HARDING and SHIRE OF CHITTERING

[2006] WASAT 171

HARDING and SHIRE OF CHITTERING [2006] WASAT 171

Last Update :04/07/2006

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 171
Published:
Act:	TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
Case No:	DR:563/2005	Heard:	DETERMINED ON THE PAPERS
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	28/06/2006
No Pages:	13	Judgment Part:	1 of 1
Result:	Declaration that no planning consent granted
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : HARDING and SHIRE OF CHITTERING [2006] WASAT 171 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE PAPERS DELIVERED : 28 JUNE 2006 FILE NO/S : DR 563 of 2005 BETWEEN : CYRIL HARDING

Applicant

AND

SHIRE OF CHITTERING
Respondent

Catchwords:

Planning and development ­ Preliminary issue ­ Direction to cease use ­ Whether use approved ­ Proper construction of correspondence ­ Extractive industry licence ­ Use of form prescribed by town planning scheme for approval ­ Whether use of form constitutes approval ­ Form inconsistent in content and with covering letter

Legislation:

Shire of Chittering Town Planning Scheme No 5, Sch 3, Sch 3.1
Town Planning and Development Act 1928 (WA), s 10(3)

(Page 2)

Result:

Declaration that no planning consent granted

Category: B

Representation:

Counsel:

Applicant : N/A
Respondent : N/A

Solicitors:

Applicant : Turner Master Planners Australia (Planners)
Respondent : Hardy Bowen

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

Harding and Anor v Shire of Chittering and Ors [2004] WATPAT 146
Harding and Shire of Chittering [2006] WASAT 63
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Case(s) also cited:

Enoka v Shire of Northampton (1996) 15 WAR 483

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

1 Mr Harding sought a review by the Tribunal of a direction under s 10(3) to cease using a gravel pit on his property in Chittering. He raised four grounds to support his application. In March 2006, the Tribunal ruled that two of those grounds raised issues already determined by the Town Planning Appeal Tribunal in earlier proceedings, and it was not open to Mr Harding to argue those issues again. A third ground was that the use of the land as a quarry was the subject of a planning approval in the Shire in 2002, and that the use was therefore lawful. The Tribunal was asked to rule on that issue.

2 The Tribunal examined the documents said by Mr Harding to constitute the approval. Although it was critical of the Shire's communication, the Tribunal concluded that, properly construed, the documents did not amount to an approval. A declaration was made to that effect. The Tribunal also noted that Mr Harding had never treated the documents as an approval.

Introduction

3 These reasons concern a further preliminary issue which has arisen in these proceedings. The proceedings concern a direction under s 10(3) of the Town Planning and Development Act 1928 (WA) (the TPD Act) directing the applicant immediately to cease extractive industry work at what is known as the eastern pit, or Pit No 1, at Lot 11, 711 Chittering Valley Road, Chittering. On 17 March 2006, the Tribunal delivered reasons for decision striking out two of the four grounds of review which the applicant sought to argue – see Harding and Shire of Chittering [2006] WASAT 63. The basis of striking out those two grounds was that the issues which they raised had previously been determined by the Town Planning Appeal Tribunal in its reasons delivered on 13 August 2004 in Harding and Anor v Shire of Chittering and Ors [2004] WATPAT 146.

4 Following that decision, two grounds for review remained unresolved. The remaining issues were then referred to mediation in the hope that the parties might resolve them. As a result of that process, the parties have now agreed that the third ground should also be determined on the papers by the Tribunal outside of the mediation process. It is anticipated that, once the third ground is resolved, the fourth ground, which relates to the manner of restoration of the land the subject of the notice, might be amenable to agreement within the mediation process.

(Page 4)

5 The third ground of review is expressed by the applicant in the following terms:

"3.1 The Shire of Chittering on 28 June 2002 issued 'council's planning consent to the proposed development, being for planning consent/extractive industry as described on the application received on 6 May 2002 and the accompanying plans'. That approval related to both Pit No 1 and No 2.

3.2 That approval is still current and if that is the case then the Shire section 10(3) direction in its entirety is invalid and should be quashed. If it is not deemed valid then the Shire will be liable for compensation and damages."

6 The respondent contends that the documents relied upon by the applicant as constituting a planning consent are not capable of being construed as a planning consent and were never taken by the applicant as constituting a planning consent. The applicant contends that, even if the documents can be construed as a planning consent, they cannot amount to a valid consent since the respondent had no power to consent to the application under its applicable town planning scheme. Finally, the respondent contends that the status of the documents relied upon as consent was considered by the Town Planning Appeal Tribunal in its decision, and it is not now open to re-agitate that issue.

The documents relied upon by the applicant.

7 In contending that the respondent has issued a planning consent in relation to the two pits on the applicant's land, the applicant relies upon a document in a form prescribed by Schedule 3.1 of the Shire of Chittering Town Planning Scheme No 5 (TPS 5) (the consent form). The consent form reads as follows:

"SCHEDULE 3.1
SHIRE OF CHITTERING
TOWN PLANNING SCHEME

DECISION ON APPLICATION FOR COUNCIL'S PLANNING CONSENT

Name of owner of land on which development is proposed:

Surname: HARDINGGiven Names: CYRIL

Address: Lot 11 Chittering Valley Road, Chittering

(Page 5)

Council's Planning Consent to the proposed development, being for Planning Consent/Extractive Industry as described on the application received on 6 May 2002 and the accompanying plans, is GRANTED subject to the following conditions: -

Grant approval to an interim Extractive Industry Licence for Lot 11 Chittering Valley Road, Lower Chittering under the same areas and conditions as the existing Extractive Industry Licence issued by Council in 1997 and including any conditions applicable to the Pollution Abatement Notice until the completion of the Planning Consent application and the environmental assessment process.

See attached conditions of interim approval.

Date: 28 June 2002 Signed:

Ray Hooper

CHIEF EXECUTIVE OFFICER"

8 Attached to the consent form were two documents in the form of licences in respect to Pit No 1 and Pit No 2 respectively. The licence in relation to Pit No 1 read as follows:

"Licence Holder: Mr Cyril Harding

Address: Lot 11 Chittering Valley Road, Chittering 6084

Land Description: Pit Number 1 on Lot 11 Chittering Valley Road

Terms of Licence: Interim Licence until Planning Consent and Environmental Assessments have been completed.

Conditions:

1. Payment of application fee (non refundable) $400.

2. Hours of operation being permitted as follows:

a. Monday to Friday 6.30am to 6.00pm
b. Saturday 7.30am to 5.00pm
c. Sunday Nil

3. Maximum depth of excavation to be 5 metres.

(Page 6)

4. Area to be excavated from lot boundaries and roads shall be strictly in accordance with the provisions of the Extractive Industry Local Law.

5. Setback of excavation from lot boundaries and roads shall be strictly in accordance with the provisions of the Extractive Industry Local Law.

6. Licence to expire 30 June 1997.

7. Payment of the Annual Licence Fee by the due date.

8. Compliance with rehabilitation and excavation programmes.

9. Agriculture WA to approve the Notice of Intent to Clear and impose any associated conditions.

10. Compliance with Neighbourhood Noise Regulations and Noise Conditions associated with the licensing of plant and equipment.

11. Payment of a bond or lodgement of another form of guarantee to the satisfaction of Council to be made in accordance with Clause 14 of the Extractive Industry Local Laws at the rate of $4,000 per hectare or part thereof of the excavation site to be excavated annually prior to any excavation taking place.

12. Internal access roads at the end of Pit 1 to the end of the blue area on the application plan also act as a firebreak and being 20 metres from the property boundary.

13. Entrance road to be maintained for a minimum of 50 metres from Chittering Valley Road and to be sealed and drained so no wash occurs onto the intersection.

14. Four (4) copies of a rehabilitation plan to be submitted and approved by Council.

15. The area marked in blue on the application form to be rehabilitated to the satisfaction of Council by 30 June 1997 or an extension of time to be applied for and approved (Pit 1).

16. Rehabilitation of the 1996/97 area to be completed by 30 June 1997.

17. Green areas on the application plan to be rehabilitated and planted as a vegetated buffer strip with no vehicular access except where the access/cartage road crosses the strip at the north and south extremities by 30 June 1997 (Pit 1).

18. The green area on the application form to be extended to adjoin the property boundary of Lots 14 and 15 (Pit 1)."

(Page 7)

9 The licence for Pit No 2 was in the same terms save that condition 6 provided that the licence was to expire on 30 June 2002.

10 The consent form was sent to the applicant under cover of a letter dated 1 July 2002 which reads as follows:

"OUR REF: MS: HL: 10.9.10 36-02
Enquiries to: Mathew Selby, Shire Planner


1 July, 2002

Mr C Harding
Lot 11 Chittering Valley Road
CHITTERING WA 6084


Dear Cyril

PLANNING CONSENT/EXTRACTIVE INDUSTRY APPLICATION
LOT 11 CHITTERING VALLEY ROAD, CHITTERING

Your Planning Consent and Extractive Industry application were presented to the Council meeting of the 20 June 2002 for consideration whereby it was resolved as follows:-

'That Council:

1. Defer consideration of item 6.4.3 including the officers recommendations 1, 2 and 3 of the Council agenda of 20 June 2002 until the environmental process, which includes:

i) setting the level of assessment
ii) appeal process
iii) ministerial determination

is completed
2. Grant approval to an interim Extractive Industry Licence for Lot 11 Chittering Valley Road, Lower Chittering under the same areas and conditions as the existing Extractive Industry Licence issued by Council in 1997 and including any conditions applicable to the Pollution Abatement Notice until the completion of the Planning Consent application andthe environmental assessment process.'

The interim licences are subject to full compliance with the Extractive Industry Local Law and the conditions listed on the attached Schedule of Approval.

(Page 8)

Please note that the bond or guarantee for rehabilitation is to be calculated at a rate of $4,000 per hectare or part thereof of excavation to be excavated annually.

As you are aware the pits have been and remain subject to intensive scrutiny and possible litigation and you are urged to ensure full and correct compliance with every aspect of the Extractive Industry Local Law and the conditions included in the interim licence.

Should you be aggrieved by any aspect of the decision, you may request to have the decision reviewed by Council. If after consideration by Council, the decision or any of the conditions imposed are still unacceptable, you are advised that you have the right of appeal.

Such an appeal should be lodged with the Minister for Planning and Infrastructure or the Town Planning Appeal Tribunal within sixty days of the date of Council's determination. The necessary appeal forms are available from Council's Administration Centre or from the Ministry for Planning, 469 Wellington Street, Perth.

If you require further information please contact Council's Planning Department by email on [email protected] or telephone [phone].

Yours faithfully

Ray Hoper
CHIEF EXECUTIVE OFFICER


Enc: Sch 3.1
CC: All Councillors."

11 Given the observation by the Chief Executive Officer that the pits "have been and remain subject to intensive scrutiny and possible litigation" it is extraordinary that the documents set out above contain a number of obvious internal inconsistencies. The most glaring is the licence in relation to Pit No 1 dated 1 July 2002, containing a condition that the licence is to expire on 30 June 1997. Similarly the licence in relation to Pit No 2, also issued on 1 July 2002, is expressed to expire the previous day. The other glaring inconsistency in the documents is the advice in the letter of 1 July 2002 that the Council had deferred consideration of the application for planning consent, whereas the consent form speaks of planning consent being "granted subject to the following conditions…".

(Page 9)

Do the documents constitute a planning consent?

12 The applicant bases its contention that there is an operative planning consent in relation to Pit No 1 on the proposition that the consent form expressly states that the planning consent is granted subject to conditions. The applicant argues that the use of the form prescribed by TPS 5, being the document by which the respondent must convey its determination on an application for planning consent, leads inevitably to a conclusion that the respondent had granted its consent. He also submits that "all parties should be entitled to accept an advice decision by the council on face value" and asks rhetorically "if that is not possible then what advice from council can ever be accepted?"

13 While it is true that the opening paragraph of the document speaks of planning consent having been granted, it is necessary to read the document in its entirety in order to determine its proper construction. The introductory words are inconsistent with what is described as a "condition". The "condition" sets out the Council's resolution to grant an interim extractive industry licence. That interim licence is said to be granted "until the completion of the planning consent application and the environmental assessment process". Those words would be meaningless if, in fact, the planning consent application had been completed. The confusion which arises on a plain reading of the document is clarified by the terms of the covering letter which set out the full resolution of Council, which involved deferring the planning issue pending resolution of the environmental process.

14 In my view, it is obvious that the Chief Executive Officer made an error in utilising the form prescribed in Sch 3 of TPS 5 to convey the Council's decision to grant an interim extractive industry licence. However, when all of the documents provided to Mr Harding are read together, the true nature and effect of the Council's resolution, at least insofar as it related to the planning consent application, was clear. That is, at its meeting on 20 June 2002, no decision to grant approval for the quarry use was in fact made. There is no argument by the applicant that council subsequently granted any planning consent.

15 As was observed by the respondent in its submissions, Mr Harding appreciated at the time that the respondent had not given planning consent to the use of the quarry. He said as much in a witness statement dated 5 July 2004 in the proceedings before the Town Planning Appeal Tribunal which led to its decision in Harding and Anor v Shire of Chittering and Ors. Mr Harding said in that statement:

(Page 10)

"127. I was confused by the Shire's letter dated 1 July 2002 and the Form 3.1 dated 28 June 2002 which said that planning consent was granted subject to the condition 'Grant approval to an interim Extractive Industry Licence for Lot 11'.

128. I read this as meaning that the Shire had deferred consideration of the planning application until the environmental process was complete and had merely granted an interim extractive industry licence to me for Lot 11.

129. I have not acted or relied upon my planning application submitted to the Shire in May 2002 because I understood from the Shire's letter dated 1 July 2002 that it had not granted planning approval to me until the environmental process was complete.

130. I have not acted or relied upon the Shire's Form 3.1 planning consent dated 28 June 2002.

131. I allowed gravel to be extracted from Lot 11 after July 2002 because I believed I could act on the interim extractive industry licence granted in the Shire's letter dated 1 July 2002.

132. Following the Shire's letter to me dated 1 July 2002 the Shire has not informed me that planning approval for an extractive industry was subsequently granted on Lot 11, nor have I made a fresh application for planning approval to the Shire."

16 In his submissions on this issue, Mr Turner who acts as agent for Mr Harding, contends that Mr Harding's understanding of the correspondence of 1 July 2002 and its enclosures is irrelevant. It is true that the actions of the respondent, and the proper construction of its correspondence, should be assessed objectively. However, the fact that the Tribunal's view as to the proper construction of the documents is a view which precisely accords with Mr Harding's own construction of the documents at the relevant time, somewhat undermines the argument he now pursues, and explains why he did not pursue the same argument in the previous proceedings before the Town Planning Appeal Tribunal. It also shows that Mr Harding understood the position as conveyed to him (Page 11)

by the correspondence, and the answer to the rhetorical question put in his submissions does not support the contention he now makes.

17 There is much room for criticism of the respondent in the way it conveyed the Council's resolution of 20 June 2002 to the applicant. However, in the Tribunals' view, it is plain that the resolution was not a resolution to grant planning approval to the quarry use, and the correspondence which followed that resolution did not itself amount to a planning approval.

The power to grant consent

18 The respondent argues that, even if the documents could be construed as a planning approval, there was no power under TPS 5 for the respondent to approve the application. That contention is based upon the proposition that, in 1992, TPS 5 was amended by deleting "extractive industry" as a permitted use within the relevant zone. The Tribunal has not been provided with a copy of TPS 5 as it applied at the time, and it is not, therefore, possible to properly examine the consequences of the amendment to TPS 5 in 1992. In view of my conclusion as to the proper effect of the documents said to constitute the planning consent, it is not necessary for me to examine the question of the Council's power to grant approval.

Issue estoppel

19 The respondent also raises an argument of issue estoppel, namely that the validity or otherwise of the document said to constitute the approval was a matter dealt with in the Town Planning Appeal Tribunal in Harding and Anor v Shire of Chittering and Ors. It is true that that case proceeded on the basis that there had been no approval to the use given by the respondent in June 2002. No doubt the Tribunal was influenced in that approach by Mr Harding's own evidence to that effect. The documents now relied upon by Mr Harding were clearly before the Town Planning Appeal Tribunal when it considered the question of non-conforming use of the land. It is clear that the arguments which Mr Harding now seeks to pursue in these proceedings are arguments which were available to him in the earlier Town Planning Appeal Tribunal proceedings, and were highly relevant to the issues before that Tribunal. It is clear that Mr Harding chose not to pursue an argument in the earlier proceedings that the correspondence of July 2002 amounted to an approval. In my earlier decision in these proceedings in Harding and Shire of Chittering, (at [12] – [16]) I discussed the principle which emerges from the High Court's decision in Port of Melbourne Authority v

(Page 12)

Anshun Pty Ltd (1981) 147 CLR 589. It was not argued in the context of the earlier preliminary issues raised in this matter that that principle precluded the applicant from arguing that there was an approval in June or July 2002, and accordingly I did not address it in my earlier reasons. The matter having now been raised by the respondent, I consider that there is a strong argument that the principles of issue estoppel might prevent the applicant from arguing the contention that it now raises.

20 In his responsive submissions on behalf of the applicant, Mr Turner deals with the respondent's contentions in relation to issue estoppel on the basis simply that they are "irrelevant". Given the way that the matter has come to me to be dealt with purely on the papers, I am not satisfied that the question of issue estoppel in relation to the asserted approval in 2002 has been fully addressed by the applicant. In view of my conclusion in relation to the construction of the documents, it is not necessary for me to reach any final conclusion on the issue estoppel contention.

Conclusion

21 For the foregoing reasons, the Tribunal finds that the respondent did not issue a planning consent on 28 June 2002 relating to Pit No 1 and Pit No 2. That conclusion, when read with the conclusions embodied in the Tribunal's earlier decision of 17 March 2006 means that all that remains in the proceedings is the fourth ground of review dealing with the specific requirements as to restoration of the land. That is a matter in respect of which mediation is ongoing, and the matter will be referred back to the mediator to purse that issue.

Orders

22 The Tribunal makes the following orders:

1. It is declared that the Shire of Chittering did not issue a planning consent for the use of both Pit No 1 and Pit No 2 on the applicant's land at Lot 11 Chittering Valley Road, Chittering on 28 June 2002.

2. The matter is referred back to mediation to deal with the remaining issue in the proceedings.

(Page 13)

I certify that this and the preceding [22] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE J CHANEY, DEPUTY PRESIDENT