25 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
26 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.
27 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.
28 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[.]
29 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
30 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).
31 The text of the LPS Regulations does not include reference to a decision of the Minister under s 246 of the PD Act. 32 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.
33 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.
34 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.
35 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.
36 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.
37 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 (8th 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.
38 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.
39 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.
40 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 (9th ed, 2016).
41 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.
42 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'.
43 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.
44 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
45 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.
46 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.
47 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.
48 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
49 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.