Harding and Shire Of Chittering
[2006] WASAT 63
•17 MARCH 2006
HARDING and SHIRE OF CHITTERING [2006] WASAT 63
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 63 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:563/2005 | DETERMINED ON THE PAPERS | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 17/03/06 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Grounds of review based on claim of nonconforming use struck out | ||
| B | |||
| PDF Version |
| Parties: | CYRIL HARDING SHIRE OF CHITTERING |
Catchwords: | Town planning Direction to cease quarry and make good Preliminary issue Whether applicant estopped from claiming nonconforming use Issue estoppel Nonconforming use rights Earlier determination by competent tribunal Whether different questions involved in proceedings |
Legislation: | Shire of Chittering Town Planning Scheme No 6 State Administrative Tribunal Act 2004 (WA), s 9, s 9(a), s 47 Town Planning and Development Act 1928 (WA), s 10, s 10(2), s 10(3) |
Case References: | Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464 Harding and Anor v Shire of Chittering and Ors [2004] WATPAT 146 Henderson v Henderson (1843) 3 Hare Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 Gretna Nominees Pty Ltd v Town of Claremont [1996] WATPAT 5 Norman v Gosford Shire Council [1975] HCA 15 Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 |
Orders | Part 1 and Part 2 of the applicant's amended grounds of appeal are struck out |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : HARDING and SHIRE OF CHITTERING [2006] WASAT 63 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE PAPERS DELIVERED : 17 MARCH 2006 FILE NO/S : DR 563 of 2005 BETWEEN : CYRIL HARDING
- Applicant
AND
SHIRE OF CHITTERING
Respondent
Catchwords:
Town planning Direction to cease quarry and make good Preliminary issue Whether applicant estopped from claiming nonconforming use
Issue estoppel Nonconforming use rights Earlier determination by competent tribunal Whether different questions involved in proceedings
Legislation:
Shire of Chittering Town Planning Scheme No 6
State Administrative Tribunal Act 2004 (WA), s 9, s 9(a), s 47
Town Planning and Development Act 1928 (WA), s 10, s 10(2), s 10(3)
(Page 2)
Result:
Grounds of review based on claim of nonconforming use struck out
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):
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464
Harding and Anor v Shire of Chittering and Ors [2004] WATPAT 146
Henderson v Henderson (1843) 3 Hare
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304
Case(s) also cited:
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270
Gretna Nominees Pty Ltd v Town of Claremont [1996] WATPAT 5
Norman v Gosford Shire Council [1975] HCA 15
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1
(Page 3)
Summary of the Tribunal's decision
1 Mr Harding applied to the Tribunal to set aside a direction that had been served on him pursuant to s 10 of the Town Planning and Development Act 1928 (WA). The direction required him to cease quarrying a portion of his land at Lot 11, 711 Chittering Valley Road, Chittering, and to restore the land. Part of Mr Harding's grounds for setting aside the direction were based on the proposition that the quarry concerned was entitled to non-conforming use rights under the applicable town planning scheme, and his activities were thus lawful.
2 A similar notice had been served on Mr Harding some years earlier. That notice had been the subject of an appeal to the Town Planning Appeal Tribunal which had ruled that the pit in question does not enjoy non-conforming use rights. The Shire of Chittering argued that Mr Harding should not be allowed to argue that issue again in these proceedings because the point had already been decided by a competent tribunal in earlier proceedings between the same parties.
3 The Tribunal examined the legal principle involved and Mr Harding's arguments as to why it should not be applied in this case. Having done so, the Tribunal concluded that it was not now open to Mr Harding to argue that the pit enjoyed non-conforming use rights, and that part of his application should be struck off.
The preliminary issue
4 There is a long background to the present proceedings. The present application arises from the service of a direction under s 10(3) of the Town Planning and Development Act 1928 (WA)(the TPD Act) directing the applicant to immediately cease extractive industry work at what is known as the eastern pit, or pit no 1, at lot 11, 711 Chittering Valley Road, Chittering. The direction also requires restoration works to be carried out. There is another quarry pit located at lot 11, known as pit no 2.
5 Put broadly, two of the applicant's grounds upon which he seeks to set aside the direction rely upon the proposition that both pit no 1 and pit no 2 enjoy non-conforming use rights under the present Shire of Chittering Town Planning Scheme No 6 (TPS 6) and thus that the work which the direction seeks to stop is being carried on lawfully.
(Page 4)
6 The respondent has previously issued a direction under s 10(2) of the TPD Act on 9 September 2003. That notice was the subject of proceedings before the Town Planning Appeal Tribunal which delivered its reasons on 13 August 2004 – see Harding and Anor v Shire of Chittering and Ors [2004] WATPAT 146. In those proceedings, the former Tribunal concluded that the use of pit no 1 was not a lawful non-conforming use of the land, but the use for quarry of pit no 2 did constitute a lawful non-conforming use.
7 In these proceedings, the respondent contends that it is not now open to contend, as the applicant does in the grounds of his application, that the present direction should be set aside on the basis that pit no 1 enjoys non-conforming use rights. That contention has been identified as a preliminary issue, and it is with that issue that these reasons are concerned.
8 Mr Harding's application originally sought, in addition to orders staying and setting aside the s 10 notice, relief expressed as follows:
"1. To grant an extension of time to appeal against the Town Planning Appeal Tribunal's decision No 293 of 2003.
2. An order that portion of the Tribunal's decision should be set aside."
9 In addition to the issue concerning the applicant's entitlement to argue the question on non-conforming rights, the respondent also identified preliminary issues as to whether there was any jurisdiction on the part of this Tribunal to grant an extension of time to appeal against the earlier decision of the Town Planning Appeal Tribunal, and whether there was any jurisdiction on the part of this Tribunal to set aside or otherwise alter that decision. It is abundantly clear that this Tribunal does not have jurisdiction to do either of those things, and that matter was readily conceded by the applicant. Those aspects of the applicant's application thus fall away, leaving only the question of issue estoppel in relation to non-conforming use rights.
The grounds of appeal
10 The grounds of appeal as they have been amended during the course of the proceedings deal with the question of non-conforming use rights in two respects. The grounds read as follows:
"PART 1.
(Page 5)
- 1.1 The Extractive industry (gravel) was commenced on lot 11 Chittering Valley Road in Pit No 1 on or about 1974 and continued thereafter with the approval of the Shire of Chittering (the Shire). Pit No 2 commenced in late 1977 and continued thereafter with the approval of the Shire. The Shire also quarried the land near Pit No 2 about the same time, without a planning consent, and without restoring or rehabilitating the site.
1.2 Planning control in the Shire of Chittering was by way of Interim Development Order Nos 1 to 6 between 31 August 1973 and 11 July 1988. There were large gaps in the continuity of the IDO's.
1.3 Both Pit No 1 and 2 were quarried intermittently and activity was conducted during the lengthy gaps when there was no IDO in operation.
1.4 Such use was lawfully commenced during the gaps in the operation of the IDO's for both Pit No 1 and Pit No 2. That gave both Pits non-conforming use rights under the present Town Planning Scheme No 6. (TPS No 6). The Shire issued extractive industry licences for both Pits up to the present.
PART 2.
2.1 The Town Planning Appeals [sic] Tribunal in appeal No 293 of 2004 found that Pit No 2 was lawfully established and is in compliance with TPS No 5 because it was a continuing non-conforming use.
2.2 Mr Harding established the quarry operation with the clear intention of quarrying from the whole site where the gravel was available. The non-conforming use applies to the whole of the 'planning unit' comprising Lot 11 containing the gravel resource.
2.3 The non-conforming use rights effectively obviate the need for further planning approvals for the expansion of quarrying activity in the gravel resource because such use is an inherent part of the non-conforming use. This does not constitute an extension of the use in the meaning of an extension under TPS No 6.
(Page 6)
- 2.4 The quarrying activity in Pit No 1 is therefore just part of the established non-conforming use of the lot and therefore the Shire's Section 10(3) Direction should be quashed or compensation will be triggered."
11 In short, the applicant's contention is that the recommencement of the use of each of the pits during gaps in the period of application of interim development orders gave rise to non-conforming use rights which are operable in relation to the present TPS 6, or alternatively the lawful non-conforming use in relation to pit no 2 extends over the whole of lot 11, including pit no 1. It is those contentions that the respondent argues cannot now be revisited in the light of the previous decision of the Town Planning Appeal Tribunal.
The principle of issue estoppel
12 The principle upon which the respondent relies was described by Dixon J in Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) (1939) 62 CLR 464 at 531 a follows:
"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."
13 The principle is not limited to judicial proceedings. As Gibbs J said in Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 453:
"The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc."
14 It is clear that the principle is capable of applying to determinations by the former Town Planning Appeal Tribunal which was established under the TPD Act.
15 In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598, the High Court discussed the principle annunciated by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare at 115, namely that:
(Page 7)
- "where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."
16 The High Court observed that although that passage refers to questions of res judicata, it has been extended to the doctrines of issue estoppel, although its application to cases of issue estoppel are to be treated with caution. In their joint judgment, Gibbs CJ, Mason and Aickin JJ concluded that:
"We would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding." [at page 602]
The Town Planning Appeal Tribunal decision
17 The direction the subject of the earlier proceedings before the Town Planning Appeal Tribunal (TPAT) was a direction in the following terms:
"The Council of the Shire of Chittering directs you to cease operation of the extractive industry (gravel) from the property known as Lot 11 Chittering Valley Road, Lower Chittering. This direction takes effect immediately on service of this notice on you. You must recommence the aforementioned operations unless permitted to do so by the Town Planning Appeal Tribunal, pending the hearing of an appeal against this notice."
(Page 8)
18 The grounds of appeal to the TPAT are set out in the TPAT's reasons. The grounds were:
"(1) The property enjoys non-conforming rights of continuance.
(2) The quarry operates under an extractive industry licence issued by the Shire of Chittering – and has done so since 1977.
(3) The notice is unlawful, causing injurious affection and hardship on the owners and operator of the quarry."
19 The TPAT examined the history and background of the land in question and the quarrying on pit no 1 and pit no 2 respectively. It referred to the various planning instruments affecting the land over an extended period and reviewed the provisions of the applicable planning instruments in relation to non-conforming use. It made reference to the evidence given by Mr Edward Robert Turner, who is the applicant's representative in these proceedings, concerning the applicable periods of the six interim development orders that have affected the land between 1973 and 1988. TPAT observed (at [53]) that it can "be seen that there were periods of time, some quite lengthy when there was no IDO in operation".
20 After its review of the historical use of the land, the Tribunal reached the conclusion that pit no 2 enjoyed non-conforming use rights, but that there had been no extension of that non-conforming use. In relation to pit no 1, the Tribunal found it to be operated in contravention of the applicable town planning scheme because it did not enjoy non-conforming use rights. Accordingly, the determination of the TPAT was to vary the direction issued by the first respondent to read:
"You are directed to cease operation of the extractive industry (gravel) from the area known as Pit No. 1 located adjacent to the eastern boundary of your property, 711 Chittering Valley Road, Lower Chittering, being lot 11 on diagram 36511, Certificate of Title Volume 391 Folio 176A."
The direction of 10 August 2005
21 The direction the subject of these proceedings was issued on 10 August 2005. It is a direction to immediately cease extractive industry work at pit no 1 and carry out restoration. The direction is thus, in part,
(Page 9)
- effectively a repetition of the direction as varied by TPAT, although it also contains directions in relation to restoration of the land.
The applicant's arguments
22 The applicant contends that he should not be precluded from arguing that pit no 1 enjoys non-conforming use rights for what appeared to be two reasons. The first is based upon a proposition that the Tribunal is not bound by decisions of an earlier Tribunal which it replaced, and should, consistently with the objectives set out in s 9(a) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), consider the substantial merits of the case especially if the Tribunal is satisfied that an earlier decision was clearly in error. The second proposition is that "the same question" has not been decided in the earlier TPAT proceedings, and that questions which the applicant seeks to raise in these proceedings are different from the questions asked and addressed by the TPAT in the earlier decision.
23 As for the first proposition, the applicant relies upon observations of the Tribunal in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 at [31] where the Tribunal said:
"For reasons of comity and consistency, a member of SAT should also generally follow a decision of another member of the Tribunal (or a member of a former Tribunal which SAT has replaced) that is in point, unless satisfied that the earlier decision was clearly in error: Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499. However, as the President is a judicial member and may review a decision of a non-legally qualified member on a question of law under s 66 of the TPD Act, the Tribunal constituted by or comprising the President may depart from a decision of a non-legally qualified member or indeed a legally qualified member on a question of law. The President may in this way provide appropriate guidance to the Tribunal on questions of law, subject to any further guidance the Court of Appeal may give from time to time."
24 The applicant did not develop the proposition that the decision of the TPAT was "clearly in error". I can see no basis for that contention, but in any event the precedent value of the earlier TPAT decision is a separate question from the question posed as a preliminary issue. The preliminary issue is whether the reopening of the issue of non-conforming use in relation to pit no 1 is permissible. That issue is not concerned with a
(Page 10)
- question of whether this Tribunal should follow the TPAT decision. Rather the question is whether it is open to the applicant to re-litigate a specific issue that has already been argued before, and determined by, a competent tribunal. The requirements of s 9(a) of the SAT Act that the Tribunal makes decisions "fairly and according to the substantial merits of the case" do not enable the Tribunal to put aside legal principle which, if it is applicable, operates to limit the basis upon which the applicant is entitled to have the direction under s 10 of the TPD Act reviewed.
25 It is clear that the applicant's principal contention is, however, the second of his arguments. In his submissions on the point, the applicant's representative put the matter this way:
"We do not believe the 2004 decision asked the appropriate questions and therefore, did not include a proper and full consideration of the non-conforming use rights. With respect, we consider the references to non-conforming use rights were drawn hastily in the interests of arriving at a decision quickly without the benefit of appropriate questions and examination. The Tribunal was more concerned with initial commencement dates of uses rather than whether non-conforming use rights applied."
26 To illustrate the point, the applicant identifies questions to which TPAT directed itself in the earlier decision. It said, at [8], "the issue is whether the development is in accordance with the relevant town planning scheme". The applicant then points to another question which the Tribunal asked itself, at [72] where it said:
"The question for the Tribunal is whether, at the time of commencement of the use, planning approval was required, and if required, whether it was sought and obtained."
27 Each of the questions identified by the applicant which are referred to in the earlier TPAT decision is a question which is relevant to the existence or otherwise of non-conforming use rights. That the TPAT was considering that issue is made clear at [9] of its decision where the Tribunal said:
"It should be emphasised that at all times the Appellants' contention has been not that the development in question has been commenced, continued or carried out with an approval under the Respondent's town planning scheme, but rather that because it said 'the property enjoys non-conforming use rights
(Page 11)
- of continuance' [and] as a result the development is carried on in a way which is in accordance with the First Respondent's town planning scheme."
28 The applicant in these proceedings identifies five questions which he contends should be asked in the context of these proceedings. Those questions are:
"Question 1
Notwithstanding that Pit No 1 was not lawfully commenced in 1974, was it recommenced subsequent to that date when there were 'periods of time, some quite long they when there was no IDO in operation'? If so, did that constitute a new commencement of the use, bearing in mind it was an intermittent use at that time?
Question 2
Was a use commenced or recommenced during these periods afforded the non-conforming use rights of subsequent IDO's or TPS's?
Question 3
As Pit No. 2 was confirmed as being a non-conforming use established in late 1977 what is the extent of the non-conforming use? Does it include the whole of Lot 11?
Question 4
What is the 'planning unit' of the non-conforming use / quarry and what were the owners intentions for quarrying the site? Does the planning unit comprise all the gravel resource on Lot 11 including Pit No 1?
Question 5
Was the Shire's Planning Approval required for the expansion of the non-conforming use beyond the initial location of excavation on Pit no.2?"
29 I do not accept that it is clear that the five questions were not wholly or partly addressed by TPAT. For example, the reference in the earlier decision to Mr Turner's evidence suggests that matters related to
(Page 12)
- questions 1 and 2 were canvassed at the earlier hearing. The finding of non-conforming use rights in relation to one pit but not the other suggests that TPAT did put its mind to the extent of the use on Lot 11, the central issue to which questions 2, 4 and 5 are directed. Regardless of that, however, it is clear that each of the five questions identified by the applicant relates to the ultimate question of whether or not, and to what extent, non-conforming use rights exist in relation to lot 11. The questions posed simply identify particular arguments which the applicant seeks to make to establish that non-conforming use rights on the land extend to the operations in pit no 1. That is precisely the matter upon which the TPAT reached a specific determination.
Is the non-conforming use argument open?
30 The TPAT has made a determination as to the existence and extent of non-conforming use rights on lot 11. Even if it is accepted that the arguments represented by the five questions which the applicant seeks to agitate were not arguments put to the TPAT, this is a case which falls squarely within the class of cases referred to Port of Melbourne Authority v Anshun Pty Ltd and the principle annunciated in Henderson v Henderson. It would be unreasonable to subject the respondent to a fresh argument on the very issue which was exhaustively argued before TPAT, and was determined by it. To permit the applicant to re-argue the matter would, rather than complying with the objectives of the Tribunal set out in s 9 of the SAT Act, not be fair to the respondent, and should not be allowed.
31 It follows the grounds for review described as "Part 1" and "Part 2" of the applicant's grounds of appeal should be struck out pursuant to s 47 of the SAT Act.
32 That conclusion does not finally resolve the matter. Part 3 and Part 4 of the grounds raise different issues which will need to be determined, and directions should be made to facilitate that process.
Orders
1. Part 1 and Part 2 of the applicant's amended grounds of appeal are struck out.
(Page 13)
- I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT
2