Ironbridge Holdings Pty Ltd and Western Australian Planning Commission
[2008] WASAT 41
•15 FEBRUARY 2008
IRONBRIDGE HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 41
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 41 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:396/2006 | 15 FEBRUARY 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 14/02/08 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to intervene refused | ||
| B | |||
| PDF Version |
| Parties: | IRONBRIDGE HOLDINGS PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Practice and procedure Third party participation Intervention Town planning Subdivision application Subdivision would significantly increase population of country town Subdivision refused because of lack of structure plan and comprehensive planning Local planning strategy and structure plan subsequently approved Parties seek Tribunal approval of subdivision by consent Ratepayers' and residents' association and local government councillor/resident seek leave to intervene Association previously granted leave to make a submission Exercise of discretion Interest of proposed intervener Nature and effect of proceedings Effect of proposed intervention in terms of timely finalisation of proceedings and costs |
Legislation: | Draft Shire of Toodyay Local Planning Scheme No 4 Planning and Development Act 2005 (WA), s 242 Shire of Toodyay Town Planning Scheme No 1, cl 3.16.1 State Administrative Tribunal Act 2004 (WA), s 9, s 37, s 37(3), s 60(2) |
Case References: | Harding v Shire of Chittering (2003) 35 SR WA 229 Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 325 Re State Administrative Tribunal; Ex parte McCourt [2007] WACA 125; (2007) 34 WAR 342 Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 16 |
Orders | 1. The applications made by Cr Chris Firns and the Toodyay Ratepayers' and Residents' Association Inc for leave to intervene in the proceedings under s 37(3) of the State Administrative Tribunal Act 2004 (WA) are dismissed.,2. Outstanding programming orders are confirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : IRONBRIDGE HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 41 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 15 FEBRUARY 2008 DELIVERED : 15 FEBRUARY 2008 FILE NO/S : DR 396 of 2006
- DR 397 of 2006
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Practice and procedure - Third party participation - Intervention - Town planning - Subdivision application - Subdivision would significantly increase population of country town - Subdivision refused because of lack of structure plan and comprehensive planning - Local planning strategy and structure plan subsequently approved - Parties seek Tribunal approval of subdivision by consent - Ratepayers' and residents' association and local government councillor/resident seek leave to intervene - Association previously granted leave to make a submission - Exercise of discretion - Interest of proposed
(Page 2)
intervener - Nature and effect of proceedings - Effect of proposed intervention in terms of timely finalisation of proceedings and costs
Legislation:
Draft Shire of Toodyay Local Planning Scheme No 4
Planning and Development Act 2005 (WA), s 242
Shire of Toodyay Town Planning Scheme No 1, cl 3.16.1
State Administrative Tribunal Act 2004 (WA), s 9, s 37, s 37(3), s 60(2)
Result:
Leave to intervene refused
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Mr CS Bydder
Solicitors:
Applicant : Hardy Bowen
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Harding v Shire of Chittering (2003) 35 SR WA 229
Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 325
Re State Administrative Tribunal; Ex parte McCourt [2007] WACA 125; (2007) 34 WAR 342
Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 16
(Page 3)
Summary of Tribunal's decision
1 Councillor Chris Firns and the Toodyay Ratepayers' and Residents' Association Incorporated each sought leave to intervene in proceedings which involve the review of the refusal of two subdivision applications in Toodyay.
2 Following the hearing, the Tribunal gave an oral decision. The Tribunal considered the interest of the proposed interveners, the nature and effect of the proceedings, and the effect of intervention in terms of the timely finalisation and costs of the proceedings, having regard to the Tribunal's objectives. The Tribunal dismissed the applications for leave to intervene.
3 The Tribunal's reasons, taken from the transcript and edited in minor respects to aid clarity, were as follows.
Introduction
4 Councillor Chris Firns and the Toodyay Ratepayers' and Residents' Association Incorporated (Association) each seek leave under s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to intervene in proceedings which involve the review of the refusal of two subdivision applications in Toodyay.
5 Section 37(3) of the SAT Act states that:
"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."
Background
6 The background to this matter is set out in my decision, Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 325 at [6] - [14], which I incorporate into these reasons and need not repeat.
7 In that decision, I determined four applications to make submissions in the proceedings under s 242 of the Planning and Development Act 2005 (WA) (PD Act). I allowed the Association to make a written submission in relation to whether the subdivisions should be approved, having regard to cl 3.16.1 of the Shire of Toodyay Town Planning Scheme
(Page 4)
- No 1 (TPS 1). I also allowed Mr Larry Graham, a resident of Toodyay, to make a written submission as to whether the subdivisions should be approved, having regard to the impact on his property. However, I dismissed the applications by Cr Firns and by Ms Judith Francis to make a submission.
8 I required the written submissions by the Association and Mr Graham to be filed and provided to the parties by 18 December 2007, and any evidence or submissions from the parties as to whether the proposed consent orders should be granted, to be filed and exchanged by 18 January 2008. I also made an order that, subject to any further order, the proceedings shall be determined entirely on the documents in accordance with s 60(2) of the SAT Act.
9 The Association and Mr Graham filed written submissions on the date they were due. On 8 January 2008, the applicant filed its submissions. On 8 January 2008, the Western Australian Planning Commission (Commission) requested that the date for its evidence and submissions be extended by one week to 25 January 2008, because the submissions of the Association and Mr Graham were to be considered by the Commission's Statutory Planning Committee. On 14 January 2008, I granted the Commission's request. At the Commission's suggestion, I also, at that time, granted leave to the Association to make a submission in response to the parties' submissions in relation to the effect of draft Shire of Toodyay Local Planning Scheme No 4 (draft LPS 4) by 8 February 2008, because the Commission said that it was likely to refer to that draft instrument in its submissions, and that had not been previously raised.
10 On 25 January 2008, I granted the Association's request to extend the date for its submissions in relation to draft LPS 4, because it would not receive the Commission's submissions until after the Australia Day holiday. I extended the date for the Association's submission to 15 February 2008 - that is, until today. Yesterday, on 14 February 2008 at 3.23 pm, the Association asked for an extension of the date for its submission on draft LPS 4 to 22 February 2008.
Applications for leave to intervene
11 At 4.12 pm on 6 February 2008, the Tribunal received Cr Firns' application to intervene, and at 10.41 am on 7 February 2008, the Tribunal received the Association's application to intervene.
(Page 5)
12 In his application, Cr Firns refers to my decision in Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 16, and proposes that he can, and will, present evidence that the Tribunal may not otherwise have an opportunity to hear, and that will allow the Tribunal to properly determine matters. Councillor Firns has made further brief submissions this morning, and said that, in effect, he would be willing to defer his participation in the proceedings to participation by the Association, should the Tribunal consider that leave to intervene should be granted to the Association in preference to Cr Firns.
13 The Association's application includes the following:
"To alleviate any perceived difficulties arising from the parties' contention that evidence-based material raised by [the Association] should be disregarded, and as there is no proper or effective contradictor in this matter, the parties having agreed that the matter should be determined by consent, we believe that it would be in the public interest that we be given leave to intervene. If the [Association] were joined as a party[,] it could and would bring before the Commission evidence that supports its contention that the approval sought by the applicant and proposed to be granted by the respondent ought not to be granted[.] [G]iven that the applicant and the respondent hold a common view[,] this may be the only way that evidence that does not support the commonly held position is likely to be placed before the Commission."
14 The Association was represented this morning by Mr Ian Firns and by Ms Kim Angus, its chairperson. Mr Firns relied on written submissions which include the following:
"The [Association] submits that intervention is necessary for the proper disposition of these proceedings because, in the absence of intervention, there will not be sufficient material before the Tribunal to enable it to dispose of the proceedings on an informed, insightful and critically analysed basis. The [Association] submits that it is a proper person to intervene in the public interest[,] because it is a public organisation concerned with local government issues and it draws its membership from the affected community." (par 3)
"With the greatest of respect to the Senior Member, the[Association] says that it can raise questions as to whether
(Page 6)
- the council in this case did undertake a proper process. It agrees that the community spoke in relation to the proposed subdivision but it does not accept that the council listened. It says that it can adduce evidence that tends to establish that council was misinformed in relation to its powers and the consequences of exercising them[,] and that as a result[,] the strategic planning process was not properly carried out." (par 11)
"The [Association] submits that:
(a) it is in the public interest that the results of the strategic planning process be explored in this Tribunal in the unique circumstances of this matter;
(b) neither the applicant nor the respondent is likely to bring before the Tribunal evidence that the strategic planning process was flawed in this case;
(c) such evidence does exist;
(d) for the Tribunal to dispose of the proceedings on an informed, insightful and critically analysed basis[,] it needs to consider the evidence;
(e) the [Association] can[,] and will, given the opportunity, bring such evidence to the Tribunal and, therefore[,]
(f) the [Association] should be granted leave to intervene in these proceedings." (par 15)
15 The expression "informed, insightful and critically analysed basis" in the Association's submission and also in Cr Firns' submission is taken from the test that I referred to in Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands, which is known as the Harding test, formulated in the Town Planning Appeal Tribunal decision of Harding v Shire of Chittering (2003) 35 SR WA 229.
16 The parties to the proceedings, Ironbridge Holdings Pty Ltd (Ironbridge) and the Commission, were each represented by counsel this morning, and oppose the applications for intervention.
(Page 7)
Considerations of applications for leave to intervene
17 In Re State Administrative Tribunal; Ex parte McCourt [2007] WACA 125; (2007) 34 WAR 342, the Western Australian Court of Appeal said, at [42], that a decision as to whether to grant leave to intervene:
"... would depend very largely upon the nature of [the proposed intervener's] interest and upon the nature and effect of the proceedings concerned. The decision will also be influenced by the objectives of the SAT Act, including those of minimising costs and avoiding delay."
18 At [46], the Court of Appeal said that the factors averted to in the Harding test are:
"... relevant considerations but they are not exhaustive nor necessarily determinative."
19 I will now address each of the considerations identified in the Court of Appeal decision.
20 I found, in [2007] WASAT 325, that both the Association and Cr Firns have a sufficient interest in the matter. However, in the exercise of discretion, I did not allow the Association or any of the other proposed submitters to make submissions in relation to their broad concern to do with the subdivisions - namely, questions to do with character, amenity and social impact - because those matters were considered by the strategic planning authorities in a recent strategic planning process involving the site of the proposed subdivisions. I limited the subject matter of the submission by the Association to cl 3.16.1 of TPS 1, and I dismissed Cr Firns' application to make submissions on the basis that if it were granted, it would be similarly limited and would therefore be repetitive.
21 In terms of the nature and effect of the proceedings, I note that:
• the proceedings involve an application for review by Ironbridge of the Commission's decision to refuse its subdivision applications;
• the parties now jointly ask the Tribunal to grant subdivision approval on the basis that the reason for refusal - namely, the absence of structure/comprehensive planning - has been addressed in the interim; and
(Page 8)
- • there are no third party rights of appeal or review in relation to planning applications in this State.
22 Next, I note, significantly in the circumstances of this case, that the applications to intervene were made:
• over 15 months after the proceedings were commenced;
• almost three months after the parties sought approval of the consent orders;
• almost three months after the Association and Cr Firns and two other applicants sought leave to make submissions under s 242 of the PD Act; and
• nine to 10 weeks after I granted leave to make submissions.
23 The main objectives of the Tribunal set out in s 9 of the SAT Act include, as the Court of Appeal noted in Ex parte McCourt:
"To act as speedily and with as little formality and technicality as is practicable and to minimise the costs to the parties."
24 Intervention at this late stage would, in my opinion, be inconsistent with these objectives. Intervention would undoubtedly lengthen the proceedings and increase the costs to the parties. Finalisation of this matter has already been delayed for over three months because of the applications to make submissions and the programming of those submissions.
25 In relation to the desire of the proposed interveners to have the Tribunal review the strategic planning process that has been undertaken by the Shire of Toodyay (Shire) and the Commission, as I said in [2007] WASAT 325 at [35] - [36]:
"Structure planning is an element of strategic planning. It necessarily precedes and informs the process of development or subdivision assessment. The Tribunal was not established as a review body or as an original decision-making body in relation generally to strategic planning. This is a matter for the local authority being the responsible authority for local planning and the respondent being the responsible authority for regional planning. If there is a concern about the process or the results of the process of strategic planning, there are forums in which
(Page 9)
- those results can be explored and ultimately, as was suggested for Ironbridge, there is a political answer.
But I do not consider it to be an appropriate exercise of discretion to effectively re-open what is a strategic planning process at the subdivision - that is, planning assessment - stage."
26 For the same reasons, I do not consider it to be an appropriate exercise for discretion in relation to an application to intervene to re-open a strategic planning process before the Tribunal at the subdivision stage. As I said in the previous decision, there are other forums in which that can be pursued. There are, as Mr Hardy suggested this morning, forums for reviewing the legality of the process, there are also political review of the process, but it is not, in my opinion, an appropriate exercise of the discretion under s 37 of the SAT Act, in the circumstances of this case, to allow intervention to re-open that process at the subdivision stage, and certainly not at this very late stage in the subdivision stage.
27 Finally, having regard to the submissions made by the Association and Mr Graham under s 242 of the PD Act, and the submissions by the parties in response and in relation to whether the consent orders generally should be granted, which I have read, I do not consider that intervention is required to enable the Tribunal to properly dispose of the review proceedings before it.
28 Taking into account each of these considerations, I consider that the applications to intervene should not be granted.
29 I also note that the Court of Appeal observed in Ex parte McCourt, at [41], as follows:
"In our respectful opinion, the importance of the distinction between ss 37 and 38 [of the SAT Act] rests in another aspect of the concept of intervention, as that concept has traditionally been understood, being that, in the absence of any statutory intention to the contrary, an intervener, unlike a party, will ordinarily be allowed only to support or oppose a position contended for by one or other of the parties to the proceedings and will not be permitted to expand on the issues to be decided [Citations omitted]. In the context of town planning, where a very wide range of concerns are relevant to any decision, one can readily see why Parliament would limit the scope of the inquiry before the Administrative Tribunal to the matters at issue between the applicant and the
(Page 10)
- decision-maker, as it has done through ss 62 and 63 of the TPD Act." (Emphasis in bold added)
30 If an intervener will ordinarily only be allowed to support or oppose a position contended for by one or other of the parties, and if the scope of the inquiry is limited to matters in issue between the applicant and the original decision-maker, as the Court of Appeal said, then it would seem that, ordinarily, intervention would not be allowed where proceedings have been settled and the parties jointly request the Tribunal to make consent orders. Mr Bydder, for the Commission, suggests that perhaps another interpretation of their Honours' observations in Ex parte McCourt is open, and perhaps he is right. I do not need to come to any considered view in relation to this question, and I leave that for another day. I am content, based on the factors that I identified earlier and the findings that I expressed, to dispose of the applications for intervention in the circumstances of this case by refusing those applications.
Consideration of application to extend time for submission
31 I now turn to the application made by the Association to extend the time for it to file its responsive submission in relation to draft LPS 4. The reason for that application is expressed by the Association as follows:
"We hereby respectfully request a further extension until 22 February [2008] to make our submission regarding TPS 4 due to the additional delays in receiving documents, the additional work required to prepare our argument regarding leave to intervene[,] and the fact that, as country residents, we need to attend a 10.30 am hearing in Perth to enable the best presentation of our position in seeking leave to intervene, precludes any final revision of our submission on the day."
32 I do not think that the time for the Association's responsive submission should be extended in the circumstances of this case for the following reasons.
33 While it is correct that the submissions from the Commission were received late, as I mentioned earlier, I extended the period of time in which the Association could respond so as to preserve the two weeks that I originally allocated to the Association for its response. It appears that the Commission's submissions were received by the Association on 1 February 2008 - that is, two weeks ago.
(Page 11)
34 As I mentioned earlier, in relation to the application to intervene, the proceedings were commenced some 15 months ago. The parties sought consent orders, having resolved the matter between them three months ago. It is, in my opinion, inappropriate to extend the date for a resolution of the matter by allowing an additional week for the response.
35 Finally, having read the Commission's submission, which I obviously didn't have access to when I originally allowed the Association to respond on this point at the Commission's recommendation, I consider that draft LPS 4 is, at its very highest, a marginal consideration in relation to the application, and I think that the two weeks that has been provided to the Association is adequate to be able to deal with that aspect.
36 Having said all that, I note that I have allocated Monday, 18 February 2008 to review the submissions and to determine the matter, that being the first working day after the date on which the final submissions were due, or are due. While I am not prepared to extend the time for the Association's submission, bearing in mind the time that it has taken today for this matter to be argued and the time that it has taken me to present these reasons, if the submissions are received by 9 am on Monday, they will certainly be taken into consideration. Any later than that and the decision is likely to be made and published.
37 This matter has now been in the Tribunal for 15 months, which is far longer than proceedings ought be in the Tribunal. There was a perfectly good reason why it took some considerable period of time - namely, that the parties were actively working through the reason for refusal and addressing that. Since that time it has been another three months. I do not think it is reasonable that the parties should have to wait much longer for a decision on the application in those circumstances and, as I say, I intend to deal with this matter on Monday and to publish a decision, certainly by the end of next week.
Orders
38 For those reasons, I will now make the following orders:
1. The applications made by Cr Chris Firns and the Toodyay Ratepayers' and Residents' Association Inc for leave to intervene in the proceedings under s 37(3) of the State Administrative Tribunal Act 2004 (WA) are dismissed.
2. Outstanding programming orders are confirmed.
(Page 12)
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
0
3
4