KC NOMINEES PTY LTD and CITY OF ARMADALE
[2005] WASAT 297
•7 OCTOBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: KC NOMINEES PTY LTD and CITY OF ARMADALE [2005] WASAT 297
MEMBER: MR D R PARRY (SENIOR MEMBER)
HEARD: 7 OCTOBER 2005
DELIVERED : Edited reasons delivered extemporaneously on 7 OCTOBER 2005
FILE NO/S: DR 580 of 2005
BETWEEN: KC NOMINEES PTY LTD
Applicant
AND
CITY OF ARMADALE
Respondent
Catchwords:
Practice and procedure – Application for extension of time in which to commence an application for review of a decision to give a direction under Town Planning and Development Act 1928 (WA), s 10 – Factors for consideration in exercise of discretion to extend time – City gave notice of right to seek review but did not give notice of 28 day period for commencement of review – Whether "notice" of a right to have a decision reviewed included notice of the date by which review must be sought – No arguable case – Application for extension dismissed
Legislation:
State Administrative Tribunal Act 2004 (WA), s 20(1)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Town Planning and Development Act 1928 (WA), s 10, s 10AA
Result:
Application for extension of time dismissed
Category: B
Representation:
Counsel:
Applicant: Mr JF Park
Respondent: Mr MI Handcock
Solicitors:
Applicant: Park Legal Solutions
Respondent: Mullins Handcock Lawyers
Case(s) referred to in decision(s):
Blair v Curran (1939) 62 CLR 464
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Jackamarra v Krakouer (1998) 195 CLR 516
O'Connor and Town of Victoria Park [2005] WASAT 161
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
KC Nominees Pty Ltd applied for an extension of time in which to seek review of a direction that it cease depot or storage use of a property and remove certain items. It had been convicted of conducting a depot or storage use in contravention of the town planning scheme. The direction notified the company that it had a right to seek review of the decision before SAT, but did not indicate the period within which the application had to be made. The application to SAT was made 16 days out of time.
Following the hearing, the Tribunal gave an oral decision in which it dismissed the application to extend time. While the length of delay was not significant, there was a reasonable justification because of the lack of effective notice, and there would be no serious prejudice to the City, it was not appropriate to extend time in the exercise of discretion, because there was no arguable case for review of the direction.
The Tribunal's reasons taken from the transcript and edited in minor respects to aid clarity were as follows.
Introduction
MR PARRY: Thank you, gentlemen. These are my reasons for decision in relation to an application for leave to extend time in proceedings DR 580 of 2005.
This is an application by KC Nominees Pty Ltd pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) (Rules) to extend the time for the commencement of an application for review of a direction issued by the City of Armadale on 8 August 2005 under s 10 of the Town Planning and Development Act 1928 (WA) (Act).
Rule 10 authorises the Tribunal, on application by an applicant or on its own initiative, to extend any time fixed under the State Administrative Tribunal Act 2004 (WA) (SAT Act), an enabling Act or the Rules for the commencement of a proceeding. Rule 9 of the Rules specifies that an application to the Tribunal under its review jurisdiction must be made within 28 days of the day on which the decision maker gives a notice under the SAT Act, s 20(1). It is common ground that the City gave a notice under the Act on 9 August 2005.
In accordance with r 9 of the Rules an application for review of the decision of the City to give the direction under s 10AA of the Act was required to be commenced by 6 September 2005. It is common ground that the application to extend time and the draft application for review of the direction were filed on 21 September 2005, that is, approximately 16 days out of time.
The direction which KC Nominees seeks to have reviewed recounts that KC Nominees is the owner of Lot 1 Clifton Street, Kelmscott and Lots 2 and 3 Gilwell Avenue, Kelmscott (the property), that the property is zoned Rural E under the City's Town Planning Scheme Number 2 (TPS 2), and that the City has advised KC Nominees that the activity of depot or storage use is being conducted on the property without planning consent of the City under TPS 2 and is not permitted on the property. The direction also recounts that on 15 March 2005, the Armadale Court of Petty Sessions convicted KC Nominees of conducting a depot or storage use of the property in contravention of TPS 2 under s 10AB of the Act, and that the conviction confirmed the City's contention that any non‑conforming use on the property had been extinguished.
The terms of the direction are as follows:
"YOU ARE DIRECTED:
1)To immediately stop and not recommence the [activity of a depot or storage use]; and
2)Within 60 days of the date of service of this Direction on you, to remove from the Property:
(a)all bricks;
(b)all motor vehicle parts;
(c)all derelict motor vehicles;
(d)all sea containers;
(e)all metal objects;
(f)all plastic objects;
(g)all wooden objects;
(h)all concrete objects;
(i)all vehicles intended to be used for commercial or industrial purposes; and
(j)all other equipment and materials of any sort not associated with the lawful Rural Use of the Property."
The direction also stated as follows:
"(a)you may apply to the State Administrative Tribunal for a review of the decision to give this Direction in accordance with the provisions of Part V of the Town Planning and Development Act 1928 ("the Act");
(b)if you fail to comply with this Direction within the time specified then you will commit an offence under Section 10 of the Act and you will be at risk of a penalty of up to $250 000, including a possible daily penalty of up to $25 000 per day for each offence; and
(c)if you fail to comply with this Direction then the City may itself execute the works the subject of this Direction and recover its costs of doing so, as a debt owing to it, by means of court proceedings."
It is common ground that the Court of Petty Sessions found, in convicting KC Nominees, that the depot or storage use of the property is unlawful. It is also common ground that KC Nominees did not appeal against the conviction to the Supreme Court within the 21‑day period allowed for such an appeal. However, on 7 April 2005, that is, one day outside the period permitted for an appeal from the conviction, KC Nominees made application to the Supreme Court to enlarge the time within which to apply for leave to appeal and in the same document sought an order granting leave to appeal from the decision of the magistrate. It appears that KC Nominees' application for leave came on for hearing before Justice Blaxall in the Supreme Court on 11 May 2005. It does not appear that any order was made other than to adjourn the matter sine die.
It is common ground that nothing further has happened in relation to the Supreme Court proceedings since 11 May 2005, that is, almost five months ago.
It is common ground that the principal considerations in the exercise of discretion as to whether to extend the time for the commencement of the proposed review are the four matters identified by Kennedy J in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198, as follows:
"They 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.": O'Connor and Town of Victoria Park [2005] WASAT 161 at [40].
The Tribunal will consider each of these principal matters in turn.
Length of delay
As noted earlier in these reasons, the application for leave to extend time and the proposed application for review were filed 16 days late. Mr Park, counsel for KC Nominees, referred the Tribunal to the determination of the President in O'Connor and Town of Victoria Park that a delay in the commencement of proceedings in that case of "just over 5 weeks" was "borderline". Mr Park submitted that the length of delay in this case was not excessive, particularly when one takes into account the failure of the City to alert KC Nominees in the direction to the 28‑day period for the commencement of an application for review set out in r 9 of the Rules. Mr Handcock, counsel for the City, submitted that the length of delay "is unreasonable, and borderline at best".
The Tribunal considers that the length of delay in this case is not so significant as in itself to warrant the refusal of leave to extend time, particularly given the failure of the direction to identify the period within which an application for review must be brought. The Tribunal will return to this failure in relation to the reasons for delay.
The reasons for delay
Mr Park made essentially two submissions. First, he contended that, contrary to s 20(1) of the SAT Act, the direction did not make KC Nominees aware of the statutory period within which it could seek review. Second, he contended that Mr Frederick Mann, the secretary of KC Nominees, who had day to day management of the matters the subject of these proceedings, understood that by lodging the application for leave in the Supreme Court against the magistrate's decision, all subsequent actions in relation to the use of the property would be stayed until its conclusion. He submitted that once Mr Mann became aware on 14 September 2005 that the direction was enforceable regardless of the application to the Supreme Court, KC Nominees acted promptly in making this application.
Given the terms of paragraphs (b) and (c) of the direction set out above, Mr Mann and the applicant could not reasonably have taken the view that the direction was not enforceable or that the application to the Supreme Court somehow operated as a stay. Those paragraphs clearly advised KC Nominees that failure to comply with the direction within the time specified constitutes an offence subject to significant penalty, and that the City could, in those circumstances, itself undertake the works and recover the costs of doing so from KC Nominees.
However, the City's failure to comply with its obligation under s 20 of the SAT Act is significant and in this case justifies the delay. Section 20 provides that a decision maker "is to give any person who has a right under an enabling Act...to have [a] decision reviewed by the Tribunal, written notice of - … (a) the decision; and … (b) that right". The Tribunal accepts Mr Park's submission that effective notice of the right to seek review necessarily includes notice of the date by which review must be sought.
Whether there is an arguable case
Mr Park made essentially five submissions in support of his contention that there is an arguable case for review of the decision to give the direction. First, he submitted that there was an arguable case in relation to the period specified in the notice for the removal of the items specified. Although it appears that there is a large amount of material associated with the depot or storage use of the property, there is no evidence before the Tribunal to suggest that it is arguable that 60 days would not have been sufficient to remove that material. Although Mr Park is correct in his submission that, to quote Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516 at 540, courts "never go into much detail on the merits" in determining an application such as the present one, some evidence at least is required in order to demonstrate that there is an arguable case. No such evidence has been presented in relation to this submission.
Second, Mr Park contends that the direction is too broad in its terms and that there is an arguable case for review at least in relation to the breadth of the direction. He emphasised the words "all bricks", "all metal objects" and "all wooden objects" as examples of the breadth of the direction which should be reviewed. However, again no evidence was presented that there were any such items or materials not associated with the depot or storage use of the property captured by the breadth of the direction's terms. In the absence of any evidence the Tribunal is not satisfied that there is at least an arguable case for review of the breadth of the direction.
Third, Mr Park contended that TPS 2 does not prohibit the holding of each of the items required to be removed under the terms of the direction on land zoned "Rural" under that Scheme. He submitted, therefore that "the respondent does not have the power to make the direction". However, it is clear from the direction that the items required to be removed are associated with the use of the property as a depot or storage. There is no arguable case on the evidence presented that the City did not have power to make the direction, nor that the Tribunal on review would not have power to affirm the direction if leave to extend time were granted.
Fourth, Mr Park submitted that it is not clear from the direction whether it is a direction issued under s 10(3) or s 10(5) of the Act. It is clear that the direction could not have been issued under subsection (5) of s 10, which applies "if it appears to the responsible authority that delay in the execution of any work to be executed under a [town planning] scheme would prejudice the efficient operation of the scheme". Rather, the direction appears to have been issued under subsection (2) of s 10 which confers a discretion on the responsible authority to give a written direction to the owner or any other person undertaking development in contravention of a scheme to stop the development, and under subsection (3) which confers a discretion on the responsible authority to give a written direction to the owner or other person who undertook development, relevantly, to remove the development or restore the land to its condition before the development started to the satisfaction of the responsible authority. In this case it is clear that the first paragraph of the direction was authorised by subsection (2) and the second part of the direction was authorised by subsection (3).
Finally, Mr Park submitted that the City was obliged to afford KC Nominees natural justice. By issuing the direction while the findings of facts "are subject to the Appeal [to the Supreme Court] the [City] may deny the Applicant the benefits of the Appeal being successful contrary to the requirements of natural justice and to ensure procedural fairness". As noted earlier, there is no appeal currently before the Supreme Court from the conviction of KC Nominees by the Court of Petty Sessions. There is an application for an order enlarging time in which to apply for leave to appeal, and an application for an order for leave to appeal, although these applications have been dormant for about five months. Moreover, there can be no arguable case on review of the decision to give the direction before the Tribunal on the basis that the City denied KC Nominees procedural fairness, see SAT Act s 19 and s 27. Under s 27(2) the purpose of the review "is to produce the correct and preferable decision at the time of the decision upon the review".
KC Nominees has not, at least expressly, contended that there is an arguable case for review of the decision to give the direction in relation to the lawfulness of the use itself. Had it done so it would have been successfully met by the argument foreshadowed by Mr Handcock that KC Nominees is precluded from seeking an alternative adjudication other than by means of appeal against the determination of the Court of Petty Sessions on the validity of the land use which was the subject of the conviction and which is the subject of the direction: Blair v Curran (1939) 62 CLR 464.
Prejudice to the respondent
It is common ground that the City would not suffer any serious prejudice if the Tribunal were to grant the application to extend time.
Exercise of discretion
In light of the findings made, the Tribunal does not consider that it is appropriate to grant the application to extend time in the exercise of its discretion. Although it has found that the length of delay was not significant in light of the City's failure to advise of the time period, the reason for the delay was acceptable for the same reason and the City would not suffer any real prejudice, ultimately the application should be refused because the proposed grounds of review are not arguable.
The Tribunal recognises that for an application such as the present to succeed there does not have to be a strong or even probable prospect of success, only that the substantive argument be arguable. In light of the subsisting determination of the Court of Petty Sessions that the land use the subject of the direction is unlawful, there is no arguable case in relation to the threshold and critical question in relation to the proposed review, namely whether KC Nominees has carried out development in contravention of TPS 2.
The Tribunal is not satisfied, on the evidence presented to it, that there is an arguable case for review of the period specified in the direction or the breadth of the items required to be removed under the direction. For these reasons the Tribunal makes the following order:
1.The application made under r 10 of the State Administrative Tribunal Rules 2004 (WA) for an extension of the period within which the applicant can seek review by the Tribunal under s 10AA of the Town Planning and Development Act 1928 (WA) is refused.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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