Govardhan and Town of Vincent
[2008] WASAT 273
•21 NOVEMBER 2008
GOVARDHAN and TOWN OF VINCENT [2008] WASAT 273
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 273 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:372/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 20/11/08 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Determination of Tribunal in DR 12 of 2008 affirmed | ||
| B | |||
| PDF Version |
| Parties: | GOVINDA GOVARDHAN TOWN OF VINCENT |
Catchwords: | Review by judicial member of determination of Tribunal upon a matter involving a question of law Town planning Small bar Car parking shortfall Cash-in-lieu Finding by Tribunal that, in the circumstances, it would be inconsistent with orderly and proper planning for a private development to monopolise public car parking spaces Whether finding manifestly unreasonable Finding reflected planning principle previously endorsed by Tribunal Adequacy of reasons Procedural fairness Tribunal requested applicant to provide limited number of photographs, permitted respondent to comment, but did not invite applicant to comment Interpretation of parking policy |
Legislation: | Planning and Development Act 2005 (WA), s 244, s 252(1) State Administrative Tribunal Act 2004 (WA), s 3(1), s 9(b), s 11, s 31, s 32(1), s 32(4), s 77 s 77(1) |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Carcione Nominees Ltd v Western Australian Planning Commission [2005] WASCA 56 Govardhan and Town of Vincent [2008] WASAT 196 Randall and Town of Vincent [2005] WASAT 129 Re Minister for the Environment; Ex parte Elwood & Anor [2007] WASCA 137 |
Orders | 1. The application for review is dismissed.,2. The determination of the Tribunal made on 26 August 2008 in proceedings DR 12 of 2008 is affirmed. |
Summary | Mr Govinda Govardhan sought review by a judicial member of the Tribunal's decision to refuse to grant development approval for a 'Small Bar'. The proposed development generated a requirement for 11 on-site car parking spaces. As the existing building on the site cannot accommodate any on-site car parking, Mr Govardhan proposed that he should pay cash-in-lieu of on-site car parking.,The president determined that Mr Govardhan's grounds for review raised questions of law. However, the Tribunal did not err in law in its determination. In particular, it was reasonably open to the Tribunal to determine that it would be contrary to orderly and proper planning to enable the proposed development to 'monopolise' presently available public car parking spaces. It was reasonably open to conclude that some, or all, of the parking shortfall needs to be provided on-site and that the physical inability of the site to accommodate any of the required car parking bays warranted refusal of the development application in its entirety.,The application for review was dismissed and the decision of the Tribunal was affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : GOVARDHAN and TOWN OF VINCENT [2008] WASAT 273 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 21 NOVEMBER 2008 FILE NO/S : DR 372 of 2008 BETWEEN : GOVINDA GOVARDHAN
- Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Review by judicial member of determination of Tribunal upon a matter involving a question of law - Town planning - Small bar - Car parking shortfall - Cash-in-lieu - Finding by Tribunal that, in the circumstances, it would be inconsistent with orderly and proper planning for a private development to monopolise public car parking spaces - Whether finding manifestly unreasonable - Finding reflected planning principle previously endorsed by Tribunal - Adequacy of reasons - Procedural fairness - Tribunal requested applicant to provide limited number of photographs, permitted respondent to comment, but did not invite applicant to comment - Interpretation of parking policy
(Page 2)
Legislation:
Planning and Development Act 2005 (WA), s 244, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 9(b), s 11, s 31, s 32(1), s 32(4), s 77 s 77(1)
Result:
Application for review dismissed
Determination of Tribunal in DR 12 of 2008 affirmed
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : McLeods
Respondent : Town of Vincent
Case(s) referred to in decision(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Carcione Nominees Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97
Govardhan and Town of Vincent [2008] WASAT 196
Randall and Town of Vincent [2005] WASAT 129
Re Minister for the Environment; Ex parte Elwood & Anor [2007] WASCA 137
(Page 3)
Summary of judicial member's decision
1 Mr Govinda Govardhan sought review by a judicial member of the Tribunal's decision to refuse to grant development approval for a 'small bar'. The proposed development generated a requirement for 11 on-site car parking spaces. As the existing building on the site cannot accommodate any on-site car parking, Mr Govardhan proposed that he should pay cash-in-lieu of on-site car parking.
2 The President determined that Mr Govardhan's grounds for review raised questions of law. However, the Tribunal did not err in law in its determination. In particular, it was reasonably open to the Tribunal to determine that it would be contrary to orderly and proper planning to enable the proposed development to 'monopolise' presently available public car parking spaces. It was reasonably open to conclude that some, or all, of the parking shortfall needs to be provided on-site and that the physical inability of the site to accommodate any of the required car parking bays warranted refusal of the development application in its entirety.
3 The application for review was dismissed and the decision of the Tribunal was affirmed.
Application for review by judicial member
4 Mr Govinda Govardhan has applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by a judicial member of a determination made by the Tribunal on 26 August 2008 in which the Tribunal refused to grant development approval for a 'small bar' at No 560 Beaufort Street, Mount Lawley (site) see Govardhan and Town of Vincent[2008] WASAT 196. As discussed further below, the Tribunal refused Mr Govardhan's development application because the proposed development generated the need for a further 11 on-site car parking bays, but provided none, and a cash-in-lieu contribution was not considered to be appropriate.
5 Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Mr Lloyd Graham, who is not a legally qualified member.
(Page 4)
Background
6 On 19 September 2007, Mr Govardhan applied to the Town of Vincent (Town or Council) for development approval for the change of use of the site from 'Recreation Facility' (pool hall) to 'Tavern'.
7 On 18 December 2007, the Council refused to grant development approval.
8 On 15 January 2008, Mr Govardhan applied to the Tribunal for review of the Council's decision under s 252(1) of the PD Act. The application to the Tribunal identified Mr Terry Tyzack as Mr Govardhan's agent in the proceedings. Mr Tyzack is an experienced architect and was, for many years, a councillor and mayor of a metropolitan local government.
9 Between January 2008 and March 2008, the parties engaged in a mediation process, facilitated by a Tribunal member, which resulted in the revision of the proposed development from 'tavern' to 'small bar' and an invitation by the Tribunal to the Council to reconsider its decision under s 31 of the SAT Act. The Council confirmed its refusal of the development application.
10 On 9 April 2008, the Tribunal conducted a directions hearing at which Mr Govardhan was represented by Mr Tyzack. At the directions hearing, the Tribunal ordered that the matter be determined wholly upon the documents in accordance with and subject to programming orders also made on that day. The programming orders required the parties to file statements of issues, facts and contentions, documents, witness statements, submissions, and submissions in reply. The final order contemplated that a view of the site would be arranged as soon as practicable and that the matter would become a reserved decision of the Tribunal upon the receipt of the last document filed in accordance with the orders.
11 Documents required by the Tribunal's orders made on 9 April 2008 were filed on 23 April 2008, 7 May 2008, 21 May 2008 and 27 May 2008. The documents included a witness statement from Ms Susannah Kendall, a heritage/planning officer employed by the Town, which attached some photographs of the site.
(Page 5)
12 In accordance with s 11 of the SAT Act, the Tribunal was constituted by Senior Sessional Member Graham for the purpose of determining the application. Mr Graham did not undertake a view of the site, but rather requested some photographic evidence. In a letter dated 1 August 2008 to Mr Tyzack, copied to the Town, the Tribunal stated as follows:
Colour photographs are sought of:
1. The current Curry House (inside and out, indicating general lay-out etc).
2. General photographs of the streets in the immediate vicinity which are likely to serve the proposed development.
3. The public car park at the corner of Barlee St and Beaufort St to the north (preferably taken during the lunch hour, say on a Friday) also showing parking restrictions etc.
4. Some photos of the actual parking signs to show parking restrictions in both Clarence St and Harold St, including directly opposite Forrest Park in Harold Street.
Please limit the photographs to no more than say 12, noting the dates and the approximate times of their taking.
Please file them with the Tribunal at your earliest convenience.
A copy of the photographs supplied to the Tribunal must be, of course, lodged also with the Town, who may choose to respond or comment upon them…
13 On 11 August 2008, Mr Tyzack wrote to the Tribunal enclosing the photographs requested in the letter dated 1 August 2008. Mr Tyzack's letter included the following:
We apologise for exceeding the maximum 12 photographs suggested in your letter, however we deemed that the 16 provided were the minimum necessary to adequately address your request.
14 Mr Tyzack confirmed that the photographs were provided to the Town.
15 On 26 August 2008, Senior Sessional Member Graham delivered a written decision.
16 At [35] - [43] of the reasons for decision, the Tribunal set out relevant extracts from the Town's Parking and Access Policy (Policy 3.7.1). Policy 3.7.1 states that 'on-site parking is to be provided at a rate that adequately meets
(Page 6)
- the demand generated by a particular use or activity as determined by the [Town]' (see [35]). Policy 3.7.1 also states that the Town 'may accept money for [a] shortfall [of on-site parking] to provide and/or upgrade parking bays in a nearby existing or proposed public parking facility, including on-street parking where appropriate', although:
This policy provision is not to be seen to be replacing the developer's responsibility to provide on-site parking, but rather as a mechanism to enable otherwise desirable developments, for which the full amount of parking cannot be provided on-site, to proceed. The provision of an adequate supply of parking is the intent of this provision and, as such, the following matters apply:
(i) cash-in-lieu provisions are only to be permitted in localities where the Town already provides off-street public car parking which has spare capacity, or the Town is proposing to provide or is able to provide a public car park (including enhanced or additional on-street car parking where appropriate) in the near future, within 400 metres of the subject development;
… (see [41]).
18 At [106], the Tribunal said:
What the Tribunal is dealing with here is a relatively large building that was, unfortunately, approved by local government to occupy the whole of the site (unlike adjacent commercial developments) and without any provision for on-site car parking. The effect of this has been to shift all of the responsibility for on-site private car parking onto the public arena by way of the Barlee Street Car Park and/or the public road system. (original emphasis)
19 The Tribunal determined that the application for review should be dismissed, essentially for the following reasons at [114] - [119]:
In the view of the Tribunal, … if a high intensity use is being sought to function during both daylight and evening hours with consequential effects on the amenity of nearby residents, then some, or all, of the parking shortfall needs to be provided on-site.
If this cannot be achieved, then a different business decision would need to be made by the owner with respect to land use and rents being asked.
(Page 7)
- Of specific importance is that the respondent's parking policy is extremely generous in that it reduces an initial car parking requirement of 34 car bays (or 27 spaces if calculated on the basis of one space per 4.5 persons) down to 10 or 11 car parking spaces.
…
[I]t is the considered view of the Tribunal that, in the particular circumstances of the case, it would be inconsistent with orderly and proper planning for a private development, which is unable to meet any of its parking obligations on-site, to monopolise presently available public car park spaces.
It is also the considered view of the Tribunal that a cash-in-lieu contribution of some $26,000 to $28,000 (at $2,600 per bay) would do little to alleviate an immediate car parking demand emanating from the development with its consequential effect on the amenity of nearby residents in the locality; particularly during the evening and late night hours.
Grounds for review
20 Mr Govardhan contends that the Tribunal's decision involves the following errors of law:
1) The finding at [118] that 'it would be inconsistent with orderly and proper planning for a private development, which is unable to meet any of its parking obligations on-site, to monopolise presently available car parking spaces' was manifestly unreasonable given that:
(i) there was no evidence before the Tribunal to support that finding;
(ii) the finding is inconsistent with the Tribunal's findings that:
(a) there was clearly additional car parking capacity available in the Barlee Street car park (at [108]); and
(b) there was some available car parking space within a reasonable distance from the site (at [111]).
- material on which those findings are based, as required by s 77 of the SAT Act.
- 3) The Tribunal erred in law by failing to provide procedural fairness to Mr Govardhan in relation to and in consequence of the Tribunal's letter to Mr Tyzack dated 1 August 2008 in that:
(i) the Tribunal gave the Town an opportunity to comment on the photographs provided by Mr Govardhan, but did not give the same opportunity to Mr Govardhan;
(ii) the Tribunal unreasonably and without explanation limited the number of photographs Mr Govardhan was permitted to file, thereby inappropriately limiting the evidence that he was able to provide;
(iii) the Tribunal unreasonably and without explanation requested photographs of a public car park taken 'during a lunch hour, say on a Friday', rather than during an evening period when the proposed 'small bar' use would be likely to generate peak car parking demand; and
(iv) the Tribunal did not inform Mr Govardhan of the reasons for which the photographs were sought, nor what reliance the Tribunal intended to place on them.
4) Insofar as the Tribunal had regard to the possibility of future expansion of the development (at [105]), it erred in law by taking into account an irrelevant consideration.
5) The Tribunal erred in law in concluding (at [119]) that a cash-in-lieu contribution 'would do little to alleviate an immediate car parking demand emanating from the development with its consequential effect on the amenity of nearby residents in the locality; particularly during the evening and late night hours', in that the Tribunal misapplied or misunderstood Policy 3.7.1, which does not
- provide that the immediate alleviation of car parking demand is a relevant factor when applying that policy.
- 6) The Tribunal's conclusion (at [119]) that a cash-in-lieu contribution 'would do little to alleviate an immediate car parking demand emanating from the development with its consequential effect on the amenity of nearby residents in the locality; particularly in the evening and late night hours' was manifestly unreasonable in light of the statement (at [101]) that 'the Tribunal is unaware of the extent of funds (if any) collected by Council for this locality to be used for car parking purposes'.
21 I will now address each of Mr Govardhan's grounds in turn.
Ground 1 - Was the finding at [118] manifestly unreasonable?
22 The Tribunal's finding at [118] was not manifestly unreasonable in the sense that no reasonable planning authority could have come to it: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 discussed in Carcione Nominees Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97 at [96] - [101].
23 The finding reflected the application by the Tribunal to the particular case of a statement of planning principle previously recognised by the Tribunal. In Randall and Town of Vincent [2005] WASAT 129 (Randall), the Tribunal held, at [121], as follows:
Although, in the exercise of planning discretion, some limited use by private development of existing public car parking spaces might be acceptable, it is fundamentally inconsistent with orderly and proper planning for a private development, which is incapable of meeting its car parking impacts on-site, to monopolise presently available public car park spaces. Such an approach would undermine the potential for orderly development of other sites in the commercial strip which might, like the site, be incapable of providing adequate on-site car parking.
24 This statement of planning principle has broad application. However, it was particularly in point in the case before the Tribunal, because the principle was stated specifically in the context of Policy 3.7.1 which had not been amended since.
25 Furthermore, the finding at [118] is not inconsistent with the other findings referred to. The fact that there is parking available in public car parks and on streets does not affect the correctness of the statement of principle.
(Page 10)
- Indeed, the statement of principle is only apposite where there is public car parking available.
26 Finally, the fact that the parking shortfall in this case was calculated by the Town at 10.11 bays (see [64]) and by the Tribunal at 10.60 bays (see [75]), in either case relevantly 11 bays, does not mean that it was not reasonably open to make the finding that the development would 'monopolise' public car parking. The proposed development would necessarily use and therefore 'monopolise' 11 public car parking spaces, in addition to a historical shortfall of 15 car parking spaces.
Ground 2 - Were the reasons legally inadequate?
27 Section 77(1) of the SAT Act requires the Tribunal to give reasons for a final decision that include its findings on material questions of fact, referring to the evidence or other material on which those findings are based.
28 The Tribunal's finding at [118], when viewed in the context of the Tribunal's reasons generally, was legally adequate and in conformity with s 77 of the SAT Act. In its reasons, the Tribunal carefully reviewed the car parking generation of the proposed development, the availability of car parking in public car parks and on streets in the locality, and the terms of the applicable policy. The Tribunal determined that, having regard to these matters, the statement of planning principle referred to warranted refusal of the application in the circumstances of the case. This determination was reasonably open. The reasons, read as a whole, adequately contain findings on material questions of fact, referring to the evidence on which those findings were based.
Ground 3 - Did the Tribunal deny procedural fairness?
29 The Tribunal was bound to afford procedural fairness to Mr Govardhan: s 32(1) of the SAT Act. However, Mr Govardhan was afforded procedural fairness in the proceedings. There was no practical injustice: see Re Minister for the Environment; Ex parte Elwood & Anor [2007] WASCA 137.
30 While the Tribunal's letter dated 1 August 2008 did not expressly invite Mr Govardhan to make any comment in relation to the photographs requested in the letter, Mr Tyzack did make comments at the foot of each photograph indicating where the photograph was taken. Furthermore, Mr Tyzack, an experienced architect and local government councillor, did not make or seek to make any further comment in relation to or arising out of the photographs. It was
(Page 11)
- appropriate for the Town to be given an opportunity to respond or comment in relation to the photographs, because it was not the author of the photographs. However, as it turns out, the Town did not take up this invitation.
31 The Tribunal had power to require Mr Govardhan to provide the photographs, as it may inform itself on any matter as it sees fit: s 32(4) of the SAT Act. Furthermore, it was reasonably open to the Tribunal to seek to limit the number of photographs provided, as it made specific requests for photographs and has an objective to minimise the cost to the parties: s 9(b) of the SAT Act. In any case, Mr Tyzack provided 16 photographs which he said was 'the minimum necessary to adequately address your request'.
32 It is unclear why Senior Sessional Member Graham specifically requested photographs of the public car park during the lunch hour, rather than after hours. However, it is apparent from the reasons that the proposed development was intended to operate during daytime as well as at night.
33 Procedural fairness did not require the Tribunal to inform Mr Govardhan of the reasons for which the photographs were sought, nor the reliance that the Tribunal intended to place on them. The request for the photographs plainly arose out of the discussion in the evidence filed by the parties. As noted earlier, only limited photographs were provided by the Town. The Tribunal's orders of 9 April 2008 enabled Mr Govardhan to provide any photographs of any relevant location that he considered would advance his case. However, he did not provide any photographs as part of his case. Furthermore, no application was made to provide any additional photographs at the time when the Tribunal's request was addressed.
Ground 4 - Did the Tribunal have regard to an irrelevant consideration?
34 At [105], the Tribunal expressed the view that 'if an approval were to be granted, and the business was to grow, there would be pressure over time to increase the public floor area (as was the case with the nearby Must Winebar) or to seek to maximise the under-utilised space for other purposes'. The Tribunal said that either of these outcomes 'would give rise to additional car parking demand'.
35 While the Tribunal's observation at [105] was, as Mr Govardhan submits, entirely speculative, it was in response to Mr Tyzack's submission, recorded in the preceding paragraph, that the public floor area of the proposal would
(Page 12)
- only utilise a small proportion of the building.
36 It is apparent, when the Tribunal's reasons are read as a whole, that the decision was not based on speculation. Rather, the decision was substantially based on the reasoning at [114] - [119] set out earlier. The Tribunal considered that the car parking generation of the proposed development, based on its proposed floor area, warranted refusal of the application, because none of the required car parking spaces would be provided on-site and cash-in-lieu was not appropriate.
37 It is apparent therefore that the Tribunal did not base its decision on speculation or take into account an irrelevant consideration in the determination of the application.
Ground 5 - Did the Tribunal misdirect itself in relation to Policy 3.7.1?
38 As the building on the site cannot accommodate any car parking provision, Mr Govardhan proposed to pay cash-in-lieu for the car parking generated by the proposal, less adjustment factors for proximity to a bus stop and public car parking, and less the historical shortfall. The Town proposed a draft condition, without prejudice to its contention that the development application should be refused in its entirety, requiring the payment of a cash-in-lieu contribution of $27,297 for the equivalent value of 10.11 car parking spaces, based on the cost of $2,700 per bay.
39 Mr Govardhan submits that the Tribunal misdirected itself in making the finding at [119] that a cash-in-lieu contribution 'would do little to alleviate the immediate car parking demand emanating from the development'. Mr Govardhan submits that the question of whether the payment of cash-in-lieu of providing on-site car parking will alleviate an immediate car parking demand emanating from the proposed development is not a relevant consideration in determining whether to accept a cash-in-lieu payment.
40 When the Tribunal's reasons are read as a whole, it is apparent that it did not misdirect itself in relation to whether to approve the application subject to a cash-in-lieu condition. Having earlier set out the relevant provisions of Policy 3.7.1, the Tribunal correctly emphasised, at [99], that the Council has a discretion, signified by the word 'may', to accept a cash-in-lieu contribution for all or part of the shortfall, 'but is not obliged to do so'. At [100], the Tribunal noted, correctly, that Policy 3.7.1 requires that cash-in-lieu contributions are to be used on nearby existing public parking facilities, or for future facilities or for on-street parking, where appropriate, within 400 metres. At [101], the
(Page 13)
- Tribunal noted that it was unaware 'of the extent of funds (if any) collected by Council for this locality to be used for public car parking purposes'.
41 In this context, the observation at [119] that a cash-in-lieu contribution 'would do little to alleviate an immediate car parking demand emanating from the development' is understandable. There was no evidence before the Tribunal as to whether the Town is proposing to provide or is able to provide public car parking that would serve the proposed development in the near future. In the circumstances, therefore, a cash-in-lieu contribution would not adequately address the car parking generation of the development.
42 Contrary to Mr Govardhan's submission, the Tribunal did consider whether the proposed use should be approved subject to a condition requiring a payment of cash-in-lieu of providing on-site car parking 'having regard to all relevant factors, including that the use is proposed in an approved building that covers the entire lot, such that it is not possible to provide on-site car parking'. The Tribunal referred specifically to this fact at [106]. At [114] - [115], the Tribunal found, as was open to it, that the proposal is a 'high intensity use … with consequential effects on the amenity of nearby residents' and that consequently 'some, or all, of the parking shortfall needs to be provided on-site'. This finding was consistent with Policy 3.7.1, because, as the Tribunal observed at [66] - [67], cl 22 states as a guide that a minimum 15% of required car bays should be provided on-site where the total requirement is between 11 and 40 car parking bays, as is the case in relation to the proposed development. In Randall at [129], the Tribunal considered that the inability of the development site to provide the minimum 15% of required car parking bays on-site was a reason why development approval should not be granted subject to a condition that all of the car parking spaces necessitated by the proposed development be paid for by cash-in-lieu.
43 The Tribunal did not misdirect itself in relation to Policy 3.7.1 and had appropriate regard to whether or not to approve the proposed development subject to a condition requiring cash-in-lieu for all of the car parking spaces necessitated by the proposal. It was reasonably open to the Tribunal to conclude that some, or all, of the parking shortfall needs to be provided on-site and that the physical inability of the site to accommodate any of the required car parking bays warranted refusal of the development application in its entirety.
(Page 14)
Ground 6 - Was the conclusion at [119] manifestly unreasonable?
44 Mr Govardhan submits that the Tribunal's finding at [101] that it was 'unaware of the extent of funds (if any) collected by the Town for the locality to be used for public car parking purposes' rendered its finding at [119] that a cash-in-lieu contribution 'would do little to alleviate the immediate car parking demand emanating from the development' manifestly unreasonable.
45 However, as discussed in relation to Ground 5, the finding at [101] in fact supported the conclusion at [119]. The fact that there was no evidence about the potential to provide or upgrade public car parking facilities in the locality to cater for the demand generated by the proposed development made the Tribunal's conclusion at [119] reasonably open, rather than unreasonable.
Conclusion
46 While Mr Govardhan's grounds for review involve questions of law concerning the determination, the Tribunal did not err in law in any respect. The Tribunal's findings and its reasons for those findings were reasonably open.
47 It follows that the application for review by a judicial member should be dismissed and the determination of the Tribunal should be affirmed.
Orders
48 I make the following orders:
1. The application for review is dismissed.
2. The determination of the Tribunal made on 26 August 2008 in DR 12 of 2008 is affirmed.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
(Page 15)
5
2