ING Development Australia Pty Ltd and Western Australian Planning Commission

[2008] WASAT 104

ING DEVELOPMENT AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 104

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 104
Act:	STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
Case No:	DR:22/2008	Heard:	17 APRIL 2008
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	15/05/08
No of pages:	22	Judgment Part:	1 of 1
Result:	Intervention refused.  Leave to make submissions refused on basis that matter settled.
Category:	A
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Parties:	ING DEVELOPMENT AUSTRALIA PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION FREMANTLE SOCIETY CITY OF FREMANTLE
Catchwords:	Practice and procedure ­ Intervention in planning cases ­ Proper approach ­ Leave to make submissions ­ Nature of interest necessary to permit intervention or make submissions ­ Role of intervenor ­ Effect of settlement of issues by parties on application to intervene
Legislation:	City of Fremantle Local Planning Scheme No 4, cl 3.3.2 Metropolitan Region Scheme, cl 29(3) Planning and Development Act 2005 (WA), Part 14, s 3(1), s 242, s 243 State Administrative Tribunal Act 2004 (WA), s 9, s 24, s 27(2), s 37, s 38 Town Planning and Development Act 1929 (WA), s 63
Case References:	Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 Harding v Shire of Chittering (2003) 35 SR (WA) 229 Kaard and the City of Nedlands (2005) 41 SR (WA) 132 Levy v Victoria (1997) 189 CLR 579 McKimm and Western Australian Planning Commission & Anor (2007) WASAT 193 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Pitt v Environmental Resources and Development Court (1995) 66 SASR 274 Re State Administrative Tribunal; Ex Parte McCourt (2007) 34 WAR 342 Shire of Augusta-Margaret River v Gray & Anor (2005) WASCA 227

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) CITATION : ING DEVELOPMENT AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 104 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 17 APRIL 2008 DELIVERED : 15 MAY 2008 FILE NO/S : DR 22 of 2008 BETWEEN : ING DEVELOPMENT AUSTRALIA PTY LTD

Applicant

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Practice and procedure ­ Intervention in planning cases ­ Proper approach ­ Leave to make submissions ­ Nature of interest necessary to permit intervention or make submissions ­ Role of intervenor ­ Effect of settlement of issues by parties on application to intervene

Legislation:

City of Fremantle Local Planning Scheme No 4, cl 3.3.2

Metropolitan Region Scheme, cl 29(3)
Planning and Development Act 2005 (WA), Part 14, s 3(1), s 242, s 243

(Page 2)

State Administrative Tribunal Act 2004 (WA), s 9, s 24, s 27(2), s 37, s 38
Town Planning and Development Act 1929 (WA), s 63

Result:

Intervention refused. Leave to make submissions refused on basis that matter settled.

Category: A

Representation:

Counsel:

Applicant : Mr M Hardy
Respondent : Ms C Ide

Intervenor : Dr I Alexander
Intervenor : Mr A Roberts

Solicitors:

Applicant : Hardy Bowen
Respondent : State Solicitor's Office

Intervenor : Self-represented
Intervenor : McLeods

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

Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493
Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319
Harding v Shire of Chittering (2003) 35 SR (WA) 229
Kaard and the City of Nedlands (2005) 41 SR (WA) 132
Levy v Victoria (1997) 189 CLR 579
McKimm and Western Australian Planning Commission & Anor (2007) WASAT 193
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

(Page 3)

Pitt v Environmental Resources and Development Court (1995) 66 SASR 274
Re State Administrative Tribunal; Ex Parte McCourt (2007) 34 WAR 342
Shire of Augusta-Margaret River v Gray & Anor (2005) WASCA 227


(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The City of Fremantle and the Fremantle Society each sought leave to intervene in proceedings concerning a commercial development on reserved land at the Port of Fremantle. Alternatively, they sought leave to make submissions under s 242 of the Planning and Development Act 2005 (WA). The Tribunal examined the requirements that need to be established for a grant of leave to intervene or leave to make submissions. It examined the particular interest which each of the applicants for intervention identified. It concluded that neither had established an interest which would support an order for intervention. The Tribunal determined that the City of Fremantle had a sufficient interest to support that a grant of leave to make submissions under s 242 of the Planning and Development Act 2005 (WA), but considered that the Fremantle Society had not established a sufficient interest for that purpose.

Introduction

2 The City of Fremantle (the City) and the Fremantle Society Inc (the Fremantle Society) each seeks leave pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to intervene in these proceedings. The Fremantle Society initially sought joinder as a party pursuant to s 38 of the SAT Act. However, upon being advised by the Tribunal of the provisions of s 243 of the Planning and Development Act 2005 (WA) (PD Act), which excludes the operation of s 38 of the SAT Act from proceedings brought under the PD Act, Dr Alexander, who appeared on behalf of the Fremantle Society, amended the application to seek leave to intervene. Both the City and the Fremantle Society seek, as an alternative to intervention, leave to make submission pursuant to s 242 of the PD Act.

3 The substantive proceedings concern a proposed development by ING Real Estate Development Australia Pty Ltd (ING) of a commercial precinct comprising mixed use retail and commercial premises on Victoria Quay, within the Port of Fremantle. The land on which the development is proposed is within the scheme area of the City of Fremantle Local Planning Scheme No 4 (LPS 4). The site is reserved under the Metropolitan Region Scheme (MRS) for "Public Purposes (Special Uses)". By reason of that reservation, the site is neither zoned nor reserved under LPS 4. Under cl 3.3.2 of LPS 4, the City's approval is not required for development on land reserved under the MRS. Accordingly, the application for development was considered by the Western Australian Planning Commission (WAPC) under the MRS.

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4 On 21 December 2007, the WAPC issued an approval for the development subject to numerous conditions. ING seeks review of conditions A1, A2, A3, A5, A6, A7, A8, A9, B1(i), B1(ii), B1(iv) and B3 of the approval. Those conditions read as follows:

"A1 The external architectural details and finishes of the development are to more directly express the uses of the site within its specific context.

A2 The applicant shall comply with the principles embodied in the conditions and requirements of the Heritage Council as specified in the Heritage Council's letter to the WAPC dated 22 October 2007.

A3 The development is to be modified generally in accordance with the drawings and details the subject of correspondence from Cox Howlett and Bailey Woodland to the Heritage Council dated 24 September 2007 and further referenced in the document titled 'Victoria Quay commercial precinct development application ancillary information requested by the WAPC' dated 16 November 2007.

…

A5 The car parking structure is to be designed and constructed to allow for its potential adaptability for other uses in the future.

A6 Generally, views to the port from Henry, Pakenham, Market, Queen, Phillimore and Beach Streets are to be retained. Specifically, buildings and structures shall not intrude into the view of port installations and shipping seen from the intersections of High and Henry, High and Pakenham, High and Market and Queen and Adelaide Streets and in particular shall not encroach into the sightline volumes defined in CAD files derived from the WAPC's simulated model of the city taken from those intersections.

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A7 The area referred to in the plans as Harbour Street shall be designed as an accessway or public arcade which is at least 7 m wide, is open to the sky so as to have the look and feel of a continuous public way connecting the city and rail station to the wharf, is not to be air conditioned and is to remain open for free movement of pedestrians from dawn to midnight, or during the hours when businesses in Quayside and C Shed are operating, whichever is of greater duration. The external expression of this space is to give the appearance of a gap between the two buildings on either side.

A8 A viewing deck, possibly associated with an appropriate business, fully accessible to the public when businesses in Quayside and C Shed are operating, is to be incorporated into the upper levels of the development to provide vistas to the port and the city centre.

A9 The ground level retail tenancies will activate and interact with the external pedestrian spaces and, in particular, the retail frontage to Peter Hughes Drive is to comprise shop windows with at least three front doors or public entrances on either side of the accessway open during weekday and weekend business hours.

…

B1 The applicant and Fremantle Port Authority shall provide the WAPC with written undertakings regarding the following matters and include specific provisions to give effect to these matters in any lease or licence agreement between Fremantle Port Authority and ING Real Estate.


(i) The proposed development will meet the Australian Green Building Council's 5 Star Green Star certified rating using the relevant rating tool(s).

(ii) The activation and access described in condition A9 shall be maintained as part of the ongoing operational environment of the development.

…

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(iv) Prior to the occupation of the development, the new roads, vehicle and pedestrian rail crossings and upgrades depicted in the separate development applications given WAPC references 05-50110-1 and 05-50110-2 shall be constructed in accordance with the approvals (once issued).

B3 Prior to the commencement of site works that may require disturbing the fill behind the wharf sheet pile retaining wall, a site investigation report into acid sulphate soils is to be prepared to the satisfaction of the WAPC on the advice of the Department of Environment and Conservation and any remedial action identified is to be undertaken in accordance with the terms and requirements of the report."

5 The Victoria Quay on which the development site is located adjoins the Fremantle central business district. The City, and the Fremantle Port Authority, which owns the land on which the development is proposed, have cooperated in a number of strategic planning projects which recognise the interrelationship between the Victoria Quay and the central business district of Fremantle. These include the development of the Fremantle Waterfront Master Plan (2000), the Phillimore Street Master Plan (2004) and the Phillimore Street Integrated Master Plan (2005).

6 Mr Philip St John, the director of planning and development at the City of Fremantle, explained that the City undertook a detailed assessment of the proposed development so as to enable it to provide comments and recommendations to the WAPC. That assessment included:

(a) a planning review undertaken by Mr Patrick de Villiers of Urbanizma;

(b) a heritage impact assessment undertaken by Agnieshka Kiera, the City's heritage architect;

(c) an economic impact assessment undertaken by Shrapnel Urban Planning;

(d) a survey of community attitudes to the proposed development, undertaken by Catalyse Pty Ltd, which received responses from 742 households;

(Page 8)

(e) consideration of 660 public submissions received following an advertising period; and

(f) an internal assessment and independent peer review, undertaken by Donald Veal Consultants of the traffic report submitted in support of the application.

7 Since the application for review was commenced in the Tribunal, ING and the WAPC have been involved in negotiations with a view to agreeing modified conditions. At the time of hearing of these applications for intervention, the Tribunal was advised that the parties were close to agreement on resolution of the matter.

The relevant statutory provisions

8 Intervention in proceedings in the Tribunal is governed by s 37 of the SAT Act. That section provides:

"(1) The Attorney General may, on behalf of the State, intervene in a proceeding of the Tribunal at any time.

(2) The Commissioner referred to in section 15 of the Consumer Affairs Act 1971 may, on behalf of the State, intervene at any time in a proceeding if the Minister responsible for the administration of that Act is responsible for the administration of the enabling Act.

(3) The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit."

9 Section 38 of the SAT Act deals with joining as a party. It provides:

"(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -

(a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding;

(b) the person’s interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.

(Page 9)

(2) The Tribunal may make an order under subsection (1) on the application of any person or on its own initiative."

10 As already observed, s 243 of the PD Act provides that s 38 of the SAT Act does not apply to a proceeding for a review under Pt 14 of the PD Act. These proceedings are proceedings under that part. Accordingly, it is only by intervention under s 37 that a third party can be given the right to fully participate in proceedings for review of planning decisions.

11 Section 242 of the PD Act provides:

"The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter."

The proper approach to intervention

12 In Re State Administrative Tribunal; Ex Parte McCourt (2007) 34 WAR 342, the Court of Appeal examined the approach to be taken to s 37 of the SAT Act in circumstances where the operation of s 38 was excluded by s 63 of the now repealed Town Planning and Development Act 1929 (WA) (TPD Act). The court noted the considerations mentioned by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40 to the effect that where, as in s 37(3) of the SAT Act, a discretion is, in its terms, unconfined, "the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard." On that basis, the court concluded that the approach that had earlier been taken by the Tribunal in a number of cases, to the effect that intervention under s 37 was concerned with the promotion of the public interest, with s 38 being concerned with the promotion of private interests, was not a proper construction of those provisions.

13 The court also considered that the presence of s 37(1) and s 37(2) of the SAT Act "is more readily explicable by reference to an intention to expand the category of those who might intervene rather than by an intention to restrict the basis upon which the person acting in a private capacity might intervene." The court appears to have accepted that the basis upon which a person acting in a private capacity might intervene was the ordinary position that intervention is permitted only to persons who "wished to maintain some particular right, power or immunity in which they are

(Page 10)

concerned":Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 331; Levy v Victoria (1997) 189 CLR 579 at 601 - 602.

14 The decisions in Australian Railways Union and Levy were each concerned with intervention in matters arising under the Commonwealth constitution. In Levy, Brennan CJ considered the source of the High Court's jurisdiction to permit intervention by non-parties. He explained (at 601) that the basis of permitting intervention by a non-party was in order to ensure that a party, whose legal interests may be affected by the decision in the proceeding, was given the opportunity to be heard. In that case, intervention was allowed to certain media organisations on the basis that the outcome of the proceedings could potentially deprive them of a defence in existing defamation actions in which they were a defendant. His Honour said, (at [62]):

"a declaration of legal principle or rule by this court will govern proceedings that are pending or threatened in any other Australian court to which an applicant to intervene is or may become a party. Even more indirectly, such a declaration may affect the interests of an applicant either by its extracurial operation or in future litigation. Ordinarily, such an indirect and contingent affection of legal interests would not support an application for leave to intervene. But where a substantial affection of a person's legal interests is demonstrable (as in the case of a party to pending litigation) or likely, a precondition for the grant of leave to intervene as satisfied. Nothing short of an affection of legal interests will suffice."

15 Counsel for the applicant, Mr Hardy, argued that intervention under s 37(3) of the SAT Act similarly required in every case, that the non-party demonstrate a "legal interest" which would be potentially affected by the outcome of the proceedings before leave to intervene should be granted. In my view, while intervention will most usually be permitted when a legal interest of the intervenor may be affected, that submission is unduly restrictive of the discretion under s 37(3). The decision of Levy was given in the context of intervention in the High Court on a Constitutional issue. As the Court of Appeal observed in McCourt (at [40]), the position under each statute must depend upon the terms of that statute. In the context of construing s 37 of the SAT Act, regard must be had not only to the objects and provisions of the SAT Act, but also to the objects and provisions of the enabling Act that confers jurisdiction on the Tribunal to determine the particular proceedings in which the application for intervention is brought, in this case the PD Act.
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16 The purpose of review proceedings in the Tribunal is to produce the correct and preferable decision at the time of the decision upon the review - SAT Act s 27(2). The purposes of the PD Act include the provision of an efficient and effective land use planning system in the State and the promotion of the sustainable use and development of land in the State - PD Act s 3(1). It is an objective of the Tribunal to review decisions fairly and according to the substantial merits of the case - SAT Act s 9. There may be cases where those objectives might be served by allowing a non-party to intervene in a proceeding where, to do so, might assist the Tribunal to adequately deal with the proper disposition of the review. It was that approach which has become known as "the Harding test" (see Harding v Shire ofChittering (2003) 35 SR (WA) 229 at [20]) and, in relation to intervention; Kaard and the City of Nedlands (2005) 41 SR (WA) 132 at [135]). The Court of Appeal in McCourt found that the factors adverted to in the Harding test are relevant considerations to an application for intervention, but they are not exhaustive nor necessarily determinative (at [46]).

17 In my view, in the context of the SAT Act and the PD Act, it would be unduly restrictive to limit intervention only to those parties who possessed a legal interest, in the sense of a legally enforceable right, power, immunity or obligation, that might be affected by the outcome of the proceedings.

18 An example where an interest short of a legal interest, has been found to be sufficient for the purposes of intervention is in McKimm and Western Australian Planning Commission & Anor (2007) WASAT 193 where the Tribunal permitted intervention by the City of Fremantle. In that case, although the site of the proposed development was not, at the time, zoned under the applicable planning scheme administered by the City, a removal of a reservation under the MRS applicable to the land had resulted in the City being obliged to amend its scheme so as to zone the site. The City had, or was about to, become the decision-maker for development approvals on the site. Although the necessary amendment to the planning scheme had not occurred, the proposed development the subject of the proceedings had the capacity to substantially affect and fetter the scope for planning for the land by the City. The City had already commenced a process of assessment of the land and surrounding sites. The Tribunal took the view that it would be assisted by having the benefit of the City's full perspective on the proposal in order to make the

(Page 12)

correct and preferable decision on the development application. It is at least doubtful that the City's interest in those proceedings could be described as a legal interest. It did, however, have a significant role to play in relation to the planning of the immediate area, and it brought to the proceedings a perspective of local planning which might otherwise not be fully ventilated at the hearing. Its involvement as an intervenor was, in that case, considered by the Tribunal to be required to meet the objective of making the correct and preferable decision.

19 While it may not be necessary to demonstrate the affection of a legal interest by the outcome of the proceedings, an applicant for intervention must, in my view, demonstrate an interest which justifies the grant to the applicant for intervention of the right to participate actively in the decision-making process. The intervenor has, subject to any conditions imposed by the Tribunal on the intervention under s 37(3), all the rights of a party to the proceedings. In the context of the decision-making processes utilised by the Tribunal, where mediation and case management play a prominent part, the addition to the proceedings of an intervenor can greatly affect the capacity of the original parties to efficiently and cost-effectively resolve their dispute.

20 In Levy, Brennan CJ noted (at 603) that an indirect affection of legal interests enlivens no absolute right to intervene. In the context of a determination on the constitutional issue in the High Court, he said:

"The assumption is that the court will determine the law correctly, so that the indirect affection of an applicant's legal interest is simply the inevitable consequence of the exercise by this court of its jurisdiction as the final court in the Australian hierarchy. On that assumption, no undue prejudice is suffered by a person whose interests will be affected by the decision. The exercise of this court's jurisdiction to determine controversies between parties is not, and could not be, conditioned on allowing intervention by all those whose interests are susceptible to affection by the court's judgments. Such a condition would virtually paralyse the exercise of that jurisdiction."

21 Although made in an obviously different context from these proceedings, those observations are applicable to the exercise of the Tribunal's jurisdiction in relation to planning matters. Planning decisions inevitably affect the community in which the development is proposed. There are frequently strong concerns felt by members of particular
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communities about proposed developments. There are many community associations formed to seek to influence planning within their community. Commonly, submissions are invited from members of the community affected by the proposed development to make submissions to a planning authority in relation to particular developments. Those submissions are taken into account in the decision-making process. However, the planning system is such that the function of making the ultimate decision falls upon the nominated planning authority. Beyond their submissions, people who take a particular interest in a proposed development have no further role to play. Unlike in some other jurisdictions in Australia, no third party rights of review exist under the PD Act. Section 243 of the PD Act, and its predecessor s 63 of the TPD Act, suggest a clear legislative intention to limit the rights of third parties in the planning process.

22 Section 242 of the PD Act facilitates submissions being made by third parties if they can demonstrate "a sufficient interest in the matter". In Shire of Augusta-Margaret River v Gray& Anor (2005) WASCA 227, the Court of Appeal considered what constitutes a "sufficient interest" for the purposes of s 242 of the PD Act. Pullin JA (with whom Le Miere AJA agreed) considered (at [139]) the expression "sufficient interest" means that the Tribunal must be satisfied that the applicant had an interest which would give standing for judicial review and which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493. In that case, Gibbs J said (at 530):

"However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of writing a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."

(Page 14)

23 His Honour also observed (at [531]) the fact that the applicant in that case was incorporated with particular objects does not strengthen its claim to standing. He said:

"A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate to advance the same beliefs is in no stronger position."

24 Mason J agreed that a person or body which has no special interest in the subject matter of an action over and above that enjoyed by the public generally will not have locus standi to seek to prevent violation of a public right or enforce the performance of a public duty. He considered that:

"A plaintiff will in general have a locus standi where he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests (as to which the NSW Fish Authority v Phillips (1971) NSWR 725) and perhaps to his social or political interests. Beyond making this general observation, I consider that there is nothing to be gained from discussing in the abstract, the broad range of interests which may serve to support a locus standi …"

25 He specifically agreed with the observations of Gibbs J set out above (see 547 - 548). In relation to standing to enforce a public right, Gibbs J (at 526 - 527) applied the test that, to have standing, a plaintiff must demonstrate that it will suffer special damage, peculiar to itself, from the interference with the public right. He observed however, that "special damage" should be regarded as equivalent in meaning to "having a special interest in the subject matter of the action.

26 In my view, the interest which must be shown to support an application for intervention must be at least equivalent to an interest which would amount to a sufficient interest for the purposes of s 242. In relation to the implied power of joinder in proceedings before the Town Planning Appeal Tribunal (prior to the introduction of s 63 of the TPD Act), Pullin JA adopted observations by Doyle CJ in Pitt v Environmental Resources and Development Court (1995) 66 SASR 274 at 276 where the Chief Justice rejected an argument that joinder in proceedings in the South Australian ERD Court should be limited to "special circumstances". In doing so, however, he said that:

(Page 15)

"It would be equally wrong to make an order for joinder simply on the basis of an interest which would give standing for judicial review or an interest which would pass the test of standing approved by the High Court in Australian Conservation Foundation Inc v Commonwealth."

27 If something more is required in relation to joinder, the requirements for intervention must be at least as strict, if not more onerous. As the court observed in McCourt (at [46]) "the rights of an intervenor may be a good deal more restricted than those of a party." The court considered it "difficult to see why the same test should be thought to be appropriate in both cases." Those observations, coupled with the exclusion of s 38, which contemplates joinder of third parties where they ought to be bound by the decision of the Tribunal, their interests are affected by the proceedings, or there is any other reason why it is desirable for that person to be joined, lead me to the conclusion that there must be something about the particular circumstances of the case which makes it necessary, in order for the Tribunal to reach the correct and preferable decision, that a person with at least a sufficient interest be heard as an intervenor.

28 In my view, the authorities and statutory provisions referred to above lead to the conclusion that in relation to applications under the PD Act:

(i) to be granted leave to intervene, a person must demonstrate at least an interest sufficient to meet the test for standing identified in Australian Conservation Foundation;

(ii) merely demonstrating a sufficient interest does not by itself enliven a right to intervene (Levy at 603);

(iii) an incorporated or unincorporated body will not gain standing to intervene merely because it has constitutional objects directed to promoting outcomes relevant to the matter under a review. Similarly private citizens will not gain standing to intervene merely because they hold strong beliefs or emotions concerning the matter under review;

(iv) although the third party's interest may not necessarily be a legal interest (although it commonly will involve a legal interest), merely demonstrating any of the other matters referred to in s 38 of the SAT Act will not usually be sufficient to secure leave to intervene under s37;

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(v) the third party will generally need to demonstrate that its intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act (including minimising cost and avoiding delay (McCourt at [42])), and the PD Act. Factors which the Tribunal will take into account when considering an application for leave to intervene will include:

• the contribution which the applicant for joinder is likely to be able to make to the proper disposition of the issues before the Tribunal;

• whether the interest which the applicant for intervention represents and the material to be advanced by that person will be adequately dealt with by the parties already before the Tribunal,

• the impact on the proceedings of the intervention;

• the interests of the parties before the Tribunal as of right and the public interest in the prompt and efficient dispatch of proceedings

• any other matter that, in the particular circumstances of the case, justifies leave to intervene;


(Pitt at [275]; Shire of Augusta Margaret-River v Gray at [129] - [131]).

(vi) an intevenor, unlike a party, will ordinarily be allowed only to support or oppose a decision contended for by one or other of the parties to the proceedings and will not be permitted to expand the issues to be decided (McCourt at [41]);

(vii) intervention will generally not be permitted where the third party simply seeks to argue on the very same basis as an existing party to the proceedings (Levy per Brennan CJ at [60]);

The proper approach to s 242

29 I have noted above the requirement to establish a sufficient interest and the meaning of that expression for the purposes of s 242. Once that interest is established, the jurisdiction of the Tribunal to permit submissions is

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enlivened. It does not follow that the Tribunal is then obliged to exercise its discretion in favour of the applicant to make submissions - see Shire of Augusta Margaret-River v Gray at [139] where Pullin JA suggested that factors such as those referred to in Pitt's case (referred to at [v] above) would be taken into account.

The City's application

30 It is clear that the development of Victoria Quay is a matter of concern for the City in the sense that the form of the proposed development has the potential to impact upon the central business district of the City in relation to matters such as traffic, views and pedestrian access and the relationship of commercial premises at Victoria Quay and the commercial focus of the Fremantle CBD. The general interest and concern on the part of the City in relation to those matters is not, for the reasons explained by Gibbs J in Australian Conservation Foundation, enough to constitute a sufficient interest for the purposes of s 242 or for intervention.

31 The City points, however, to its contemplated involvement and interest in the particular conditions the subject of review. It refers to its responsibility for administering LPS 4, its right to make recommendations under cl 29(3) of the MRS concerning development on reserved land (which it did in relation to the development) and its undertaking of a strategic planning function which has given rise to the various master plans and reports referred to earlier in these reasons.

32 The City also notes that the advice notes which accompanied the conditions contemplated ongoing involvement in the City in meeting those conditions. Advice note 3, referring to conditions A1 to A3, contemplates ongoing discussions between the applicant and the City and other interested bodies to achieve the final design. Advice note 4 makes reference to implementation of the Phillimore Street Integrated Master Plan 2005. Advice note 5 advises that the "WAPC's decision is predicated on the City of Fremantle (and others) working collaboratively to deliver a new vehicle and pedestrian access arrangements … proposed by the Phillimore Street Master Plan." Advice note 7 refers to the applicant and the Fremantle Port Authority entering into dialogue with the Public Transport Authority and the City of Fremantle regarding extension of the CAT bus system. Advice note 8 suggests that the City of Fremantle in collaboration with others should prepare a traffic and parking strategy for the west end of the City.

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33 The City notes that it has care, control and management of roads within its district including those with which the development must connect to provide vehicular and pedestrian access to the development. It notes that the application for review includes condition B1(iv) which concerns new roads, vehicle and pedestrian rail crossings and upgrades connecting to systems over which the City has control. It also notes that it has responsibility for providing and managing private car parking within the Fremantle CBD which it says may be impacted by the development.

34 Materials annexed to an affidavit of Mr Brynn Schute disclose that the MRS designation of the Victoria Quay site was amended in November 2002 when the previous reservation of land at the west end of Victoria Quay was changed from "Port Installations" and "Railways" to "Public Purposes (Special Uses)". A report on submissions in relation to that amendment recites that the City had submitted its preference for a Central City Area zone for the subject land so that it had development control through its district zoning scheme. The basis of that submission was so that the City could ensure that new development is complementary to the city centre and west end. That submission was rejected on the basis that it was considered appropriate that State Government control of the site continue. That view was taken because of "the strategic importance of Victoria Quay and the Port of Fremantle to the State of Western Australia".

35 It is clear, therefore, that a positive decision was taken to leave the WAPC as the decision-maker in relation to development of Victoria Quay. That is a significant difference between this case and the situation which confronted the Tribunal in McKimm.

36 The conditions the subject of review, when understood in the context of the advice notes, involve a relatively high level of involvement of the City in the satisfaction of the conditions. The particular interest of the City in the management of traffic and parking, and the potential impact on the City's regulation of those matters are sufficient to amount to the type of interest referred to by Gibbs J and Mason J in Australian Conservation Foundation. That is because road and pedestrian systems link into systems controlled and managed by the City. The significant parking proposed in the development will undoubtedly impact on the City in its capacity as the body responsible for managing and controlling parking within its scheme area, including the subject site. On the other hand, the City's concerns in relation to preservation of views, and its role in relation to conferral on the architectural details of the proposed development fall short of the interest necessary to satisfy the test of sufficient interest. The City's position in relation

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to the finalisation of architectural detail is not dissimilar to the position of any authority nominated to certify clearance of WAPC conditions of approval. As a general proposition, I would not consider that the fact that an authority is nominated as a clearing authority under a condition is sufficient to give that authority standing to intervene in a review concerning that particular condition.

37 At least in relation to the conditions concerning vehicular and pedestrian access and parking, I am satisfied that the City has established a sufficient interest applying the test outlined in Australian Conservation Foundation. I do not, however, consider that the City should be given leave to intervene.

38 The City has already made submissions to the WAPC in relation to the proposed development. Those submissions, to the extent that they are relevant, would be, if the matter proceeded to hearing, before the Tribunal as part of the bundle of documents required to be filed under s 24 of the SAT Act. The WAPC is the decision-making authority and that position was expressly reaffirmed when the MRS was amended to alter the reservations applicable to the site. To the extent that the submissions made, and materials supplied, by the City might be material to a determination of the appropriate conditions to be applied, it would be open to either party to rely on those materials in the context of any hearing before the Tribunal. Given the present state of the proceedings, there is no basis to suggest that the Tribunal might be deprived of any materials necessary for it to make the correct and preferable decision.

39 Given the advice proffered at the hearing of the application for intervention that the parties were close to resolution of the condition, the effect of granting intervention could potentially adversely affect the interests of the parties before the Tribunal as of right and the public interest in the prompt and efficient dispatch of the proceedings. Even if the parties were not close to resolution, however, I do not consider that there is presently any basis to conclude that the Tribunal would be assisted by the involvement of the City as an intervenor. It is conceivable that, were the matter to progress to a hearing, with the issues between the parties crystallising, some basis for a grant of intervention by the City might emerge. However, as the parties are in the course of negotiation to resolve the issues between them, there is no basis demonstrated upon which intervention should be granted.

40 As I already have observed, the City has established a sufficient interest for the purposes of s 242 of the PD Act, at least in relation to conditions dealing with traffic, pedestrian access and parking. If, after the negotiations between

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the parties are complete, there were to remain any issue for determination by the Tribunal on those matters, I would grant leave to make submissions under s 242 to the City. To the extent, however, that matters are fully resolved by the parties, the only issue before the Tribunal is whether it should, having regard to its proper role as the substitute decision-maker, approve the parties' agreement by making consent orders. Unless there is something on the face of the proposed consent orders to suggest that the Tribunal should decline to make those orders, the Tribunal will, consistent with its objectives under s 9 of the SAT Act, give effect to the parties' agreement by making consent orders. It would be contrary to the Tribunal's objectives to permit submissions to be made by a third party to the effect that the underlying merits of the agreed outcome should be debated further. There would need to be something exceptional about a case to permit a party to make submissions pursuant so s 242 of the PD Act where the applicant and the decision-maker have reached agreement as to the appropriate outcome.

41 Accordingly, I would give leave to the City to make submissions under s 242 of the PD Act only in the event that the matter is not resolved between the parties, and the issues remaining to be determined by the Tribunal relate to conditions in respect of which the City has established a sufficient interest.

The Fremantle Society's application

42 The Fremantle Society's application recites that it was incorporated in October 1975 with a role:

(a) to give responsible voice on matters affecting the overall character and development of the Fremantle area;

(b) to encourage the improvement of the Fremantle area as a desirable residential and commercial district whilst retaining its unique character;

(c) to encourage the retention and restoration of buildings of historic and aesthetic value;

(d) to ensure that the new development complements established patterns, is of high architectural and aesthetic standards, and serves the long-term interests of the area; and

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(e) to foster the development of the area as a major cultural, educational and entertainment centre.

43 The Fremantle Society has 140 members, and has taken an active interest in the proposed development. It supports the recommendation made by the City to the WAPC to reject the development proposal on various grounds.

44 Dr Alexander, who appeared for the Fremantle Society, acknowledged that although the development was opposed by the Fremantle Society, it must accept that approval has now been given. He accepted that it would not be open to argue for refusal of the application in the context of these proceedings. Rather, his position was that the Fremantle Society sought, as a collective voice of residents, to seek to influence the final form of the conditions of the development.

45 In my view, while I acknowledge the genuine and strongly felt views of its members, the Fremantle Society does not satisfy the test for sufficient interest under s 242 of the PD Act. As has already been observed, the mere existence of constitutional objectives is not sufficient to give standing. Nor is it sufficient that members of the organisation hold genuine and strong intellectual or emotional concerns about the proposed development, and have a strong interest in having what they see as the proper planning outcome achieved. As Gibbs J observed in Australian Conservation Foundation, if interest and concern of that nature were sufficient to constitute the required interest, any person who felt strongly enough about the proposed development would be entitled to intervene. Nor is it sufficient that the Fremantle Society has actively sought to influence the original decision-maker. Its submissions to the City and the WAPC would, to the extent they are relevant, be before the Tribunal as part of the s 24 bundle.

46 For those reasons, the applications by the Fremantle Society should be dismissed.

Conclusion

47 Between the argument on the joinder application, and delivery of these reasons, the Tribunal has been advised at a directions hearing that ING and the WAPC had reached agreement for the disposal of the proceedings by way of consent orders. A minute of consent orders has now been filed with the Tribunal. In the circumstances, it would appear that the appropriate orders on the applications for interventions is that those applications be dismissed. I will, however, hear from the parties and the intervenors before final orders are made.

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I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT