KRASENSTEIN and WESTERN AUSTRALIAN PLANNING COMMISSION

[2005] WASAT 201

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   KRASENSTEIN and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 201

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   8 AUGUST 2005

DELIVERED          :   12 AUGUST 2005

FILE NO/S:   DR 484 of 2005

BETWEEN:   MARK KRASENSTEIN

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

RUTH ELLEN McCOURT
Intervener

Catchwords:

Practice and procedure - Leave to intervene - Leave to make submissions - Town Planning - Review of conditions of subdivision approval - Inconsistency between Development Guide Plans in relation to applicant's and intervener's land - Whether intervention necessary for proper disposition of proceedings - Whether intervention necessary for comparison of strategic planning approaches in Development Guide Plans

Legislation:

State Administrative Tribunal Act 2004 (WA), s 37, s 38

Town Planning and Development Act 1928 (WA), s 62, s 63

Result:

1. Application for leave to intervene dismissed

2. Application for leave to make submissions under Town Planning and Development Act 1928 (WA) s 62 allowed

Category:    B

Representation:

Counsel:

Applicant:     Mr MJ Hardy

Respondent:     Mr CS Bydder and Mr RA Vines

Intervener:     Mr MC Hotchkin

Solicitors:

Applicant:     Hardy Bowen

Respondent:     State Solicitor's Office

Intervener:     Hotchkin Hanley

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

Harding v Shire of Chittering [2003] WATPAT 147

Kaard and City of Nedlands [2005] WASAT 2

Mark Krasenstein and Western Australian Planning Commission [2004] WATPAT 213

Oon v Town of Claremont [2003] WATPAT 97

Ruth Ellen McCourt and Shire of Busselton [2004] WATPAT 76

WA Plantation Resources Pty Ltd and City of Bunbury and Anor [2005] WASAT 194

Case(s) also cited:

Dilatte v McTiernan [2002] WASCA 10

Appin Investments Pty Ltd v Western Australian Planning Commission and Anor (TPAT, WA, Appeal No 55 of 1997, unrep.)

Gregor and Anor v State of Victoria and Ors (VCAT, No A213/1999, 5 January 2000, unrep.)

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mrs McCourt, who is the owner of a property which adjoins the land the subject of a subdivision application, applied to the Tribunal for leave to intervene in, or make submissions in relation to, review proceedings which concerned conditions subject to which the subdivision application was approved.

2. The Tribunal determined that it was not necessary to grant Mrs McCourt leave to intervene for the proper disposition of the proceedings.  However, the Tribunal granted Mrs McCourt's alternative application to make submissions, because she had a direct and material interest to ensure that the subdivision application was approved subject to a condition which facilitated access from her land over the land proposed to be subdivided.

Introduction

1. Mrs Ruth Ellen McCourt, the owner of Lot 1002 Butterly Road, Yallingup (the McCourt land), has applied to the Tribunal, alternatively, for leave to intervene in, or to make submissions in relation to, review proceedings which are pending before the Tribunal.  The proceedings involve an application for review of three conditions of subdivision approval imposed by the Western Australian Planning Commission (Commission) in relation to the subdivision of Lot 101 Nukklgup Loop, Yallingup (the Krasenstein land) into six allotments.  The McCourt land adjoins the Krasenstein land to its south.  Until it was subdivided in the late 1990s, the McCourt land and the Krasenstein land formed a single parcel of land, known as Sussex Location 556, which was owned jointly by Mrs McCourt's husband and Mr Krasenstein.

2. The application to intervene in the proceedings is made under s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which provides as follows:

   "The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit."

3. Section 36(1) of the SAT Act provides that a person intervening in a proceeding is a party to the proceeding.

4. The alternative application for leave to make submissions is made under s 62 of the Town Planning and Development Act 1928 (WA) (the Act), which provides as follows:

   "The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter."

5. The applications were opposed by Mr Krasenstein, and were neither consented to nor opposed by the Commission.

6. In these reasons, I will at first refer to certain aspects of the factual background, before considering the applications made, in turn.  For reasons set out below, I consider that leave to intervene should not be granted to Mrs McCourt in the circumstances of this case.  However, Mrs McCourt has a sufficient interest in the matter, and it is appropriate for her to have leave to make submissions in relation to the application.

Factual background

1. In March 1997, for the purpose of obtaining subdivision approval of Sussex Location 556, Mr McCourt and Mr Krasenstein obtained a right of way over land to the north of what is now the Krasenstein land so as to allow access from their land to Marrinup Drive.  Although the McCourt land has direct access to Butterly Road, until about April 2002, Mr and Mrs McCourt traversed the Krasenstein land in order to utilise the right of way to Marrinup Drive.

2. In mid­2003, Mrs McCourt and Mr Krasenstein each submitted draft Development Guide Plans to Busselton Shire Council (Shire) in relation to the McCourt land and the Krasenstein land, respectively.  The draft Development Guide Plans were submitted in accordance with cl 25 of Busselton Shire Council District Town Planning Scheme No 20 (TPS20), which requires the adoption and endorsement of such a Plan by the Shire and the Commission for all land within a Development Investigation Area.  Clause 25(4) provides that, following receipt of a draft Development Guide Plan "which, in the opinion of the Council, adequately addresses the orderly and proper planning of the land", the Shire must advertise the plan for 28 days.  Clause 25(8) provides that "the subdivision … of the land the subject of the Development Guide Plan shall be in accordance with the endorsed Development Guide Plan".  In contrast, cl 84(1) of the Scheme requires merely that "subdivision … shall be generally in accordance with … the Development Guide Plan approved and adopted by the Council and the [Commission]" (emphasis added).

3. The draft Development Guide Plan in relation to the McCourt land showed the subdivision of that land into nine lots, one having access from Butterly Road, and eight requiring access through the Krasenstein land to Nukklgup Loop to its north.  In contrast, the draft Development Guide Plan in relation to the Krasenstein land, which showed subdivision of that land into six lots, did not propose the creation of a road to provide access between the McCourt land and Nukklgup Loop.  Rather, it showed the proposed public road on that land, which connected to the public road network to the north, as terminating in a cul-de-sac some distance to the north of the McCourt land boundary.

4. The Shire resolved that the draft Development Guide Plan for the McCourt land "not be adopted for community consultation purposes" under cl 25 of TPS20 until it is redesigned to comply with a Structure Plan adopted in June 2001.  The Shire later resolved to adopt the draft Development Guide Plan in relation to the Krasenstein land.

5. Mrs McCourt appealed to the Town Planning Appeal Tribunal (old Tribunal) against what the Deputy President of the old Tribunal found to be a refusal by the Shire to advertise the Development Guide Plan, because it had not formed the opinion, under cl 25(4) of TPS20, that the draft "adequately addresses the orderly and proper planning of the land": Ruth Ellen McCourt and Shire of Busselton [2004] WATPAT 76. At [15] - [17] of his reasons for decision, the Deputy President accepted evidence called by Mrs McCourt that access from the McCourt land to Dunsborough via Butterly Road is less desirable in planning terms than access through the Krasenstein land, would necessitate substantial earthworks and potential damage to the environment on the McCourt land, and would be less desirable in terms of bushfire prevention and management. The Deputy President found, at [18], that Mrs McCourt had established "sound planning reasons why the [draft Development Guide Plan in relation to the McCourt land] is superior to a [Development Guide Plan] which limited access only from Butterly Road". He found that the decision of the Shire not to advertise the draft Development Guide Plan was not based on any analysis of how access from Butterly Road would be provided to the lots and the planning implications of that requirement. He, therefore, allowed the appeal and required the Shire to advertise the draft Plan, and determined that, at the end of the advertising period, the Shire should forward the draft to the Commission, together with any submissions and its comments: at [21]. At [23], the Deputy President noted that he was mindful that approval had been given by the Shire to the draft Development Guide Plan in relation to the Krasenstein land, and observed that "it is appropriate, if possible, for the [Commission] to be aware of the inconsistencies between the two [Development Guide Plans] in considering the [draft Development Guide Plan in relation to the Krasenstein land]".

6. Approximately five weeks after the old Tribunal delivered its reasons for decision in Ruth Ellen McCourt and Shire of Busselton (supra), the Commission resolved that it was prepared to endorse the draft Development Guide Plan for the Krasenstein land, subject to modifications, including a modification, in effect, that the cul­de­sac be replaced so as to permit access from the McCourt land through the Krasenstein land to the public road system to the north.  Mr Krasenstein appealed under TPS20 to the old Tribunal against this modification: Mark Krasenstein and Western Australian Planning Commission [2004] WATPAT 213.  The proceedings were heard by the old Tribunal constituted by its President.

7. Prior to the hearing of Mr Krasenstein's appeal, Mr MC Hotchkin, counsel for Mrs McCourt, applied for his client to be joined as a party to the proceedings. For reasons which do not appear to have been transcribed, the President refused that application, but granted leave to Mrs McCourt to make a submission under s 62 of the Act. According to the uncontested evidence of Mr McCourt, who attended and heard the President's oral reasons, he "essentially held that he was not sufficiently persuaded that … assistance [from Mrs McCourt in relation to what had occurred in her proceedings, and how that might be relevant to issues in the Krasenstein proceedings] would be necessary, and that [Mrs McCourt's] interests would be sufficiently protected by enabling her to make submissions". At [69] ­ [70] of his reasons for decision in relation to the substantive proceedings, the President determined that "from a planning point of view, I am entirely satisfied that the draft [Development Guide Plan] proposed by [Mr Krasenstein] is acceptable", and granted approval to the draft without the modification challenged by Mr Krasenstein.

8. Following the grant of approval by the old Tribunal to the Development Guide Plan in relation to the Krasenstein land, Mr Krasenstein sought the Commission's approval to a plan of subdivision of that land, which is consistent with the approved Development Guide Plan.  On 1 June 2005, the Commission gave its approval to the plan of subdivision under s 20(1)(a) of the Act, subject to 19 conditions.  Mr Krasenstein subsequently brought these proceedings for review of conditions 2, 4 and 13 imposed by the Commission.  Condition 2 requires, in effect, consistently with the planning approach in the Development Guide Plan in respect of the McCourt land, that the subdivider provide a 15­metre wide public road reserve through the Krasenstein land to provide access from the McCourt land to the public road system to the north.  Condition 4 requires that a 10­metre wide right of way be provided along the boundaries for the purpose of fire services access free of cost.  Condition 13 proscribes any clearing or on­site works on proposed lots 5 and 6 until the completion of a fauna and floristic survey to the satisfaction of the Commission.

Application to intervene

1. Mr Hotchkin submitted that it was necessary for leave to be granted for his client to intervene in the proceedings for their proper disposition or to enable the Tribunal to dispose of the proceedings on an informed, insightful and critically-analysed basis: Kaard and City of Nedlands [2005] WASAT 2; Harding v Shire of Chittering [2003] WATPAT 147.  He submitted that the old Tribunal "had approved two Development Guide Plans which were directly inconsistent, even though they related to different lots".  It was necessary for Mrs McCourt to intervene in these proceedings to allow a proper comparison of the two strategic planning approaches reflected in the two Development Guide Plans to occur.  Without his client's intervention, there would be potential for "a repeat of what occurred" in the proceedings determined by the President of the old Tribunal, namely approval of inconsistent strategic planning approaches.  Mr Hotchkin also submitted that his client is "peculiarly placed to assist the Tribunal".

2. As noted earlier, the Commission neither consented to nor opposed Mrs McCourt's application.  Mr CS Bydder, who appeared with Mr RA Vines for the Commission, submitted that his client adopted that attitude, not because participation by Mrs McCourt is necessary as a "safeguard against error" in the Commission's conduct of the proceedings, but rather because there is an inconsistency between the two Development Guide Plans, and Mrs McCourt "has peculiar knowledge about her own land and particular knowledge about difficulties of access to Butterly Road which might assist the Tribunal".  However, Mr Bydder indicated that his client will defend the conditions in dispute, on the basis that the strategic approach in the Development Guide Plan for the McCourt land should be preferred and involves a better strategic result.

3. Mr MJ Hardy, counsel for Mr Krasenstein, indicated that his instructions were that the draft Development Guide Plan submitted by Mrs McCourt had not, in fact, been adopted and endorsed by the Commission. He noted that s 63 of the Act excludes the Tribunal's power to join a person as a party under s 38 of the SAT Act in planning review matters. He submitted that, "given the express will of the legislature to prevent the joinder of parties, the only sensible approach is to take a stringent view of the construction and application of the power to permit intervention". He submitted that leave to intervene should only be granted in "exceptional circumstances". Mr Hardy also submitted that, as the Commission will defend the conditions on the same basis as that which would be advanced by Mrs McCourt, it would be inappropriate to grant leave to intervene.

4. Mr Bydder subsequently informed the Tribunal that, on 15 October 2004, the Commission had resolved to give "in-principle support" to a revised Development Guide Plan submitted by Mrs McCourt, subject to conditions.  One of the conditions, which requires an amendment to TPS20, has not been fulfilled.  It appear, therefore, that Mr Hardy's instructions that a Development Guide Plan has not yet been adopted and endorsed in respect of the McCourt land are correct.  However, ultimately, in my opinion, nothing turns on this.  As the Deputy President of the old Tribunal found in Ruth Ellen McCourt and Shire of Busselton [2004] WATPAT 76, at [23], there is plainly an inconsistency of approach between the Development Guide Plan which has been given "in-principle support" in relation to the McCourt land and the Development Guide Plan which has been adopted and endorsed in relation to the Krasenstein land, in particular in relation to access to and from the McCourt land.  One Plan contemplates that most of the proposed lots within the McCourt land would obtain access to the public road system through the Krasenstein land, whereas the other Plan does not contemplate or provide for that.

5. In Kaard and City of Nedlands [2005] WASAT 2, the owner of a property which adjoined the land the subject of planning review proceedings sought leave to intervene under s 37(3) of the SAT Act and, alternatively, to make submissions under s 62 of the Act. At [13], the Tribunal recorded that it was common ground "that the proper test for determining whether it is appropriate to grant leave to intervene in a proceeding under Pt V of the Town Planning and Development Act is similar, if not the same, as that set out by the Town Planning Appeal Tribunal in relation to joinder applications made under now repealed legislation in Harding v Shire of Chittering [2003] WATPAT 147, especially at [19] ­ [26]".  The Tribunal was content to determine the application for intervention on that agreed basis.  In Harding v Shire of Chittering (supra), the old Tribunal held, at [20], as follows:

   "In essence therefore the short test is if the Tribunal thinks fit in order for it to adequately deal with the proper disposition of the appeal, then a party may be joined for that purpose."

6. At [25] ­ [26], the old Tribunal determined that, if the applicants for joinder were not joined as parties to the proceedings, in light of the stance taken by the first respondent, "there was a possibility that the disposition of this appeal would be other than on an informed, insightful and critically-analysed basis".  The old Tribunal, therefore, joined the applicants as parties.

7. The juxtaposition of the power to allow intervention in proceedings under s 37 of the SAT Act, with the power to allow joinder as a party under s 38 of that Act, and the terms of subsections (1) and (2) of s 37, suggest that intervention under the SAT Act is principally concerned with the advancement of the public interest, as opposed to private interests. Under s 38 of the SAT Act, the Tribunal may order that a person be joined as a party to proceedings, if the Tribunal considers that "the person ought to be bound by, or have the benefit of, a decision of the Tribunal", "the person's interests are affected by" the proceedings, or, for any other reason, "it is desirable that the person be joined as a party". The focus of the provision is on "the person", and private interests of or affecting that person.

8. Section 37(1) of the SAT Act permits the Attorney General, on behalf of the State, to intervene in proceedings of the Tribunal at any time, and s 37(2) permits the Commissioner for Fair Trading, on behalf the State, to intervene in certain types of proceedings before the Tribunal. These provisions suggest that intervention in proceedings of the Tribunal under s 37 of the SAT Act is principally concerned with the advancement of the public interest. Although it is "a person" who may apply for leave to intervene under s 37(3), the focus is not on "the person" as an individual, or on private interests of or affecting the person, but rather on whether intervention in the proceedings is appropriate.

9. The Tribunal accepts Mr Hotchkin's submission that leave to intervene under s 37(3) of the SAT Act should be granted where intervention is necessary for the proper disposition of the proceedings. Where it is necessary for that purpose, intervention is in the public interest. A circumstance in which the proper disposition of proceedings would require the intervention of a person is where, in the absence of intervention, there would not be sufficient material before the Tribunal to enable it to dispose of the proceedings on an informed, insightful and critically-analysed basis. Another circumstance in which intervention is appropriate in the public interest is where the proceedings concern the construction of legislation which confers a function and discretion on the intervener: WA Plantation Resources Pty Ltd and City of Bunbury and Anor [2005] WASAT 194, at [7] ­ [9]. There are, no doubt, other circumstances in which intervention may be appropriate in the public interest.

1. The Tribunal does not accept Mr Hardy's submission that, in light of the exclusion of the power of joinder in planning review proceedings, a stringent view should be taken of the construction and application of the power to permit intervention. The exclusion, by s 63 of the Act, of the power of joinder under s 38 of the SAT Act, cannot bear on the construction of s 37 of the SAT Act. That section must be construed, in light of the provisions of the SAT Act read as a whole, and applied, in the same way in relation to all types of proceedings. The discretion to grant leave to intervene is not guided by any consideration of "exceptional circumstances".

2. However, it is not necessary for Mrs McCourt to be granted leave to intervene for the proper disposition of the proceedings.  It is not necessary to intervene in order to ensure that there is sufficient material before the Tribunal to enable it to dispose of the proceedings on an informed, insightful and critically­analysed basis.  In particular, the Commission proposes to defend the disputed conditions on the very same comparative basis as that sought to be advanced by Mrs McCourt, if leave to intervene were granted.  As Mr Bydder noted, s 20(5) of the Act provides that, in giving its approval to an application for subdivision, "the discretion of the Commission is not fettered by the provisions of a town planning scheme".  Therefore, although cl 25(8) of TPS20 states, in mandatory terms, that "the subdivision … of the land the subject of the Development Guide Plan shall be in accordance with the endorsed Development Guide Plan", the Commission, and the Tribunal on review, is not fettered in the exercise of discretion by that provision.  At the final hearing of the proceedings, an interesting question will arise as to the weight to be accorded to the Development Guide Plan which was adopted by the old Tribunal in relation to the Krasenstein land, and to the alternative strategic planning approach to access from the McCourt land, in light of the provisions of the Scheme and s 20(5) of the Act.  However, it is not necessary for Mrs McCourt to be granted leave to intervene for this question to be ventilated.

3. Moreover, although Mr Hotchkin submitted that his client is "peculiarly placed" to assist the Tribunal, and Mr Bydder referred to her "particular knowledge" in relation to difficulties of access, these submissions were not developed in any practical way.  In particular, the Tribunal was not told what this "knowledge" entailed, nor why it would not be available to the Commission and, therefore, to the Tribunal, without leave to intervene being granted.  It is not appropriate to grant leave to intervene, with the consequent conferral of status as a party, on the basis of such generalised and undefined assertions.

Leave to make submissions

1. As the Tribunal recognised in Kaard and City of Nedlands (supra), at [47], there is a two­stage process of enquiry where leave is sought to make submissions in a planning review matter under s 62 of the Act: Oon v Town of Claremont [2003] WATPAT 97 at [5].  First, the Tribunal must form the opinion that the person who seeks leave to make submissions "has a sufficient interest in the matter".  Second, if the person has a sufficient interest, the Tribunal must be satisfied that it is appropriate to grant leave in the exercise of its discretion.

2. I am satisfied that Mrs McCourt has a sufficient interest in the matter, given that she is the owner of an adjoining property to the land the subject of the subdivision application, and that she has lodged, and received in-principle support from the Commission for, a Development Guide Plan which contemplates access through the Krasenstein land in a manner which is not proposed in the subdivision application.  I am also satisfied that, in the circumstances of this case, it is appropriate for the Tribunal to exercise its discretion in favour of Mrs McCourt, because she has a direct and material interest in the imposition of the condition facilitating access from her land through the Krasenstein land.

Conclusion

1. The Tribunal has determined that it is not necessary to grant Mrs McCourt leave to intervene for the proper disposition of the proceedings.  The Commission proposes to defend the disputed conditions on the basis of the same comparative analysis as that which Mrs McCourt proposes to advance, if leave to intervene were granted.  The Commission intends to argue that the Development Guide Plan, which was submitted by Mrs McCourt in relation to the McCourt land, involves a better strategic result in terms of access from the McCourt land and that, in consequence, in the exercise of planning discretion, the Tribunal should give effect to it by way of condition.  Moreover, the Tribunal has not been satisfied that intervention by Mrs McCourt is necessary to ensure that there is sufficient material before the Tribunal so as to enable it to determine the proceedings on an informed, insightful and critically­analysed basis.

2. However, the Tribunal is satisfied that Mrs McCourt has a sufficient interest in the matter, for the purposes of s 62 of the Act, and that the Tribunal's consequent discretion under that section should be exercised so as to permit her to make submissions in relation to the disputed conditions. She is not merely the owner of a property which adjoins land the subject of the proceedings, but has a direct and material interest to ensure that the subdivision application in relation to the Krasenstein land is approved subject to a condition which facilitates access from her land.

3. The orders of the Tribunal are:

   1.The application by Ruth Ellen McCourt for leave to intervene in the proceedings under s 37(3) of the State Administrative Tribunal Act 2004 (WA) is dismissed.

   2.Ruth Ellen McCourt has leave to make submissions in relation to the proceedings under s 62 of the Town Planning and Development Act 1928 (WA).

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER