KEYSBROOK LEUCOXENE PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE - [2010] WASAT 177

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: KEYSBROOK LEUCOXENE PTY LTD and SHIRE OF SERPENTINE-JARRAHDALE [2010] WASAT 177

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 18 NOVEMBER 2010

DELIVERED : 2 DECEMBER 2010

FILE NO/S: DR 151 of 2010

BETWEEN: KEYSBROOK LEUCOXENE PTY LTD
Applicant
AND
SHIRE OF SERPENTINE-JARRAHDALE
Respondent

Catchwords:

Town planning Development application Extraction of heavy mineral sands Development application under Metropolitan Region Scheme Preliminary issue - Whether local government has delegated authority to determine development application under Metropolitan Region Scheme Whether development falls within scope of resolution requiring all applications for 'extractive industry' in the Rural zone in the Metropolitan Region Scheme to be referred to the Western Australian Planning Commission for determination

Legislation:

Interpretation Act 1984 (WA), s 56(2)
Metropolitan Region Scheme cl 5, cl 10, cl 24(1), cl 28, cl 29, cl 29(2), cl 29(3), cl 32
Mining Act 1978 (WA), s 8(1), s 9, s 120, s 120(1)
Planning and Development Act 2005 (WA), s 16, s 16(1), s 16(3), s 25, s 26(1)
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Town Planning and Development Act 1928 (WA), s 5AA(1)

Result:

The Shire of Serpentine-Jarrahdale has delegated authority to determine the development application under the Metropolitan Region Scheme

Category: B

Representation:

Counsel:

Applicant: Mr DR Williams QC with Mr GA McLeod
Respondent: Mr CA Slarke

Solicitors:

Applicant: Minter Ellison
Respondent: McLeods

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

O'Connor and Town of Victoria Park [2005] WASAT 161

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Keysbrook Leucoxene Pty Ltd submitted a development application to the Shire of SerpentineJarrahdale for approval for the extraction of heavy mineral sands from land under both the Metropolitan Region Scheme and the Shire of SerpentineJarrahdale Town Planning Scheme No 2. The Shire forwarded the development application to the Western Australian Planning Commission for determination under the Metropolitan Region Scheme on the basis of a resolution under cl 32 of the Metropolitan Region Scheme calling in all applications in the Rural zone for 'extractive industry' for determination by the Commission. The Commission expressed the view that the development application, being for the extraction of minerals, did not fall within the expression 'extractive industry' in the cl 32 resolution.
The Tribunal ordered that the following issue is to be determined as a preliminary issue:
Whether the Shire has delegated authority to determine the development application under the Metropolitan Region Scheme.
The Tribunal held that the Shire has delegated authority to determine the development application under the Metropolitan Region Scheme. The term 'extractive industry' in the cl 32 resolution has the same meaning as the defined term 'IndustryExtractive' in State Planning Policy No 2.4 Basic Raw Materials, and therefore excludes commercial mineral extraction. Furthermore, the Tribunal found that, although the cl 32 resolution also called in applications in the Rural zone for a use which, in the opinion of the local government, may not be consistent with the Rural zone, the Shire had not, implicitly or otherwise, relevantly formed that opinion.

Introduction

On 8 February 2010, Keysbrook Leucoxene Pty Ltd (Keysbrook) submitted a development application to the Shire of SerpentineJarrahdale (Shire or Council) for approval under the Metropolitan Region Scheme (MRS) and the Shire of SerpentineJarrahdale Town Planning Scheme No 2 (TPS 2) of development described on the development application form as 'Proposed "Industry Extractive"' on land located within the district of the Shire (land). More particularly, the proposed development involves the extraction of heavy mineral sands from the land.
Keysbrook's landholding straddles the districts of the Shire and the Shire of Murray. Keysbrook has also proposed the extraction of heavy mineral sands and the primary production of heavy mineral sands on the part of the property located within the Shire of Murray.
The land is zoned Rural under the MRS and Rural under TPS 2. In these reasons, the development application for approval of the proposed development under the MRS is referred to as the 'MRS application' and the development application for approval of the proposed development under TPS 2 is referred to as the 'TPS 2 application'.
The land was alienated in fee simple from the Crown before 1 January 1899. Consequently, under s 9 of the Mining Act 1978 (WA) (Mining Act), all minerals existing in their natural condition on or below the surface of the land, other than gold, silver and any other precious metal, is the property of the owner of the land, rather than the State. Keysbrook does not, therefore, require the grant of a mining tenement under the Mining Act in order to extract heavy mineral sands from the land and, consequently, it is not exempt from the requirement to obtain development approval for the proposed development under s 120(1) of the Mining Act. Had the land been alienated in fee simple from the Crown on or after 1 January 1899, the grant of a mining tenement would have been required in order to extract heavy mineral sands from the land and, while the provisions of any planning scheme in force under the Planning and Development Act 2005 (WA) (PD Act) affecting the use of the land would have to have been taken into account in considering an application for the grant of a mining tenement, 'the provisions of any such scheme [would] not operate to prohibit or affect the granting of a mining tenement or the carrying out of any mining operations authorised by [the Mining] Act': s 120(1) of the Mining Act; see also definitions of 'mining', 'mining operations', 'minerals' and 'private land' in s 8(1) of the Mining Act.
On 17 February 2010, the Shire forwarded the MRS application to the Western Australian Planning Commission (Commission), purportedly for the determination of the MRS application by the Commission.
On 4 March 2010, the Shire informed the Commission that it would be unable to provide a recommendation as to whether the Commission should approve the MRS application within the period referred to in cl 29(3) of the MRS.
On 7 May 2010, the Council resolved to refuse development approval for the TPS 2 application and to recommend to the Commission that the Commission should refuse development approval for the MRS application for specified reasons. On 18 May 2010, the Shire conveyed the terms of the Council's resolution to the Commission.
On 19 May 2010, Keysbrook sought review by the Tribunal of the Council's decision to refuse development approval for the TPS 2 application.
On 2 July 2010, the Commission wrote to Keysbrook's planning consultant and expressed the view that the Shire, rather than the Commission, is the relevant decision-maker in respect of the MRS application. The Commission referred to the terms of a resolution that it had made under cl 32 of the MRS on 8 January 1999 for development in the Rural zone in the MRS. The resolution referred to by the Commission had, in fact, been twice replaced in the interim. However, the current resolution made by the Commission under cl 32 of the MRS on 24 November 2009 is in relevantly identical terms to the resolution referred to in its letter dated 2 July 2010.
The resolution made by the Commission under cl 32 of the MRS on 24 November 2009 states as follows:
To require all local governments within the Metropolitan Region Scheme area to refer applications for development of the classes and in the locations specified in clauses 1 to 14 of the schedule to the [Commission] for determination;
The Schedule to the Commission's resolution of 24 November 2009 includes the following:
2. Development in the Rural Zone
The following classes of applications made under clause 28 of the MRS for approval to commence and carry out development on land in the Rural zone in the MRS
(a)extractive industry all applications; and
(b)any other use which in the opinion of the local government or the [Commission] may not be consistent with the Rural zone. (Clause 32 Resolution)
In its letter dated 2 July 2010, the Commission expressed the view that it is not the decision-maker in relation to the MRS application 'as the proposal is not "extractive industry" for the purposes of the Clause 32 Resolution of the MRS'. The Commission expressed this view in consequence of the definitions of the terms 'Industry Extractive' and 'Industry Mining' in Appendix 1 of State Planning Policy No 2.4 Basic Raw Materials (SPP 2.4). These terms are defined in SPP 2.4 as follows:
Industry Extractive means an industry which involves the extraction, quarrying or removal of sand, gravel, clay, hard rock, stone or similar materials from the land and includes the treatment and storage of those materials, or the manufacture of products from those materials on, or adjacent to, the land from which the materials are extracted, but does not include industry mining.
Industry Mining means land used commercially to extract minerals from the land.
The Commission considered that it is not the relevant decisionmaking authority for the purposes of the MRS application, because the proposed extraction of heavy mineral sands falls within the definition of 'Industry Mining' in SPP 2.4 and is, therefore, excluded from the definition of 'Industry Extractive' in SPP 2.4. The Commission also expressed the view, for the purposes of para (b) of the MRS Resolution, that 'an activity involving the extraction of minerals is generally acceptable in a Rural zone'. The Commission was not, therefore, of 'the opinion … [that the proposed use] may not be consistent with the Rural zone' under the Clause 32 Resolution.

Preliminary issue

On 17 September 2010, the Tribunal ordered that the following issue is to be determined as a preliminary issue in the proceeding:
Whether the Shire of Serpentine-Jarrahdale has delegated authority to determine the development application under the Metropolitan Region Scheme.
The Tribunal made programming orders for the resolution of this preliminary issue. The Tribunal also ordered the Shire to advise the Commission of the orders and to 'invite the Commission to confirm whether it wishes to participate in relation to the … preliminary issue, in which case, the Commission is to advise the Tribunal and the parties as soon as possible'.
On 6 October 2010, the Commission wrote to the Shire's solicitors, with a copy to the Tribunal, referring to its letter to Keysbrook's planning consultant dated 2 July 2010 as the basis on which the Commission considers that the MRS application does not require determination by it and 'respectfully declin[ing] the invitation to participate in the SAT matter'.
The preliminary issue turns on whether the proposed development falls within the scope of the Clause 32 Resolution. Before addressing the issue, the Tribunal will briefly survey the relevant provisions of the MRS and the PD Act.

Relevant provisions of the MRS and PD Act

Clause 10 of the MRS states as follows:
Except as otherwise provided in this Scheme, no development of any land within the metropolitan region shall be commenced or continued without the written approval of the responsible authority in addition to any other permission or approval that may otherwise be required by law.
Specifically, cl 24(1) of the MRS requires 'approval of the responsible authority under this Scheme … for development of land within areas zoned under this Part'. As noted earlier, the land is zoned Rural under the MRS.
Clause 28 of the MRS states as follows:
An application for the approval of the responsible authority to commence and carry out development shall be made in the form set out in Form 1 of this Scheme, and shall be submitted in duplicate to the local authority in whose district the land the subject of the application is situate, together with such plans and other information as the responsible authority may reasonably require.
Clause 29 of the MRS states, in part, as follows:
(1)The local authority to which such an application is duly submitted shall, within seven days of the application, forward it to the Commission for determination where
…
(b)the application is for the development of land zoned under Part III of the Scheme and the subject of a notice under Clause 32 of the Scheme or a declaration under section 112 of the Planning and Development Act 2005.
…
(2)In the case of an application for development of land zoned under Part III of the Scheme and not required by the terms of subclause (1) to be determined by the Commission, the local authority shall determine the application in accordance with the power delegated by the Commission under the Planning and Development Act 2005.
…
Clause 5 of the MRS states as follows:
The Authority responsible for carrying out this Scheme is the Western Australian Planning Commission but in relation to any particular part of the Scheme the responsible authority shall be such other authority as the Authority delegates to be the responsible authority under section 16 of the Planning and Development Act 2005.
Section 16(1) of the PD Act authorises the Commission, by resolution, to 'delegate to a person or body referred to in subsection (3) any function of the Commission under this Act or any other written law, except this power of delegation'. Section 16(3) of the PD Act states that a delegation may be made to, among other persons or bodies, 'a local government, a committee established under the Local Government Act 1995 or an employee of a local government'.
On 16 December 2008, the Commission resolved, pursuant to s 16 of the PD Act, to delegate certain of its decisionmaking powers under the MRS to local governments including the Shire. On 27 July 2010, the Commission resolved, under s 16 of the PD Act, to revoke the 2008 delegation and to delegate certain of its decisionmaking powers under the MRS to local governments including the Shire.
It is common ground that, subject to the Clause 32 Resolution, the Shire would have delegated authority to determine the MRS application in accordance with the resolution made by the Commission under s 16 of the PD Act.

Parties' submissions

Mr DR Williams QC, who appeared with Mr GA McLeod, on behalf of Keysbrook, adopted the position expressed by the Commission in its letter dated 2 July 2010 to Keysbrook's planning consultant, as Keysbrook's principal submission in relation to the preliminary issue. Mr Williams submitted that:
Although there is an element of doubt in the meaning of the phrase extractive industry in item 2(a) of Schedule 1 to the [Clause 32] Resolution[,] the intent of the [Clause 32] Resolution can reasonably be expected to conform to the regional planning framework as reflected in SPP2.4.
SPP 2.4 applies to all local governments in the area subject to the MRS and to contiguous local governments to the north and south. In particular, cl 4.1 of SPP 2.4 states that the area to which the policy applies 'include[s] the … local governments with land zoned Rural in the Metropolitan Region Scheme … [including] the Shire of SerpentineJarrahdale'.
Clause 2 of SPP 2.4 states, in part, as follows:
This policy sets out the matters which are to be taken into account and given effect to by the Commission and local governments in considering zoning, subdivision and development applications for extractive industries (for the extraction of basic raw materials) … '.
Clause 3.1 of SPP 2.4 states as follows:
Basic raw materials means sand (including silica sand), clay, hard rock, limestone (including metallurgical limestone) and gravel and other construction and road building materials. These materials are produced relatively cheaply, with the major cost being the transport to the construction site. A ready supply of basic raw materials close to established and developing parts of the metropolitan region is, therefore, essential in keeping down the costs of land development and contributing to affordable housing.
As noted earlier, the definition of 'Industry Extractive' in Appendix 1 of SPP 2.4 refers to 'an industry which involves the extraction, quarrying or removal of sand … but does not include industry mining'. As also noted earlier, the definition of 'Industry Mining' in Appendix 1 of SPP 2.4 is 'land used commercially to extract minerals from the land'. The extraction of heavy mineral sands proposed in the MRS application would involve the commercial use of the land to extract minerals from the land.
Mr CA Slarke, counsel for the Shire, made essentially three submissions.
First, Mr Slarke submitted that:
… the meaning of 'extractive industry' for the purpose of the [C]lause 32 [R]esolution should be ascertained by reference to the purpose of the 'callin' of all extractive industry applications in the Rural zone of the MRS. Understanding that purpose requires that consideration be given to the statutory provisions relating to the approvals required for the extraction of minerals and other basic raw materials.
…
The purpose of the [C]lause 32 'callin' for all extractive industries proposed in the Rural zone of the MRS is to ensure that the extraction of all raw materials which are not determined under the Mining Act are determined by the [Commission]. That conclusion is consistent with the overarching statutory and policy intention to attach a special significance to the extraction of raw materials (whether in the form of minerals or other basic raw materials).
Mr Slarke submitted that s 120 of the Mining Act indicates that the legislature 'plainly attaches a special significance to the extraction of minerals' and that 'SPP 2.4 indicates that the State Government also attaches a special significance to the extraction of basic raw materials'.
Mr Slarke also drew particular attention to the fact that development approval is only required for the proposed extraction of heavy mineral sands on the land because the land was alienated in fee simple from the Crown before 1 January 1899. The consequence is that heavy mineral sand on the land is vested in the landowner, rather than the State, and the grant of a mining tenement for its extraction is hence not required under the Mining Act. Mr Slarke submitted that:
Given the clear significance the State Government has attached to the extraction of minerals and other basic raw materials, it would be anomalous if the authority to determine the subject development application under the MRS was delegated to the Shire of SerpentineJarrahdale. The approach taken by the [Commission] would allow one anomaly (ie the fact [that] the land is 'old title' land[,] meaning development approval is required to extract minerals) to cause an even greater anomaly (ie the local government being the sole determining authority for the applications for development approval for the extraction of minerals). The outcome of that approach is inconsistent with the purpose of the [C]lause 32 [R]esolution.
The Shire's second submission was that the definition of 'Industry Extractive' in Appendix 1 of SPP 2.4 would not apply in any case to the expression 'extractive industry' in the Clause 32 Resolution, because they are differently expressed terms. Mr Slarke submitted that it is 'instructive' that the Clause 32 Resolution and SPP 2.4 employ different expressions.
Finally, the Shire advanced an alternative submission that, even if the proposed development were not an 'extractive industry' within the meaning of para (a) of the Clause 32 Resolution, it would nevertheless fall within para (b) of the Clause 32 Resolution. This is because:
It is implicit in the Council resolution of 7 May 2010 recommending to the [Commission] that the development be refused that the Shire of SerpentineJarrahdale is of the opinion that the use 'may not be consistent with the Rural zone' [within the meaning of para (b) of the Clause 32 Resolution]. …

In support of the Shire's alternative submission, Mr Slarke relied, in particular, on the following reasons on account of which the Council recommended to the Commission that it should refuse development approval:
a.The application fails to demonstrate that impacts can be managed in accordance with TPS 2 provisions and relevant [S]tate and local planning policy, with particular regard to:
…
(vi)Impact on existing agricultural enterprises …
b.The application fails to justify that it is consistent with TPS 2 provisions and the Shire of SerpentineJarrahdale Rural Strategy, with particular regard to:
(i)Insufficient information to demonstrate that the scale and function of the proposal can be accommodated within the Rural zone as defined by clause 5.10 of TPS 2 and the rural policy area of the Rural Strategy.
(ii)Insufficient information to demonstrate that the proposal is consistent with the rural and agricultural purpose and character of the land and locality in accordance with [c]lause 6.4 of TPS 2 and the rural policy area of the Rural Strategy. …
(viii)Insufficient information to demonstrate the proposal will not lead to a decline in current and future availability and quality of agricultural land in accordance with the rural policy area of the Shire's Rural Strategy. …

Does the Shire have delegated authority to determine the MRS application?

The Tribunal considers that the proposed extraction of heavy mineral sands on the land is not an 'extractive industry' within the meaning of para (a) of the Clause 32 Resolution. Furthermore, the Tribunal does not consider that the Council has formed the opinion that the proposed development may not be consistent with the Rural zone for the purposes of para (b) of the Clause 32 Resolution.
The purpose of the Clause 32 Resolution is not, as submitted by the Shire, 'to ensure that the extraction of all raw materials which are not determined under the Mining Act are determined by the [Commission]'. There are six points that stand against the Shire's submission.
Firstly, it is correct, as observed by the Shire, that the legislature 'attaches a special significance to the extraction of minerals'. However, the legislature excluded the extraction of all minerals, other than gold, silver and any other precious metal, from the operation of the Mining Act in relation to land alienated in fee simple from the Crown before 1 January 1899.
Secondly, the Shire's reasoning erroneously conflated the nature and significance of mineral extraction to the State with the nature and significance of basic raw material extraction to the Perth Metropolitan Region. The conflation is apparent from the statements that the Shire's submission 'is consistent with the over-arching statutory and policy intention to attach a special significance to the extraction of raw materials (whether in the form of minerals or other basic raw materials)' and 'given the clear significance the State Government has attached to the extraction of minerals and other basic raw materials' (emphasis in bold added). Contrary to the Shire's reasoning, there is not a special significance, but rather different and distinct significance attributed to the extraction of minerals for the State as a whole, reflected in s 120 of the Mining Act, and to ensuring the ready supply of basic raw materials in the Perth Metropolitan Region (so as to keep down land development costs and contribute to affordable housing), reflected in SPP 2.4. Moreover, the significance of mineral extraction for the State as a whole is attributed by the Parliament through legislation, whereas the significance of ensuring a ready supply of basic raw materials close to established and developing parts of the metropolitan region, is attributed by the Commission and the State Government through the Minister for Planning, in the form of State planning policy.
Thirdly, while the Commission is a State authority, and the decisionmakers in relation to the grant of mining tenements under the Mining Act are State officeholders, the Commission has no particular function or expertise, and certainly no greater expertise than local governments, in relation to mining.
Fourthly, the range of considerations and the process of development assessment that would be applied by the Commission, on the one hand, and by a local government on the other hand, in assessing a development application for mineral extraction under the MRS, would be the same.
Fifthly, the Clause 32 Resolution applies only to the Perth Metropolitan Region. In order to be able to attempt to discern an 'overarching statutory and policy intention to attach a special significance to the extraction of raw materials (whether in the form of minerals or other basic raw materials)', it would be necessary to show a legislative/policy framework that applies in relation to extraction of minerals throughout the State under which State officeholders or authorities would have the function of determining the grant of a mining tenement or development approval for mineral extraction irrespective of when the land was alienated by the Crown.
Finally, it would not be 'anomalous' for the authority responsible for determination of the MRS application to be the Shire, much less would this 'allow one anomaly … to cause an even greater anomaly … ', as submitted by the Shire. While it is unusual, in light of s 120 of the Mining Act, for development approval to be required for mining in Western Australia, it is hardly 'anomalous', as it is the consequence of the terms of the Mining Act. Furthermore, it would have been open to the Parliament to have constituted the Commission as the consent authority in relation to development applications for mining on land alienated from the Crown prior to 1 January 1899. However, the Parliament has not done so.
Rather than the purpose contended by the Shire, the purpose of the Clause 32 Resolution of 'calling in' to the Commission all 'extractive industry' applications in the Rural zone under the MRS appears to be to achieve the intent of SPP 2.4. By centralising the decisionmaking function in relation to development applications for extractive industries under the MRS, the Commission and the State Government through the Minister for Planning are seeking to ensure that there will be a ready supply of basic raw materials close to established and developing parts of the metropolitan region and thereby to keep down the costs of land development and contribute to affordable housing. Importantly, both SPP 2.4 and the Clause 32 Resolution form part of the regional planning framework in relation to extractive industries. Furthermore, both documents emanate from the Commission. SPP 2.4 was prepared by the Commission, with the approval of the Minister for Planning, as a Statement of Planning Policy under s 5AA(1) of the Town Planning and Development Act 1928 (WA). SPP 2.4 continues in force as a State planning policy under s 25 of the PD Act. Under s 26(1) of the PD Act, the Commission retains the function of preparing State planning policies, with the approval or on the direction of the Minister for Planning. As noted earlier, the Clause 32 Resolution is a resolution of the Commission authorised by cl 32 of the MRS.
However, even if the purpose of the Clause 32 Resolution were not to achieve the intent of SPP 2.4, as Keysbrook submitted, 'the intent of the [Clause 32] Resolution can reasonably be expected to conform to the regional planning framework as reflected in SPP 2.4'. Given that the Commission is the principal regional planning authority and that it prepared both SPP 2.4 and the Clause 32 Resolution, the meaning of the expression 'extractive industry' in para (a) of the Clause 32 Resolution is the same as the equivalent term in SPP 2.4.
Although the Clause 32 Resolution employs the term 'extractive industry', rather than the defined term 'Industry Extractive' in Appendix 1 of SPP 2.4, these expressions are used interchangeably in SPP 2.4 and, accordingly, have the same meaning for the purposes of the Clause 32 Resolution. In SPP 2.4, the expression 'extractive industry' is used in cl 2 (concerning the purpose of the policy), cl 6.3 (relevant considerations in determining applications), cl 6.4 (requirement for management plan), cl 6.6 (other relevant approvals and key policies) and cl 6.7 (planning considerations). For example, cl 6.7.1 of SPP 2.4 states as follows:
In determining planning proposals or applications for extractive industry, the Commission and local government may apply conditions which cover, but are not limited to, the following:
…
(Emphasis in bold added)
Clause 6.2 of SPP 2.4 (local planning scheme provisions) employs both terms 'extractive industry' and 'industry extractive' (without capital letters). Clause 6.2 of SPP 2.4 includes the following:
…
6.2.2Where considered appropriate[,] planning schemes should show the use 'industry extractive' as a P use, or a use that is permitted in the [S]cheme, a D use, which is a use that is not permitted unless the local government has exercised its discretion by granting planning approval, or as an A use, which is a use that is not permitted unless the local government has exercised its discretion after giving notice as outlined in clause 9.4 of the Model Scheme Text, in the Rural zone.
…
6.2.4The Special Control Area provisions should, where appropriate, include extractive industry as the only Permitted ('P') use in key extraction areas and priority resource areas designated on the policy map. (Emphasis in bold added)
Neither the terms 'extractive industry' nor 'industry extractive' are defined other than in the definition 'Industry Extractive' set out in Appendix 1 of SPP 2.4. Furthermore, the expression 'Industry Extractive' (with a capital 'I' and capital 'E') is not used in SPP 2.4, other than in cl 6.2.2 without the capital letters. It is clear when SPP 2.4 is read as a whole that the expressions 'extractive industry' and 'industry extractive' are used interchangeably and that both of these terms have the defined meaning 'Industry Extractive' in Appendix 1 of SPP 2.4.
The proposed development is not an 'extractive industry' within the meaning of para (a) of the Clause 32 Resolution, because it involves the commercial use of the land to extract minerals from the land and is therefore excluded from the definition of 'Industry Extractive' in Appendix 1 of SPP 2.4.
As noted earlier, the Shire presented an alternative submission that, if the proposed development is not an 'extractive industry' within the meaning of para (a) of the Clause 32 Resolution, then the Commission is, nevertheless, the relevant determination authority for the MRS application, because, in its resolution of 7 May 2010 recommending the refusal of the MRS application, the Shire implicitly formed the opinion that the proposed use 'may not be consistent with the Rural zone' under para (b) of the Clause 32 Resolution. However, the Council did not, implicitly or otherwise, form this opinion, for three reasons.
Firstly, it is clear from the way in which the Council's resolution of 7 May 2010 was expressed that the Council did not turn its mind to the formation of an opinion for the purposes of para (b) of the Clause 32 Resolution. Rather, the Council was making a recommendation to the Commission that the Commission should refuse the MRS application for reasons set out in the resolution.
Secondly, the resolution was made almost three months after the Shire purported to refer the MRS application to the Commission for determination under para (a) of the Clause 32 Resolution. At that time, the Commission had not yet advised the parties of its view that the MRS application did not fall within the scope of the Clause 32 Resolution. The Council would have had no reason to consider or form an opinion for the purposes of para (b) of the Clause 32 Resolution.
Finally, the parts of the Council's resolution of 7 May 2010 relied on by the Shire in support of its alternative submission are expressly concerned with the alleged failure of the MRS application under TPS 2 and the Shire's Rural Strategy, rather than any possible inconsistency with the MRS in general or with the Rural zone of the MRS in particular. Furthermore, while there was reference in the resolution to 'the Rural zone', 'rural character of the land in the locality' and 'quality of agricultural land', the resolution expressly tied these expressions to TPS 2 or the Shire's Rural Strategy.
Consequently, the Shire's alternative submission fails. The Council had not implicitly formed the opinion that the proposed use may not be consistent with the Rural zone under the MRS.

Conclusion

The MRS application does not fall within the scope of the Clause 32 Resolution made by the Commission for the 'call in' of development applications in the Rural zone in the MRS for 'extractive industry' or for 'any other use which in the opinion of the local government or the [Commission] may not be consistent with the Rural zone'. As the Commission has delegated its power to determine the MRS application to the Council under s 16 of the PD Act and as the MRS application does not fall within the scope of the Clause 32 Resolution, the Shire has delegated authority to determine the development application under the MRS.
Clause 29(2) of the MRS provides that where a development application 'is not required by the terms of subclause (1) to be determined by the Commission, the local authority shall determine the application in accordance with the power delegated by the Commission under the [PD Act]' (emphasis in bold added). Section 56(2) of the Interpretation Act 1984 (WA) states as follows:
Where in a written law the word shall is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.
(Emphasis in bold original)
It follows that the Council must determine the MRS application.
The MRS application was deemed to have been refused by the Council 61 days after the MRS application was lodged, that is, on Monday, 12 April 2010. Under r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), any application for review of the deemed refusal of the MRS application was required to be commenced by 4 May 2010. However, r 10 of the SAT Rules confers discretion on the Tribunal to extend the time for commencement of an application for review.
The discretion to extend time under r 10 of the SAT Rules is guided by four principal considerations, although the range of consideration is not closed. The four principal considerations are the length of delay, the reasons for delay, whether there is an arguable case for review and whether there is prejudice to any person: O'Connor and Town of Victoria Park [2005] WASAT 161. In this case, the period of delay is just over seven months, which is very significant. However, Keysbrook promptly sought review of the refusal of the development application by the Shire under TPS 2 and there has been a live issue between the parties as to whether the Shire is also the determining authority for the MRS application. This issue was identified and has now been resolved. There is, therefore, a satisfactory explanation for the delay. As the MRS application is capable of approval in the exercise of discretion, there is an arguable case for review. There is no apparent prejudice to any person in extending time. Finally, a further relevant consideration in relation to the exercise of discretion as to whether to extend time is that the Shire is under a continuing obligation to determine the MRS application and its determination of the application would found a fresh right to seek review.
It is, therefore, appropriate to extend time for the applicant to seek review of the deemed refusal of the MRS application by the Shire.

Orders

The Tribunal makes the following orders:
1.The preliminary issue is determined as follows:
The respondent has delegated authority to determine the development application under the Metropolitan Region Scheme.
2.Pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA), the applicant has leave to seek review of the deemed refusal of the development application under the Metropolitan Region Scheme on or before 16 December 2010.
3.By 16 December 2010, the applicant is to file and serve an amended application in this proceeding seeking review of the deemed refusal by the respondent of the development application under the Metropolitan Region Scheme in addition to the actual refusal of the development application by the respondent under the Shire of SerpentineJarrahdale Town Planning Scheme No 2.

I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER