GREAT SOUTHERN VINEYARD HOLDINGS PTY LTD and SHIRE OF AUGUSTA-MARGARET RIVER
[2005] WASAT 343
•19 DECEMBER 2005
GREAT SOUTHERN VINEYARD HOLDINGS PTY LTD and SHIRE OF AUGUSTA-MARGARET RIVER [2005] WASAT 343
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 343 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:461/2005 | DETERMINED ON THE PAPERS | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 19/12/05 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application valid | ||
| B | |||
| PDF Version |
| Parties: | GREAT SOUTHERN VINEYARD HOLDINGS PTY LTD SHIRE OF AUGUSTA-MARGARET RIVER |
Catchwords: | Town planning Deemed refusal after 90 days Whether deemed refusal period extended by reference of application to Environmental Protection Authority Whether application for review validly made |
Legislation: | Environmental Protection Act 1986 (WA), s 37B, s 38(1), s 38(5), s 39(A), s 41, s 100(3a) State Administrative Tribunal Act 2004 (WA), s 9 State Administrative Tribunal Rules 2004 (WA), r 9 Town Planning and Development Act 1928 (WA), s 7B(6)(d) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : GREAT SOUTHERN VINEYARD HOLDINGS PTY LTD and SHIRE OF AUGUSTA-MARGARET RIVER [2005] WASAT 343 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE PAPERS DELIVERED : 19 DECEMBER 2005 FILE NO/S : DR 461 of 2005 BETWEEN : GREAT SOUTHERN VINEYARD HOLDINGS PTY LTD
- Applicant
AND
SHIRE OF AUGUSTA-MARGARET RIVER
Respondent
Catchwords:
Town planning Deemed refusal after 90 days Whether deemed refusal period extended by reference of application to Environmental Protection Authority Whether application for review validly made
Legislation:
Environmental Protection Act 1986 (WA), s 37B, s 38(1), s 38(5), s 39(A), s 41, s 100(3a)
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State Administrative Tribunal Act 2004 (WA), s 9
State Administrative Tribunal Rules 2004 (WA), r 9
Town Planning and Development Act 1928 (WA), s 7B(6)(d)
Result:
Application valid
Category: B
Representation:
Counsel:
Applicant : Ms Jakovich
Respondent : Self-represented
Solicitors:
Applicant : Freehills
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 Great Southern Vineyard Holdings Pty Ltd made an application to the Shire of Augusta-Margaret River for development approval for the establishment of a vineyard on Rowe Road, Witchcliffe. The Shire referred the application to the Environmental Protection Authority (EPA) to consider whether the application called for environmental assessment. The EPA determined that no assessment was necessary but appeals were lodged against that decision under the Environmental Protection Act 1986 (WA). The Shire is not permitted to approve the development until the appeals are finalised.
2 Under the Shire's Interim Development order, if an application is not dealt with within 90 days, the application is deemed to be refused. Because of the delay occasioned by the referral of the application to the EPA, the 90 day period elapsed without a decision being made by the Shire. Great Southern Vineyards applied to the State Administrative Tribunal (SAT) for a review of the deemed refusal. The Shire argued that the application to SAT was invalid because the 90 day deemed refusal period was necessarily extended where the Shire was prevented by the Environmental Protection Act 1986 from approving the development. The applicant argued that the application was valid and its right of review arose after 90 days, regardless of whether there was a referral to the EPA.
3 The Tribunal upheld Great Southern Vineyard's argument, and concluded that the application was valid. It ruled that directions should be given so that the parties identify the real issues, if any, between them.
Background
4 The applicant made an application for planning approval to the respondent on 7 February 2005. The application was for the establishment of a 145 hectare vineyard for wine grape production and a gully wall dam to service the vineyard. The land is known as Sussex locations 2804, 2805, 2604, 3157 and 4206 Rowe Road, Witchcliffe.
5 The land comes within the scheme area of the Shire of Augusta-Margaret River Town Planning Scheme No 11 (TPS 11) and the Shire of Augusta-Margaret River Interim Development Order No 16 (IDO 16).
6 The application was initially considered by planning officers of the respondent, and on 22 March 2005, the respondent formed the view that
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- the proposal was likely to have a significant effect on the environment. Accordingly, the proposal was referred to the Environmental Protection Authority (EPA) on 22 March 2005, a date which was 43 days after the application was lodged.
7 On 18 April 2005, the EPA notified the respondent that it had decided not to formally assess the proposal. Five appeals against that decision were then lodged with the Minister for the Environment who had not, at the time of the parties' submissions, determined the appeals. The respondent has been informed by the Office of the Appeals Convenor that the Minister for the Environment is awaiting the outcome of the referral of the proposal to the Commonwealth Department of Environment and Heritage before she makes her determination on the appeals.
8 Under the provisions of cl 2.6 of TPS 11, a development application is deemed refused if no decision is made by the Shire within 60 days of receipt of a development application. The 60 day period from lodgement elapsed on 8 April 2005. An application for review (RD 438 of 2005) was lodged on 6 May 2005, within the 28 day period stipulated by r 9 of the State Administrative Tribunal Rules 2004 (WA).
9 Clause 7 of IDO 16 provides that in the event that a decision has not been made and communicated to an applicant within stipulated periods, an application is deemed to have been refused. The period stipulated is 90 days "where the local government elects to consult with nearby landowners or the public generally", and "60 days in any other case".
10 The Shire, apparently unbeknown to the applicant, did consult with nearby landowners in respect to the development application. For present purposes, it is common ground that the period of 90 days is the applicable deemed refusal period. Ninety days from lodgement expired on 8 May 2005, two days after DR 438 of 2005 had been commenced.
11 The respondent took the point in DR 438 of 2005 that the application for review was not validly commenced because the deemed refusal under IDO 16 had not arisen at the time of commencement of the application.
12 DR 438 of 2005 was listed for an initial directions hearing on 3 June 2005, after the 90 day deemed refusal period had expired. The applicant did not initially concede that the initial application was invalid, but in order to preserve its appeal rights, it lodged this application on 1 June 2005 seeking a review of the deemed refusal occurring on 8 May 2005 (DR 461 of 2005). This application was then brought on for directions on 3 June 2005 at the same time as the first application. At that
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- directions hearing the respondent sought to argue a preliminary issue as to the validity of the first application, and raised the prospect that if the first application was valid (because a 60 day deemed refusal period applied), then the second application was out of time. The Tribunal took the view that, given that one or other of the applications was correctly brought, nothing was to be gained by a debate as to which application was valid, and declined to deal with the matter as a preliminary issue. Having regard to the objectives of the Tribunal identified in s 9 of the State Administrative Tribunal Act 2004 (WA), the Tribunal made orders on 3 June 2005 in the second application extending time for commencement of the application to the extent that that might be necessary, until 2 June 2005, thus leaving no argument that the second application was validly commenced regardless of which deemed refusal period applied.
13 The matter was then adjourned to 22 July 2005 and then to 12 August 2005 by reason of the unresolved referral to the EPA. The appeals had not been finalised by 12 August 2005, and at that time the Tribunal made orders for the filing of a statement of issues, facts and contentions in order to clarify the substantive issues between the parties.
14 The respondent filed a statement of issues, facts and contentions on 16 September 2005. Rather than addressing the merits of the application, the respondent again contended that the application by the respondent was not validly commenced, this time because, by reason of the operation of the provisions of the Environmental Protection Act1986 (WA) (the EP Act), the deemed refusal period had, in effect, been suspended and had not yet elapsed. In its responding statement of issues, facts and contentions, the applicant maintained the validity of the application. When the matter came before the Tribunal for directions on 7 October 2005, it ordered that the jurisdictional issue identified in the statement of issues, facts and contentions be determined entirely on the documents.
Relevant statutory provisions
15 The deemed refusal provision in cl 7 of IDO 16 makes no allowance for a referral to the EPA under s 38(1) of the EP Act.
16 Part IV of the EP Act deals with the referral and assessment of proposals by the EPA. Section 37B defines a significant proposal as "a proposal likely, if implemented, to have a significant effect on the environment".
17 Section 38(5) of the EP Act provides that, as soon as a decision-making authority (which includes the respondent) has notice of a
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- proposal that appears to be a significant proposal, the decision-making authority is to refer the proposal to the EPA. That is what occurred in this case.
18 Section 41 of the EP Act reads as follows:
"41 Decision-making authority to await authorisation by Minister
[(1) repealed]
(2) A decision-making authority that –
(a) has referred a proposal to the Authority under, or in compliance with a requirement made under, section 38; or
(b) has been required under section 38(3) to refer a proposal to the Authority,
shall not make any decision that could have the effect of causing or allowing the proposal to be implemented until –
(c) it is informed under section 39A(3)(b) that the Authority is not going to assess the proposal and the period within which an appeal against that decision may be lodged under section 100(1) has expired without the lodging of such an appeal or, if such an appeal has been lodged within that period, that appeal has been determined; or
(d) an authority is served on it under section 45(7),
as the case requires.
(3) Without limiting subsection (2), a decision-making authority that has been given notice under section 39A(3)(c ) or (4) that a proposal is going to be or is being assessed is not to make any decision that could have the effect of causing or allowing the proposal to be
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- implemented without having had an authority under section 45(7) served in it."
The respondent's contention
19 The respondent observes that, once a matter is referred to the EPA, the EPA has 28 days within which to decide whether it will assess the referred proposal (EP Act s 39(A)). There is then a 14 day time limit within which a person may lodge an appeal (EP Act s 100(3a)). According to advice provided by the Office of the Appeals Convenor, most appeals will be assessed by the Appeals Convenor and referred to the Minister for decision within six weeks of the closing date for appeals, although more complex appeals and appeals involving a number of applicants may take additional time.
20 Taking account of those time limits, the time necessary for an initial assessment by the local government prior to referral to the EPA, and the time taken by the Minister to determine the appeals after referral to her by the Appeals Convenor, the EPA assessment process, where there is an appeal against a decision not to assess, will usually be close to, and will frequently exceed, 90 days.
21 The respondent contends that, because it is precluded from making a decision that could have the effect of causing or allowing the proposal to be implemented during that referral process, the provisions of the EP Act necessarily imply a suspension of time between the date of referral to the EPA, and the date of determination of the appeals by the Minister, for the purpose of the deemed refusal provision of cl 7 of IDO 16.
Does the referral process stop time running?
22 There is nothing in s 41 of the EP Act which prevents a decision-maker from refusing an application for development. Section 41 constrains a decision-maker from making a decision that could have the effect of causing or allowing the proposal to be implemented. There is nothing that prevents the ongoing assessment by the decision-maker of the merits of an application so as to be in a position, if it proposes to approve an application, to do so as soon as the Minister determines an appeal against a decision by the EPA not to assess a proposal. That is apparently what has been done by the respondent in this case. A consultant planner has completed an assessment of the development application, subject to the outcome of the appeals to the Minister, and the report and recommendation will be on the agenda for the Council meeting
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- immediately after the determination of the appeals by the Minister for the Environment.
23 In my view, there is no basis to construe cl 7 of IDO 16 as being subject to a suspension of the period during which time is running in order to allow for the environmental review process to be completed. A deemed refusal is not contrary to the constraints of s 41 of the EP Act. A respondent is not prejudiced by the removal of the decision-making function to the Tribunal. If its proposal is ultimately to approve the development subject to the outcome of the environmental review process, there are a variety of consensual processes which can be undertaken through the Tribunal which avoid any unnecessary expense or effort on the part of the decision-maker. If, after the environmental review process is complete, the decision-maker intends to reject the application, or grant it on conditions that are unacceptable to the applicant, then the Tribunal can deal with those issues in the appeal. The Tribunal is, of course, subject to the same constraints under s 41 of the EP Act as the original decision-maker, but if issues do remain between the parties after the environmental review process is complete, then the fact that appeal proceedings have been commenced and progressed as far as is appropriate avoids unnecessary delay and accordingly prejudice to an applicant.
24 The words of cl 7 of IDO 16 are clear. The right of review of a deemed refusal, whether arising under cl 11 of IDO 16, or s 7B(6)(d) of the Town Planning and Development Act 1928 (WA) arises upon the lapse of a specified period of time. There is no basis to insert a formula for extension of that period into those provisions. If the respondent's contentions were upheld, the practical difficulty from an applicant's point of view in knowing precisely when a right of review would arise is obvious.
Conclusion
25 The application for review made on 2 June 2005 was validly made.
26 The matter should now be the subject of further directions having regard to the present state of the appeals against the EPA's decision not to assess the proposal, and with a view to identifying the real issues, if any, in this application.
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I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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