KRASENSTEIN and WESTERN AUSTRALIAN PLANNING COMMISSION
[2008] WASAT 49
•14 MARCH 2008
KRASENSTEIN and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 49
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 49 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:484/2005 | 18 DECEMBER 2007 AND DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 13/03/08 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | The proceedings in the State Administrative Tribunal are adjourned pending the final resolution of the Supreme Court proceedings | ||
| B | |||
| PDF Version |
| Parties: | MARK KRASENSTEIN WESTERN AUSTRALIAN PLANNING COMMISSION RUTH ELLEN McCOURT |
Catchwords: | Case management Whether Tribunal proceedings should be stayed or adjourned pending resolution of Supreme Court proceedings Issue estoppel |
Legislation: | Nil |
Case References: | Krasenstein v Western Australian Planning Commission [2004] WATPAT 213 McCourt v Shire of Busselton [2004] WATPAT 76 |
Orders | 1. These proceedings in the State Administrative Tribunal are not to be listed for final hearing pending final resolution of the Supreme Court proceedings between the intervener and the applicant.,2. This matter be called on for a directions hearing in the Tribunal before the President on 13 May 2008 at 9.30 am, so the Tribunal can be apprised by the parties of progress in the Supreme Court proceedings.,3. So that the Supreme Court is fully aware of the Tribunal's decision to adjourn the Tribunal proceedings and the reasons for it, the intervener is to provide a copy of the Tribunal's order and these reasons to the Chief Justice of Western Australia so that it can be passed onto the Judge in charge of managing the Supreme Court proceedings. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : KRASENSTEIN and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 49 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 18 DECEMBER 2007 AND DETERMINED ON THE DOCUMENTS DELIVERED : 14 MARCH 2008 FILE NO/S : DR 484 of 2005 BETWEEN : MARK KRASENSTEIN
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
RUTH ELLEN McCOURT
Intervener
Catchwords:
Case management - Whether Tribunal proceedings should be stayed or adjourned pending resolution of Supreme Court proceedings - Issue estoppel
(Page 2)
Legislation:
Nil
Result:
The proceedings in the State Administrative Tribunal are adjourned pending the final resolution of the Supreme Court proceedings
Category: B
Representation:
Counsel:
Applicant : Ms N Raphael
Respondent : Ms L Eddy
Intervener : Mr S Pentony
Solicitors:
Applicant : Hardy Bowen
Respondent : State Solicitor's Office
Intervener : Hotchkin Hanly
Case(s) referred to in decision(s):
Krasenstein v Western Australian Planning Commission [2004] WATPAT 213
McCourt v Shire of Busselton [2004] WATPAT 76
(Page 3)
Summary of Tribunal's decision
1 The applicant sought review of a decision by the Western Australian Planning Commission to grant planning approval subject to a number of conditions. During the course of proceedings in the State Administrative Tribunal the parties agreed to the removal of condition 2.
2 Mrs Ruth McCourt, an intervener who owned land adjacent to that subject to the planning application, objected to the removal of condition 2 on the basis that it impacted on her right to vehicular access through the applicant's land.
3 Mrs McCourt commenced proceedings in the Supreme Court of Western Australia seeking specific performance of the alleged promise to grant an easement and an order preventing the applicant effecting any subdivision of his land which does not provide road access to Mrs McCourt's land.
4 Mrs McCourt sought to have the State Administrative Tribunal proceedings stayed or adjourned pending the outcome of the Supreme Court proceedings.
5 The State Administrative Tribunal accepted that it was appropriate to adjourn the proceedings before it pending the resolution of the Supreme Court proceedings.
Issue
6 The sole issue for determination is whether the proceedings involving the applicant and the Western Australian Planning Commission (Commission) should effectively be stayed pending resolution of proceedings between the intervener and the applicant in the Supreme Court of Western Australia (Supreme Court).
Facts
7 The issue arises in this way. The applicant initially sought subdivision approval of land from the Commission. Approval was granted subject to a number of conditions including the following:
"2) The subdivider replacing the 8 metre wide 'Public Access Way', the 10 metre wide battleaxe leg of proposed Lot 3 and the head of the cul-de-sac road with a public road
- reserve of not less than 15 metres in width together with a temporary turning area to link Nukklgup Loop with the northern boundary of Lot 1002 (aligned with existing shed on Lot 1002), at the subdivider's cost and to the satisfaction of the Western Australian Commission (LG)."
8 Subsequently, pursuant to a Minute of Consent Orders filed in review proceedings in the State Administrative Tribunal (Tribunal) commenced by the applicant, the Commission indicated its consent to an order that condition 2 be deleted.
9 If that condition were to be deleted, the internal subdivision road and the public access way leading from the internal subdivision road to the northern boundary would be as initially proposed by the applicant and would be adjacent to land owned by the intervener.
10 The intervener owns land to the south of the applicant's land and has proposed for some time that there be an overall subdivision plan that takes account of the interests of both the applicant and the intervener. While the Commission sought to maintain condition 2 of the subdivision approval granted to the applicant, the plans of the intervener to subdivide her land alongside that of the applicant could apparently, in her view, be accommodated, because appropriate access could be obtained to her land through the roads to be created under condition 2.
11 However, when the Commission indicated it was prepared to agree to the removal of condition 2 and revert to the applicant's original plan of subdivision, the intervener considered her subdivision plans would be defeated or frustrated to a significant extent.
12 In those circumstances, the intervener sought leave to intervene in the review proceedings. In all the circumstances, the Tribunal (the President, Justice Barker) granted leave to intervene.
13 However, leave to intervene was granted on the understanding that the intervener claimed a legal or equitable right to gain vehicular access through the applicant's land. On that basis, it appeared she could properly argue a countervailing interest in the planning proposal to which the applicant and the Commission were prepared to agree.
14 The intervener, having commenced proceedings in the Supreme Court, then claimed that the Tribunal should stay or adjourn the review proceedings pending the outcome of the Supreme Court proceedings.
(Page 5)
15 It appears from the statement of claim filed in the Supreme Court, matter CIV 2181 of 2007, that the intervener's claim is based on an alleged promise that the applicant would grant her an easement through the applicant's lot allowing road access to the intervener's lot from the north.
16 By the writ of summons, the intervener apparently seeks specific enforcement of the promise to grant an easement for the benefit of the intervener and an order that the applicant be prevented from effecting a subdivision of its land that does not provide road access to the intervener's land through the applicant's land to the north.
Contentions of the parties
17 The Commission in opposing a stay of the review proceedings says that in earlier proceedings, prior to the establishment of the Tribunal, the former Town Planning Appeal Tribunal had cause to consider the nature of the public access way reflected in a development guide plan for the applicant's lot and by analogy this applied to the proposed plan of subdivision. It held that the public access way was an access way designed for twowheeldrive vehicular traffic (see Krasenstein v Western Australian Planning Commission [2004] WATPAT 213 at [58] - [63]) (Krasenstein). The Commission says the public access way connecting a subdivisional road to the intervener's lot is 8 metres in width. The public access way is an emergency vehicle access way and provides an access way for emergency evacuation by members of the public in the area. The Commission says that the public access way is in the commonage area, where the applicant's and intervener's land is situated, and is usually gated to prevent general public access in non-emergency situations.
18 The Commission therefore contends that, even if the Tribunal proceedings continued and assuming the intervener was unsuccessful, such that condition 2 were to be deleted, it would still be possible to give effect to any orders made in her favour by the Supreme Court. This is because under the proposed plan of subdivision, the applicant must create an 8 metre wide emergency public access way suitable for twowheeldrive vehicles from the subdivisional road within the applicant's lot to the northern boundary of the intervener's land.
19 The Commission says that if the Supreme Court proceedings resulted in the grant of an easement in favour of the intervener, that easement could take the course of the public access way. This would only require some practical resolution in relation to the issue of the gating of the public access way, given the need to grant access to the beneficiaries of the easement, while still restricting general access to the public at large.
(Page 6)
20 The intervener, however, contends that the submissions of the Commission appear to rest on the view that there would be no relevant inconsistency between the findings of the Supreme Court and the Tribunal, because the public access way would be the means by which access and the easement would be granted for the intervener and her husband over the subject site.
21 The intervener says this submission should be rejected on the following grounds:
• The pleaded representations in the statement of claim relate to vehicular access requiring a road for the purpose of developing the subdivided lots, not a mere question of access to Mr Daniel McCourt and Mrs Ruth McCourt, requiring something less than a road for which the public access way would be sufficient.
• The development guide plan approved by the Commission over the intervener's lot contains a different point of access to that proposed in this matter; and a relevant inconsistency arises because of the two different treatments of the issue in the Town Planning Appeal Tribunal as identified in McCourt v Shire of Busselton [2004] WATPAT 76 and Krasenstien. The intervener says the approved development guide plan the subject of McCourt v Shire of Busselton relied for its existence on the performance of the promise by the applicant which in this matter is the subject of the Supreme Court proceedings. Therefore, a determination of that issue is essential before the Tribunal can resolve the inconsistency between the two earlier Town Planning Appeal Tribunal decisions.
• If it is necessary for a proper resolution of the relevant planning inconsistency to have a finding as to the nature and extent of the easement, the finding in the Supreme Court will necessarily assist the Tribunal in resolving that inconsistency. As Mr and Mrs McCourt are parties to the Supreme Court proceedings, the finding in the Supreme Court will operate as an issue estoppel in the Tribunal. However, a finding in the Tribunal cannot constitute an issue estoppel in the Supreme Court
- proceedings, especially since Mr McCourt is not a party to those proceedings.
- • If Mr and Mrs McCourt are successful in the Supreme Court proceedings, it is likely that the application in the Tribunal will not proceed because the applicant will not be able to maintain a subdivision development inconsistent with the Supreme Court finding. Conversely, should both matters proceed there would be a duplication of evidence, additional costs and the risk of inconsistent findings of fact due to different bases governing the inadmissibility of evidence.
Finding
22 In my view, as inconvenient as it is to the applicant and the respondent, having resolved the planning differences between them concerning the subdivisional development of the applicant's land, in all the circumstances it does seem appropriate not to list the current proceedings in the Tribunal for final resolution pending the finalisation of the access right proceedings instituted and currently being maintained by the intervener and her husband in the Supreme Court.
23 Nonetheless, I am bound to say that this plainly is a case calling out for the early resolution of the proceedings in the Supreme Court, which appear to rely entirely on the intervener's claim based on a promise.
24 As soon as the question of access can be resolved in the Supreme Court proceedings, the way should be clear for the early final determination of the review proceedings in the Tribunal.
25 Therefore, it is with some reluctance that the Tribunal agrees that the Tribunal proceedings between the applicant and the Commission should be adjourned pending the final resolution of the Supreme Court proceedings.
Orders
26 The Tribunal, for the reasons set out above, therefore orders as follows:
1. These proceedings in the State Administrative Tribunal are not to be listed for final hearing pending final resolution of the Supreme Court proceedings between the intervener and the applicant.
(Page 8)
- 2. This matter be called on for a directions hearing in the Tribunal before the President on 13 May 2008 at 9.30 am, so the Tribunal can be apprised by the parties of progress in the Supreme Court proceedings.
3. So that the Supreme Court is fully aware of the Tribunal's decision to adjourn the Tribunal proceedings and the reasons for it, the intervener is to provide a copy of the Tribunal's order and these reasons to the Chief Justice of Western Australia so that it can be passed onto the Judge in charge of managing the Supreme Court proceedings.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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