GOLDRANGE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2016] WASAT 116
•27 SEPTEMBER 2016
GOLDRANGE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2016] WASAT 116
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 116 | |
| PLANNING AND DEVELOPMENT (LOCAL PLANNING SCHEMES) REGULATIONS 2015 (WA) | |||
| Case No: | DR:92/2016 | 27 JUNE 2016 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) MR P McNAB (SENIOR MEMBER) | 27/09/16 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application for an interim injunction dismissed | ||
| A | |||
| PDF Version |
| Parties: | GOLDRANGE PTY LTD GREENPARK ASSET PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Practice and procedure Injunctive relief Review proceedings Town planning Development application Respondent taking steps to consider town planning scheme amendment Practical effect of amendment to render nugatory scheduled review proceedings Application by applicant for urgent interim injunction pursuant to s 90 of the State Administrative Tribunal Act 2004 (WA) Application to enjoin respondent from considering scheme amendment Applicable principles Extent to which s 90 reflects doctrines of equity Injunction refused Tribunal holding insufficient connection with reviewable decision Administrative law prima facie permitted the making of scheme amendment even if merits review proceedings affected Adverse consequences for applicant could not expand Tribunal's jurisdiction Administrative decision of respondent a step towards legislative decision to amend scheme Administrative decision of respondent to amend scheme not a reviewable decision Restrictions on decisionmaker not to alter decision under review do not extend to separate administrative decision to amend scheme |
Legislation: | City of Wanneroo District Planning Scheme No 2 Metropolitan Region Scheme Planning and Development Act 2005 (WA) State Administrative Tribunal Act 2004 (WA), s 17, s 26, s 31, s 90, s 90(1) |
Case References: | Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97 Franco and City of Nedlands [2015] WASAT 39 JB Investments Pty Ltd and Valuer General [2006] WASAT 55 Madden and Shire of Broome [2007] WASAT 117; (2007) 54 SR (WA) 1 Re Rouss 116 NE 782 at 785 (1917) |
Summary | The applicant (Goldrange) sought urgent interim injunctive relief in the Tribunal. Goldrange had recently learnt that the respondent, the Western Australian Planning Commission (Commission), was preparing to meet one day before a scheduled review in the Tribunal to consider a proposal to amend the relevant town planning scheme. The amendment was very likely to be approved, and the effect of it would be in due course to render nugatory the Tribunal proceedings. In particular, one effect of the amendment was to remove any possibility of a 'shop use' being approved; this issue was one of the central, and long-standing, matters before the Tribunal.,There was authority from the highest court in Western Australia (the Court of Appeal) that a proposal to amend a scheme that had the practical effect of, or even intention of, halting proceedings in a tribunal was prima facie lawful. Here, the Tribunal considered that although the statutory injunctive powers conferred upon the Tribunal were very wide and directed to the vindication of the public interest in the maintenance of due administration, they were nevertheless referenced to (but not limited to) equitable principles, and not so wide as to avoid the requirement of a jurisdictional nexus with a 'reviewable decision'.,Although the Tribunal accepted that certain adverse consequences would necessarily follow from the Commission's expected approval of the amendment, the amendment decision before the Commission was not itself a reviewable decision and was not relevantly connected with the reviewable decision before the Tribunal. The decision sought to be enjoined was a quite separate administrative step towards a legislative outcome, namely a change in the law by a gazetted amendment to a town planning scheme.,The Tribunal also reasoned that consequences alone could not, in effect, directly or indirectly expand the jurisdiction of the Tribunal in relation to either the grant of an injunction or as to the limitations imposed upon a decisionmaker which prevented amendment of a decision once a review had been commenced. A reviewable decision (or a relevant connection therewith) was still needed to enliven the Tribunal's jurisdiction to restrain the Commission.,As the applicant had not made out its case for injunctive relief, the application was dismissed. Extempore reasons for the dismissal were given by the Tribunal. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT (LOCAL PLANNING SCHEMES) REGULATIONS 2015 (WA) CITATION : GOLDRANGE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2016] WASAT 116 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- MR P McNAB (SENIOR MEMBER)
- First Applicant
GREENPARK ASSET PTY LTD
Second Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Practice and procedure Injunctive relief - Review proceedings Town planning Development application Respondent taking steps to consider town planning scheme amendment - Practical effect of amendment to render nugatory scheduled review proceedings - Application by applicant for urgent interim injunction pursuant to s 90 of the State Administrative Tribunal Act 2004 (WA) - Application to enjoin respondent from considering scheme amendment - Applicable principles Extent to which s 90 reflects doctrines of equity - Injunction refused - Tribunal holding insufficient connection with reviewable decision - Administrative law prima facie permitted the making of scheme amendment even if merits review proceedings affected - Adverse consequences for applicant could not expand Tribunal's jurisdiction - Administrative decision of respondent a step towards legislative decision to amend scheme - Administrative decision of respondent to amend scheme not a reviewable decision - Restrictions on decisionmaker not to alter decision under review do not extend to separate administrative decision to amend scheme
Legislation:
City of Wanneroo District Planning Scheme No 2
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 17, s 26, s 31, s 90, s 90(1)
Result:
Application for an interim injunction dismissed
Summary of Tribunal's decision:
The applicant (Goldrange) sought urgent interim injunctive relief in the Tribunal. Goldrange had recently learnt that the respondent, the Western Australian Planning Commission (Commission), was preparing to meet one day before a scheduled review in the Tribunal to consider a proposal to amend the relevant town planning scheme. The amendment was very likely to be approved, and the effect of it would be in due course to render nugatory the Tribunal proceedings. In particular, one effect of the amendment was to remove any possibility of a 'shop use' being approved; this issue was one of the central, and long-standing, matters before the Tribunal.
There was authority from the highest court in Western Australia (the Court of Appeal) that a proposal to amend a scheme that had the practical effect of, or even intention of, halting proceedings in a tribunal was prima facie lawful. Here, the Tribunal considered that although the statutory injunctive powers conferred upon the Tribunal were very wide and directed to the vindication of the public interest in the maintenance of due administration, they were nevertheless referenced to (but not limited to) equitable principles, and not so wide as to avoid the requirement of a jurisdictional nexus with a 'reviewable decision'.
Although the Tribunal accepted that certain adverse consequences would necessarily follow from the Commission's expected approval of the amendment, the amendment decision before the Commission was not itself a reviewable decision and was not relevantly connected with the reviewable decision before the Tribunal. The decision sought to be enjoined was a quite separate administrative step towards a legislative outcome, namely a change in the law by a gazetted amendment to a town planning scheme.
The Tribunal also reasoned that consequences alone could not, in effect, directly or indirectly expand the jurisdiction of the Tribunal in relation to either the grant of an injunction or as to the limitations imposed upon a decisionmaker which prevented amendment of a decision once a review had been commenced. A reviewable decision (or a relevant connection therewith) was still needed to enliven the Tribunal's jurisdiction to restrain the Commission.
As the applicant had not made out its case for injunctive relief, the application was dismissed. Extempore reasons for the dismissal were given by the Tribunal.
Category: A
Representation:
Counsel:
First Applicant : Mr P McQueen
Second Applicant : Mr P McQueen
Respondent : Ms C Ide
Solicitors:
First Applicant : Lavan Legal
Second Applicant : Lavan Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97
Franco and City of Nedlands [2015] WASAT 39
JB Investments Pty Ltd and Valuer General [2006] WASAT 55
Madden and Shire of Broome [2007] WASAT 117; (2007) 54 SR (WA) 1
Re Rouss 116 NE 782 at 785 (1917)
Introduction
1 This matter comes before the Tribunal by way of an application made on 24 June 2016 by the first applicant, Goldrange Pty Ltd and the second applicant, Greenpark Asset Pty Ltd (Goldrange and Greenpark and, for convenience of reference together, the applicant) for injunctive relief under s 90 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The applicant sought to enjoin the respondent, the Western Australian Planning Commission (Commission) from considering a particular agenda item at a meeting of the Commission on 28 June 2016.
2 The effect of the application, if granted, would be to prevent the Commission from recommending the approval of an amendment to a town planning scheme which, if subsequently approved by the Minister for Planning, would remove altogether the possibility of a particular land use, a matter due to be agitated in the Tribunal on 29 June 2016. The parties agreed that if the amendment were to be eventually gazetted (which seemed likely), then the practical effect on the Tribunal's review would be to render the proceedings irrelevant.
3 Precise knowledge, or confirmation, of the date of the Commission's meeting (and what was on the agenda) came about because of material transparently filed by the Commission in the Tribunal's review process.
4 The application was heard urgently on 27 June 2016, and the Tribunal's decision to refuse the application for injunctive relief was pronounced immediately at the conclusion of the hearing. Because of the urgency of the hearing and the need to decide the application prior to an expected meeting of the Commission the following morning at 9 am, the Tribunal's reasons for its decision were delivered extemporaneously. In the circumstances, they were necessarily truncated. However, the applicant was then given an opportunity to seek clarification of any aspect of the Tribunal's reasons.
5 Even though the applicant's counsel confirmed that the applicant understood the central tenets of the Tribunal's reasons, the Tribunal considers that those reasons should be published in an edited and revised form, including the citation of relevant authorities, given the importance of the issues raised. These are those reasons.
Background
6 Although this matter has an extensive history before the Tribunal, it is unnecessary to set out those proceedings in detail for the purpose of these reasons. It will, however, be necessary to set out some of the planning history and the complex planning framework.
7 None of this is in dispute between the parties. Therefore the material that follows is largely derived from an affidavit of Mr Raymond John Jackson, a director of both Goldrange and Greenpark, dated 24 June 2016 and tendered by the applicant in support of its application. The parties agree that the relevant facts are accurately set out in that affidavit.
8 The applicant owns Lot 810 and Lot 811 Drovers Place (Goldrange Lot 810 and Greenpark Lot 811), Wanneroo. Lot 810 and Lot 811 are both zoned 'Urban' under the Metropolitan Region Scheme (MRS) and 'Urban Development' under the City of Wanneroo District Planning Scheme No 2 (DPS 2). The first structure plan for Drovers Place, Drovers Place Precinct Local Structure Plan No 47 (LSP 47), was adopted in 2007 and since that time further changes to LSP 47 have been undertaken.
9 LSP 47, as amended from time to time since then, was then replaced by the Drovers Place Precinct Local Structure Plan No 80 (ASP 80) which was adopted by the Commission on 10 July 2012 and adopted by the City of Wanneroo (City) on 24 August 2012.
10 Lots 810 and Lot 811 are contained within the Central Precinct of ASP 80.
11 Lot 810's uses include a 'growers mart' (comprising meat, fruit and vegetable, bakery and fishmonger outlets), restaurant, veterinary clinic, and pet food supplies. Lot 811's uses include showrooms, retail nursery and restaurant, large formal liquor outlet, child play centre and gymnasium. A medical centre and pharmacy are under construction (with completion due at the end of July 2016) and a carwash has also been approved for the development on Lot 810.
12 The City has recognised the status of the existing development at Lot 810 and Lot 811 as an 'Out of Centre' development in Local Planning Policy 3.2: Activity Centres.
Amendment to ASP 80
13 On 22 November 2012 the applicant lodged with the City a proposed amendment (Amendment 2) to ASP 80 proposing, amongst other things, that the zoning for Lot 810 and Lot 811 in ASP 80 be changed to 'Commercial' with additional uses.
14 The amendment documents underwent a number of revisions at the request of the City. Aspects of Amendment 2, which are not relevant to this proceeding, were taken out of Amendment 2 and progressed separately. Those aspects became proposed Amendment 3 and the remainder of Amendment 2, with modifications made at the request of the City, became proposed Amendment 4 (Amendment 4).
15 At its meeting on 14 October 2014, the City resolved that Amendment 4 was satisfactory, subject to modifications, and on 21 October 2014 the applicant applied to the Tribunal for a review of that decision. The injunction application, however, is not brought in respect of those proceedings.
16 Following an order made by the Tribunal under s 31 of the SAT Act, the City, at its meeting on 10 November 2015, reconsidered its decision and resolved to recommend that the Commission approve Amendment 4 subject to some modifications, including some limited shop use.
17 The City forwarded a report on Amendment 4 with those modifications to the Commission on 16 November 2015. The Commission considered the proposed modified Amendment 4 on 22 March 2016 and resolved that the proposed amendment be further modified by deleting those additional uses for Lot 810 and Lot 811which had been accepted by the City (including the limited shop use for Lot 810 and Lot 811).
18 This decision by the Commission in respect of Amendment 4 is the subject of the review application made by the applicant on 5 April 2016, DR 92 of 2016, which is the substantive matter currently before the Tribunal.
Amendment 150
19 Following a number of directions hearings before the Tribunal, proceeding DR 92 of 2016 was listed for a final hearing over three days, to commence on 29 June 2016 (Final Hearing).
20 In the meantime, the Statutory Planning Committee (SPC), the effective executive decision-maker of the Commission, had before it a town planning scheme amendment (Amendment 150). The effect of Amendment 150, if approved by the SPC, and then the relevant Minister, would, it seems, be to revoke ASP 80 and the contested amendments to it. Certainly, one effect of Amendment 150 was to remove any possibility of a 'shop use' being approved, which is one of the central matters before the Tribunal in DR 92 of 2016.
21 Importantly, both parties agreed that the proceedings in DR 92 of 2016 would be rendered nugatory, from a practical point of view, if Amendment 150 were to be approved by the Minister and then gazetted.
22 At a directions hearing held on 8 April 2016 in DR 92 of 2016, before Parry DCJ, the Commission requested that the Tribunal adjourn the proceedings until after the SPC had made a decision in respect of Amendment 150. The applicant opposed the requested adjournment on the basis that the issues around Amendment 4 to ASP 80 were highly relevant to the SPC's consideration of Amendment 150, and that an adjournment would be prejudicial to the outcome of the Tribunal's determination.
23 The Tribunal noted that the parties accepted there would be potential prejudice to the applicant in adjourning the Tribunal proceedings and refused the application. The Tribunal confirmed that the Final Hearing would proceed as then programmed.
24 On or around 17 June 2016, the applicant became aware that a meeting of the Commission was to take place one day before the commencement of the Final Hearing (on 28 June 2016), at which Amendment 150 was to be considered by the SPC. The applicant considered that it was likely that following that meeting the SPC would make a recommendation to the Minister to approve Amendment 150.
25 The applicant subsequently, on 24 June 2016, applied for injunctive relief under s 90 of the SAT Act to restrain the SPC from approving or recommending the approval of Amendment 150 at its 28 June 2016 meeting. It is that application, heard on 27 June 2016, which is the subject of the Tribunal's decision and these reasons.
The application for an interim injunction
26 The order sought as set out in the application for an interim injunction is as follows:
An urgent interim injunction pursuant to section 90 of the SAT Act restraining the respondent and the respondent's SPC from considering the Agenda Item 11.4 at its meeting on 28 June 2016 the Scheme Amendment 150 to the City of Wanneroo District Planning Scheme No 2 or making any consideration of or recommendation to the Minister for Planning in respect of Amendment 150 unless and until further ordered by the Tribunal.
27 The grounds for seeking the interim injunction are set out in the application as follows:
1. Amendment 150 is a matter under consideration by the Tribunal in respect of DR 92 of 2016 (relating to Amendment 4 of the City's ASP80).
2. The intended consideration of Amendment 150 by the [Commission's] SPC and likely adoption of the Agenda report recommendation attempts to pre-determine and seriously prejudice the fair determination of the issue by the Tribunal in DR 92 of 2016.
3. A decision by the [Commission] on Amendment 150 will seriously prejudice the applicant's right to a fair hearing of the merits of the applicant's case.
4. Apprehension of bias on the part of the [Commission].
5. Denial of procedural fairness by the [Commission].
Statutory provisions interim injunctions
28 Section 90 of the SAT Act provides as follows:
Interim injunctions, granting of
(1) The Tribunal may by order grant an interim injunction in any proceeding if it is just and convenient to do so.
(2) The Tribunal's power to make an order under subsection (1) is exercisable by a judicial member.
(3) The Tribunal may make the order on the application of a party or on its own initiative.
(4) An interim injunction may be granted whether or not a person whose interests may be affected
(a) is a party; or
(b) has been given an opportunity to be heard.
(5) An interim injunction may be granted
(a) in any case for a specified period; and
(b) if granted on the application of a party for the period up to the final determination of that application.
(6) In granting an interim injunction, the Tribunal
(a) may require an undertaking as to costs or damages as it considers appropriate; and
(b) may provide for the lifting of the injunction if specified conditions are met.
(7) The Tribunal may assess any costs or damages referred to in subsection (6)(a) and any amount so assessed is a debt recoverable in a court of competent jurisdiction.
(8) The rules may place conditions on the Tribunal's power to grant an interim injunction.
(9) The Tribunal's power under this section is in addition to, and does not limit, any power of the Tribunal under the enabling Act to make an order in the nature of an injunction.
Principles to be applied in granting injunctive relief
29 We note that in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, Gaudron J observed:
[104] As appears from Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [(1998) 194 CLR 247 at 257-258], equitable remedies have a continuing role in public and administrative law. And in those areas, 'equity has proceeded on the footing of the inadequacy (in particular the technicalities hedging the prerogative remedies) of the legal remedies otherwise available to vindicate the public interest in the maintenance of due administration' …
30 The Tribunal's power to award an interim injunction derives entirely from statute, and the Tribunal has no inherent equitable jurisdiction: Madden and Shire of Broome[2007] WASAT 117; (2007) 54 SR (WA) 1 (Madden). Nevertheless, equitable principles will still be relevant to the exercise of the Tribunal's injunctive powers. Thus, the test to be applied under s 90(1) of the SAT Act is whether it is 'just and convenient' for the injunction to be issued. In considering this test, Barker J held in Maddenat [26] [27] (emphasis added):
[26] It is usual to say when an interlocutory injunction is sought in court proceedings, as in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, that there are a number of principles that normally have to be established to get the injunction. The first is that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability at the trial of the action that the plaintiff will be entitled to relief; secondly, that the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless the injunction is granted; and thirdly that the balance of convenience favours the granting of an injunction.
[27] Those principles were laid down in the context of the principles governing the grant or refusal of interlocutory injunctions in private law litigation. They have also been applied in constitutional cases. Those principles are not entirely relevant in an administrative review context where the Tribunal has a statutory power to grant an interim injunction. However, they provide some guidance to the exercise of the statutory power in an administrative review context.
31 Gleeson CJ and Crennan J observed in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 that (emphasis added):
[19] [I]n all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed…
32 Their Honours' mention of 'justice and convenience' is, of course, mirrored in s 90(1)'s reference to 'just and convenient', indicating, we think, the importance of having appropriate regard to equitable principles.
33 In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199, Gleeson CJ stated:
[8] When a plaintiff applies to a court for an interlocutory injunction, the first question counsel may be asked is: what is your equity?
34 In our view, that question may still be properly asked in proceedings invoking s 90 of the SAT Act, bearing in mind however that the Tribunal is required ultimately to exercise its statutory powers broadly, in effect 'to vindicate the public interest in the maintenance of due administration' in connection with matters the Tribunal has jurisdiction to deal with.
35 An example of the width of the Tribunal's powers may be found in Franco and City of Nedlands [2015] WASAT 39 (Franco). There, the Tribunal (constituted by Parry DCJ) enjoined a local government from considering a rescission resolution, the effect of which, if passed, would have been to reverse a planning approval given following mediation and a statutory invitation to the local government under the SAT Act to reconsider its original planning decision. The Tribunal said:
[15] In my view, it is just and convenient to grant an interim injunction as sought by the applicant in the circumstances of this case until further order and, in particular, until there is an opportunity for a determination of a foreshadowed application for a declaration by the applicant pursuant to s 91 of the SAT Act that the Council may not lawfully revoke its substituted decisions made pursuant to s 31 of the SAT Act … to grant conditional development approval to the proposed developments and cannot lawfully set aside the substituted decisions and substitute new decisions unless one of the circumstances set out in … s 26 of the SAT Act applies.
[16] … In relation to the question of whether there is a serious question to be tried or whether there is a prima facie case established in the sense that, if the evidence remains as it is, there is a probability that at the hearing of the application for the foreshadowed declaration, the applicant will be entitled to relief in the form of the declaration, I am satisfied that there is a serious question to be tried and that there is a prima facie case. I note that [counsel] quite properly conceded so much in his submissions …
36 In respect to the second 'organising principle' (that is, the 'balance of convenience'), the Tribunal said this:
[29] In relation to the balance of convenience, or, as it is sometimes referred to the balance of the risk of doing an injustice, the City submits that there is no substantial injustice to the applicant.
… [Counsel] submits that there is no guarantee that the revocation would be successful. Furthermore, [counsel] submits that if the revocation were successful, the applicant could challenge the lawfulness of the revocation, whether in this Tribunal or in the Supreme Court, and, furthermore, that the applicant would not lose the right to seek review before the Tribunal and that the Tribunal could grant development approval to the applicant even if the City resolves, in effect, to revoke its decisions to grant development approval to him.
[30] In my view, the balance of convenience lies firmly in favour of granting an injunction to restrain the City from revoking its decisions.
…
[32] I accept that there is potentially significant detriment to the applicant if the revocation motion is considered and if the decisions made … are revoked.
[33] It appears, as matters currently stand, that the applicant has the benefit of development approvals granted to it by the City, pursuant to s 31 of the SAT Act. Importantly, that follows significant litigation, not only in these proceedings, but in previous applications for review brought by the applicant before the Tribunal.
37 We will return to Franco below.
Applicant's contentions
38 The applicant says that it is currently the case that a 'shop use' can be approved as an 'additional use' and that the applicant could therefore be successful before the Tribunal in DR 92 of 2016. The applicant argues (in effect partially answering the query: 'What is your equity?'), that if the meeting of the Commission is not stayed and a decision is made to recommend to the Minister that Amendment 150 is approved, that would deny the applicant its right to a hearing in DR 92 of 2016; T:9: 27.06.16. (Further details of the alleged prejudice that would consequently flow to the applicant are set out below.)
39 The applicant's counsel, Mr McQueen, properly conceded that the decision of the Court of Appeal in Carcione Nominees Pty Ltd v Western Australian Planning Commission[2005] WASCA 56; (2005) 30 WAR 97 (Carcione) would appear to be, on its face, problematic for his case.
40 The facts in Carcione are similar to the facts in this case, although there the applicants were applying for the prerogative writs of certiorari and mandamus against the Commission and the Minister for Planning. The applicant sought to quash decisions recommending or supporting changes to the zoning of the applicant's land. The effect of the rezoning, if approved, would be to defeat the applicant's development application appeal to the then Town Planning Appeals Tribunal. Along the way, the following events are recorded by the Court (Murray, Steytler and McKechnie JJ, emphasis added):
[25] On 25 May 2004, the Council, then being aware of the appeal [to the Tribunal], resolved to proceed with Amendment No 4.
[26] The applicants thereupon applied to the Supreme Court [in separate proceedings] for an order nisi for a writ of certiorari quashing the decision of the Council initiating Amendment No 4, upon the grounds that this decision had been made without the Council being aware of the appeal or for an improper purpose. The application came before Barker J. He dismissed it on 1 June 2004. He said that, if the Council was under a misapprehension in that it was unaware that a planning appeal had been lodged, that was a misapprehension as to a question of fact which did not bear upon the Council's power to resolve to amend its Scheme. He also said that the existence of the appeal seemed to him to have been 'totally irrelevant' to the question of whether or not the Council was entitled to initiate an amendment to the Scheme as it did.
…
[43] [The] City and the Minister applied to defer the Tribunal's determination of the appeal until after [these further] Supreme Court proceedings had been determined. Having heard further evidence as to the current position of each of the Minister, the Department and [the Commission], and having heard submissions from all parties in that regard, the Tribunal declined to stay its own proceedings. That decision provoked an application by the Minister, the Department and [the Commission] for an order enjoining the determination of the appeal by the Tribunal until after the hearing and determination of these proceedings or until further order. An order in those terms was made by [the] Supreme Court…
41 In relation to the claims against the Commission, the Court of Appeal considered whether the respondent failed to take into account relevant matters and thereby misconstrued its statutory function, whether it acted for an improper purpose or took into account an irrelevant consideration, acted in breach of the rules of natural justice in failing to have regard to relevant matters and whether its decision was unreasonable or irrational in the circumstances; Carcione at [49].
42 In particular, the Court of Appeal considered whether the Commission should have had regard to a pending decision of the Town Planning Appeals Tribunal on an appeal of the matter under consideration (Carcione at [85] [86]) and whether the purpose of the decision was to deliberately stultify that appeal (Carcione at [88] [91]). The Court said (emphasis added):
[89] While it may be that the Planning Commission believed that its recommendation, if acted upon by the Minister, would effectively result in the dismissal of the applicants' appeal to the Tribunal, this does not mean that its decision to make the recommendation was taken for an improper purpose. The point is illustrated by what was said by Brinsden J in Bonton Pty Ltd v City of South Perth [1982] WAR 213 [at 219-220]:
… I have also no doubt the city desires to prevent the plaintiff's appeals to the Tribunal reaching a satisfactory conclusion from the plaintiff's point of view, and to further that aim is prepared to do what it can to make certain that at the time the Tribunal is called upon to give its decision on the merits there will be in lawful existence a blanket prohibition in the form of [a further] Amendment … But to accept all that does not require the conclusion that the city's true or dominant purpose in participating in the events leading up to the gazettal of [the second] Amendment … was to avoid appellate decisions which would not be inhibited by a blanket height restriction. In my view the city's dominant purpose at all times … has been to achieve blanket control for an indefinite period of time in respect of the height of buildings in the affected area …
[90] By analogy of reasoning, it seems to us that a decision, genuinely based upon proper planning considerations, to recommend that the Minister should approve a scheme amendment, even if hastily made in order to avoid the possibility that a pending decision of the Tribunal will result in the approval of a development which is seen to be inimical to proper planning principles, could not be said to be made in bad faith or to take into account an irrelevant consideration.
[91] We should also reiterate that, in the application which was made before him on 1 June 2004 [see above], Barker J regarded the fact that there was an appeal pending in the Tribunal against a deemed refusal as having been totally irrelevant to the question whether or not the Council was entitled to initiate an amendment to the scheme as it did.
43 Thus, the applicant in Carcione failed to make good any of its contentions. However, the applicant here says that Carcione was decided prior to the enactment of the SAT Act and no longer has relevance: T:18; 27.06.16.
44 Instead, the applicant says that the foundation of its application for an interim injunction is s 90 of the SAT Act and the words 'just and convenient' which appear in that section. The applicant says that the Tribunal has previously refused the Commission's application to adjourn the final hearing to a date after the Minister's decision on the basis that it would be unfair to the applicant. However, Mr McQueen properly repudiated any suggestion that 'unfairness' by itself would justify the applicant's application.
45 Further, the applicant had prepared for the final hearing and had engaged solicitors to have conduct of the matter. Retail and planning experts (including a retail expert from the eastern states) had been instructed to file statements of expert evidence and arrangements had been made for expert conferrals and lodgement of joint expert statements. The applicant was ready to proceed with the Final Hearing listed to commence on 29 June 2016 and had incurred costs in preparing for that hearing. For present purposes, all this may be accepted.
46 We have already set out above our views as to s 90's purpose and effect. Those views appear to run counter to any radical expansion of s 90 which is, in effect, being suggested here by the applicant. The obvious intention of s 90 is to ensure that the Tribunal has, in its particular administrative law context, adequate power to protect, in an appropriate case, its own processes and jurisdiction, and the associated rights of the parties. That injunctive power is, as we indicated above, clearly referenced to, but not necessarily limited by, well-established principles found mainly in the doctrines of Equity.
47 The mere coming into existence of s 90 cannot diminish, for example, the persuasive observations of Barker J on the injunction application referred to in Carcione where the Court endorsed the view, at [91], that an 'appeal pending in the Tribunal … [was] totally irrelevant to the question whether or not the [statutory decision-maker] was entitled to initiate an amendment to the scheme[.]'
The applicant's argument under s 26 of the SAT Act
48 In the alternative, the applicant points out that under s 26 of the SAT Act, a decisionmaker cannot vary a decision or set it aside once an application for review of that decision has been lodged. Section 26 of the SAT Act provides as follows:
26. After review commenced, decision-maker's powers restricted
After the commencement of a proceeding for the review of a decision the decisionmaker cannot
- (a) vary the decision; or
(b) set aside the decision and substitute its new decision,
unless
(c) that is permitted by the enabling Act; or
(d) the parties to the proceeding consent; or
(e) the decisionmaker is invited under section 31 to reconsider the decision.
17. What comes within review jurisdiction
(1) If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
(2) A matter referred to the Tribunal under section 44(3) comes within the Tribunal's review jurisdiction.
(3) Where subsection (1) or (2) applies the decision is a reviewable decision for the purposes of this Act.
51 The first answer to the applicant's contentions is that the decisions of the Commission that we were invited to enjoin are plainly not themselves 'reviewable decisions' under the relevant enabling Act, namely the Planning and Development Act 2005 (WA) (PD Act). Nor are these decisions relevantlyconnected with the reviewable decision that is before the Tribunal. This is in large measure because they are quite separate administrative steps towards a legislative outcome under the PD Act; that is, a change in the law by a gazetted amendment to a town planning scheme. The restraint that s 26 effects is predicate upon there being a 'reviewable decision'. In any case, as counsel for the Commission points out, a change in the scheme does not, of itself, alter the fact of the existence of the decision under review or its current status.
52 We accept that those decisions are likely to have consequential effects that are adverse, perhaps seriously adverse, to the applicant's interests and affect the status, if not the outcome, of the Tribunal's scheduled review. However, as was observed in JB Investments Pty Ltd and Valuer General [2006] WASAT 55, '[c]onsequences cannot alter statutes, but may help to fix their meaning' (at [66], citing Cardozo J Re Rouss 116 NE 782 at 785 (1917)). 'Consequences' cannot in effect expand the Tribunal's jurisdiction either directly (as to its powers of review, including s 26) or indirectly (as to the exercise of its statutory injunctive powers under s 90) merely because a reviewable decision is affected by other related, but apparently lawful, administrative acts under the same enabling Act. Carcione demonstrates that unless there was evidence of, say, administrative bad faith (and that suggestion has not, of course, been made here), then what the Commission proposes to do in changing a scheme is prima facie lawful, even if it affects merits review elsewhere. Such a position makes it difficult to sustain the applicant's case to preserve the status quo in relation to the matter before the Tribunal, and neither s 26 nor s 90 of the SAT Act, whether considered separately or together, can overcome these difficulties. Even if our jurisdiction permitted a collateral attack on the proposed amendment (and our inability to quash any instrument may be additionally problematic), Carcione would also appear to be a complete answer to such proceedings.
53 In contrast, in Franco,there was found by the Tribunal to be 'a probability' that the applicant would make out its case at the hearing for a declaration sought in the Tribunal to the effect that the decisionmaker could not lawfully revoke its substituted decisions made pursuant to s 31 of the SAT Act and could not lawfully set aside those decisions unless s 26 of the SAT Act authorised the same (which, in Franco, was not indicated). Section 26 of the SAT Act was invoked in Franco where the affected decision itself attracted the operation of the section; here, as we have indicated above, there is no relevant reviewable decision that can attract s 26's operation.
Disposition and final orders
54 Given our clear conclusions reached above, it is unnecessary to go on to consider other aspects of the exercise of our discretion connected with the grant of an injunction. The applicant has not made out the central planks of its case for injunctive relief and we would, for the reasons given above, dismiss the application.
55 The orders of the Tribunal are:
1. The application under s 90 of the State Administrative Tribunal Act 2004 (WA) is dismissed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT