Goedhart and Western Australian Planning Commission
[2006] WASAT 49
•28 FEBRUARY 2006
GOEDHART and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 49
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 49 | |
| STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) | |||
| Case No: | DR:35/2006 | 24 FEBRUARY 2006 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 28/02/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time granted | ||
| B | |||
| PDF Version |
| Parties: | TG & AG GOEDHART WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Practice and procedure Application for extension of time in which to commence an application for review 81 87 days out of time Delay due to accidents and illness suffered by aged applicant Arguable case despite general policy presumption against subdivision No prejudice Application for extension granted |
Legislation: | State Administrative Tribunal Rules 2004 (WA), r 9, r 10 Town Planning and Development Act 1928 (WA), s 24(5), s 26(1)(a)(iii) |
Case References: | Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Jackamarra v Krakouer and Anor (1998) 195 CLR 516 KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297 Nil |
Orders | 1. Pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA), the time for commencement of the proceedings is extended until 3 February 2006 provided that the applicants pay the prescribed fee for the commencement of the proceedings or the fee is waived by the executive officer by 14 March 2006.,2. The proceedings are listed for an initial directions hearing at 2 pm on 15 March 2006 at which the applicants may appear by telephone, by prior arrangement with the Tribunal, if they wish. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) CITATION : GOEDHART and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 49 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 24 FEBRUARY 2006 DELIVERED : 28 FEBRUARY 2006 FILE NO/S : DR 35 of 2006 BETWEEN : TG & AG GOEDHART
- Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Practice and procedure Application for extension of time in which to commence an application for review 81 87 days out of time Delay due to accidents and illness suffered by aged applicant Arguable case despite general policy presumption against subdivision No prejudice Application for extension granted
Legislation:
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
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Town Planning and Development Act 1928 (WA), s 24(5), s 26(1)(a)(iii)
Result:
Application for extension of time granted
Category: B
Representation:
Counsel:
Applicants : Mrs AG Goedhart in person by telephone
Respondent : Ms R Watts (public sector employee)
Solicitors:
Applicants : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 Mr and Mrs Goedhart applied for an extension of time in which to seek review of the decision of the Western Australian Planning Commission (Commission) to, in effect, endorse its earlier refusal of subdivision approval. The Tribunal decided to extend the time for the commencement of the proceedings.
2 Although the delay was considerable, serious illness and injuries suffered by Mr Goedhart during and leading up to the period in question provided a reasonable explanation for the delay. Mr and Mrs Goedhart have an arguable case for review despite the general presumption set out in the Commission's policy against subdivision of rural land unless specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy. It was conceded that the Commission would not suffer any serious prejudice by the granting of the extension.
Introduction
3 Mr and Mrs Goedhart have made an application pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) to extend the time for the commencement of an application for review of the decision of the Western Australian Planning Commission (Commission) in relation to reconsideration of its earlier decision to refuse subdivision approval. Section 26(1)(a)(iii) of the Town Planning and Development Act 1928 (WA) (TPD Act) creates a right of review by the Tribunal of a decision of the Commission in respect of a request for reconsideration. However, r 9 of the SAT Rules specifies that an application to the Tribunal in this review jurisdiction must be made within 28 days of the day on which the decisionmaker gives a notice to the person affected of the decision and of the right of review.
4 Rule 10 confers a discretion on the Tribunal to extend the period specified in r 9. Mrs Goedhart represented herself and her husband at the hearing of the application to extend time over the telephone. Ms Watts, an officer of the Commission, appeared on behalf of the Commission at the hearing and opposed the application.
5 On 16 November 2004, Mr and Mrs Goedhart applied to the Commission for approval to subdivide their 392 hectare property located
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- on the DudininKulin Road into two homestead lots of 202 hectares and 190 hectares, respectively.
6 By letter dated 22 February 2005, the Commission notified Mr and Mrs Goedhart of its decision made on 21 February 2005 to refuse the subdivision application for the following three reasons:
"1. The proposed subdivision is contrary to Commission Policy DC 3.4 Subdivision of Rural Land, a provision of Statement of Planning Policy No. 1 State Planning framework, by reason that:
(a) the further subdivision of this land has not been identified in a town planning scheme or an adopted Local Planning Strategy or Local Rural Strategy; and
(b) no evidence has been submitted to demonstrate that the land is capable of subdivision and associated development in the manner proposed.
2. The proposed subdivision is inconsistent with the 'Rural' zoning of the land, the principal purpose of which is to preserve its rural use and density of development. The subdivision, if permitted, would result in an unplanned breakdown of landholdings.
3. Approval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots."
7 The Commission appended two advice notes to its refusal, the first of which states that the proposed subdivision is inconsistent with the Commission's policy DC 3.4 Subdivision of Rural Land (Policy 3.4) which has a general presumption against the subdivision of rural land unless specifically provided for in an endorsed town planning scheme, local rural strategy or local planning strategy.
8 By letter dated 13 March 2005, received by the Commission on 17 March 2005, Mr and Mrs Goedhart made a request, in effect, pursuant to s 24(5) of the TPD Act for reconsideration of the decision to refuse subdivision approval. Mr and Mrs Goedhart provided further information. In particular, they provided a letter dated 28 February 2005 from the Chief Executive Officer of the Shire of Kulin to the Secretary of the
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- Commission and a letter from the development officer of the Department of Agriculture Narrogin District Office to the Goedharts.
9 The letter from the Shire stated, in part, as follows:
"The application has been refused as the subdivision of the land has not been identified in a town planning scheme, an adopted Local Planning Strategy or Local Rural Strategy. The Shire of Kulin adopted the existing Town Planning Scheme in 1999 and it is correct to say that there are no provisions specifically relating to Rural Homesteads or for this type of subdivision. The Council acknowledges this omission and intends to revise the scheme as soon as possible. I am sure you are aware that a revision of a town planning scheme is a very timeconsuming and costly process with the Shire of Kulin not in a position at the present time to proceed with such a revision."
10 The letter went on to indicate that the Shire has no objection to the proposed subdivision.
11 The letter from the Department of Agriculture states, in part, as follows:
"While obviously too small for the convention broad acre sheep and cropping enterprises in the area, there is no reason why [the proposed lots] should not be perfectly suitable for any one of a number of intensive agricultural industries, some of which already exist within the Narrogin District Office advisory district."
12 On 6 October 2005, almost six months after the request for reconsideration was made, the Commission endorsed its earlier decision and restated the same three reasons for refusal. The Commission's letter advised Mr and Mrs Goedhart that they had a right to seek review of the decision by the Tribunal and that any application for review should be lodged within 28 days.
13 The application to extend time and the draft application for review were filed on 3 February 2006.
Consideration of the application to extend time
14 As the Tribunal recognised in KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297, the discretion to extend time under r 10 of the SAT Rules is guided by four principal considerations, although the
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- range of considerations is not closed. The four principal considerations are the length of delay, the reasons for delay, whether there is an arguable case and the extent of prejudice to the respondent. The Tribunal will address each consideration in turn.
Length of delay
15 It is not clear when notice of the decision communicated in the Commission's letter dated 6 October 2005 was received. Mrs Goedhart indicated that it normally takes about three days for post to arrive from Perth to Kulin. In addition, there are only two postal deliveries per week to Mr and Mrs Goedhart's post box located approximately 1.5 kilometres from their house.
16 It is likely that the notice was not received by Mr and Mrs Goedhart until at least Tuesday 11 October 2005 and may have been received as late as Friday 14 October 2005. Assuming that the notice was received on 11 October 2005, the last day for filing an application for review within time was Tuesday 8 November 2005. If the notice was received on Friday 14 October 2005, the last day for filing an application for review within time was Monday 14 November 2005. The application to extend time and the draft application were, therefore, filed between 81 and 87 days out of time. The Tribunal accepts the Commission's submission that this is a considerable delay.
The reasons for delay
17 The reasons put forward by Mr and Mrs Goedhart for the delay are "inability to do so before due to three hospitalisations and home nursing in six months for prostrate [sic] operation that went wrong, followed by spinal and head injuries". At the Tribunal's request, Mrs Goedhart gave further details of the hospitalisation, nursing and injuries. She explained that her husband underwent a prostate operation in March 2005 which went "drastically wrong". The complications from the operation and hospitalisation compounded an existing clinical depression condition which is ongoing. Due in part to the operation and its aftermath, Mr Goedhart suffered serious injuries in July 2005 and January 2006. The most recent injury involved concussion and broken bones.
18 The Commission's only submission in relation to the reasons for delay is that the Goedharts have not provided medical certificates or details of the periods of hospitalisation, although this submission was originally put before Mrs Goedhart had provided details during the hearing.
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19 While no medical certificates were tendered, the Tribunal accepts the fact that Mr Goedhart suffered serious illness and injuries in the period leading up to and including the period in question. Mr Goedhart is aged 72. The Tribunal had the benefit of hearing Mrs Goedhart's recounting of the history. The Tribunal finds that Mr Goedhart's serious illness and injuries and Mrs Goedhart's understandable focus on her husband's condition amount to a reasonable explanation in the circumstances for that delay. It is to be noted that Mrs Goedhart is aged 71.
Whether there is an arguable case
20 The Commission submits that there is no arguable case for review, because of the general presumption in Policy 3.4 against subdivision of rural land unless specifically provided for in a local scheme, planning strategy or rural strategy and because the proposal is not consistent with the Commission's policy requirements for the creation of homestead lots or conservation lots.
21 The Tribunal finds that Mr and Mrs Goedhart have an arguable case for review. The threshold to establish an "arguable case" is not particularly onerous. In Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 540, Kirby J held as follows:
"The party seeking indulgence [of an extension of time] bears the burden of persuading the decisionmaker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile."
22 The subdivision application was refused by the Commission on merit grounds, although, in part, by reference to Policy 3.4 which is a provision of Statement of Planning Policy No 1 State Planning Framework. Although a relevant policy which has been adopted following public consultation, is soundly based and has generally been applied is likely to guide the exercise of discretion, it cannot replace the discretion. As Barker J held in Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 at [24]:
"In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given
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- force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach."
23 In their grounds in support of the application, Mr and Mrs Goedhart contend that the subdivision application satisfies all provisions of Policy 3.4 other than the general presumption against subdivision of rural land not provided for in a scheme, planning strategy or rural strategy. The Shire has no objection to the subdivision and regards the lack of provision for rural homestead subdivision on the land under its scheme as an "omission" which should be revised as soon as possible. The Department of Agriculture considers that the proposed lots would be suitable for intensive agricultural industries. Moreover, Mr and Mrs Goedhart consider that the reasons for refusal are inappropriate or incorrect on the merits of the application for a number of reasons.
24 Although a question at a final hearing of the proposed application for review might well be why the general presumption in Policy 3.4 should be departed from in the particular circumstances of the case, there is certainly an arguable case as to whether that should occur. Other than to find that the proposed application for review is arguable, the Tribunal cannot and does not express a view in this decision as to the merits.
Prejudice to the respondent
25 The Commission concedes that it would not suffer any serious prejudice if an extension were granted.
Exercise of discretion
26 The Tribunal must balance each of the considerations and findings recorded above in the overall exercise of discretion.
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27 Although the delay of between 81 and 87 days is considerable, the Tribunal's findings in relation to the other considerations are such that, in the circumstances of this case, the length of delay should not result in the refusal of leave. Mr Goedhart's serious illness and injuries were an understandable distraction for a couple aged in their 70s from filing the application for review within time. There is an arguable case for review of a merits decision, although one guided by Policy 3.4, in relation to which reasonable minds might differ. The Commission would suffer no serious prejudice if an extension of time were granted.
28 In these circumstances, the Tribunal considers that an extension of time is appropriate.
Orders
29 The Tribunal makes the following orders:
1. Pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA), the time for commencement of the proceedings is extended until 3 February 2006 provided that the applicants pay the prescribed fee for the commencement of the proceedings or the fee is waived by the executive officer by 14 March 2006.
2. The proceedings are listed for an initial directions hearing at 2 pm on 15 March 2006 at which the applicants may appear by telephone, by prior arrangement with the Tribunal, if they wish.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
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