HANSON CONSTRUCTION MATERIALS PTY LTD and CITY OF VINCENT - [2017] WASAT 81

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: HANSON CONSTRUCTION MATERIALS PTY LTD and CITY OF VINCENT [2017] WASAT 81

MEMBER: MS L EDDY (MEMBER)

HEARD: 17 MAY 2017

DELIVERED : 23 MAY 2017

PUBLISHED : 2 JUNE 2017

FILE NO/S: DR 59 of 2017

BETWEEN: HANSON CONSTRUCTION MATERIALS PTY LTD
Applicant
AND
CITY OF VINCENT
Respondent

Catchwords:

Town planning Development application

Legislation:

City of Perth City Planning Scheme No 2
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 60, cl 61, cl 62(1), cl 66, cl 67, cl 75, cl 76, cl 77, cl 77(1)(b)
Planning and Development Act 2005 (WA), s 162, s 241, s 246, s 247, s 257B, Pt 14
Planning Appeals Amendment Bill 2001 (WA)
State Administrative Tribunal Act 2004 (WA), s 29, s 29(5), s 29(5)(a), s 60, s 105

Result:

Application dismissed

Summary of Tribunal's decision:

The applicant owns and operates a concrete batching plant in East Perth. The use of the current site is subject to a development approval granted by the Minister for Planning in 2012 under s 247 of the Planning and Development Act 2005 (WA), which expires in October 2017. In October 2016, the applicant applied to the respondent under cl 77 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) to amend the current development approval by, amongst other things, deleting the condition that causes the approval to expire in October 2017. The respondent raised, as a preliminary issue, the question of whether there was a reviewable determination capable of being reviewed in the Tribunal when the development approval, which the applicant seeks to have amended in this proceeding, was not granted by a local government but by the Minister for Planning under s 246 of the Planning and Development Act 2005. The Tribunal determined that cl 77 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 did not allow for an application to amend an existing development approval to be made where the development approval had been granted by a minister. The Tribunal, therefore, had no powers to grant or refuse to grant the application to amend the current development approval. The Tribunal therefore dismissed the application.

Category: B

Representation:

Counsel:

Applicant: Mr P McGowan
Respondent: Mr H Jackson

Solicitors:

Applicant: Clayton Utz
Respondent: McLeods

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

Aznavour Pty Ltd & Ors v The City of Mandurah [2002] WASC 95
Bakker and City of Nedlands [2005] WASAT 106
Director General of Department of Transport v McKenzie [2016] WASCA 147
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345

REASONS FOR DECISION OF THE TRIBUNAL:

Agreed facts

Hanson Construction Materials Pty Ltd (applicant) owns and operates a concrete batching plant at Lot 200 (No 71) Edward Street, Perth (site).
The East Perth Redevelopment Authority granted development approval for the construction and operation of a concrete batching plant on the site in June 1996, subject to a condition which caused the approval to expire on 26 June 2012.
In 2011, the applicant made a development application to the City of Vincent (respondent) which sought development approval for use of the site in the same terms as the approval granted by the East Perth Redevelopment Authority, except for the deletion of the condition which imposed the time limit on the approval.
The respondent did not determine that application and the applicant sought review of the deemed refusal in the Tribunal. Pursuant to s 246 of the Planning and Development Act 2005 (WA) (PD Act), the Minister for Planning (Minister) called in the review proceeding and directed the Tribunal to hear it without making a determination and to provide recommendations to the Minister.
On 21 May 2012, the Minister granted development approval for the applicant's concrete batching plant at the site subject to a number of conditions. Condition 1 of the approval provided '[t]his approval is granted for a term expiring on 16 October 2017'.
By letter dated 31 October 2016, Allerding & Associates, on behalf of the applicant, submitted an application to the respondent under cl 77(1)(b) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations). In that application, it was requested that the respondent:
(a)delete condition 1 of the Minister's approval so as to remove the time limit;
(b)amend or replace conditions of the Minister's approval relating to environmental management, noise management and landscaping; and
(c)add a condition regarding the particular roads to be used by trucks associated with the applicant's concrete batching plant to access and egress the area containing Lot 200.
By an application to the Tribunal dated 21 February 2017, the applicant sought review of the respondent's deemed refusal of the amendment application pursuant to cl 76(2) of Sch 2 of the LPS Regulations.
On 20 March 2017, the Tribunal ordered that any party seeking that the Tribunal determine a preliminary issue must file with the Tribunal and give to the other party an application for the determination of a preliminary issue by 31 March 2017. The proceedings were also listed for final hearing in June 2017.
On 31 March 2017, the respondent applied for the determination of a preliminary decision. The respondent described the preliminary issue as:
Whether for the purposes of clause 76(2) of the deemed provisions in Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 there is a reviewable determination capable of being reviewed when:
(a)the right of review asserted by the Applicant under clause 76(2) relates to the determination by a local government of an application made under clause 77(1)(b) to amend a development approval which has been granted by the local government; and
(b)the development approval which the Applicant seeks to have amended in this proceeding was not granted by a local government (ie the Respondent), but by the Minister for Planning under section 246 of the Planning and Development Act 2005?
The applicant did not oppose the determination of the identified preliminary issues.
Initially, the Tribunal made orders, by consent of the parties, requiring the filing of an agreed statement of facts and an agreed bundle of documents in relation to the preliminary issues, the filing of submissions and for the preliminary issue to be determined on the documents, pursuant to s 60 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
However, after the respondent's submissions had been filed, the applicant requested that the preliminary issue be listed for an oral hearing. The respondent did not oppose this application and the preliminary issue was listed to be heard on 17 May 2017.

Legislation

For reasons not presently relevant, the local planning scheme applicable to the site is the City of Perth City Planning Scheme No 2 (CPS 2 or Scheme).
When the LPS Regulations came into effect in 2015, a number of provisions were incorporated into CPS 2 (and every other local planning scheme) pursuant to s 257B of the PD Act.
Relevantly to the issue currently before the Tribunal, cl 77 of Sch 2 of the LPS Regulations provides:
(1)An owner of land in respect of which development approval has been granted by the local government may make an application to the local government requesting the local government to do any or all of the following -
(a)to amend the approval so as to extend the period within which any development approved must be substantially commenced;
(b)to amend or delete any condition to which the approval is subject;
(c)to amend an aspect of the development approved which, if amended, would not substantially change the development approved;
(d)to cancel the approval.
(2)An application under subclause (1) -
(a)is to be made in accordance with the requirements in Part 8 and dealt with under this Part as if it were an application for development approval; and
(b)may be made during or after the period within which the development approved must be substantially commenced.
(3)Despite subclause (2), the local government may waive or vary a requirement in Part 8 or this Part in respect of an application if the local government is satisfied that the application relates to a minor amendment to the development approval.
(4)The local government may determine an application made under subclause (1) by -
(a)approving the application without conditions; or
(b)approving the application with conditions; or
(c)refusing the application.
(Emphasis added)
The requirement for the applicant to obtain development approval in relation to the site from the respondent, and the power of the respondent to grant development approval, arises from the provisions of CPS 2. Those provisions have been altered somewhat since 2011 by the incorporation into CPS 2 of the deemed provisions in Sch 2 of the LPS Regulations, but the Scheme remains the relevant legislative instrument under which development approvals are applied for and determined.
Clause 60 of Sch 2 of the LPS Regulations provides that:
A person must not commence or carry out any works on, or use, land in the Scheme area unless -
(a)the person has obtained the development approval of the local government under Part 8; or
(b)the development is of a type referred to in clause 61.
Section 162 of the PD Act provides:
(1)Subject to this Act, where a planning scheme or interim development order provides that development referred to in the planning scheme or interim development order is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme or interim development order applies unless -
(a)the approval has been obtained and is in force under the planning scheme or interim development order; and
(b)the development is carried out in accordance with the conditions subject to which the approval was granted.
(2)Nothing in this section limits or otherwise affects a right or entitlement under any other written law.
Clause 61 of Sch 2 of the LPS Regulations provides that development approval is not required for a number of specified works and uses, none of which are relevant for present purposes.
The respondent must determine an application for development approval within the time limits specified in cl 75 of Sch 2 of the LPS Regulations, and if it has not done so, the respondent is taken to have refused to grant the development approval.
Pursuant to cl 76 of Sch 2 of the LPS Regulations, an applicant for development approval, or the owner of the land in respect of which the application was made, may apply to the Tribunal for a review of a reviewable determination. The term 'reviewable determination' is defined in cl 76(1) of Sch 2 of the LPS Regulations as:
… a determination by the local government to -
(a)refuse an application for development approval; or
(b)to grant development approval subject to conditions; or
(c)to refuse to amend or cancel a development approval on an application made under clause 77.
Part 14 of the PD Act applies, relevantly to this matter, where a planning scheme gives the Tribunal jurisdiction to carry out a review in accordance with Pt 14 of the PD Act. Section 246 of the PD Act is contained within Pt 14 of the PD Act and relevantly provides:
(1)This section applies to an application made to the State Administrative Tribunal if the Minister considers that the application raises issues of such State or regional importance that it would be appropriate for the application to be determined by the Minister.
(2)The Minister may direct -
(a)the President to refer an application to which this section applies to the Minister for determination; or
(b)the State Administrative Tribunal to hear the application but, without determining it, to refer it with recommendations to the Minister for determination.
(3)The Minister cannot give a direction under subsection (2) -
(a)in respect of an application made to the State Administrative Tribunal under the Heritage of Western Australia Act 1990; or
(b)more than 14 days after the application was made to the State Administrative Tribunal; or
(c)after a final determination has been made in relation to the application.
(4)The Minister, within 14 days after a direction is given, is to cause a copy of it to be published in the Gazette and, as soon as is practicable, is to cause a copy of it to be laid before each House of Parliament or dealt with under section 268A.
(5)If the Minister gives a direction under subsection (2)(a), each party to the proceeding may present the case of that party to the Minister.
(6)The Minister is to have regard to the submissions of the parties and may have regard to any other submission received by the Minister.
(7)A copy or transcript of any submission to which the Minister has regard is to be -
(a)given to each party; and
(b)published in the manner prescribed by the regulations.
Section 247 of the PD Act provides:
(1)In determining an application the Minister is not limited to planning considerations but may make the determination having regard to any other matter affecting the public interest.
(2)When the Minister determines an application that determination has effect according to its tenor.
(3)When an application is referred to the Minister under section 246(2)(b) the executive officer of the State Administrative Tribunal is to -
(a)give a copy of the recommendations that accompanied the referral to each party within a reasonable time after the referral; and
(b)make a copy of the recommendations available during office hours for inspection by any person without charge.
(4)The Minister is to -
(a)give to each party written reasons for the determination of the Minister on the application; and
(b)as soon as is practicable, cause a copy of those reasons to be laid before each House of Parliament; and
(c)upon payment of a fee determined in the manner prescribed by the regulations, supply a copy of those reasons to any other person.
(5)The decision of the Minister is final.
The Tribunal's powers on review are contained in the SAT Act. Relevantly, to the determination of the preliminary issue, s 29 of the SAT Act provides:
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.
…
(3)The Tribunal may -
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and -
(i)substitute its own decision; or
(ii)send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
…
(5)The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision -
(a)is to be regarded as, and given effect as, a decision of the decisionmaker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
…
(7)Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decisionmaker.
(8)Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision.
(9)To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decisionmaker.
Section 241 of PD Act provides that:
(1)In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including -
(a)any State planning policy which may affect the subject matter of the application; and
(b)any management programme for the development control area in force under the Swan and Canning Rivers Management Act 2006 Part 4 that may affect the subject matter of the application.
(2)In the case of an application that relates to land to which the Heritage of Western Australia Act 1990 applies, and whether or not a State planning policy provides for the conservation of that land, the State Administrative Tribunal -
(a)is to refer the matter to the Heritage Council for advice; and
(b)may receive and hear submissions made on behalf of the Heritage Council; and
(c)may join the Heritage Council as a party to the application; and
(d)is to have due regard to the objects of the Heritage of Western Australia Act 1990.
(3)In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles.
Pursuant to s 105 of the SAT Act, a party to a proceeding may appeal from a decision of the Tribunal on a question of law with the leave of the court.

Submissions

In essence, the respondent submits that the existing development approval was not granted by the local government, but by the Minister. The respondent submits that the PD Act provides for a process whereby the relevant minister may grant planning approval, but this is a different process, and may take into account different considerations, than the process whereby the local government may grant development approval pursuant to the local planning scheme, or whereby the Tribunal may make a decision upon review in accordance with the SAT Act, read with relevant provisions of the PD Act.
The PD Act does not include any provision of a similar nature to s 29(5)(a) of the SAT Act, which requires a decision of the Minister to be given effect as a decision of the local government. As cl 77 of Sch 2 of the LPS Regulations provides a power, otherwise absent from CPS 2, to amend an existing approval granted by the local government, there is no power under CPS 2, or for that matter under the PD Act, to amend an existing approval granted by the Minister under s 246 of the PD Act.
The applicant submits that the PD Act impliedly deems a review determination of a local government's decision under Pt 14 of the PD Act to be a decision of the local government. It is argued that this is because of the nature of the review under Pt 14 of the PD Act, within the context of the PD Act, which, it is submitted, requires development approval to be granted by the local government before development can occur. The applicant cites the decision of Smithers J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 (Pochi) at 45 46 in support of its submission. The passage relied upon states:
… It is provided by s. 43(1) of the Administrative Appeals Tribunal Act that for the purpose of reviewing a decision the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. And by s. 43(6) a decision of the person as varied by the Tribunal or in substitution for the decision of a person shall for all purposes, other than certain purposes irrelevant to this discussion, be deemed to be a decision of that person. These provisions operate subject to s. 26 which gives overriding effect to the provisions of Pt XXII of the Schedule to the Act, but they tend to confirm what is no doubt otherwise implied, that in reviewing a decision the Tribunal is to be considered as being in the shoes of the person whose decision is in question. It follows from this that in reaching a decision in review of a decision of an administrator the Tribunal should consider itself as though it were performing the relevant function of that administrator in accordance with the law as it applied to him, including the law contained in any relevant statute interpreted according to its terms and objectives[.]

The applicant submits that the determination by the Minister under s 247 of the PD Act is part of a single pathway, which starts with an application to the local government. It is submitted that an application to the local government has a single pathway within which the decision of the local government may be reviewed by lodging an application in the Tribunal. This review may be determined by the Tribunal, or alternatively, if the Minister calls the review in, may be determined by the Minister. The applicant submits that the single pathway in which an application originally made to the local government, whether determined on review by the Tribunal or the Minister, results in a determination of the original development application. Therefore the decision, whether made by the Tribunal or the Minister, has the effect of taking the place of the decision of the local government as decisionmaker. This means the decision remains a decision of the local government. It is submitted that s 29(5) of the SAT Act 'is only repeating what would have been the position anyway (i.e. s.29(5) of the SAT Act is not needed to enable the conclusion to be reached that the Minister's decision is in substitution for the original decision of the local government)'.

Determination

The modern general principles of statutory construction are well settled. They were recently restated by the Court of Appeal in Director General of Department of Transport v McKenzie [2016] WASCA 147 at [45] [48]:
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, French CJ, Hayne, Crennan, Bell and Gageler JJ observed:
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself [39].
See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
The text of the LPS Regulations does not include reference to a decision of the Minister under s 246 of the PD Act.
Clause 77 of Sch 2 of the LPS Regulations expressly refers to a development approval of the local government. Those words did not have to be inserted to make sense of the provision; the provision makes perfect sense if it just refers to a development approval without regard to who determined that approval.
Development approval granted by the Tribunal is included as a development approval of the local government because s 29(5) of the SAT Act says this is so. The applicant's argument that the determination of an application for review made under Pt 14 of the PD Act involves, where the determination is that the decision is to be substituted, an implied outcome that the decision of the decisionmaker is to have effect as a decision of local government does not have regard to the actual text of the legislation and the context.
In fact the PD Act does not specify what powers are available to the Minister when determining a review application called in pursuant to s 246 of the PD Act. The powers of the Tribunal on determining a review application, including one made under Pt 14 of the PD Act, are specified in s 29 of the SAT Act. The Minister is to determine the review application as specified in s 247(1) of the PD Act. That determination is to have effect according to its tenor: s 247(2) of the PD Act.
The applicant's argument - that the fact that it is open to the Tribunal, on determining a review application, to substitute its decision for the decision of the local government implicitly means that the Tribunal's decision has the effect as if it was a decision of the local government - has two difficulties.
Firstly, such an argument relies on implying or reading in words to the statute that are simply not present. There can be no doubt that the decision of the decisionmaker upon review is substituted for the decision of the local government, but this does not necessarily have the result that the substituted decision becomes as if it were made by the local government.
Secondly, such an interpretation (which applied equally to the Tribunal as decisionmaker as to the Minister) renders the provision in s 29(5) of the SAT Act entirely redundant. As a general rule, all the words of a statute must be given some meaning and effect: see DC Pearce and RS Geddes, Statutory Interpretation in Australia (8^th ed, 2014) (Statutory Interpretation in Australia) at [2.26]. Of course this principle is subject to the consideration that it may be impossible to give a full and accurate meaning to every word, but this is not such a case.
In relation to the applicant's reliance on the statements identified above in Pochi, in my view these statements do not advance the applicant's argument. On a full reading of the decision, it seems to me that the comments relied upon are focused on identifying the matters that the decisionmaker must take into account, and the way in which the decision must be made, by explaining that the decisionmaker on review, in that particular statutory context, effectively stands in the shoes of the original decisionmaker. It does not seem to me that Smithers J was attempting to make any statement about the status of the substituted decision or whether it is taken to be that of the original decisionmaker for all purposes. Even if his Honour had been making such a statement, it must be remembered that a different statutory context was under consideration in that case.
As indicated above, the relevant context here provides that the Minister is not limited to determining the review application based on planning considerations. The Minister's decision is also 'final'. This is very different to the considerations both the local government and the Tribunal are required to have regard to in determining a development application (cl 67 of Sch 2 of the LPS Regulations, plus s 241 of the PD Act, as well as some powers available under the SAT Act when it is the Tribunal determining the matter). Neither the decision of the local government nor the decision of the Tribunal is final. Both are subject to a form of review/appeal, albeit of a different nature.
The effect of the determination of a review application when made by the Minister is identified in s 247(2) of the PD Act. The PD Act does not define or explain what this phrase means. That phrase is not one with a fixed single meaning. The most relevant dictionary definition (taken from the Oxford Dictionary Online (2017) identifies 'tenor' as meaning 'the general meaning [or] sense'. However, the term 'tenor' has very specific meaning in some areas of law, for example, in relation to bills, and in the area of libel, it means the exact words, whereas in relation to wills 'the tenor of the will' it has a meaning closer to the dictionary meaning (see D Greenberg and Y Greenberg (eds), Stroud's Judicial Dictionary of Words and Phrases (9^th ed, 2016).
The Explanatory Memorandum for the Planning Appeals Amendment Bill 2001 (WA) inserting the original s 70 and s 71 providing for Ministerial call in does not address the issue of what is meant by the phrase. In the time available, I have made a somewhat cursory search of Hansard, in particular the second reading speeches, but was not able to identify anything of assistance.
The notice of the Minister's decision before the Tribunal is located at tab 8 of the agreed bundle. The Minister's letter relevantly states: 'I have determined that the application for review is allowed, and the deemed refusal of the respondent is set aside and conditional approval is granted'. The letter then states that 'I attach a notice which gives effect to my decision'.
There is nothing in the letter or the attached notice that states that the decision is to have effect as if it were a decision of the local government.
In my view, there is nothing in the text or context of the PD Act that would allow for any inference to be formed, or that would justify the reading in of any text (having regard to the principles concerning the limitations on when this may be done, and I refer to the summary on this topic at [2.32] in Statutory Interpretation in Australia as well as to the useful summary in The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345 at [137] [145] per Edelman J), so as to cause a result that the decision of the Minister, whether he/she sets aside the decision of the local government and substitutes his/her own decision, or otherwise, to be understood as having the effect that the Minister's decision must be taken to be as if it were a decision of the local government. It stands, and has effect according to its tenor, as a determination of the development application made by the Minister.

Alternative argument

The applicant's alternative argument is that the Tribunal should deem the amendment application to have been a development application made under cl 62(1) of Sch 2 of the LPS Regulations, on the basis that that is in substance what the application was.
The respondent submits that such an approach is not open to the Tribunal because it cannot go back in time to alter the application before the respondent. The decision of the respondent was a decision in relation to the actual application made, and cannot be taken by the Tribunal to have been a decision in relation to a different application: citing Bakker and City of Nedlands [2005] WASAT 106 and Aznavour Pty Ltd & Ors v The City of Mandurah [2002] WASC 95.
While I am of the view that, while on the particular facts of a case, an application to amend a development approval may result in the decisionmaker (and the Tribunal upon review) having to review the entire development proposal rather than simply the condition(s) sought to be amended, this does not mean that an application to amend a development application is in substance the same as an application for development approval. If that is correct, it is simply not open to the Tribunal to purport to deem the application made under cl 77 of Sch 2 of the LPS Regulations as an application for development approval under cl 66 of Sch 2 of the LPS Regulations.
However, it is not necessary for me to decide that point in this case, as I am not satisfied that it would be appropriate, in the circumstances, to take such a step, assuming that I could. This is a case where the original development approval was granted by the Minister after the matter was called in under s 246 of the PD Act. If the Tribunal were to 'deem' the application to amend that development approval as an application for development approval, it would have the effect that the Minister would have no ability to consider and call in, if it were thought appropriate, that review of a development application. Particularly in circumstances were the government was in caretaker mode at the time that this application for review was lodged in the Tribunal, and where the Minister has only 14 days within which to call in an application for review in the Tribunal, such a course of action would not be appropriate.

Conclusion

For the reasons outlined above, the Tribunal is satisfied that there is not a reviewable determination before it in this application. The Tribunal, therefore, does not have any power to grant or refuse to grant the application for amendment of the existing development approval in relation to the site. Therefore, the correct and preferable decision is to dismiss this application.

Order

The Tribunal makes the following order:
1.The application is dismissed.

I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS L EDDY, MEMBER