Tribunal accepts that the proposed subdivision would have little impact on the horticultural viability of the site. 'Of more significance is the potential impact of the use of the proposed lots on the agricultural activity of this rural zoned locality'. 48 The Tribunal appears to have considered the horticultural capability of the land but does not appear to have reached a conclusion in respect of the agricultural capability of the land as contended by the respondent. 49 It is noted that in its conclusion at [87] the Tribunal stated: Strategic planning has identified that this locality is a priority agricultural area. The planning objectives arising from that identification include protection of horticultural activity by resisting the creation of rural-residential use and small rural holdings. To achieve the adopted strategies, the policy is to resist subdivision that creates lots suitable only for such uses and to resist development of lots for non-rural uses that have the potential to conflict with commercial agricultural practices. This includes (Page 13)
the subdivision and development of lots within the rural zone that are not or unlikely to be significant horticultural holdings, such as the site. The creation and development of additional such lots in an agricultural area has the potential to create land use conflicts that make more difficult achieving the planning objective of preserving agricultural productivity. 50 So although the issue of agricultural land appeared to be a matter for consideration before the Tribunal and factors connected to agricultural land and the relevant policies applying to it were specifically relied on by the respondent in its reasons for refusal on both occasions, the 2007 application was not referred to the Department of Agriculture and Food. It should have been, as the Tribunal was therefore left with no evidence before it in respect of that issue in 2007. The Tribunal is unaware as to whether the 2010 application has been referred. 51 However, some comment has been received from the Department of Agriculture and Food since 2007. At page 99 of the bundle of agreed documents there is a letter dated Wednesday 20 August 2008 addressed to the applicant from an officer at the Department in which the officer refers to a land assessment report that the applicant has had prepared and is before the Tribunal to consider as part of the 2010 application in respect of which the officer states: … I have read through the land assessment report prepared by Ashley Prout and Associates, and in most parts I agree with the findings. The soils on the property do consist of proportions of poorly drained and seasonally wet and waterlogged soils. Any intensive agricultural enterprise on this block would require significant drainage works to ensure a healthy crop and economic returns whether perennial or annual horticulture. The block also appears to receive substantial run-off from adjacent water shedding landscapes. Further to this, it is generally considered by the Western Australian Department of Agriculture and Food that in the absence of specific guidance from an endorsed local planning strategy, 80 [hectares] should be the minimum lot size for a long-term sustainable, intensive agricultural use your block does not meet the criteria. … 52 The Tribunal agrees with the proposition that it is an abuse of process to seek to relitigate issues which have as a matter of substance already been determined in prior decisions and no significant change in circumstances has taken place. But has this issue as a matter of substance already been determined and is there a change of circumstances? 53 The respondent submitted that the evidence the applicant now wishes to put before the Tribunal was available in 2007 but was not obtained or (Page 14)
put forward. That may be correct. However, as has now been confirmed, the respondent also put no evidence forward in respect of that issue, although it had been central to its decision to refuse the application and the Tribunal was left to decide the matter with no evidence from either party in respect of that important issue. This should not have happened, particularly with a statutory body as a party. 54 In the circumstances the Tribunal finds that the issue of the agricultural capability of the land has not been decided as a matter of substance due to a lack of evidence from both sides in the 2007 hearing. 55 There is also a change of circumstances because at the hearing in 2007 the application had not been referred to the Department of Agriculture and Food when it should have been (and should be now) and as a result there was a lack of evidence by both parties, whereas in the present application evidence will be led on the issue by the applicant and the respondent is also likely to do so once the matter has been referred to the relevant department, which will then allow the Tribunal to come to the correct and preferable decision. 56 The Tribunal acknowledges that a failure to call evidence in an earlier matter and a willingness to call such evidence in a later matter is generally not a change of circumstances. However, the change of circumstances here is that in 2007 there was no evidence from either side before the Tribunal on an important matter while on this occasion there will be.
Conclusion 57 For those reasons and in the specific circumstances of this case, the Tribunal is not satisfied that the current application is an abuse of process. In 2007, due to the lack of input from the relevant departments and the lack of evidence by both parties the Tribunal was unable to finally determine the issue of land capability based on reliable evidence, the 2010 application should therefore be allowed to proceed to a final hearing. 58 That is not to say that the applicant will succeed on review, he may not, but that should be determined at a final hearing on the evidence put forward. 59 In the circumstances the question as to whether the application for review in the present case is an abuse of process pursuant to s 47 of the SAT Act is answered in the negative and the application to strike out the application for review is dismissed. (Page 15)
Orders |