ING REAL ESTATE DEVELOPMENT AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2010] WASAT 118

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: ING REAL ESTATE DEVELOPMENT AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 118

MEMBER: JUSTICE J A CHANEY (PRESIDENT)

HEARD: 9 AUGUST 2010

DELIVERED : 20 AUGUST 2010

FILE NO/S: DR 189 of 2010

BETWEEN: ING REAL ESTATE DEVELOPMENT AUSTRALIA PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Planning and development - Time for substantial commencement - Previous review proceedings in Tribunal - Tribunal's decision ordered to take effect on specified date - Whether power to specify date orders are to take effect can be exercised a second time - Leave to seek second review of original decision - Whether extension of time should be granted - Considerations as to whether extension should be granted - Jurisdiction to entertain second review - whether statutory prohibition on second review subject to exceptions to principles of res judicata

Legislation:

Contamination Sites Act 2003 (WA)
Interpretation Act 1984 (WA), s 3(1), s 48
State Administrative Tribunal Act 2004 (WA), s 29, s73, Pt 3, Div 3
State Administrative Tribunal Rules 2004 (WA), r 9, r 10

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr L A Stein and Mr I C Rogers
Respondent: Ms C A Ide

Solicitors:

Applicant: Hardy Bowen
Respondent: State Solicitor's Office

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

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (1990) 64 ALJR 458
Hendersen v Hendersen (1843) 3 Hare 100
Marilyn Elsie Waddington v Silver Chain Nursing Association (unreported, SCWA Full Court, delivered 9 December 1998, Library No 980728)
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Sloane v Minister for Immigration (1992) 37 FCR 429

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

ING Real Estate Development Australia Pty Ltd applied in June 2010 for an extension of time to commence a review of a conditional approval granted in December 2007 to carry out a major commercial development in Fremantle.
The conditional approval had been the subject of earlier review proceedings in the Tribunal. Those proceedings were resolved in May 2008, although subsequently the Tribunal ordered that its decision was to take effect on 16 March 2009.
The approval contained a condition that substantial commencement of the development had to take place within two years. It was that condition that ING Real Estate Development Australia Pty Ltd sought to have changed by the present application.
The Tribunal considered whether it was open to ING Real Estate Development Australia Pty Ltd to bring a second review application, and concluded that it was not. The Tribunal also concluded that having exercised its power to order that its earlier decision take effect on a specified date, it was not now open to the Tribunal to exercise that power a second time.
Accordingly, the application was dismissed.

The application

In December 2007, ING Real Estate Development Australia Pty Ltd (ING) was given conditional approval to commence a development at Victoria Quay, Fremantle on land owned by the Fremantle Port Authority. The proposed development involved the construction and use of a mixed use retail, office and ancillary use development. The development cost was estimated at $300 million, and involves what is clearly a very significant and important project. The development approval was subject to a number of conditions, and concluded as follows:
If the development of the subject of this approval is not substantially commenced within a period of two years from the date of this letter, the approval shall lapse and be of no further effect. Where an approval has so lapsed, no development shall be carried out without the further approval of the responsible authority having been first sought and obtained.
The approval letter was dated 21 December 2007.
As a result of proceedings in this Tribunal, details of which will be discussed below, the effective date of the approval became 16 March 2009. Consequently, substantial commencement of the development is required to be effected by 15 March 2011.
On 23 June 2010, ING commenced this application which, following subsequent amendment, seeks orders from the Tribunal to:
(a)Grant leave to the applicant to extend the time to commence a review of the approval to commence development of 21 December 2007 ('original approval') in respect of the date of substantial commencement;
(b)Vary the date of substantial commencement of the original approval of 21 December 2007 to 9 August 2013;
(c)In the alternative, vary the time when the SAT orders of 16 May 2008 became effective to 9 August 2010 to thereby amend the effective commencement date of the original approval to 9 August 2010.
The Western Australian Planning Commission (WAPC), the approval authority in relation to this development, accept that, in the circumstances relied upon by the applicant, an extension of time for substantial commencement can be justified. They contend, however, that the Tribunal lacks jurisdiction to entertain any further application for review of the original approval, that it lacks jurisdiction to, for a second time, determine a new date for its orders of May 2008 to come into effect, and that the present application constitutes an abuse of process. It is those contentions which require determination. Before turning to the questions of jurisdiction, it is necessary to understand the background to the present proceedings.

Background

As mentioned above, the original approval was granted on 21 December 2007. Planning for the project had commenced between 1997 and 2000 with the development of a master plan for redevelopment of the western end of Victoria Quay which is referred to as the Fremantle Waterfront Master Plan. The Fremantle Waterfront Master Plan was endorsed by the WAPC in November 2001. It was necessary, in order for the development to proceed, to amend the Metropolitan Region Scheme (MRS). Work in that respect commenced in May 2001, culminating in the approval of the MRS amendment in July 2002, and its gazettal in November 2002. In October 2003, a tender by ING for the development of the commercial precinct on the Fremantle waterfront was accepted. In November 2004, the City of Fremantle endorsed a 'Phillimore Street Plan 2004'. By August 2005, an integrated master plan for Phillimore Street was revised to take into account the Fremantle Waterfront Master Plan.
A period of community consultation took place during 2006 and schematic designs were commenced and developed in the first half of 2007. A development application was lodged with the City of Fremantle in June 2007 for determination by the WAPC. In November 2007, ING entered into a development agreement for the commercial precinct with the Fremantle Port Authority (FPA). ING was also, during the latter part of 2007, in negotiations with the Heritage Council of Western Australia in relation to the proposed development.
As counsel for the applicants, Mr Stein, observed, the conditions attached to the original approval are somewhat unusual in that they were expressed to apply 'unless a modification of the condition is agreed between the applicant and the WAPC' and required ING to provide the WAPC with modified plans and documents which demonstrated to the satisfaction of the WAPC that all conditions had been met. In essence, numerous modifications to the design and form of the proposed development were to be made after approval.
On 17 January 2008, ING made an application to the Tribunal for review of certain conditions of the original approval (the original review proceedings). The application for review did not seek to vary the requirement for substantial commencement within a period of two years from the date of approval.
Following commencement of the review application, ING and WAPC engaged in discussions which resulted in them seeking consent orders of the Tribunal varying the conditions of the subject of review. The Tribunal made orders by consent amending those conditions on 16 May 2008.
The revised condition A1 provided that the WAPC would undertake a design review process 'at the conclusion of the sketch plan stage and at the mid point in design development, following which drawings of architectural details and finishes will be submitted for the approval of WAPC.' The mid point referred to condition A1 was reached and confirmed by the WAPC on 18 December 2008, some 12 months after the original approval.
Under the development agreement between ING and the FPA, remediation of the site prior to handover to ING for the purposes of development was the responsibility of the FPA.
In August 2008, ING conducted geotectical investigations of the site to obtain information for foundation design and to check for the presence of acid sulphate soils as required by development approval condition B3. During the course of drilling further hydrocarbon contamination was identified in the vicinity of one of the buildings at the centre of the development site.
ING immediately notified the FPA who subsequently undertook investigations to delineate the extent and nature of the contamination and to assess options for remediation should that be required. The FPA prepared a draft site management plan in December 2008 and provided a copy of that plan to ING and the Department of Environment and Conservation (DEC) in January 2009. At that time, it was estimated that excavation and monitoring would be required which would take three months, with potentially a further three month period being required for treatment of the site.
In early 2009, it became evident to ING that, given the necessity to embark upon the original review proceedings in the Tribunal, the time taken to reach the mid point in the design process, the need for three months remediation work in relation to hydrocarbon contamination, and the necessity for various related approvals, the project could not be substantially commenced by December 2009, as required under the terms of the original approval. Accordingly, ING sought an order in the original review proceedings that the time for substantial commencement be extended for a further three years. The application was put on two bases. The first was that pursuant to s 73 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal could make an ancillary order which it considered appropriate for achieving the purpose for which it exercised its primary power of review. Alternatively, it sought an order that the Tribunal's decision on review should have effect on a date which would effectively allow three years for substantial commencement.
That application came before the Tribunal on 16 March 2009. At that time, the Tribunal declined to make an order under s 73 of the SAT Act on the basis that that section did not confer a jurisdiction to make such an order after the Tribunal's substantive task of review had been completed. The Tribunal did, however, make an order under s 29(5)(b) of the SAT Act that the decision made by the Tribunal with the consent of the parties in May 2008 should have effect as from 16 March 2009. The effect of that order was to require substantial commencement of the development by 15 March 2011.
Shortly after those orders were made, in April 2009, DEC issued an advice of classification of the site under the Contaminated Sites Act 2003 (WA), which classified the site as 'contaminated - remediation required'. A memorial was then registered against the commercial precinct site. In the classification notice, DEC advised that they could not comment on the suitability of the commercial precinct site for the use proposed unless and until further soil, ground water and soil vapour investigations and risk management had been undertaken.
As a consequence of the classification of the site by DEC, the applicant required an assurance that the site could be developed for the use proposed before accepting handover from the FPA. Upon receipt of the classification notice, the FPA undertook additional investigations as recommended by DEC. Subsequently, the site management plan was amended to take into account the results of the additional investigation. The amended site management plan was obtained in December 2009. It recommended long term ground water monitoring to assess the viability of a proposed treatment programme. That monitoring was to take place over a period of one year. It was thus apparent in December 2009, that if the proposed management plan was to be implemented, the assessment of the site could not be completed until early 2011.
The remediation programme was commenced promptly by the FPA, and post remediation ground water monitoring is expected to be completed in February 2011. It is expected that the preparation of reports, submission of the reports to DEC, and subsequent assessment by DEC of an application for reclassification, is expected to take a minimum of a further six months. ING's project manager, Mr Brynn Shute gave evidence at the Tribunal that ING would require some certainty as to the effective remediation of the site and reclassification before it could commit to construction documentation.
In addition to the issues of site remediation, delays have also been encountered in relation to the obtaining of various necessary approvals and the commencement of necessary enabling works by the FPA which are required prior to handover of the site to ING. These delays have occurred notwithstanding the apparently diligent endeavours of both the FPA and ING to undertake the necessary steps required to enable the development to proceed.
Mr Shute said that, to date some $17 million had been expended by ING on the project and that a further $10 million would be required to progress the works to the point of substantial commencement. He gave evidence that the effects of the global financial crisis had impacted upon the funding proposals for the project and on the capacity to attract commitments from prospective lessees of the premises to be constructed. Because of those difficulties, Mr Shute said it was ING's strong preference to extend the current approval, as opposed to a new application because of the time involved in the preparation and assessment of a new application, the delaying effect of a new application on leasing activities, the significant additional costs in preparing and lodging a new application, potential ramifications related to the development agreement between ING and FPA, and because there has been no substantive change in the underlying planning matrix which would directly affect the assessment.
It was against that background, and for those reasons, that the applicant now seeks the orders referred to above.

Application for leave to extend the time for review of the original approval

The application by ING to seek a further review of the original approval gives rise to two issues. The first is whether, given that the original approval was granted in December 2007, leave should be given pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) to make an application out of time. Rule 9 of the SAT Rules requires that applications made in the Tribunal's review jurisdiction must be made within 28 days of the date of notice of the decision.
The Tribunal has previously accepted that the considerations set out by Kennedy J in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 (Esther Investments) at 198 are relevant to the exercise of the Tribunal's discretion to grant an extension of time under r 10 of the SAT Rules. Those considerations are first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent.
In this case, the length of delay is two and a half years. Viewed against a requirement to seek a review within 28 days of the decision, that delay is so long as to require very compelling reasons to grant an extension of time.
The applicant argues, and I accept, that rules of procedure, such as that contained in r 10 of the SAT Rules, should not become instruments of injustice - see Gallo v Dawson (1990) 64 ALJR 458, McHugh J at 459. In that case, his Honour said:
In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
In this case, the history of the proceedings is not of assistance to the applicant. The applicant had the capacity in its original review proceedings to challenge the condition requiring substantial commencement within two years. It did not do so. I accept that the circumstances which have led to delay in substantial commencement were, or at least in part, not known to the applicant at the time the original review proceedings were commenced, and were not reasonably predictable. In those circumstances, it may be understandable that the substantial commencement condition was not the subject of that review.
However, problems with the capacity to achieve substantial commencement became evident after the making of the consent orders in May 2008, leading to the application which was dealt with in March 2009. At that time, the applicant sought an extension of time for commencement for a further three years. As explained above, it achieved a further 15 months of time for substantial commencement as a result of the Tribunal's order on 16 March 2009. In the context of those proceedings, there was, as counsel for the applicant acknowledged at the hearing of this matter, consideration given to whether or not leave to commence a further review of the original decision should be sought. That course of action was not taken, with the applicant preferring to seek its orders on the basis of jurisdiction under either s 73 or s 29(5)(b) of the SAT Act.
It is true that it was only after the orders of 16 March 2009, that DEC issued its classification notice in April 2009. The issue of that classification notice required further assessment of the site by the FPA which was not completed until December 2009. At that point, it was clear from the assessment that ground water monitoring over a 12 month period would be required. In practical terms, it must have been clear that that monitoring work could only commence in early 2010, as in fact it did. It must have been apparent, therefore, in December 2009 that the prospect of substantial commencement by March 2011 was bleak if not unachievable. Notwithstanding that, ING did not commence the present proceedings seeking leave until 23 June 2010, some six months later. The explanation for that delay was that ING chose to wait to see the progress of the remediation and monitoring an application for further review.
Given that the applicant elected not to seek a review of the requirement as to substantial commencement when it brought the matter to the Tribunal in early 2009, and given the delay of six months from the time when it must have been apparent that achieving substantial commencement by March 2011 was at best highly unlikely, the applicant's reasons for delay do not favour the grant of leave so long after the original decision was made.
The third consideration identified by Esther Investments is whether there is an arguable case. There is no dispute between the parties that, in the circumstances which have emerged, an extension of time for substantial commencement is justified, and in that sense the merits of the review strongly favour an amendment to the condition to grant additional time for substantial commencement. There is, however, as the applicant rightly acknowledges, a question of whether the Tribunal has jurisdiction to entertain a second review of the original decision. That is because of the provisions of s 29 of the SAT Act. That section provides:
Powers of Tribunal on review
(1)The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
(2)Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3)The Tribunal may -
(a)affirm the decision that is being reviewed;
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and -
(i)substitute its own decision; or
(ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
(4)The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.
(5)The decision-maker’s decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision maker’s decision -
(a)is to be regarded as, and given effect as, a decision of the decision-maker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
(6)Without limiting subsection (5)(a), the decision-maker has power to do anything necessary to implement the Tribunal’s decision.
(7)Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decision-maker.
(8)Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal’s decision.
(9)To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.

It can be seen that s 29(7) provides that the decision as affirmed, varied, or substituted is not again open to review by the Tribunal. The plain words of that section suggest that the Tribunal does not now have the jurisdiction to review the original decision as varied by the Tribunal's orders of 16 May 2008, and that accordingly the review now sought by ING cannot be entertained. If that is correct, ING has no arguable case and leave to seek a review out of time should not be granted.
ING argues that s 29(7) is a statutory embodiment of the principle of res judicata or cause of action estoppel. It argues that, to the extent that there are exceptions to the principle of res judicata, those exceptions should be applied to the proscription contained in s 29(7) of the SAT Act.
That argument raises two issues. The first is whether, in Australian law, the principles of res judicata recognise exceptions to the application of the rule. The second is, whether, even if exceptions to the application of the principles of res judicata do exist, those exceptions can be implied into the SAT Act to qualify the plain words of s 29(7).
The argument that there are exceptions to the application of res judicata is based upon a passage from Hendersen v Hendersen (1843) 3 Hare 100 at 115 where Sir James Wigram V-C said:
… 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.
That passage was cited by Gibbs CJ and Mason JJ in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598. It is the words 'except in special cases' which open the argument as to the existence of exceptions.
The question of the existence of an exception to res judicata was discussed in the judgment of the Full Court of this State in Marilyn Elsie Waddington v Silver Chain Nursing Association (unreported, SCWA Full Court, delivered 9 December 1998, Library No 980728) (Waddington) at 19. There the Full Court said:
The High Court has on two occasions considered the relevant passage in the judgment of Wigram V-C in Henderson (above); in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; and Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 509. The majority judgments in both of these cases understood Wigram V-C in Henderson (above) not to have held that there was an exception to the principle of res judicata, but rather that in limited situations there may be an exception to the principle where "an issue is sought to be raised 'which could and should have been litigated in the earlier proceedings'": Port of Melbourne Authority (above) at 597-598 per Gibbs CJ, Mason and Aickin JJ; Chamberlain (above) at 509 per Deane, Toohey and Gaudron JJ. This view was shared by Dawson J in Chamberlain (above) at 512.
In Port of Melbourne Authority (above) at 613-614 and Chamberlain (above) at 504-505 Brennan J also rejected any exception to the principle of res judicata. His Honour indicated that he did not understand Wigram V-C in Henderson (above) as having held that there was an exception to res judicata, but rather that he 'had in mind the principles which governed the discretion to give leave to file a bill of review to impeach a decree': Port of Melbourne Authority (above) at 613.
In contrast to the Australian High Court's rejection of the development of any principle that there exists any exception to res judicata, the relevant passage in the judgment of Wigram V-C in Henderson (above) has been interpreted by English courts not only as authority for the principle that there is a discretionary exception to the principle of res judicata but has also been used to develop a similar exception to issue estoppel: Arnold v National Westminister Bank plc [1991] 2 AC 93; and Fildelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642, per Diplock LJ. Needless to say this position has not been mirrored in Australian law. Although '[t]he doctrine of issue estoppel operates in a more restricted way in family law disputes and in criminal cases' because of special policy considerations in those particular areas of the law (Cross on Evidence (5th Aust Ed 1996) para 5115 at 163 referring to paras 5125 and 5130), Australian law, strictly speaking, does not recognise any exception, discretionary or otherwise, to the principles of res judicata or issue estoppel.
In essence, the applicant argues that to deny it access to a review in relation to the requirement as to substantial commencement of the development would be to work an injustice. The exception urged upon the Tribunal to the application of the principles of res judicata is that those principles should not be applied where to do so would work an injustice, presumably by depriving ING of the opportunity to achieve a variation to the condition which both parties agree is appropriate.
The decision in Waddington makes clear that Australian law does not recognise any exception to the principal of res judicata. Even if, therefore, one treats s 29(7) as the statutory embodiment of the principle of res judicata carrying with it all of its considerations (including any exceptions) the principle would apply to prevent ING seeking a second review of the original decision.
In any event, I do not consider that s 29(7) should be read as, in effect saying 'the principles of res judicata apply to the Tribunal'. While the statutory proscription in s 29(7) may have the same effect as applying the principles of res judicata, it is a statutory provision to be construed on its plain words understood in the context of the objects and purpose of the legislation in which it appears. The Tribunal is a creature of statute. It exercises jurisdiction and powers conferred on it by the SAT Act and its various enabling Acts. In its review jurisdiction, the Tribunal exercises the functions and powers conferred by Pt 3 Div 3 of the SAT Act. The provisions of s 29(5) and s 29(6) have the effect of treating the Tribunal's decision as a decision of the decision-maker. The implementation of the Tribunal's decision is, by virtue of s 29(6), in the hands of the original decision-maker. Section 29(7) gives finality to the decision-making process. The Tribunal having fulfilled its role, questions of implementation of the then operative decision, including such matters as enforcing observance of conditions, and where possible, any variations to the terms and conditions of an approval, are matters for the original decision-maker. There is no exception to the statutory prohibition contained in s 29(7) which leaves it open to the Tribunal to undertake a further review even if the Tribunal is persuaded that it might be in the interests of justice to do so.
It follows that, since the Tribunal has no jurisdiction to entertain a second review of the original approval, leave to commence an application for a review out of time should be refused.

Variation to the effective date of the original approval

In March 2009, when the Tribunal ordered that its decision contained in the orders of 16 May 2008 should have effect from 16 March 2009, the Tribunal accepted that it was open to make an order under s 29(5)(b) after the substantive orders had been made by the Tribunal exercising its powers under s 29(3). The applicant contends that it is open to the Tribunal to exercise the power under s 29(5)(b) more than once, and invites the Tribunal to make a fresh determination that the decision of 16 May 2008 should have effect from the date on which this matter was heard, namely 9 August 2010.
The basis upon which that contention made is s 48 of the Interpretation Act 1984 (WA) (Interpretation Act). Section 48 of the Interpretation Act provides:
Where a written law confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.
The provisions of the Interpretation Act apply unless the intent and object of the SAT Act or something in the subject or context of the Act is inconsistent with such application - Interpretation Act s 3(1).
The applicant contends that there is nothing inconsistent in the intent and object of the SAT Act nor anything otherwise inconsistent in the SAT Act with the application of s 48 of the Interpretation Act so that it is open to the Tribunal to exercise the power for a second time (or presumably for any number of times) provided that the exercise of the power would not constitute an abuse of process or issue estoppel. I do not accept that submission.
In my view, the Tribunal is only able to exercise the power under s 29(5)(b) once. As discussed above the scheme of the review provisions of the SAT Act is to treat the Tribunal's decision pursuant to s 29(3) as the decision of the decision-maker. While it is not necessary that an order as to the time from which a decision is to have effect must be made the same time as the substantive orders under s 29(3), once a determination is made under s 29(5)(b) the Tribunal's function is complete and any questions as to its implementation become the responsibility of the original decision-maker. Section 48 of the Interpretation Act permits the exercise of a power 'from time to time as occasion requires'. The occasion for the exercise of a power under s 29(5)(b) arises upon, or at least in relation to, a decision of the type referred to in s 29(3). To suggest that the 'occasion requires' a re-exercise of the power under s 29(5)(b) any time that a party applies for the exercise of the power in light of changed circumstances, amounts, in effect, to a power of internal review by the Tribunal of its orders under s 29(5)(b). Once the power under s 29(5)(b) is exercised, the Tribunal's order as to the time when the decision is to have effect becomes part of the decision to affirm, vary or set aside and substitute the original decision. The proscription in s 29(7) against a review of that decision applies to that part of the decision made pursuant to s 29(5)(b).
In Sloane v Minister for Immigration (1992) 37 FCR 429 at 443, French J said:
"[R]econsideration of a statutory decision may itself be of course contemplated or authorised by the statute. The question is one of statutory construction. It is not without difficulty and is attended by policy considerations which are in some degree in conflict. The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances. …
Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures. There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentedly set upon each decision taken.
The observations in the first paragraph of that passage give support to the conclusion which I have reached. The potential, if the applicant's submissions are accepted, for the generation of endless requests for reconsideration on new material and changed circumstances is real, even if one sets a high threshold for the evidentiary burden as to changed circumstances which might be imposed. To accept that the Tribunal has the capacity to reconsider from time to time orders made under s 29(5)(b) casts the Tribunal in the role of monitoring, or overseeing the implementation, of at least one aspect of a development approval. That is not the proper role of the Tribunal, and in my view is not contemplated or authorised by the SAT Act.
In relation to the second paragraph of passage set out above, the reference to 'a primary decision-maker' is important in applying the observations made. The comments may well have application to the role of the WAPC in relation to the original approval, and the varied approval following the Tribunal's orders of 16 May 2008 (which are to be treated as the decision of the WAPC). They should not be read as directly applicable to an administrative review body such as this Tribunal.
For those reasons, I do not consider that it is open to the Tribunal to exercise for a second time the power under s 29(5)(b) of the SAT Act.

Conclusion

For the reasons set out above, the present application must be dismissed. In reaching that conclusion, I am mindful of counsel's assertion, supported as it is by Mr Shute's affidavit, that a failure to extend the time for substantial commencement of the development might put in jeopardy a very important development of regional significance and result in many millions of dollars of wasted expenditure. There was no dispute by the respondent as to the merits of amending a condition which requires substantial commencement within two years. Had the Tribunal jurisdiction to make the orders now sought, the case for doing so appears compelling. If it is correct, as the WAPC appears to believe, a primary decisionmaker is unable to vary, with the consent of the applicant, the requirement for substantial commencement within two years without requiring a completely fresh development application, that incapacity should, in the interests of orderly and proper planning, be removed if necessary by legislative amendment. In the meantime, given the years of planning of the development, the very significant and conscientious work done to work towards commencement of the project, and the very significant expenditure not only by ING but undoubtedly by the FPA, it is to be hoped that the parties can find a way to address the damage which will result from the application of a requirement which both parties both now consider to be inappropriate.

Order

The application is dismissed.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT