KINGSMILL and CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF THE BIODIVERSITY, CONSERVATION AND ATTRACTIONS
[2021] WASAT 110
•24 AUGUST 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: CONSERVATION AND LAND MANAGEMENT ACT 1984 (WA)
CITATION: KINGSMILL and CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF THE BIODIVERSITY, CONSERVATION AND ATTRACTIONS [2021] WASAT 110
MEMBER: MS KY LOH, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 24 AUGUST 2021
FILE NO/S: DR 28 of 2021
BETWEEN: ERIC WILLIAM KINGSMILL
Applicant
AND
CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF THE BIODIVERSITY, CONSERVATION AND ATTRACTIONS
Respondent
Catchwords:
Preliminary issue - Jurisdiction - Licence issued under Conservation and Land Management Act 1984 (WA) - No relevant enabling Act
Legislation:
Biodiversity Conservation Regulations 2018 (WA), reg 89, reg 89(2), Pt 4
Building Act 2011 (WA), s 14, s 16, Pt 9
Building Regulations 2012 (WA), reg 4, reg 16
Conservation and Land Management Act 1984 (WA), s 5(1)(g), s 98, s 101, Div 2, Pt VIII
Land Act 1933 (WA)
State Administrative Tribunal Act 2004 (WA), s 13(1), s 14, s 15(1), s 17(1), s 47(2), s 60(2)
Result:
Preliminary issue determined
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Eric William Kingsmill (licensee) holds a licence to occupy a shack at Grey Reserve, north of Perth, which is granted by the Chief Executive Officer (CEO) of the Department of Biodiversity, Conservation and Attractions (Department) under s 101 of the Conservation and Land Management Act 1984 (WA) (CALM Act).
In May 2019, the licensee removed an existing patio and replaced it with a lean-to patio structure.
The CEO asked the licensee to remove the lean-to patio as it was inconsistent with the Guidance Note and hence the condition of the licence.
The CALM Act does not provide for a right of review of any decision of the CEO.
For reasons set out below, the Tribunal does not have jurisdiction to determine the licensee's application for review, as the only matter for determination - that being a decision of the CEO in relation to the licence - is not one in respect of which the Tribunal has jurisdiction.
Preliminary issue
The preliminary issue for determination on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is 'Does the Tribunal have jurisdiction to determine the applicant's application for review?'.
In determining this issue, it is necessary to consider whether the Tribunal has the jurisdiction to review a decision made under an Act which does not provide for a right of review to the Tribunal.
Background
Facts
The following relevant facts are agreed between the parties or are otherwise apparent from the face of non-contentious documents submitted by the parties.
The licensee's shack - shack numbered G018/018A - is located within Grey Reserve No 43284 Melbourne Location 4152.
On 14 February 1995, Reserve 43284 was set apart as a public reserve and placed under the management of the department administering the CALM Act pursuant to the Land Act 1933 (WA) (repealed).
On 20 June 2017, the licensee (with others) was granted a licence to enter and use Reserve 43284 for 'non-permanent occupancy of [the shack] and associated structures, for recreational purposes only'.
The licence commenced on 1 July 2017 and expired on 30 June 2019.
Under condition 4(c) of the licence, the licensee was to seek prior approval from the CEO for any structural modifications, including to the buildings or fences, or installations to the shack.
However, the licensee was permitted to carry out necessary maintenance to the shack without the approval referred to in condition 4(c), providing the maintenance was done in accordance with the shack maintenance Guidance Note attached to the licence or as amended from time to time by the CEO: condition 4(d) of the licence.
The Guidance Note relevantly provided (at para 5) that the interpretation of what constituted repairs or maintenance was the least work necessary to facilitate certain specified maintenance items, and should be only like for like without enhancement of the existing structure.
The Guidance Note further provided, relevantly, (at para 3) that that no building additions or construction at Grey Reserve was permitted including works that would increase the footprint of structure(s) existing at 1 July 2015.
In May 2019, the licensee removed (minus one post) an existing patio structure and then rebuilt the structure.
On 5 June 2019, the Department advised the licensee that the works were inconsistent with the Guidance Note and requested that the patio be removed by 6 July 2019.
The licensee requested a review of that decision, and cited advice from engineers that the patio structure required urgent maintenance work.
On 10 December 2019, the Department advised the licensee that maintenance works were works which did not require a building permit or planning approval, and that the works which he undertook would require such approval. The Department asked the licensee to remove the structure by 31 December 2019.
The Department further clarified on 28 February 2020 that any improvement work that required planning approval and the submission of a building application under s 14 and s 16 of the Building Act 2011 (WA) (Building Act) and reg 4 and reg 16 of the Building Regulations 2012 (WA) (Building Regulations) was not considered maintenance and could not be approved by the Department.
The licensee wrote to the Director General of the Department to 'appeal' the Department's determination.
On 28 January 2021, the Department advised that patio construction was the same as building a new verandah, which was a breach of the latest guidelines and thus licence conditions.
On 19 February 2021, the licensee applied to the Tribunal for review of the CEO's decision, ostensibly, under reg 89(2) of the Biodiversity Conservation Regulations 2018 (WA) (Biodiversity Regulations).
On 8 March 2021, the licensee informed the Department that he had removed the patio structure but wished to proceed with the Tribunal application.
CEO's case
The CEO contends that the licence was granted under s 101 of the CALM Act, decisions in respect of which no right of review lies to the Tribunal. Hence, the Tribunal does not have jurisdiction to review the CEO's decision.
Further, the application for review under Biodiversity Regulations is misconceived as the licence was not granted under Pt 4 of the Biodiversity Regulations.
Finally, to the extent that the licensee contends that there is a right of review to the Tribunal under the Building Act or Building Regulations, the provisions which provide for a right of review do not apply to this case.
The CEO seeks for the proceedings to be dismissed on the basis that it is misconceived, pursuant to s 47(2) of the SAT Act.
Licensee's case
The licensee essentially challenges the basis for the CEO's decision.
Firstly, the licensee disputes that he has breached the conditions of his licence. He maintains that his patio works were not structural modifications for which prior approval was required, and instead the works constituted necessary maintenance work.
Whilst the licensee accepts that he had originally relocated the verandah post outside its previous footprint, he later moved the new post back to its original location and reinstated the timber verandah edge beam.
Secondly, he contends that his patio works did not require development approval nor a building permit.
The licensee has not challenged the CEO's submission that the licence was issued under the CALM Act rather than the Biodiversity Regulations; indeed, it is an agreed fact of the parties that the licence was granted under s 101 of the CALM Act.
Further, the licensee has not addressed the basis of the Tribunal's jurisdiction in the absence of any enabling provisions under the CALM Act.
The licensee simply contends that if the Tribunal is not satisfied that it has jurisdiction under reg 89 of the Biodiversity Regulations, it should accept that it has jurisdiction to determine the dispute under the Building Regulations.
Legal framework
SAT jurisdiction
As an administrative tribunal, the Tribunal has only the jurisdiction which is conferred on it by the SAT Act, or any other Act which expressly confers jurisdiction upon it: Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138 at [26].
The Tribunal only has jurisdiction over a matter if a provision of an enabling Act enables an application concerning the matter to be made to the Tribunal: s 13(1) of the SAT Act.
The Tribunal exercises jurisdiction over a matter either in its original jurisdiction or its review jurisdiction: s 14 of the SAT Act.
A matter that expressly or necessarily involves a review of a jurisdiction is a matter that comes within the Tribunal's review jurisdiction (s 17(1) of the SAT Act), whilst a matter that does not involve a review of a decision falls within the Tribunal's original jurisdiction (s 15(1) of the SAT Act).
CALM Act
Under s 101 of the CALM Act, the CEO may grant a licence to any person to enter and use land to which Div 2 Pt VIII of the CALM Act applies.
Division 2 of Pt VIII of the CALM Act relevantly applies to all 'land to which the Act applies', other than State forest and timber reserves, land classified as a wilderness area and 'section 8C land': s 98 of the CALM Act.
Under s 5(1)(g) of the CALM Act, 'land to which the Act applies' includes any other land reserved under the Land Act 1933 (WA) (repealed).
Significantly, the CALM Act does not confer jurisdiction on the Tribunal to review any decision made under the CALM Act.
Biodiversity Regulations
Part 4 of the Biodiversity Regulations provides for a licensing scheme in relation to fauna and flora.
Any decision of the CEO under Pt 4 in respect of such licences is a reviewable decision in respect of which a person may apply to the Tribunal for a review: reg 89 of the Biodiversity Regulations.
Building Act or Building Regulations
The Tribunal has jurisdiction under the Building Act (and, to a limited extent, the Building Regulations) to review decisions relating to applications for building approval certificates or occupancy permits, or relating to the issue of building orders: Pt 9 of the Building Act.
Consideration - Does the Tribunal have jurisdiction to determine the licencee's application for review?
The CALM Act is not an enabling Act within the meaning of the SAT Act; as such, any decision by the CEO in respect of the licence in this case issued pursuant to the CALM Act is not amenable to review by the Tribunal.
In other words, the CALM Act cannot provide a basis for giving jurisdiction to the Tribunal to make any determination in relation to the licence, whether in its original jurisdiction or review jurisdiction.
Further, the licence in this case is not one granted under the Biodiversity Regulations, as such, the Biodiversity Regulations has no application to these proceedings and does not give rise to the exercise of any jurisdiction by the Tribunal.
Finally, no decision has been made under the Building Act or Building Regulations, nor has any application been made by the licensee under the Building Act or Building Regulations, such as to enliven the Tribunal's jurisdiction.
I am thus satisfied that the licensee's application, whether under the Biodiversity Regulations (as lodged) or under the CALM Act, the Building Act or the Building Regulations, is misconceived in the sense that there has been a misunderstanding by the licensee that the licence properly falls within a type of matter over which the Tribunal has jurisdiction.
There is simply no jurisdiction to determine the licensee's application for review under any of the legislation identified by the licensee or the CEO.
In light of my finding above, I agree with the CEO's contention that the application should be dismissed as misconceived under s 47(2) of the SAT Act, and will accordingly make an order dismissing the proceedings.
Conclusion
For the reasons stated above, I find that there is no jurisdiction to determine the licensee's application, and will dismiss the application under s 47(2) of the SAT Act.
Orders
The Tribunal makes the following orders:
1.The preliminary question 'Does the Tribunal have jurisdiction to determine the applicant's application for review' is answered in the negative.
2.The applicant's application is dismissed as misconceived under s 47(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
24 AUGUST 2021
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