JONES and CITY OF SWAN - [2022] WASAT 101

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   JONES and CITY OF SWAN [2022] WASAT 101
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
MS C BARTON, MEMBER

HEARD:   22 AUGUST 2022
DELIVERED          :   18 NOVEMBER 2022
FILE NO/S:   DR 244 of 2021
BETWEEN:   BRETT JONES
Applicant
AND
CITY OF SWAN
Respondent
SAMUEL AND AMY CALABRESE
Interveners

Catchwords:

Town Planning - Development application - Preliminary issue - Jurisdictional questions - Restrictive covenants - Environment Protection and Biodiversity Conservation Act 1999 (Cth) - Federal jurisdiction

Legislation:

Commonwealth Constitution, s 109
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 67
Law of Property Act 1925 (UK), s 5, s 84
Planning and Development Act 2005 (WA), s 69, s 239(1), s 239(2)(a), s 237A(2), s 252(1), Sch 9, cl 11(1)
State Administrative Tribunal Act 2004 (WA), s 11, s 31, s 37(3)
Transfer of Land Act 1893 (WA), s 129C

Result:

The two preliminary issues are both answered to affirm the Tribunal's jurisdiction to determine the application for review

Category: B

Representation:

Counsel:

Applicant	:	Mr J Algeri
Respondent	:	Mr N Sloan
Interveners	:	Mr T Houweling

Solicitors:

Applicant	:	Altus Planning (acting as Agent)
Respondent	:	McLeods
Interveners	:	Cornerstone Legal

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

Citta Horbart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476
Jones and City of Swan [2022] WASAT 52
Larratt and City of Armadale [2009] WASAT 75
Mandurah Doctors and City of Mandurah [2007] WASAT 57
P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437; (1988) 66 LGRA 403
Re Martins' Application [1988] EWCA Civ 1; (1989) 57 P & CR 119
Smith and City of Bayswater [2006] WASAT 176

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and background

The applicant in these proceedings, Mr Brett Jones (applicant) seeks review pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) of the decision by the City of Swan (respondent) to refuse development approval to erect a single dwelling on land at 139 Litchfield Promenade, Jane Brook (Subject Land) (application).
On 21 June 2022, Mr Samuel Calabrese and Ms Amy Calabrese (interveners), who own land immediately adjacent to the Subject Land, were granted leave by the Tribunal to intervene in the proceedings pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Senior Member Willey published his reasons for decision in Jones and City of Swan [2022] WASAT 52 (Intervention Decision). In those reasons, the senior member identified two issues relating to the Tribunal's jurisdiction to determine the application which he later refined, and, on 8 July 2022, he made orders listing the issues for preliminary determination (preliminary issues).
Written submissions on the preliminary issues were filed by the interveners, the applicant and the respondent and, on 22 August 2022, we heard oral arguments. At the conclusion of the hearing, we made orders answering each of the preliminary issues such that the Tribunal has jurisdiction to determine the application.
At the time we said that we would publish our reasons in due course. These are our reasons.

Factual and procedural history

On 16 December 2020, the applicant filed with the respondent an application for approval of the development of a single dwelling on the Subject Land, formally described as Lot 2160 on Deposited Plan 407898 being the whole of the land in Certificate of Title Volume 2911 Folio 609.
The Subject Land is one of the lots to which the Jane Brook Local Structure Plan (Structure Plan) applies. The Structure Plan identifies building envelopes for each relevant lot.[1]
[1] Item 10 of the Respondent's s 24 Bundle is the original Jane Brook Structure Plan, dated March 2008. Item 11 of the Respondent's s 24 Bundle is the current version of the Jane Brook Structure Plan, which was approved by the Western Australian Planning Commission (WAPC) on 29 August 2018. Both contain plans showing building envelopes for each lot. With respect, the learned member erred at [19] of the Intervention Decision by suggesting that 2008 version of the Structure Plan incorporated restrictions on clearing of vegetation. As is set out in more detail below, such restrictions were the result of a decision made in 2010. The 2018 version refers to the restrictions on clearing in note 3 to the Structure Plan.
The application for development approval was lodged with the respondent under cover of a letter which provided that the applicant 'request to shift the building outside the current building envelope' for certain stated reasons.[2]
[2] Respondent's s 24 Bundle, page 1.
On its face that request does not appear to be an application to shift or move the building envelope but, rather, to construct a dwelling in an area beyond the boundaries of the approved building envelope.
On 13 October 2021, the respondent determined to refuse the application for development approval. The officer's report set out in the Council's minutes describes the proposed development consistent with the cover letter quoted above - 'the construction of a Single House, Swimming Pool and Associated Civil Works located outside of the Building Envelope at [the Land]'.[3] However, the Council's resolution was to refuse the application on the ground that the 'shift in the site of the building envelope will result in a reduction in amenity[.]'[4]
[3] Respondent's s 24 Bundle, pages 95, 97 and 101.
[4] Respondent's s 24 Bundle, page 103.
The applicant sought review of the respondent's initial decision by an application lodged with the Tribunal on 10 November 2021.[5] Following mediation the respondent was invited to reconsider its decision pursuant to s 31 of the SAT Act and the applicant lodged amended plans with the respondent.[6]
[5] Respondent's s 24 Bundle, pages 137-144.
[6] Respondent's s 24 Bundle, pages 145-178.
The amended application was the subject of reconsideration by the respondent on 2 March 2022. Both the officer's report and the Council resolution describes the proposal as for a 'Single House located outside of the Building Envelope'.[7]
[7] Respondent's s 24 Bundle, pages 180 and 184185.
Although the grounds of refusal are different in each case, on both occasions the respondent refused the application, in broad terms, upon amenity grounds.
By solicitor's letter dated 10 March 2022 the interveners indicated their intention to seek leave from the Tribunal to intervene in the review proceedings. In doing so, their solicitor: (1) said that he understood that the matter 'related to the amendment of the building envelope' on the Subject Land; (2) referred to two restrictive covenants (being RCN407747 and RCN407748), both of which burden the Subject Land; and (3) stated that the respondent had 'not approved any variation to the Restrictive Covenant (sic)'.
Restrictive Covenant RCN407747, sets out a series of covenants in an Annexure to a deed including that the owner of the relevant land covenants:
a.not to construct on a lot a residence … except within the designated building envelope for the lot unless prior approval of the City of Swan and the Developer is first obtained; and
b.not to re-locate, extend, re-configure or split the designated building envelope for the lot without the prior approval of the City of Swan and the Developer.
We note that, in contrast to RCN407748 (see below), no plan is attached to the deed, or the Annexure to it, and so it is somewhat unclear as to what 'designated building envelope' the deed refers; the phrase 'designated building envelope' is undefined and there is no reference in the deed to the Structure Plan.
Restrictive Covenant RCN407748 has its origins in, and expressly refers to, approval obtained under the EPBC Act[8] made 22 July 2010 (EPBC Decision).
[8] Environment Protection and Biodiversity Conservation Act 1999 (Cth)
By the EPBC Decision,[9] it was determined that the proposed action, being the subdivision of land (which included the Subject Land) was not a 'controlled action' if taken in a particular manner. [10]
[9] Applicant's Supplementary Bundle of Documents, 19 August 2022, pages 1-6.
[10] By s 67 of the EPBC Act, a 'controlled action' is one which is, in effect, prohibited unless prior approval is obtained. That is, by the EPBC Decision, prior approval for the subdivision of land was not required if the subdivision occurred in the particular manner.
The 'particular manner' was detailed in eight 'measures', which included:
a.The identification of 445 trees that may be cleared;
b.The identification of 977 trees that may not be cleared (protected trees);[11]
c.The requirement that 3,430 trees must be planted within identified areas to, in effect, offset the 445 cleared trees (offset trees);[12]
d.The requirement that a memorial must be placed on title to prevent, in perpetuity, the clearing of any of the 977 protected trees and any of the 3,430 offset trees.
[11] The term 'protected trees' is our term, not the term used in the EPBC Decision.
[12] The term 'offset trees' is our term, not the term used in the EPBC Decision.
The protected trees were specifically identified in Attachment 2 to the EPBC Decision which attachment appears to use the building envelopes identified in the Structure Plan.
Restrictive Covenant RCN407748 imposes a single covenant as follows:
The registered proprietor for the time being of each Lot covenants not to:
(a)Clear;
(b)allow to be Cleared; or
(c)carry out, or allow to be carried out, any Clearing; or
(d)carry out, or allow to be carried out, any act or activity that causes the Clearing,
of any native tree outside of the Building Envelope for the Lot so as to maintain and preserve potential foraging and breeding habitat for protected Black Cockatoos.
RCN407748 defines (at cl 1.1) Clearing as meaning to:
(a)cut down;
(b)uproot;
(c)deliberately damage or deliberately destroy;
(d)remove,
(e)sever or ringbark any trunk,
but does not mean to
(f)prune;
(g)trim; or
(h)lop or top any branch,
for maintenance, safety or bush fire management purposes, and Clear and Cleared each have a corresponding meaning.
The interveners filed an Outline of Submissions in Support of Application for Leave to Intervene on 21 May 2022 (Submissions to Intervene), which noted the above provisions of RCN407748 and asserted that the construction of the proposed dwelling 'will require the clearing of land to be conducted'.
As is set out in more detail below, that assertion is incorrect. But the written Submissions to Intervene (at para 46) made the following three submissions based on RCN407748 and the incorrect assumption that the proposed development involved clearing:
a.That it is 'not possible' to vary a building envelope where that envelope 'is the subject of requirements' imposed by the EPBC Act which requirements are 'made manifest' by RCN407748;
b.Any power to extinguish or vary a restrictive condition is not available here because, while the Scheme[13] expressly provides for certain variations of restrictive covenants,[14] it is silent in the relevant regard; and
c.The proposed development cannot be approved without the prior approval of the Commonwealth department in charge of the EPBC Act because to do so would result in a clearing of the land which would, in turn, result in the previously approved action becoming a 'controlled action'.
[13] City of Swan Local Planning Scheme No. 17.
[14] Clause 5.4 provides that a restrictive covenant that limits the number of residential dwellings which may be constructed on the land in question is extinguished to the extent to which it is inconsistent with the residential Design Codes.
As noted above, the application for intervention was determined on the papers. That is because of the applicant's election under s 239(1) of the PD Act.[15] As a result, the learned senior member did not have the benefit of an oral hearing. That is unfortunate because, as will become clear, he laboured under certain misunderstandings which were not clarified until the hearing before us.
[15] Intervention Decision, at [48] and footnote 11 of the Intervention Decision. We note that despite the applicant's election, on 20 June 2022 the President ordered that the parties may be legally represented pursuant to s 239(2)(a) of the PD Act, and that the Tribunal was to be constituted pursuant to s 11 of the SAT Act, rather than s 237A(2) of the PD Act.

In his reasons allowing the intervention, the learned senior member identified two jurisdictional questions from the interveners above contentions:
(a)whether the Tribunal has power to approve the development on the basis that it would, in effect, be contrary to the EPBC Decision and RCN407748, which 'was established to give effect to' the EPBC Decision; and
(b)whether the restrictive covenants (both RCN407747 and RCN407748) that apply to the Subject Land are, in effect, binding on the Tribunal.[16]
[16] Intervention Decision, at [53]-[55].
The learned senior member did not allow intervention in relation to RCN407747, finding that any argument that relied upon that restrictive covenant 'must … fail' because its terms expressly provide for the variation of a building envelope with the consent of the developer and the respondent.[17]
[17] Intervention Decision, at [57].
The learned senior member also had reservations about the matters raised in relation to RCN407748 but held that there was sufficient basis on the material before him to warrant intervention given the jurisdictional questions raised.[18]
[18] Intervention Decision, at [58].
Having heard from the parties as to the final form of orders, on 8 July 2022 the learned senior member identified the two preliminary issues for determination and listed them for determination before us on 22 August 2022 with each party to file and serve written submissions ahead of the hearing.

First preliminary legal question

The first preliminary legal question identified by the learned senior member in his Orders of 8 July 2022 is as follows:
Whether, having regard to RCN407748, the Tribunal has jurisdiction to allow the building envelope on [the Land] to be relocated without the consent of the Department of the Environment, Water, Heritage and the Arts.
At the commencement of the hearing, Mr Houweling, who appeared for the interveners, sought clarity as to whether or not the application did, in fact, seek approval for the relocation of the designated building envelope.[19]
[19] ts 6, 22 August 2022.
By reference to at least some of the matters set out in [7]-[11] above, the representative for the applicant, Mr Algeri, satisfied us and Mr Houweling, that the application is, in fact, limited to seeking approval for the development of a dwelling and associated structures on the Subject Land but outside the existing designated building envelope and does not include an application to relocate the building envelope.[20] For the avoidance of doubt we so find.
[20] ts 6-11, 22 August 2022.
In light of the agreed position, both Mr Algeri and Mr Houweling also agreed that the question posed by the learned senior member ought to be reframed. At the end of the hearing we made orders amending the question as follows:
Whether, having regard to RCN407748, the Tribunal has jurisdiction to allow the development outside the building envelope on [the Land] ~~to be relocated~~ without the consent of the Department ~~of the Environment, Water, Heritage and the Arts~~ administering the EPBC Act.
We turn now to the parties' submissions.
Based on the parties' written submissions, which were received ahead of the hearing,[21] we were unclear as to whether the application, in fact, proposes or requires any Clearing (as that term is defined in RCN407748) to occur.
[21] Interveners Written Submissions in Relation to Preliminary issues, 29 July 2022 (Interveners Written Submissions); Applicant's Response to Interveners Submissions in Relation to Preliminary Issues, 19 August 2022 (Applicant's Written Submissions); Respondent's Submissions on the Preliminary issues, 19 August 2022 (Respondent's Written Submissions).
While the Intervener's Written Submissions appeared to proceed on the basis that the proposed development involved Clearing, the Applicant's Written Submissions positively asserted that 'no clearing is proposed outside the envelope'[22] and the Respondent's Written Submissions agreed.[23]
[22] Applicant's Written Submissions, paras 14(ii) and 18.
[23] Respondent's Written Submissions, para 28.
On 18 August 2022, the Tribunal therefore made orders requiring the parties to file plans. On their face the resulting plans filed by the applicant[24] make plain that the application, if approved, would not result in any Clearing.
[24] Applicant's Supplementary Bundle (Exhibit 2), item 6 (d).
The plans filed by the respondent (Exhibit 3) indicated two trees to be cleared but that was explained in the respondents submissions (filed contemporaneously with the plans) which omitted that one tree (located on the proposed driveway) 'no longer exists' and the second tree merely appeared to require clearing due to the scale of the map; aerial imagery it was said, showed that no clearing was required.[25]
[25] Respondent's Written Submissions, paras 25 - 27.
At the hearing the representative for the applicant, Mr Algeri, and the solicitor for the respondent, Mr Sloan, both reiterated the view that no clearing was proposed.[26]
[26] ts 28 and 29, 22 August 2022.
Mr Houweling who appeared for the interveners did not oppose the tender of the plans, did not suggest any inaccuracy in them, and did not contest the characterisation of them by Mr Algeri and Mr Sloan that they showed no need for Clearing. It is, however, fair to say that he did not positively accept that that was the case.[27]
[27] ts 15 and 17, 22 August 2022.
In our view it is plain, and we find that the application for development approval will not, if approved, result in, or require the Clearing of any of the protected trees. Rather, we accept that the application for development approval proposes no more than the removal of a branch of a protected tree, which is said to be necessary for the purposes of bushfire management purposes.[28] Consistent with the definition above, such lopping does not constitute Clearing.
[28] Applicant's Supplementary Bundle (Exhibit 2), item 6 (d); Respondent's Written Submission, para 28.
That being the case, the position is that neither party, nor the interveners established and factual foundation for the contention that the proposed development constitutes a breach of, or requires approval under, the EPBC Act.
The EPBC Decision effectively prohibits, in perpetuity, clearing on the Subject Land through the obligation to create a memorial on title to that effect. The 'memorial' in this case is RCN407748. If there is no clearing proposed by the application for development approval, then it cannot be said that the application will result in a breach of RCN407748 and there can be no suggestion that the application will be somehow inconsistent with the EPBC Decision or that it might be such as to constitute a 'controlled action' under the EPBC Act.
In any event, during the hearing Mr Houweling confirmed that it was no longer the interveners case that the Tribunal was precluded from approving the application due to either or both of the EPBC Act and RCN407748.
Amongst several statements to that effect, when the Tribunal asked: 'if your position is [that] we can't make that decision, rather than we shouldn't, then why?' he answered: 'I don't go to (sic) that high, your Honour'.[29]
[29] ts 17, 22 August 2022.
Mr Houweling also said that he had turned his mind to the question of operational inconsistency under s 109 of the Commonwealth Constitution but that, in his view, the relevant legislative regimes did not create such an inconsistency. That is, he conceded that there was no issue to be resolved under s 109 of the Commonwealth Constitution.[30]
[30] ts 19, 22 August 2022.

Indeed, by way of what we understood was his summary as to the first preliminary question as a whole, he said:
I can't advance a submission to say that it would be either unlawful or improper or contrary to the provisions of the EPBC Act to grant an approval[.][31]
[31] ts 20, 22 August 2022.
We therefore answer the first preliminary issue in the affirmative for two reasons; because the interveners withdrew the point and because there is no factual basis upon which the point might have been pursued.
We are also of the view that, in the present circumstances, it cannot possibly be said that this case falls within federal jurisdiction. None of the parties (by which term we include the interveners - s 36(1)(c) of the SAT Act) advanced a factual basis for the contention that the grant of development approval would be inconsistent with the EPBC Act or EPBC Decision. The assumption on which that contention was based was not founded in any facts advanced by the interveners and was contrary to the facts advanced by the applicant and respondent. On that basis, had the interveners pursued the point, rather than withdrawing it, it would have been 'unarguable' and 'incapable' on its face of legal argument.[32]
Second preliminary legal question
[32] Citta Horbart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 at [35]-[37].
The second preliminary question is whether RCN407748 is binding on the respondent and, on review, the Tribunal. More precisely, the question as posed by the Orders of 8 July 2022 is:
Whether the Tribunal is bound to give effect to RCN407748 having regard to the fact that it has not been modified or varied by the City of Swan Local Planning Scheme No 17.
In their Submissions to Intervene, the interveners submitted that:
whilst there is a power to extinguish or vary any restrictive covenant provided in the PD Act, it is only available where expressly varied in the relevant town planning scheme which is the City of Swan Local Planning Scheme No 17, and has not occurred [.][33]
[33] Submissions to Intervene, para 46(b).
That submission appears to have been understood by the learned senior member for the purposes of the application to intervene[34] as follows:
a.The PD Act provides a power for local governments to include in a local planning scheme a power to extinguish or vary any restrictive covenant;[35]
b.The Scheme provides, at clause 5.4, for the extinguishment or variation of any restrictive covenant that limits the number of dwellings on the Land to the extent that the covenant is inconsistent with the Residential Design Codes;
c.The PD Act and the Scheme provide an exhaustive statement as to the circumstances in which restrictive covenants may be varied by decisions made under the planning regime;
d.As the Scheme is silent about both RCN407748 and the subject matter contained therein, full effect must be given to the terms of RCN407748 and a planning decision must not be made which is inconsistent with it.
[34] Intervention Decision at [55]-[56].
[35] PD Act, s 69 and Sch 9, cl 11(1).
Implicit in the submission is the assumption (again) that the application will involve Clearing, as that term is defined in RCN407748 and that therefore the application is inconsistent with RCN407748. As noted above, that assumption has, since the learned senior member granted leave to intervene, been shown to be incorrect.
If the proposed development will not involve any Clearing, then there can be no 'breach' of the covenant and, therefore, no 'need' for it to be extinguished or varied in order to facilitate the development.
But even if that was not the case and the approval of the development would have resulted in activity contrary to the terms of the restrictive covenant, we would have rejected the submission.
There are several decisions of the Tribunal in which it is said, in effect, that restrictive covenants are private arrangements which may (depending on all the facts and circumstances) be relevant to the exercise of a planning discretion but whose terms do not, and cannot, bind a decision-maker exercising planning discretion.[36]
[36] See, for example, Mandurah Doctors and City of Mandurah [2007] WASAT 57, at [39]-[41]; Larratt and City of Armadale [2009] WASAT 75, at [53]-[54].
In Smith[37] the Tribunal was concerned with an application for a family day care centre on land which was the subject of a restrictive covenant that prohibited the use of the land for various uses including 'business, commercial, … mercantile … or non-residential use'. The evidence was that the respondent was aware of the covenant but had 'determined the matter on its planning merits …' At [34] the Tribunal stated:
The Tribunal notes that a restrictive covenant of this type is a matter between respective land owners and does not prevent an application for planning consent being made under TPS 24 or the respondent from determining it. A beneficiary of a covenant might, of course, pursue the matter against a person burdened by the restriction in the relevant court. The restrictive covenant did, however, colour the belief of the neighbours that this would remain a residential area … without any commercial activity.
[37] Smith and City of Bayswater [2006] WASAT 176.
We consider the historic approach of the Tribunal, as illustrated by the above passage, to be entirely orthodox.
As the learned author Principles of Planning Law puts it:[38]
A restrictive covenant is a private contractual relationship between landowners that creates restrictions on land that may have the same effect as land use restrictions found in planning schemes.
…
Land that is subject to a restrictive covenant is also subject to a planning scheme and the two may conflict.
…
… when there is a restrictive covenant and a planning scheme, the two exist independently and are said to be 'multiple controls' over land use. As an interest in land is independent of a statutory planning scheme for control of land use, the two will operate even if they are entirely incompatible, the greater restriction overriding the lesser as a matter of effect.
[38] Leslie A Stein, Principles of Planning Law, OUP 2008, 55-56. Citations omitted.
The authority cited by the learned author for the final proposition in the above quoted passage is Re Martins' Application.[39] In that case Lord Justice Fox delivered the reasons of the UK Court of Appeal and held:
17.When a restrictive covenant is entered into between owners of adjoining, or otherwise affected, lands the fact that the owner for the time being of the burdened land subsequently obtains planning permission to develop that land in a manner which is prohibited by the covenant does not entitle him to ignore the covenant. The benefit of the covenant is an interest in land and it is not extinguished by the acts of a planning authority. The position under a section 37 (or section 52) agreement is no different. Such an agreement creates a fully effective restrictive covenant which operates in just the same way as if the local authorities concerned were the owners of adjoining land for the benefit of which the covenant was taken. In either case if the owner of the burdened land wishes to be rid of the covenant he must, in the absence of agreement with the dominant owner, obtain a discharge or appropriate modification of the covenant under section 84 of the Law of Property Act 1925.[40]
…
18.There are, it seems to me, two statutory regimes. One is the power of the planning authority under section 37 (and now under section 52) to enter into an agreement regulating the development and use of land by way of restrictive covenant in circumstances where, under the general law, it would not be possible effectively to do so because of the rules as to the running of the burden and benefit of covenants. The other is the power of the planning authority under section 29 of the 1971 Act (and section 16 of the 1962 Act) to grant planning permission. These regimes are subject to different procedures. If a person is dissatisfied with the planning authority's refusal of planning permission, his remedy is to appeal to the Secretary of State under section 36 of the 1971 Act (section 23 of the 1962 Act). If a person who is bound by the provisions of a section 37 agreement wishes to escape from them, he must go to the Lands Tribunal and persuade the Tribunal that it is a proper case to exercise its jurisdiction to discharge or modify the covenant under section 84. … Thus, it seems to me that, while the two regimes impinge upon each other to some extent, they constitute different systems of control and each has, and retains, an independent existence.
[39] Re Martins' Application [1988] EWCA Civ 1; (1989) 57 P & CR 119 at 124-125.
[40] Section 84 of the Law of Property Act 1925 (UK) has, in this State, its parallel in s 129C of the Transfer of Land Act 1893 (WA).
The learned author also cites Hope JA in P E Bakers[41] who said:
Restrictions imposed upon the use of the land by or under planning legislation are not something in the nature of restrictions arising under restrictive covenants or other private arrangements; they arise under a statute or a statutory instrument affecting the area in which the land is situated, or in the case of a consent, conditional or otherwise, under an act done pursuant to the provisions of a statute or a statutory instrument affecting a particular area of land[.]
[41] P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437; (1988) 66 LGRA 403.
While the PD Act and the relevant local planning scheme create a regime that is entirely separate from the regime for the creation and registration of interests in real property that includes restrictive covenants, it seems well established that in certain circumstances a restrictive covenant may inform the planning merits of an application for development approval. So, as set out in the above passage from Smith, the terms of a restrictive covenant may inform residents' expectations of amenity which a decision maker may legitimately consider in determining an application for planning approval.
Such an approach is accepted in the Interveners Written Submissions, in which it was submitted that it is 'clear that the Tribunal may consider the Restrictive Covenant and its effect in the exercise of discretion with respect to the application under review'.[42]
[42] Interveners Written Submissions, para 38.
That is, in their written submissions to the Tribunal in relation to the preliminary issues, the Intervenors accepted that the restrictive covenant did not preclude the Tribunal from granting development approval but, rather, submitted that it was a matter to which consideration may be given in determining the application.
That approach was also adopted in oral submissions at the hearing. Mr Houweling made two critical, and in our view correct, concessions.
First, he conceded that he was unable to locate authority which elevates a restrictive covenant (even one that, as found by the learned senior member, addresses 'planning' matters)[43] to that of a 'planning instrument'.[44]
[43] Intervention Decision, at [61]-[69].
[44] ts 22, 22 August 2022.
Second, he said that he could not 'advance an argument to say there is a prohibition contained within the scheme'. That is, he accepted that there was nothing in either the Scheme or RCN407748 that prevents development approval from being granted. Rather, as we understood his submissions, he accepted that the covenant was merely a matter for consideration.[45]
[45] ts 25, 22 August 2022.
In our view both concessions were properly made.
Section 69 and Sch 9, cl 11(1) of the PD Act represent a decision by Parliament to allow a local government, in drafting a local planning scheme, to extinguish or vary certain types of restrictive covenants which, in the local government's view, are antithetical to orderly and proper planning.
In doing so, the PD Act provides for the planning regime to prevail over the private agreement reached and represented in the restrictive covenant.
The suggestion inherent in the interveners original submission was that if that power is exercised so that certain covenants are extinguished or varied, then somehow other covenants (that are not affected by the Scheme) are elevated so as to prevail over planning decisions made under the Scheme. With respect, there is no logic or principle that supports such a suggestion and Mr Houweling was right to disavow it.
Finally, and for completeness, we note that in an exchange between the Tribunal and Mr Houweling, he also accepted that RCN407748 did not contain any term that prohibited the construction of a building outside the identified building envelope.[46]
[46] ts 23, 22 August 2022.
We raise the issue here because, at [58] of the Intervention Decision the learned senior member found that there is no power under RCN407748 to vary the approved building envelope despite the fact that, as set out in [16]-[21] above, RCN407748 is not concerned with building envelopes, only with Clearing.
As noted above, the learned senior member did not have the benefit of a hearing. Had a hearing been held, much of the confusion that has complicated this matter may have been avoided. In so saying we make no criticism of either the senior member (who was unable, because of the applicant's election under s 239(1) of the PD Act, to hold a hearing) or the applicant, whose election under that section precluded the hearing. The result, however, is that much time, money and effort has been spent which might have been better directed to the merits of the application.
Conclusion
For the above reasons, we are of the view that the first of the two questions, which we have reframed, ought to be answered in the affirmative and the second question answered in the negative. Accordingly, we find that the Tribunal has jurisdiction to determine the application.
As we have already made orders there is no need for us to do so again and what follows merely repeats the orders previously made.

Orders

The Tribunal orders:
1.The preliminary issue, as enunciated in Order 1(a) of the orders made by Senior Member Willey on 8 July 2022, is amended so as to read: Whether, having regard to RCN407748, the Tribunal has jurisdiction to allow development outside the building envelope on No 139 Litchfield Promenade, Jane Brook without the consent of the department administering the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
2.The two preliminary issues as enunciated in Order 1 of the orders made by Senior Member Willey on 8 July 2022, as amended in relation to the first said Order by Order 1 above, are both answered to affirm the Tribunal's jurisdiction to determine the application for review.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
18 NOVEMBER 2022