HAMILTON and CITY OF GOSNELLS

Case •

[2017] WASAT 139

•

11 OCTOBER 2017

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   HAMILTON and CITY OF GOSNELLS [2017] WASAT 139

MEMBER:   JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD:   11 OCTOBER 2017

DELIVERED          :   11 OCTOBER 2017

PUBLISHED           :  30 OCTOBER 2017

FILE NO/S:   DR 303 of 2017

BETWEEN:   FELECIA HAMILTON

Applicant

AND

CITY OF GOSNELLS
Respondent

Catchwords:

Practice and procedure ­ Jurisdiction - Summary dismissal ­ Planning and development - Direction alleging unlawful development of land contrary to development approval - Application for review of direction filed with Tribunal - Council purported to 'withdraw' direction - Council maintained allegation of unlawful development of land contrary to development approval - Council prosecuting landowner for carrying out unlawful development in Magistrates Court - Whether direction has been withdrawn so that application for review misconceived or lacking in substance

Legislation:

Planning and Development Act 2005 (WA), s 214(2), s 214(3)(b), s 218, s 255(1)
State Administrative Tribunal Act 2004 (WA), s 17, s 17(1), s 18(1), s 25(2), s 27(2), s 46, s 46(1), s 47, s 47(1), s 47(1)(a)
State Administrative Tribunal Rules 2004 (WA), r 9

Result:

Application for review not struck out or dismissed.
Matter referred for on­site mediation.

Summary of Tribunal's decision:

The City of Gosnells gave Ms Felecia Hamilton a direction under s 214(2) and s 214(3)(b) of the Planning and Development Act 2005 (WA) alleging that Ms Hamilton was carrying out development at a property in Canning Vale unlawfully and contrary to a development approval the City had issued to her for a wellness clinic. Ms Hamilton sought review of the direction by the Tribunal.

Prior to the first directions hearing, the City wrote to Ms Hamilton purporting to withdraw the direction.  The letter also stated that '[t]he withdrawal of this notice does not change the City's view that your business is operating unlawfully' and that '[t]he City intends to have this issue resolved in Court', that is, to prosecute Ms Hamilton for the alleged unlawful development in the Magistrates Court.

At the first directions hearing, the City, in effect, made an application for the Tribunal to grant leave for Ms Hamilton to withdraw the application for review or alternatively to strike out or dismiss the application as misconceived or lacking in substance.

Ms Hamilton contended that the Tribunal was properly seized of the matter and should proceed to resolve the application for review.

The Tribunal determined that as the direction was given by the City to Ms Hamilton and as Ms Hamilton sought review of the direction by the Tribunal within the time prescribed, the Tribunal has jurisdiction in the proceeding.  The Tribunal also determined that, in substance, the City has not withdrawn the direction, because it maintains that the business is operating unlawfully.  The Tribunal observed that it appears that what the City sought to do was to circumvent the Tribunal's jurisdiction in relation to the underlying subject matter of the proceeding. 

The Tribunal therefore declined to grant leave to withdraw the application for review or to strike out or dismiss the application as misconceived or lacking in substance.

The direction was stayed until further order and the matter was referred for on­site mediation.

Category:    B

Representation:

Counsel:

Applicant:     Mr T Houweling and Ms B Meakins

Respondent:     Ms A Dransfield (Coordinator Compliance, City of Gosnells)

Solicitors:

Applicant:     Cornerstone Legal

Respondent:     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Approved development

  1. On 14 November 2016, Ms Felecia Hamilton applied to the City of Gosnells (City) for development approval for the use of No 33 (Lot 45) Rousham Street, Canning Vale (site) as a 'home­based activity (wellness clinic)'. 

  2. On 14 February 2017, the City granted development approval, subject to five conditions.  The conditions of approval are as follows:

    1.The Home Business shall not employ more than one person not a member of the occupier's household.

    2.The hours of operation are limited to 9 am to 6 pm Monday to Friday and 9 am to 5 pm on Saturday.

    3.The Home Business is to accommodate a maximum of two clients at any one time, and visitations are to be by appointment only.

    4.A minimum of three on-site car bays, contained on the existing driveway within the front setback area, are to be provided for clients and employee use.

    5.Any sales of incidental ancillary products is to be limited to clients who are visiting for Consultation appointments (i.e. no passing trade is permitted).

  3. The City also attached nine advice notes to its grant of planning approval. 

  4. Ms Hamilton subsequently commenced development of the wellness clinic on the site. 

Direction alleging unlawful development

  1. On 31 August 2017, the City gave Ms Hamilton a direction pursuant to s 214(2) and s 214(3)(b) of the Planning and Development Act 2005 (WA) (PD Act) alleging that Ms Hamilton was carrying out development on the site otherwise than in accordance with the development approval. The direction requires Ms Hamilton, within 65 days, to 'reduce the scale of the business activity so as to be consistent with the planning approval granted 14 February 2017 (DA16/00345) as follows':

    •Condition 1.  Development Approval ­ DA16/00345.  The Home Business shall not employ more than one person not a member of the occupier's household.

    •Condition 5.  Development Approval­ DA16/00345.  Any sales of incidental ancillary products is to be limited to clients who are visiting for Consultation appointments (i.e. no passing trade is permitted).

    •Remove the laboratory that has been constructed within the dwelling ('Industry ­ Service' land use) not within scope of approval and is a 'X' class use within a 'Residential Development' area.

    •The business is to occupy an area no greater than 50 square metres as per approved plan, and,

    •The Occupier of the dwelling to reside at the premises.

  2. The direction advises Ms Hamilton of her right to apply to the Tribunal for a review of the direction and draws her attention to the need to make such an application within 28 days of the day on which the direction is given as prescribed by r 9 of the State Administrative TribunalRules 2004 (WA) (SAT Rules).

Application for review of direction

  1. On 27 September 2017, Ms Hamilton applied to the Tribunal for a review of the direction pursuant to s 255(1) of the PD Act.

  2. It is not in dispute that the application for review was made within the time prescribed in r 9 of the SAT Rules.

  3. The application for review was listed for a first directions hearing before me this morning. 

City's purported 'withdrawal' of direction

  1. On 6 October 2017, that is, last Friday, the City wrote to Ms Hamilton as follows:

    Dear Ms Hamilton,

    Compliance matter ­ 33 (Lot 45) Rousham Street Canning Vale ­ Withdrawal of Directions Notice

    Please be advised that the Directions Notice issued to you on Thursday 31 August 2017 has been withdrawn. 

    The withdrawal of this notice does not change the City's view that your business is operating unlawfully.  The City intends to have this issue resolved in Court. 

    A further inspection of your property will be undertaken in the week commencing Monday, 9 October 2017.  Given your previous reluctance to allow City officers to inspect the building, the City will be obtaining a warrant in order to allow the inspection to occur. 

    If you have any further queries or would like to discuss this matter personally, please do not hesitate to contact Aaron Naylor of the City's compliance branch on 9397 3043.

  2. The letter was copied to Ms Hamilton's solicitor, Mr Tim Houweling.

  3. On Monday, 9 October 2017, Ms Ann Dransfield, Coordinator Compliance of the City, advised the Tribunal by email that the direction the subject of this proceeding 'has been withdrawn'.  Ms Dransfield also informed the Tribunal in that email that correspondence advising that the direction 'has been withdrawn' was forwarded via email on Friday, 6 October 2017 to Ms Hamilton and to her solicitor.

Parties' applications ­ Ms Hamilton's application for programming of review; City's application for leave to withdraw or for strike out or dismissal of review

  1. At the commencement of the directions hearing this morning, Mr Houweling, counsel for Ms Hamilton, submitted that the application for review should proceed in the normal course.  Mr Houweling submits that once the Tribunal's jurisdiction is invoked by a competent application for review, the Tribunal is seized of the application and the Tribunal must address the application. 

  2. Mr Houweling submits that, pursuant to s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal, having been seized of jurisdiction, is to 'produce the correct and preferable decision at the time of the decision upon the review' in relation to the application before it.

  3. Mr Houweling informed the Tribunal that, as indeed recognised in the City's letter to Ms Hamilton on 6 October 2017, the City maintains the position, notwithstanding the 'withdrawal' of the direction, that the City contends that the business operating from the site is operating unlawfully and, in particular, is not operating in accordance with the development approval.  Mr Houweling also submits that various 'oral directions' have been given by officers of the City to Ms Hamilton to comply with the development approval and to cease development other than in accordance with the development approval.

  4. Ms Dransfield submits on behalf of the City that the direction the subject of the application has been withdrawn and therefore, in effect, submits that the application for review should be withdrawn, or if not withdrawn by Ms Hamilton, then it should be summarily dismissed.

  5. Although Ms Dransfield did not refer to the particular provisions, I take the City's position to be, in effect, an application under s 46 of the SAT Act for the Tribunal to grant leave for the applicant to withdraw the proceeding, or alternatively, if the applicant does not seek such leave, then an application under s 47 of the SAT Act for the proceeding to be struck out or dismissed, in effect, as misconceived or lacking in substance, pursuant to s 47(1)(a) of the SAT Act, as the basis for the application, namely, the direction, has been, in the City's submission, 'withdrawn'.

  6. The City acknowledges in Ms Dransfield's submissions that the City remains of the view that the development being carried out at the site is not in accordance with the development approval and is therefore unlawful. Indeed, the City has commenced a prosecution of Ms Hamilton in the Magistrates Court pursuant to s 218 of the PD Act. The City will, Ms Dransfield submits, proceed with that prosecution for, among other things, the carrying out of development on the site otherwise than in accordance with the development approval.

  7. Ms Dransfield informed the Tribunal that Council officers have, on three occasions, attempted to inspect the site in recent times and on each occasion were denied access by Ms Hamilton.  Mr Houweling conveyed Ms Hamilton's instructions that while that is the case, it was because those times were unsuitable, given the operation of the business on the site.  Whether that is the case or not, it is clear that the City attempted to gain entry to the premises, but was unable to do so.

  8. Notwithstanding the fact that the City was unable to determine whether Ms Hamilton has complied with the direction, the City says that it has 'withdrawn' the direction. 

  9. Section 17(1) of the SAT Act provides that:

    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.

  10. The application in this case falls within the review jurisdiction of the Tribunal under s 17 of the SAT Act. Section 18(1) of the SAT Act provides that:

    In exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with this Act and the enabling Act.

  11. The 'enabling Act' is the PD Act and in particular s 255(1) of the PD Act which enables the application for review to be brought before the Tribunal.

  12. Section 27(2) of the SAT Act provides that:

    The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

  13. Section 46(1) of the SAT Act states as follows:

    If the Tribunal gives leave, the applicant may withdraw or agree to the withdrawal of a proceeding or a part of a proceeding.

  14. Section 47 of the SAT Act provides as follows:

    (1) This section applies if the Tribunal believes that a proceeding­

    (a)is frivolous, vexatious, misconceived or lacking in substance; or

    (b)is being used for an improper purpose; or

    (c)is otherwise an abuse of process.

    (2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.

    (3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.

    (4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.

Has the direction been withdrawn so that the application for review of the direction is misconceived or lacking in substance?

  1. In my view, notwithstanding the statement in the letter dated 6 October 2017 from the City to Ms Hamilton and the statement in the City's email to the Tribunal on 9 October 2017 that the direction the subject of this proceeding 'has been withdrawn', in substance, it is plain that the direction has not been withdrawn by the City.  That is clear to me, because the substance of the direction remains a matter of controversy between the City and Ms Hamilton.  Indeed, as I have said, the letter from the City to Ms Hamilton dated 6 October 2017 states:

    The withdrawal of this notice does not change the City's view that your business is operating unlawfully.

  2. Furthermore, it is significant, in my view, that the City has purported to withdraw the direction notwithstanding that it has been unable to determine for itself whether the direction has been complied with, because officers have not viewed the site. 

  3. In substance, the City has not withdrawn the direction.  It appears to me that what the City has sought to do by its correspondence to Ms Hamilton after the application for review was filed with the Tribunal and by its correspondence to the Tribunal on 9 October 2017 is to seek to circumvent this Tribunal's jurisdiction in relation to the underlying subject matter of the proceeding.

  4. The City, it appears, having received the application for review, wishes for this Tribunal to not consider the substance of the application for review, but rather for the matter to be ­ that is to say, the substance of the application for review to be dealt with by the Magistrates Court in the context of a criminal prosecution.  That is, in my view, quite improper and inappropriate.  More fundamentally, it reflects and supports my view and my finding that, in substance, the direction the subject of the application for review has not been withdrawn.

  5. I add, as is well recognised, that this jurisdiction, that is to say the planning and development jurisdiction of the Tribunal, is a specialist planning jurisdiction. Indeed, it is the only specialist planning jurisdiction in the State. The Magistrates Court, whilst conferred with criminal jurisdiction under s 218 of the PD Act, is not a specialist planning jurisdiction.

  6. As the City gave Ms Hamilton the direction and as Ms Hamilton sought review of the direction by the Tribunal within the time prescribed in r 9 of the SAT Rules, the Tribunal has jurisdiction in this proceeding.

  7. Given my view that, in substance, the City has not withdrawn the direction, because it maintains the position expressed in the direction that Ms Hamilton is carrying out development on the site contrary to the development approval, the proceeding is not misconceived or lacking in substance, or being used for an improper purpose, and is not otherwise an abuse of process.

  8. I therefore decline to make the order, in effect, sought by the City for the Tribunal to grant leave to Ms Hamilton to withdraw the application under s 46(1) of the SAT Act or, alternatively, for the Tribunal to strike out or dismiss the proceeding under s 47(1) of the SAT Act.

  9. The proceeding is properly constituted.  The matter is now before the Tribunal and the Tribunal will proceed in the ordinary course as it is required by the SAT Act and the enabling Act to resolve the application.

  10. [Following further discussion with the parties' representatives, the Tribunal stayed the direction until further order, pursuant to s 25(2) of the SAT Act, directed the City to file and give to Ms Hamilton a statement of issues for mediation, and referred the matter for on­site mediation at 10 am on 1 November 2017.]

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE D R PARRY, DEPUTY PRESIDENT

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