HORNE and WESTERN AUSTRALIAN PLANNING COMMISSION
[2008] WASAT 15
•30 JANUARY 2008
HORNE and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 15
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 15 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:380/2007 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 29/01/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Determination of Tribunal in DR 465 of 2006 affirmed | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM MAX HORNE WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 Whether any question of law raised |
Legislation: | Planning and Development Act 2005 (WA), s 238(3)(a), s 238(4), s 239(1), s 244, s 251(3) State Administrative Tribunal Act 2004 (WA), s 3(1), s 34(1) State Administrative Tribunal Regulations 2004 (WA), reg 10 |
Case References: | Horne and Western Australian Planning Commission [2007] WASAT 263 Lawson and Shire of Mundaring [2005] WASAT 1; (2005) 41 SR (WA) 67 Williams and Western Australian Planning Commission [2005] WASAT 10 Wilson and Western Australian Planning Commission [2004] WATPAT 215 |
Orders | 1. The application for review is dismissed.,2. The determination of the Tribunal made on 15 October 2007 in proceedings DR 465 of 2006 is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : HORNE and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 15 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 30 JANUARY 2008 FILE NO/S : DR 380 of 2007 BETWEEN : GRAHAM MAX HORNE
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Whether any question of law raised
Legislation:
Planning and Development Act 2005 (WA), s 238(3)(a), s 238(4), s 239(1), s 244, s 251(3)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 34(1)
State Administrative Tribunal Regulations 2004 (WA), reg 10
(Page 2)
Result:
Application for review dismissed
Determination of Tribunal in DR 465 of 2006 affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr A Shuy
Solicitors:
Applicant : Self-represented
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Horne and Western Australian Planning Commission [2007] WASAT 263
Lawson and Shire of Mundaring [2005] WASAT 1; (2005) 41 SR (WA) 67
Williams and Western Australian Planning Commission [2005] WASAT 10
Wilson and Western Australian Planning Commission [2004] WATPAT 215
(Page 3)
Summary of President's decision
1 Mr Horne sought review by the President of a determination of the Tribunal in which it refused to grant him subdivision approval for a twolot subdivision. However, the application for review did not raise any question of law concerning the determination. The application for review was dismissed and the determination of the Tribunal was affirmed.
Application for review by President
2 Mr GM Horne has applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for review by the President of a determination made by the Tribunal on 15 October 2007 in which the Tribunal affirmed the decision of the Western Australian Planning Commission (Commission) to refuse subdivision approval in relation to Lot 27766 Berry Brow Road, Inkpen in the Shire of York (site) see Horne and Western Australian Planning Commission [2007] WASAT 263.
3 Section 244 of the PD Act enables the President to review a determination upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Mr P de Villiers who is not a legally qualified member. However, no question of law concerning the determination is raised in the review. What Mr Horne appears to ultimately seek is a factual or merits redetermination. As I said in Lawson and Shire of Mundaring [2005] WASAT 1; (2005) 41 SR (WA) 67 at [10], I do not have power to undertake such a review.
Background
4 On 21 June 2006, Mr Horne sought approval from the Commission to subdivide the site into four "rural lifestyle lots". On 22 August 2006, the Commission refused to approve the subdivision application. On 15 September 2006, Mr Horne applied to the Commission for a reconsideration of its decision under s 144 of the PD Act. On 24 November 2006, the Commission reiterated its decision. On 20 December 2006, Mr Horne sought review by the Tribunal under s 51(3) of the PD Act of the Commission's decision to refuse to reconsider its decision.
(Page 4)
5 During the course of the review proceedings, Mr Horne submitted a revised plan of subdivision which involved the creation of two lots rather than the four lots initially proposed. On 26 June 2007, the Commission considered the revised plan and rejected it. On 27 June 2007, the Tribunal gave leave to Mr Horne to amend the application for review to incorporate the revised two-lot proposal. The proceedings were listed for a final hearing which took place before Senior Sessional Member de Villiers on 23 August 2007.
6 The Tribunal published its determination in relation to the proceedings on 15 October 2007.
7 At [13] of its reasons for decision, the Tribunal noted that the site is characterised by a drainage swale which runs east/west through the centre and that waterlogging occurs over much of the central area in winter. At [36], the Tribunal noted that the agreed, critical issue to be addressed in the review was the application of cl 3.2.1(a) of the Commission's Development Control Policy DC 3.4 - Subdivision of Rural Land (DC 3.4). That provision states that:
"Notwithstanding section 3.1.1, the Commission may approve subdivision of rural land for the following specific purposes:
(a) A significant natural or man-made feature already physically divides the proposed lots and an undesirable precedent would not be set."
8 Clause 3.1.1 of DC 3.4 (referred to in that document as s 3.1.1) states:
"There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or endorsed local rural strategy."
9 At [38], the Tribunal noted, correctly, that the following two specific issues were to be addressed:
• whether a significant natural feature already physically divides the proposed lots; and
• whether an undesirable precedent would be set should the subdivision be approved.
(Page 5)
10 The Tribunal then addressed the issue of whether a significant natural feature already physically divides the proposed lots at [40] - [53], concluding with the finding at [53] that "while the drainage swale clearly creates practical difficulties in terms of efficient farm management over the whole of the subject land it does not constitute a 'significant feature'" for four reasons. The Tribunal then addressed the issue of whether an undesirable precedent would be set at [54] - [66], concluding with the finding at [66] that "the relevant precedent does not support the case for subdivision of the subject lot and the approval of the current application would create an undesirable precedent" for three reasons. At [71], the Tribunal concluded that in consequence of the failure of the application to satisfy cl 3.2.1(a) of DC 3.4 and the consistency of State, regional and local planning policies establishing a general presumption against subdivision of rural land, the application for review should be dismissed. The Tribunal affirmed the Commission's decision to refuse subdivision approval.
Grounds for review by President
11 In his application for review by the President, Mr Horne sought to raise the following five grounds for review:
"1. The Tribunal erred by determining the natural feature was not 'significant' in the context of cl 3.2.1(a) of DC 3.4 without visiting the site and without the expert evidence provided by the Applicants [sic] being adequately tested and refuted by an expert of equal standing.
2. The Tribunal erred when assessing the relevance of the precedents set by the Boyercutty Road subdivision and the two small lots to the west of Berry Brow Road.
3. The Tribunal erred when assessing the merits and/or relevance of other specific attributes unique to the subject land.
4. The Tribunal erred by neither responding to nor acknowledging the Applicant's specific written request of 16 February 2007 'To direct the respective parties to carry out a site inspection of the subject land prior to the date of the final hearing'.
5. The Tribunal erred in its decision by aligning the current matter to [2004] WATPAT 215."
(Page 6)
12 In his submissions in reply, Mr Horne sought to add a sixth ground for review as follows:
"The Applicants [sic] contend that they have been disadvantaged by the Tribunal allowing them to submit a revised two lot application to be reviewed by a single Tribunal member as a Class 1 application, thus enabling the Respondent to retain the advantage of legal representation by the State Solicitor as per the original Class 2 application. Despite the Applicant's sincere efforts to narrow the disputed issues by submitting a revised application, their right to elect that no party be represented by a lawyer was waived."
Consideration of application for review
13 Mr Horne's first three grounds can be dealt with together. They clearly do not raise any question of law, but rather cavil with findings of fact made by the Tribunal. As I said in Williams and Western Australian Planning Commission [2005] WASAT 10 at [17]:
"Questions such as the adequacy of the evidence, the relevant significance or weight to be given to the evidence and appropriate findings to be made based on the evidence, are questions of fact, which are entirely within the province of the Senior [Sessional] Member to determine for himself, and do not ground any error of law (citations omitted)."
14 In particular, in relation to Mr Horne's first ground, the Tribunal considered the evidence of Mr Horne and Mr L Stephens, a geologist and botanist, who undertook a land capability and geotechnical assessment on Mr Horne's behalf. In the circumstances of the case, it was open to the Tribunal to find at [53] that the drainage swale does not constitute a "significant feature" for the four reasons there set out. It was reasonably open to the Tribunal to arrive at the finding for these reasons, notwithstanding the fact that the Commission did not call a geologist or botanist to give evidence, and relied, by way of expert evidence, on the evidence of a town planner. It was also reasonably open to the Tribunal to arrive at its finding without visiting the site. There was sufficient evidence, including aerial and ground photographs, on which the Tribunal could make its finding and come to the reasons for its finding without visiting the site.
15 Mr Horne's fourth ground refers to his letter to the executive officer of the Tribunal dated 16 February 2007 which enclosed Mr Horne's statement of issues, facts and contentions and bundle of documents and concluded with
(Page 7)
- the following three requests of the Tribunal:
"1. To permit the Applicants [sic] to present an alternative subdivision proposal as outlined in the accompanying bundle of documents.
2. To direct the respective parties to carry out a site inspection of the subject land prior to the date of the final hearing.
3. To consider if mediation is a realistic option to deal with the Applicant's alternative subdivision proposal."
17 In relation to Mr Horne's fifth ground, the Tribunal did not "align" the matter to the matter considered by the former Town Planning Appeal Tribunal in Wilson and Western Australian Planning Commission [2004] WATPAT 215. Rather, in the course of his conclusions, the senior sessional member referred to that decision and expressed agreement with part of the analysis. That decision was in point and it was open to the Tribunal to refer to and agree with the analysis. It is plain from the senior sessional member's reasons for decision that he determined the matter before him in accordance with the evidence and submisisons presented by the parties.
(Page 8)
18 Mr Horne's sixth ground is misconceived. By giving Mr Horne leave to amend the application for review to incorporate the revised proposal to subdivide the land into two lots rather than four lots, the application for review was not transformed into "a Class 1 application".
19 The expressions "Class 1 application" and "Class 2 application" do not appear in the PD Act. Rather, they are found in cl 10 of the State Administrative Tribunal Regulations 2004 (WA) (SAT Regulations) in relation to application fees for certain applications for review under the PD Act. The expression "Class 1 application" in reg 10 includes an application under s 251(3) of the PD Act in relation to "a subdivision of a lot into not more than 3 lots". The expression "Class 2 application" is defined in that regulation to include an application under s 251(3) of the PD Act "that is not a Class 1 application".
20 Section 238(3)(a) of the PD Act states that, unless subsection (3) does not apply because the President is of the opinion that the application is likely to raise complex or significant planning issues (see s 238(4)), the Tribunal is to be constituted by an ordinary member sitting alone when dealing with an application for review of, among other matters -
"the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots".
21 Section 239(1) of the PD Act states as follows:
"In the case of an application described in section 238(3)(a) the applicant may, at the time the application is made, elect that no party to the application is to be represented by a legal practitioner."
22 While the term "Class 1 application" is not used in the PD Act, an application for review of a determination referred to in s 238(3)(a) of the PD Act is, consistently with the terminology in reg 10 of the SAT Regulations, referred to in the Tribunal as a "Class 1 application".
23 The application for review made by Mr Horne to the Tribunal was not of "the determination of … an application for approval to subdivide a lot into not more than 3 lots" within the meaning of s 238(3)(a) of the PD Act. Rather, Mr Horne's application was for review of the determination of the Commission in respect of an application for
(Page 9)
- approval to subdivide the site into four lots. Mr Horne's application was not an application described in s 238(3)(a) and Mr Horne, therefore, did not have a right to elect that no party is to be represented by a legal practitioner under s 239(1). Although the Tribunal gave Mr Horne leave to amend the application to reduce the proposed number of lots from four to two, the election conferred by s 239(1) had to be exercised at the time when the application was made, which was over six months before the application was amended to reduce the proposed number of lots from four to two. The giving of leave to reduce the number of proposed lots from four to two did not relevantly transform the application into a Class 1 application for the purposes of s 239(1).
24 Mr Horne was not, therefore, disadvantaged contrary to the PD Act. In any case, Mr Horne's sixth ground does not raise a question of law concerning the determination.
Conclusion
25 None of Mr Horne's six grounds for review raise a question of law concerning the determination. The Tribunal did not err in law in any respect. Its findings and its reasons for findings were reasonably open on the evidence before it.
26 It follows that the application for review by the President should be dismissed and the determination of the Tribunal should be affirmed.
Orders
27 I make the following orders:
1. The application for review is dismissed.
2. The determination of the Tribunal made on 15 October 2007 in proceedings DR 465 of 2006 is affirmed.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(Page 10)
- JUSTICE M L BARKER, PRESIDENT
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