GRAY and WESTERN AUSTRALIAN PLANNING COMMISSION

[2006] WASAT 26

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   GRAY and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 26

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   9 FEBRUARY 2006

FILE NO/S:   DR 37 of 2004

BETWEEN:   ROY ALFRED GRAY

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

SHIRE OF AUGUSTA-MARGARET RIVER
Applicant for Joinder

Catchwords:

Practice and procedure - Joinder - Leave to make submissions - Local government authority - Town planning - Subdivision application - Applications referred to SAT by Court of Appeal

Legislation:

State Administrative Tribunal Act 2004 (WA), s 37(3), s 38

Town Planning and Development Act 1928 (WA), s 51(1)(e), s 51(1)(f), s 62, s 63

Result:

Application for joinder granted

Category:    B

Representation:

Counsel:

Applicant:     Mr MA Etherington

Respondent:     Mr SM Murphy

Applicant for Joinder     :     Ms A Browne (public sector employee)

Solicitors:

Applicant:     Phillips Fox

Respondent:     State Solicitor's Office

Applicant for Joinder     :     Self-represented

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

Gray v Western Australian Planning Commission [2004] WATPAT 42

Kaard and City of Nedlands [2005] WASAT 2

Krasenstein and Western Australian Planning Commission (2005) 40 SR (WA) 55; [2005] WASAT 201

Shire of Augusta-Margaret River v Gray & Anor [2005] WASCA 227

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Shire of Augusta-Margaret River (Shire) sought leave to be joined as a party to subdivision review proceedings.  The Tribunal had power to join the Shire, because the law which applied in relation to the application was that which existed at the time when the application was made to the former Town Planning Appeal Tribunal.  The application was consented to by the applicant for subdivision approval and was not opposed by the respondent.

2. The Tribunal determined that joinder was necessary for the proper disposition of the proceedings.  The Shire was joined as the second respondent.

Introduction

1. The Shire of Augusta­Margaret River (Shire) seeks leave to be joined as a party pursuant to s 51(1)(e) and (f) of the Town Planning and Development Act 1928 (WA) (TPD Act) (now repealed) and, alternatively, to make submissions pursuant to s 62 of the TPD Act in proceedings for review of the refusal of a subdivision application by the Western Australian Planning Commission (Commission).

2. On 15 March 2004, the applications were dismissed by the President of the former Town Planning Appeal Tribunal (former Tribunal): see Gray v Western Australian Planning Commission [2004] WATPAT 42.  The Shire applied to the Supreme Court for prerogative relief to quash the former Tribunal's decisions.  On 28 November 2005, the Court of Appeal (Pullin JA and Le Miere AJA; McClure JA dissenting) quashed the former Tribunal's decisions and referred the applications to this Tribunal for determination in accordance with the law: see Shire of Augusta-Margaret River v Gray & Anor [2005] WASCA 227.

3. The applications were opposed before the former Tribunal by Mr Roy Gray, the applicant for subdivision approval.  The applications were not opposed by the Commission.  Mr Gray now consents to the joinder of the Shire as a party to the proceedings.  The Commission does not object to the joinder.

4. The factual background to the applications is set out in the judgment of Pullin JA at [87] ­ [103]. It need not be repeated.

5. The Commission has confirmed that it adopts the same position in the substantive proceedings before the State Administrative Tribunal (SAT) as it adopted before the former Tribunal.  In particular, the Commission intends to rely on the grounds of response filed as part of the statement by the respondent on 3 March 2004 as its statement of the issues which it says arise in the proceedings.

6. In consequence, the matters deposed to by Ms Sandra Boulter at [13] ­ [16] of her affidavit sworn on 9 March 2004 (set out by Pullin JA at [99]) remain correct and in point.  The Commission intends to "effectively raise a single ground in opposition to the appeal, namely the absence of appropriate zoning, land management and development controls in the [Town Planning Scheme]" and will "limit its defence of the appeal to [this] single issue".  In contrast, the Shire "wishes to raise all of the issues identified in its resolution of 29 October 2003" (set out by Pullin JA at [91]) which include whether the subdivision would result in detrimental impacts in relation to biodiversity conservation, landscape quality, agricultural viability and residential amenity.  Ms Boulter considered that "none of those issues will be raised at the hearing of the appeal and that as a consequence, the Tribunal will not consider the full range of orderly and proper planning issues considered by the Shire to be relevant to the Tribunal's consideration of the proposed subdivision".

Power to grant joinder

1. The former Tribunal and the Court of Appeal considered that the former Tribunal had an implied power of joinder under s 51(1)(e) and (f) of the TPD Act. However, that section was repealed with effect from 1 January 2005. Moreover, although s 38 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) confers a power of joinder on this Tribunal where one of three preconditions is satisfied, s 63 of the TPD Act provides that the power of joinder in s 38 of the SAT Act is not applicable in planning review proceedings.

2. The Court of Appeal held that, in determining the Shire's application for joinder, SAT must apply the law which obtained prior to 1 January 2005: McClure JA at [40] with whom Pullin JA agreed at [84] and Le Miere AJA agreed at [164]. I am, therefore, required to determine the application for joinder on the basis of the former Tribunal's implied power of joinder.

3. It is to be noted, in passing, that the argument in the Court of Appeal proceeded on the assumption that SAT does not have power to permit a third party to participate in planning review proceedings other than via s 62 of the TPD Act. In fact, the Tribunal determined in Kaard and City of Nedlands [2005] WASAT 2 and Krasenstein and Western Australian Planning Commission (2005) 40 SR (WA) 55; [2005] WASAT 201 that it has power to permit intervention by a third party pursuant to s 37(3) of the SAT Act in planning review proceedings and that one of the circumstances in which intervention should be allowed in the public interest is where it is necessary for the proper disposition of the proceedings.

Consideration of application for joinder

1. At [129] Pullin JA set out with approval an extract from the judgment of Doyle CJ in Pitt v Environment Resources and Development Court (1995) 66 SASR 274 at 275 in which his Honour identified the following factors which guide the exercise of discretion to join a party to proceedings:

   "Important factors in any such case will be the nature and strength of the interest of the applicant for joinder in the decision under appeal, the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the ERD Court and whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the ERD Court.  It will also be appropriate for the ERD Court to consider the impact upon the proceedings of the joinder.  The Court can and should consider the interests of the parties before it as of right and the public interest in the prompt and efficient despatch of the proceedings."

2. I am satisfied that, taking into account these factors, it is appropriate to join the Shire as a party to the proceedings.

3. As Pullin JA observed at [148], "this is a case where the Shire has a considerable interest to see that a policy it contends to be relevant is considered and considered in the context of relevant evidence".

4. The Shire is likely to make an important contribution to the proper performance by the Tribunal of its statutory planning function.  In particular, joinder of the Shire is necessary for the proper disposition of the proceedings so that the Tribunal will have before it evidence and submissions in relation to important environmental planning considerations pertaining to the subdivision application.

5. As noted earlier, Mr Gray now consents to the application for joinder and the Commission does not oppose the application.

6. Finally, as Pullin JA considered, "[t]here is likely to be some impact on the length of the proceedings if the Shire is joined, but that is the likely consequence of the fact that necessary evidence will be placed before the Tribunal which would have been absent if the Shire had not been joined".

7. As it is appropriate to join the Shire as a party to the proceedings, it is unnecessary to consider its alternative application for leave to make submissions.

Orders

1. The Tribunal makes the following orders:

   1.The Shire of Augusta­Margaret River is joined as the second respondent to the proceedings.

   2.The application by the Shire of Augusta­Margaret River to make submissions in the proceedings pursuant to s 62 of the Town Planning and Development Act 1928 (WA) is dismissed.

   3.The mediation to commence at 10 am on 22 February 2006 is confirmed.

   4.By 16 February 2006, the Shire of Augusta­Margaret River must file with the Tribunal and provide to the other parties a statement of the issues which it says arise in the proceedings.

   5.At least two days before the mediation, the parties must exchange any documents to be relied on which have not already been provided.

I certify that this and the preceding [19] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER