LOVEGROVE INVESTMENTS PTY LTD and SHIRE OF WAROONA
[2023] WASAT 99
•24 OCTOBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: LOVEGROVE INVESTMENTS PTY LTD and SHIRE OF WAROONA [2023] WASAT 99
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 24 AUGUST 2023
DELIVERED : 24 OCTOBER 2023
FILE NO/S: DR 58 of 2023
BETWEEN: LOVEGROVE INVESTMENTS PTY LTD
Applicant
AND
SHIRE OF WAROONA
Respondent
Catchwords:
Practice and procedure - Application to extend time in which to seek review - Relevant principles - Length of delay - Reason for delay - Whether applicant has arguable case - Question of prejudice
Town planning - Development - Review of written direction
Legislation:
Bush Fires Act 1954 (WA), s 24G(2), s 25(1a), s 33, s 33(1)
Environmental Protection Act 1986 (WA), Sch 6
Planning and Development Act 2005 (WA), s 214, s 214(2), s 214(3), s 214(7), s 218, s 227, s 231, s 232, s 255, Div 3, Pt 3, Pt 14
Planning and Development Regulations 2009 (WA), Pt 5, reg 42
Rules of the Supreme Court 1971 (WA), O 63, r 7(1)
Shire of Waroona Local Planning Scheme No 7
State Administrative Tribunal Act 2004 (WA), s 27(2), s 42, s 62
State Administrative Tribunal Rules 2004 (WA), r 9(a), r 10
Result:
Leave to extend time is refused
Application for review is dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr D Zusman |
| Respondent | : | Mr N Sloan |
Solicitors:
| Applicant | : | Hotchkin Hanly |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Carbone Bros Pty Ltd and Shire of Harvey [2021] WASAT 150
City of Kalamunda v A.C.N. 605 729 995 Pty Ltd [2020] WASC 341
Curlewis and City of Albany [2011] WASAT 85; (2011) 77 SR (WA) 87
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (1990) 64 ALJR 458
Hartwig and City of Canning [2008] WASAT 243
Hutchings and Shire of Augusta Margaret River [2023] WASAT 96
IpilatesPerth Pty Ltd and City of Joondalup [2020] WASAT 52; (2020) 100 SR (WA) 72
Jackamarra v Krakouer (1998) 195 CLR 516
KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297
O'Connor and Town of Victoria Park [2005] WASAT 161
Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223; 72 LGRA 414
Scolaro and Shire of Waroona [2014] WASAT 37
Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89
Smith and City of Wanneroo [2008] WASAT 182
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These reasons deal with an application to extend time pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) by Lovegrove Investments Pty Ltd (Applicant).
The reviewable decision is the Shire of Waroona's (Shire or Respondent) decision to issue a written direction on the Applicant on 23 May 2022 (Direction) pursuant to s 214 of the Planning and Development Act 2005 (WA) (PD Act).
At the heart of this issue is the Shire's assertion that the Applicant has undertaken unauthorised clearing of approximately 1 hectare of native vegetation at the property known as 879 Coronation Drive, Waroona (Subject Land). The Direction required the Applicant to stop and not recommence the 'development' (that is, to cease and not recommence clearing the Subject Land) pursuant to s 214(2) of the PD Act. Further, the Applicant was required to restore the Subject Land via a rehabilitation plan to be approved by the Shire.
As I will come to explain, the Applicant neither complied with the Direction nor sought to review it. Rather, it engaged consultants to attempt to persuade the Shire to withdraw the Direction. That strategy ultimately failed. The Applicant then finally sought review of the Direction on 4 April 2023, a delay of over 10.5 months (316 days) since it was issued.
For the reasons that follow, I refuse to extend time pursuant to r 10 of the SAT Rules to allow the Direction to be reviewed.
Evidence
A total of six affidavits were sworn in relation to the application to extend time. The Applicant filed four:
(a)Richard Anthony Lovegrove filed two affidavits (dated 3 April and 29 May 2023). Mr Lovegrove is a director of the Applicant;
(b)Darren Kurt Zusman (dated 30 May 2023). Mr Zusman is a solicitor acting for the Applicant; and
(c)Kelly James Brown (dated 25 May 2023). Mr Brown is a fire consultant acting for the Applicant.
The Shire filed two affidavits:
(a)Karen Oborn (dated 20 June 2023). Ms Oborn is the Director of Infrastructure and Development Services at the Shire; and
(b)Craig Zanotti (dated 26 June 2023). Mr Zanotti is the Coordinator of Regulatory and Development Services at the Shire.
Background
Neither party sought to examine any deponent. Having regard to the range of material that has been filed, I make the following findings:
(a)Mr Richard Lovegrove is a director of the Applicant. Mr Lovegrove has owned farms for 50 years and has experience clearing firebreaks and fighting bushfires.
(b)The Subject Land:
(i)is owned by the Applicant;
(ii)is Lot 500 on Deposited Plan 302681; and
(iii)has an area of approximately 60 hectares.
(c)The Shire issued a firebreak notice for the 2021/22 period pursuant to ss 33(1), 25(1a) and 24G(2) of the Bush Fires Act 1954 (WA) (BF Act) at its meeting of 23 June 2020 (Firebreak Notice).
(d)On 6 January 2022, the Applicant applied to the Department of Water and Environmental Regulation (DWER) for a clearing permit to clear 6 hectares of native vegetation on the Subject Land.
(e)On 23 March 2022, the Shire received an email from the Applicant regarding a proposed turf farm and clearing of vegetation on the Subject Land.
(f)On 25 March 2022, the Shire advised Mr Lovegrove that development approval must be obtained for the proposed turf farm under the Shire of Waroona Local Planning Scheme No 7 (LPS 7). The Subject Land is zoned Rural 1 - General Farming in LPS 7 and a turf farm is classified as 'agriculture - intensive' which is a discretionary use. The Shire further advised that clearing vegetation constituted 'works' that would require development approval.
(g)On 29 March 2022, Shire representatives met with Mr Lovegrove to discuss the proposed turf farm and the clearing of vegetation on the Subject Land. Mr Lovegrove advised that he intended to undertake works in furtherance of the turf farm. Shire officers advised that development approval would be required before any works could progress. Furthermore, the vegetation proposed to be removed may be part of a threatened ecological community and therefore the proposed clearing was unlikely to be supported.
(h)Notwithstanding the discussion on 29 March 2022, on 16 May 2023, Mr Lovegrove nevertheless cleared 1 hectare of native vegetation (200 metres x 5 metres) on the Subject Land (the Clearing).
(i)The Shire attended the Subject Land on 16 May 2022 and observed that various works had been undertaken without development approval being obtained. Piping was being stored and earthmoving machinery was being stored on the Subject Land. Approximately 1 hectare of endemic native vegetation had been cleared.
(j)In response, on 23 May 2022 the Shire issued a Show Cause Notice on the Applicant as to why the Shire should not initiate prosecution proceedings under s 218 of the PD Act. The Applicant was given 7 days to respond.
(k)At the same time, the Shire also issued the Direction. The Direction states that the Applicant undertook development on the Subject Land by clearing 10,000m2 (1 hectare) of endemic native vegetation (Cleared Area). The effect of the Direction was that the Applicant had to stop and not recommence any clearing of vegetation and, by 23 July 2022, must also prepare a rehabilitation plan for the Cleared Area. The rehabilitation plan was required to be submitted to, and approved by, the Shire. The Shire would attend the Subject Land to view the completed rehabilitation works.
(l)The Direction was emailed to the Applicant on 23 May 2022.
(m)The Shire met with Mr Lovegrove on 31 May 2022. The Shire gave the Applicant a further 7-day extension to respond to the Show Cause Notice (to 23 June 2022). Mr Lovegrove explained that he would provide the Shire with written submissions as to why he did not need to comply with the Direction.
(n)On 17 June 2022, the Shire advised the Applicant the Direction needed to be complied with by 23 July 2022.
(o)On 24 June 2023, Mr Lovegrove contacted the Shire and advised that the Applicant would respond by 28 June 2022.
(p)On 28 June 2022, Mr Lovegrove emailed the Shire and advised that he intended to seek review of the Direction and also that he was going to bring the matter to the attention of the DWER. The Shire responded by again advising Mr Lovegrove that he had a right to seek a review of the Direction in the Tribunal and that such application had to be made within 28 days.
(q)On 1 July 2022, the Shire returned to the Subject Land for a further inspection. Shire officers observed that the area that had been cleared had recently been deep ripped. The cleared area was on the northern side of an existing farm access track, south-east of a large area of remnant vegetation (16 hectares in area). Adjacent to the deep ripped area was a tractor with tynes. Also present was equipment that is commonly used for clearing organic debris. A pile of organic material, measuring 10 metres x 10 metres, was situated east of the disturbed area. This material had recently been burnt, and contained roots, trunks, branches and leaves which were visibly charred. The Shire took photographs during this attendance at the Subject Land.
(r)On 15 July 2022, Mr Lovegrove emailed the Shire to advise that he was awaiting a report from a fire engineer and whether the Shire would defer to DWER's views in relation to the application for a clearing permit.
(s)The 'fire engineer' referred to above was Mr Kelly Brown from Preplan Consulting. After reviewing some emails on 16 July 2022, Mr Brown gave the Applicant strategic advice that he may be able to assist as a 'mediator' with the Shire and DWER. However, it was not until 25 August 2022 that Mr Brown was provided with sufficient information so as to enable him to speak with the Shire.[1]
[1] Affidavit of Kelly James Brown dated 25 May 2023, para 9.
(t)The Shire emailed the Applicant on 10 October 2022 to arrange a further inspection of the Subject Land to assess the progress of the rehabilitation works required under the Direction. The Applicant did not respond.
(u)On 26 October 2022, the Shire issued a planning infringement notice (in the amount of $500) on the Applicant for the unauthorised clearing of the Subject Land that were observed by the Shire on 16 May 2022 (Infringement Notice).[2]
[2] Division 3 of Pt 3 of the PD Act deals with infringement notices. Section 227 of the PD Act provides for regulations to prescribe offences for which an infringement notice may be issued. Part 5 of the Planning and Development Regulations 2009 (WA), reg 42 provides that a written direction under s 214 can be dealt with via an infringement notice with a modified penalty of $500. The benefit of an infringement notice is that further proceedings cannot be brought in relation to that offence and that the payment of the modified penalty is not to be regarded as an admission in any civil or criminal proceedings: s 232, PD Act.
(v)The Shire approached the Applicant with a proposal on 8 November 2022. The proposal involved the Applicant inter alia agreeing not to undertake any further clearing on the Subject Land without first obtaining approval from the Shire, to pay the Infringement Notice and to agree to an arrangement to rehabilitate the Cleared Area. The Applicant did not agree to the proposal.
(w)On 15 November 2022, Mr Lovegrove commissioned Mr Brown to undertake an inspection of the Subject Land and to assist in dealing with the Shire in relation to the Direction. Mr Brown's opinion was that rehabilitating the Cleared Land would increase the fire risk and that the Direction was contrary to intent of State Planning Policy 3.7 – Planning in Bushfire Prone Areas (SPP 3.7).
(x)On 22 November 2022, Mr Lovegrove sought legal advice.
(y)On 2 December 2022, the Shire received a letter from the Applicant's solicitors in relation to the Direction and the Infringement Notice. On 15 February 2023, the Shire responded and advised that the Infringement Notice had not been paid and the Direction had not been complied with.
(z)On 24 February 2023, the Shire sent a further letter requesting another inspection of the Subject Land.
(aa)On 1 March 2023, the Applicant's solicitors sent a letter to the Shire requesting an explanation as to why the Shire considered that the Applicant had acted unlawfully. The Applicant's solicitors outlined that a further inspection would only be agreed to if a majority of the Shire's councillors attended. On 9 March 2023, the Applicant's solicitors again wrote to the Shire and advised that it did not consent to a further inspection of the Subject Land.
(bb)On 4 April 2023, the Shire was given notice of the Review. The Review was lodged 316 days after it was given to the Applicant and 288 days late pursuant to the requirements of r 9(a) of the SAT Rules.
(cc)On 28 April 2023, the Shire withdrew the Infringement Notice pursuant to s 231 of the PD Act.
The Direction
The Direction was issued pursuant to s 214(3) of the PD Act as the Applicant was required to undertake works to restore and rehabilitate the Cleared Area. A failure to comply with the Direction is an offence.[3]
[3] PD Act, s 214(7).
The Direction made it clear that a failure to comply was an offence. Furthermore, the Direction advised the Applicant of its right to seek review within 28 days pursuant to s 255 of the PD Act.
Relevant principles in relation to extending time
The applicable considerations in relation to applications to extend time pursuant to r 10 of the SAT Rules are well-known and settled. They derive from the decision of Kennedy J in Esther Investments Pty Ltd v Markalinga Pty Ltd (Esther Investments),[4] where his Honour stated:
In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of discretion which is conferred upon the court. 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. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.
[4] Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198.
In Jackamarra v Krakouer,[5] Brennan CJ and McHugh J expressed some doubt as to whether the factors identified by Kennedy J in Esther Investments were the correct matters for consideration in relation to the discretion that arose in that decision, being a failure to enter an appeal for hearing in accordance with (then) O 63 r 7(1) of the Rules of the Supreme Court 1971 (WA), which was a 'purely procedural application to extend time for doing an act in respect of an appeal already lodged'.
[5] Jackamarra v Krakouer (1998) 195 CLR 516 [6], [7].
However, their Honours did not doubt the correctness of the four factors identified by Kennedy J in Esther Investments as being the principal matters for consideration in the exercise of a discretion to extend the period in which an appeal may be commenced.
The four factors identified by Kennedy J in Esther Investments have long been accepted to be the principal matters for consideration in the exercise of discretion as to whether to extend the period under which an application for review made under Pt 14 of the PD Act, read with s 42 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), is to be commenced.[6]
[6] O'Connor and Town of Victoria Park [2005] WASAT 161 (O'Connor v Town of Victoria Park) [40]; KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297; Scolaro and Shire of Waroona [2014] WASAT 37 (Scolaro and Shire of Waroona).
Perforce of r 9(a) of the SAT Rules, an application for review must be made within 28 days of the day on which the decision-maker gives notice of the reviewable decision.
I should also add that despite this matter arising in the Tribunal's review jurisdiction where, ordinarily, no party bears an onus, the Applicant bears the onus to demonstrate that discretion should be exercised to extend time in all of the circumstances.[7]
Consideration
Length of the delay
[7] Curlewis and City of Albany [2011] WASAT 85; (2011) 77 SR (WA) 87 [69].
It is an agreed fact that the delay in lodging the application for review in this instance was 288 days (approximately 9.5 months).
In O'Connor v Town of Victoria Park,[8] a delay of over five weeks was described as 'borderline'. In Hartwig v City of Canning,[9] a delay of approximately five months was described as 'clearly significant'. In Smith v City of Wanneroo,[10] a delay of over three years was described as 'extraordinary' and 'exceptional'.
[8] O'Connor and Town of Victoria Park [41].
[9] Hartwig and City of Canning [2008] WASAT 243 [49].
[10] Smith and City of Wanneroo [2008] WASAT 182 [4], [10].
In Scolaro v Shire of Waroona,[11] Judge Parry stressed that care should be taken in comparing cases where extensions of time are sought. That observation is self-evidently correct. As to the basis for the discretion to extend time, McHugh J held as follows in Gallo v Dawson:[12]
The object of the [discretion to extend time] is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 – 195[.]
Reason for the delay
[11] Scolaro and Shire of Waroona [9].
[12] Gallo v Dawson (1990) 64 ALJR 458, 459.
Despite being told by the Shire beforehand that approval under LPS 7 was needed to clear vegetation, Mr Lovegrove says he thought the Shire had mistakenly issued the Direction.[13] The Direction having been issued, it is apparent, and I find, that the reason for the delay was that the Applicant put in place a strategy to engage consultants and also to apply political pressure, to persuade the Shire to withdraw it.
[13] Affidavit of Richard Anthony Lovegrove dated 29 May 2023, para 4.
I say political pressure, because almost every communication that was sent to the Shire from Mr Lovegrove following the issuing of the Direction was copied to the Federal Member for Canning. It is also the case that the Applicant ultimately refused Shire officers access to the Subject Land, unless the majority of elected councillors would also attend. Of course, in a democratic society, the Applicant is perfectly entitled to deploy political means to achieve an outcome. That is not the point on which I am focused.
What is relevant is that the Direction made it clear that the Applicant had a right to review the Direction within 28 days. That right was later reiterated by Ms Oborn from the Shire. Even after seeking legal advice, that advice resulted in the Shire being, in effect, told it was wrong in issuing the Direction. Having first sought legal advice on 22 November 2022, it was a further five months before the application for review was lodged.
My point is that this is not a matter of inadvertence or unawareness on the part of the Applicant as to why the Applicant did not avail itself of the opportunity to review the Direction. Rather, Mr Lovegrove, the controlling mind of the Applicant, simply walked past that right and instead charted a course to convince the Shire it was wrong to issue the Direction or otherwise to seek to deploy means to have it withdrawn. He explains that:[14]
While I was aware that [the Applicant] was required to file any review application with the [Tribunal] within 28 days after the date it had received the [Direction], I did not believe this would be necessary as Mr Brown is a leading expert in Western Australia on bushfire management and I thought that the Shire would accept Mr Brown's expert opinion.
[14] Affidavit of Richard Anthony Lovegrove dated 29 May 2023, para 7.
Only when it was apparent that its strategy to persuade the Shire to withdraw the Direction had failed, did the Applicant seek to engage the Tribunal's jurisdiction.
Whether there is an arguable case
The gravamen of the Applicant's case is that the Clearing was, in effect, a firebreak that was authorised by the Firebreak Notice. Indeed, the Applicant submits that it was 'obligated' to undertake the Clearing by the Firebreak Notice.[15] The Applicant also considers that because the Direction raises questions of safety, time should be extended.[16] Furthermore, Mr Brown considers that the Clearing was consistent with the principles of SPP 3.7.
Why I am not satisfied that the Applicant has an arguable case
[15] Applicant's submissions dated 30 May 2023, para 2.2.
[16] ts 6, 24 August 2023.
For the following reasons, I do not accept that the Clearing was consistent with the Firebreak Notice nor do I consider that safety is a prominent consideration in the circumstances of this case. Finally, I also find the question of whether the Clearing is consistent with the principles of SPP 3.7, or even good from a fire management perspective, is not the question that is before me.
The Firebreak Notice provides that, pursuant to s 33 of the BF Act, all landowners/occupiers are required to carry out fire prevention works as per the requirements set out. Such works had to be undertaken by 30 November and maintained until 30 April the following calendar year.
The Firebreak Notice required all lots greater than 4050m2 within the Shire to:[17]
(a)A 3 metre wide firebreak shall be constructed and maintained inside all external boundaries as close as practicable, but within 50 metres of the boundaries so as to form a continuous firebreak around the land,
(b)A 3 metre wide firebreak is to be constructed and maintained immediately surrounding all outbuildings, sheds, haystacks, groups of buildings and fuel depots/storage areas situated on the land,
(c)A 3 metre wide driveway to be installed and maintained; and,
(d)All flammable material within 20 metres of a habitable building is to be reduced and maintained to a height of less than 5 centimetres.
[17] Affidavit of Richard Anthony Lovegrove dated 3 April 2023, page 144.
The Firebreak Notice provides for a Special Works Order and states that:[18]
The requirements of this Notice are considered to be the minimum requirement for fire prevent work not only to protect individual properties but the district generally.
A separate Special Works Order may be issued to individual landowners pursuant to s 33 of the Bush Fires Act 1954 to carry out further hazard removal and/or reduction work with respect to anything upon the land, where in the opinion of an authorised officer it is likely to be conducive to the outbreak and/or the extension of a bush fire.
[18] Affidavit of Richard Anthony Lovegrove dated 3 April 2023, page 145.
Therefore, the starting point was that all landowners were authorised under the Firebreak Notice to clear 3-metre-wide firebreaks on inter alia external boundaries, outbuildings, haystacks and fuel depots. Furthermore, a separate Special Works Order can be issued for further hazard removal and/or reduction work under s 33 of the BF Act.
Only in relation to 'plantations', which the Subject Land is not, is there authority under the Firebreak Notice to clear vegetation for a firebreak under a powerline.
In this instance, the Applicant says it undertook the Clearing by reason of an overhead powerline which he considered would be regarded as hazardous by Western Power. To that it engaged Mr Brown who expressed the following opinion:[19]
With respect to the property, in my professional opinion, the fire breaks are designed and constructed in accordance with the bushfire risk profile as per the above design principles of SPP 3.7 … to mitigate the risk and protect life and property as well as provide firefighter access and protection[.]
[19] Affidavit of Kelly James Brown dated 25 May 2023, para 24: ts 9, 24 August 2023.
With respect to Mr Brown, I find his opinion is rather beside the point.
That is because the question that is raised by the Direction is whether the Clearing was undertaken with lawful authority for the purposes of LPS 7. It may well be a good idea, from a pure fire management perspective, to have undertaken the Clearing. However, the question before me is whether the Applicant was authorised to do it.
To that end, I accept that if the Clearing was required to comply with the Firebreak Notice then it may be said to have been authorised in advance by the Shire and therefore such works should not be regarded as 'development' requiring approval for the purposes of LPS 7. That seems to me to be the ratio that may be said to arise from the decision of the Supreme Court in City of Kalamunda v A.C.N. 605 729 995 Pty Ltd (City of Kalamunda v ACN), which is relied upon by the Applicant.[20]
[20] City of Kalamunda v A.C.N. 605 729 995 Pty Ltd [2020] WASC 341 [58] (Curthoys J).
However, I find the Clearing was not authorised by the Firebreak Notice. Indeed, the Firebreak Notice, which is the focus of this proceeding, makes it clear that it may be the case that not all clearing necessary for the effective management of fire may be addressed in the Firebreak Notice. That is self-evident by reason of the process for obtaining a Special Works Order for further clearing which was explained in the Firebreak Notice. In this instance, the Firebreak Notice did not authorise the making of firebreaks under the powerlines on the Subject Land.
It follows that if the Applicant wished to undertake further clearing in excess of the requirements of the Firebreak Notice, then the Applicant could have applied for a Special Works Order via the Shire's powers under the BF Act so as to clear under the powerlines. I am surprised that Mr Lovegrove and Mr Brown, both of whom purport to be experienced with bushfire, seem to have simply glossed over that requirement set out in the Firebreak Notice.
In any event, to the extent that Mr Brown may consider that the Clearing was nevertheless consistent with SPP 3.7, that does not mean that approval was not needed on the basis that such works were somehow exempt under LPS 7.
As was discussed in oral argument, the arrangements to clear further land beyond that required by the Firebreak Notice are put in place by the Special Works Order regime so as to ensure that one seeks 'approval rather than forgiveness'.[21]
The curious case of Mr Brown
[21] ts 18, 24 August 2023.
It is necessary to say a little more about Mr Brown.
No party sought to examine any deponent in this proceeding. Therefore, Mr Brown was not made available to the Tribunal at the hearing of the application to extend time. No criticism is made of the Applicant in this regard.
During oral submissions, I queried with Mr Zusman, counsel for the Applicant, on what basis Mr Brown labelled himself a 'fire engineer'. I explained to Ms Zusman that ordinarily an expert would attach a curriculum vitae (CV) to their affidavit. Consequently, I asked for a copy of Mr Brown's CV to be provided.
It is at this point where this matter became rather odd.
After requesting Mr Brown's CV be provided, on 29 August 2023, the Tribunal did not receive a copy of the CV but was advised as follows by Mr Brown:
I have completed a masters and doctorate degree, and hold in excess of 600 qualifications in fire and emergency management[.]
The Tribunal then requested further details on Mr Brown's qualifications and, on 30 August 2023, received the following:
I obtained a doctorate degree in the study of technologies from an overseas university. Some of these technologies related to fire detection. By reason of my consulting arrangements with Government, I cannot provide further details about this degree[.]
The matter was then listed for further directions on 1 September 2023 to discuss why Mr Brown was not being forthcoming as to his qualifications. Following that directions hearing, I made the following order:
By 8 September 2023, the applicant is to provide details of Mr Brown's professional qualifications, specifically, his doctorate, including details of what he is a doctor of (i.e. PhD, LLD, DLitt, DSc), where his doctorate was obtained (which institution); the year obtained and the basis on which it was awarded (thesis/coursework). For verification, the award number for Mr Brown's doctorate should also be provided.
On 8 September 2023, Mr Zusman filed an affidavit where he outlined his firm's efforts to obtain a copy of Mr Brown's CV. That affidavit did provide copies of some of his qualifications, which I accept include a relevant Master's degree.
However, to the extent that Mr Brown asserts he has obtained a doctoral degree in 'technologies relevant to fire management', he declines to provide any details, including in the face of an order made by the Tribunal requiring him to do so. Mr Zusman deposes that Mr Brown considers himself bound by a confidentiality regime imposed by some (unnamed) foreign government that prohibits him from providing any details about his doctoral qualification.
It is to be remembered here that it is the Applicant that has called Mr Brown and put him forward as a leading and well-qualified expert for, apparently, the benefit of the Tribunal. Mr Lovegrove, for one, is convinced that Mr Brown is a leading fire expert that would be able to persuade the Shire it was wrong to issue the Direction.
In contested legal proceedings, the Tribunal and the Respondent are entitled to know the basis on which Mr Brown purports to be a fire expert. An expert that is put forward by any party is expected to be completely candid. For Mr Brown to repeatedly assert that he possesses doctoral qualifications, but then decline to provide any details as to when, where and on what basis that post-graduate qualification was obtained, is most unsatisfactory.
Furthermore, the Applicant could have requested a non-publication order in relation to Mr Brown's qualifications pursuant to s 62 of the SAT Act, if indeed there was a legitimate purpose to be served by supressing such details. Instead, the Applicant adopted a position that I should be comforted by the fact that he has provided some evidence of his qualifications.
While I did suggest in oral argument that, at some level at least, the Applicant was entitled to rely on its bushfire consultant's advice, subsequent events have shifted my opinion of Mr Brown.[22]
[22] ts 23, 24 August 2023.
I have given Mr Brown ample opportunity to respond to the Tribunal's queries in relation to his professional qualifications. However, because I am far from satisfied that Mr Brown has been candid with the Tribunal, I refuse to take his opinions at face value.
In any event, as I have explained, Mr Brown's opinion is, I find, rather beside the point. The fact that the Clearing may have been consistent with the principles of SPP 3.7, as Mr Brown opines, is not the issue before me. To that I would add that it is hardly a surprising opinion that a bushfire expert suggests that the removal of native vegetation will reduce the fire risk at the Subject Land.
Contrary to Mr Brown's opinion, the question for me is not whether the Clearing reduced the fire risk at the Subject Land. Rather, it is whether the Applicant was authorised to undertake the Clearing for the purposes of LPS 7. For that reason, I do not find the question of safety to be a primary consideration in this proceeding.
On the evidence that I have, based particularly on the uncontroversial contents of the Firebreak Notice, and the fact that the clearing of native vegetation is often regarded as development that requires planning approval,[23] I am not satisfied that the Applicant has an arguable case that it was entitled to undertake the Clearing absent any approval under LPS 7.
[23] See for example: Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) 243 LGERA 89 (Buss P, Mazza JA, Beech JA); Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223; 72 LGRA 414 [241] (Malcolm CJ); Carbone Bros Pty Ltd and Shire of Harvey [2021] WASAT 150; Hutchings and Shire of Augusta Margaret River [2023] WASAT 96.
I so find because the clearing of 1 hectare of native vegetation cannot be regarded, in this context, as being de minimis and does not, prima facie, appear to be authorised by the Firebreak Notice, nor does the Applicant point to any other exemptions to the clearing of native vegetation in Sch 6 to the Environmental Protection Act 1986 (WA) that would otherwise serve to have authorised the clearing.
Having said that, I would also observe that if the Clearing was ultimately found to be consistent with the principles of SPP 3.7, that may inform the discretion as to whether it is the correct and preferable decision to affirm the Direction (assuming I did in fact that the Clearing was 'development' that required approval under LPS 7) having regard to the principles set out in decisions such as IpilatesPerth Pty Ltd and City of Joondalup.[24] It is not necessary to repeat those principles here.
[24] IpilatesPerth Pty Ltd and City of Joondalup [2020] WASAT 52; (2020) 100 SR (WA) 72 [101].
However, as I have said, that is a different question than the case that is put forward by the Applicant which is that the Clearing was, in effect, a firebreak authorised by the Firebreak Notice. On that question, for the reasons set out above, I am not satisfied that the Applicant has an arguable case.
The question of prejudice
The Applicant submits there is no prejudice to the Respondent if time is extended. I agree.
In this regard, I do not accept the Respondent's submissions that it would be significantly prejudiced if time were extended. The basis for that prejudice is that it would result in the Respondent being required to utilise more resources and would further delay the revegetation and rehabilitation of the Subject Land.
Criminal consequences for the Applicant
The range of considerations that inform the discretion as to whether to extend time are not closed.
In this regard, and for completeness, I have also given some consideration to the fact that the failure to comply with a s 214 written direction issued under the PD Act is an offence, and may have criminal consequences for the Applicant, as a factor which may inform the discretion as to whether to extend time.
However, the fact of potential criminal consequence for non-compliance was squarely drawn to the Applicant's attention in the Direction. Nevertheless, the Applicant adopted a strategy (for almost 9.5 months) to attempt to apply pressure or to otherwise persuade the Shire to withdraw the Direction rather than exercise its right of review under s 255 of the PD Act.
Disposition: why I refuse to extend time
As stated, in Gallo v Dawson,[25] McHugh J emphasised that the discretion to extend time is to ensure that those rules which fix times for doing acts do not become instruments of injustice. Consequently, in considering an application to extend time under the SAT Rules, my overarching lodestar is whether it is in the interests of justice to extend time in all of the circumstances. In the language of the SAT Act, the question is whether it is the correct and preferable decision to extend time.[26]
[25] Gallo v Dawson, 459.
[26] SAT Act, s 27(2).
By way of general comment, I find the Shire has been very fair with the Applicant. It cautioned the Applicant it needed development approval to clear vegetation on the Subject Land which, I find, the Applicant simply ignored. Once the Clearing had occurred, the Shire was steadfast in its position that the cleared Land needed to be revegetated. The Shire was also prepared to deal with the matter via the more minor Infringement Notice process, an offer which was not taken up by the Applicant. Having not succeeded in persuading the Shire to withdraw the Direction, after a delay of 9.5 months, the Applicant sought to review the Direction.
In this instance, in the exercise of discretion, I refuse to extend time.
I am reluctantly forced to re-enter the arena of Tribunal decisions where an adjective needs to be applied to characterise the length of delay in seeking review of an administrative decision. In this instance, I find that a delay of approximately 9.5 months is, of itself, extensive.
The reason for the delay was not due to inadvertence or a lack of diligence. It was simply the Applicant's belief that its professional consultants could instead employ a strategy, including a political strategy, to persuade the Shire to withdraw the Direction.
While it cannot be said that Mr Lovegrove sat on his hands, he did not act very promptly either. If it was truly his belief that the Shire had mistakenly issued the Direction, it soon became very apparent through his communications with the Shire that it did not at all agree that it was mistaken. Mr Lovegrove should have acted far more quickly than he did in seeking professional assistance. It was not really until November that Mr Lovegrove engaged Mr Brown to offer an opinion on the Clearing and also to seek legal advice.
Mr Lovegrove's prolonged strategy to have the Direction withdrawn ultimately failed and all the while the 28-day review period slowly disappeared further back into the distance, even after legal advice was sought.
The extensive length of the delay and, in particular, the reason for the delay militates, heavily in my view, against extending time. Having regard to these two reasons alone, in my view the interests of justice are served by refusing to extend time. That is so even though I find no question of prejudice to the Respondent arises. In the result, I find that Mr Lovegrove should have taken the Direction much more seriously, and acted more promptly, than he did.
For completeness, as I have set out, I am not satisfied that the Applicant has an arguable case that the Clearing was authorised by the Firebreak Notice. A plain reading of the Firebreak Notice suggests otherwise.
The better view is, I find, that the Applicant should have applied for a Special Works Order to clear under the powerline. The Firebreak Notice makes that tolerably clear.
Contrary to the Applicant's case, the principles which informed the decision in City of Kalamunda v ACN does not arise because, I find, the Clearing was not, on the evidence before me, consistent with the Firebreak Notice.
The fact that I find the Applicant's case is not, on the evidence before me, arguable, is a further reason to refuse to extend time.
Conclusion
For these reasons, the correct and preferable decision is to refuse to extend time pursuant to r 10 of the SAT Rules.
Before I conclude, I wish to make it clear I do not hold Mr Zusman, counsel for the Applicant, nor Hotchkin Hanly, responsible for Mr Brown's conduct. It was more than apparent in Mr Zusman's interactions with the Tribunal on the question of Mr Brown's qualifications, that he was as frustrated with Mr Brown's refusal to engage with the question of his apparent doctoral qualification, as the Tribunal was.
Orders
The Tribunal orders:
1.Leave to extend time pursuant to s 10 of the State Administrative Tribunal Rules 2004 (WA) is refused.
2.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
24 OCTOBER 2023
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