Lovegrove Investments Pty Ltd v Shire of Waroona - [2024] WASC 321

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   LOVEGROVE INVESTMENTS PTY LTD -v- SHIRE OF WAROONA [2024] WASC 321
CORAM:   GLANCY J
HEARD:   7 MAY 2024
DELIVERED          :   5 SEPTEMBER 2024
FILE NO/S:   GDA 10 of 2023
BETWEEN:   LOVEGROVE INVESTMENTS PTY LTD
Appellant
AND
SHIRE OF WAROONA
Respondent

ON APPEAL FROM:
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   DR S WILLEY, SENIOR MEMBER
Citation: LOVEGROVE INVESTMENTS PTY LTD and SHIRE OF WAROONA [2023] WASAT 99
File Number            :   DR 58 of 2023

Catchwords:

General Division Appeal - Town planning and development - Whether the Tribunal failed to properly construe section 33 of the Bush Fires Act 1954 (WA) - Whether Tribunal failed to take account a mandatory relevant consideration - Whether the Tribunal failed to afford the Appellant procedural fairness - Review proceedings commenced out of time - Delay in commencing the review proceedings - Very significant delay - Whether Appellant has an arguable case - Leave to appeal refused - Appeal dismissed

Legislation:

Bush Fires Act 1954 (WA)
Bush Fires Regulation 1954 (WA)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA)
State Administrative Tribunal Rules 2004 (WA)

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr M Hotchkin
Respondent	:	Mr T Beckett & Mr A Mell

Solicitors:

Appellant	:	Michael Hotchkin Consulting
Respondent	:	McLeods

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

Bajaj v Pekin [2024] WASCA 55
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Kioa v West (1985) 159 CLR 550
Lovegrove Investments Pty Ltd and Shire of Waroona [2023] WASAT 99
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Russell v Duke of Norfolk [1949] 1 All ER 109
Wood and Law Complaints Officer as Delegate of the Legal Profession Complaints Committee [2024] WASAT 35

GLANCY J:

Introduction and outcome

Lovegrove Investments Pty Ltd (Appellant) seeks to appeal from a decision of the learned Senior Member of the State Administrative Tribunal (Tribunal) made in the matter of Lovegrove Investments Pty Ltd and Shire of Waroona on 24 August 2023.[1] In that decision the Tribunal determined:
1.to refuse the Appellant's application for leave to extend time to commence a review of the decision of the Shire of Waroona to issue a written direction to the Appellant on 23 May 2022 pursuant to s 214 of the Planning and Development Act 2005 (WA) (PD Act); and
2.that the application for review was dismissed.
[1] Lovegrove Investments Pty Ltd and Shire of Waroona [2023] WASAT 99 (Decision).
Leave to appeal is required.
For reasons set out below, I will refuse to grant leave to appeal and dismiss the appeal.

Background

The Appellant is the owner of property within the boundary of the Shire of Waroona (Shire). The Shire is the Respondent to the Appeal.
The Respondent issued a Firebreak Notice for the 2021/2022 period to owners and occupiers of land within the Shire pursuant to s 33 of the Bush Fires Act 1954 (WA) (BF Act). The Appellant undertook clearing which was outside of the scope of works specifically required by the Firebreak Notice (Clearing). The Respondent considered the Clearing to be development within the meaning of the PD Act, for which the Appellant did not have development approval. Accordingly, on 23 May 2022, the Respondent issued the Appellant with a direction pursuant to s 214 of the PD Act requiring in summary, that it cease the development, and restore the land, including by planting of endemic flora and by the relocation of cleared trunks, branches and other vegetation cleared to within the area (Direction).[2]
[2] Appeal Papers, pages 394 - 395.
The Appellant was entitled to have the Respondent's decision to issue the Direction reviewed by the Tribunal.[3] The review was required to be commenced within 28 days of the date on which the Direction was given to the Appellant.[4] The Appellant commenced the review application well outside of that time. As a result, the Appellant required the Tribunal's leave to have the Direction reviewed.
[3] PD Act, s 255(1).
[4] Rule 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules).
The Tribunal refused to grant leave and consequently dismissed the review application. In doing so, the Tribunal determined that the Appellant had no prospect of succeeding on the review and that, in any event, the delay in bringing the review application did not justify the grant of leave.

Appeals from Tribunal decisions to the Supreme Court

Section 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) confers jurisdiction upon the Supreme Court to hear an appeal from a decision of the Tribunal on a question of law, but only if the court grants leave to appeal.
Generally, leave will be granted if, in all the circumstances, it is in the interests of justice to grant leave. That is, leave will only be granted where there is a 'real or significant argument which raises sufficient doubt to justify the grant of leave, and uncorrected would impose substantial injustice'.[5]
[5] Giudice v Legal Profession Complaints Committee [2014] WASCA 115 (Giudice) [27] (Martin CJ); and see also [76] (Buss JA).
Other than to note at this stage that the application for leave to appeal was filed by the Appellant within the 28 days required by s 105(5) of the SAT Act, I will deal with the question of whether to grant leave to appeal after I have dealt with the merits of the appeal. I will adopt that approach because the issue of whether to grant leave is bound up in the question of whether the Appellant had an arguable case on the appeal.
The task of the Supreme Court in dealing with appeals of this kind have been found to be in the nature of judicial review.[6]
[6] Giudice [71] (Buss JA).

Issues

The Appellant submits that the appeal raises four discrete questions of law and identifies the purported errors of law which were made by the Tribunal in respect of each question. They are said to be:
1.What is the proper construction of s 33 of the BF Act and the Firebreak Notice issued under it?
2.In purporting to exercise its discretion, did the Tribunal fail to properly exercise its jurisdiction by failing to ask the correct question which it was required to answer in the proper evaluation of the question to be determined in the application before it?
3.Did the Tribunal fail to take into account a mandatory relevant consideration in the purported exercise of its discretion?
4.Did the Tribunal, in making certain findings of material fact adverse to the Appellant, fail to afford the Appellant procedural fairness as required by s 32(1) of the SAT Act?
I will deal with the way in which the Appellant particularised each ground of appeal as I deal with the grounds below.
It is accepted by the Respondent that if any ground is made out, the Tribunal will have made an error of law.

Possible orders to be made if the Appellant is successful on appeal

The Appellant submits that there are two alternative courses which I can take if it is successful in the appeal. They are:
1.to grant leave to appeal and uphold the appeal and to remit the matter to the Tribunal for reconsideration of the application for an extension of time either by the same Senior Member or by the Tribunal differently constituted;[7] or
2.to grant leave to appeal, uphold the appeal and make appropriate orders myself. Such a course is only open where there is only one conclusion open on the correct application of the law to the facts as found.[8]
[7] ts 105, 7 May 2024.
[8] Giudice [74] (Buss JA) referring to Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [20] (French CJ, Gummow & Bell JJ).
The Appellant submits that if the matter is remitted to the Tribunal, it should be remitted for hearing by the Tribunal differently constituted because the learned Senior Member's views about the conduct of Mr Lovegrove (a director of the Appellant) shows that he would be unable to decide the matter without bias.[9]
[9] ts 94 - 97, 7 May 2024.

Consideration of grounds of appeal

I now turn to consider the merits of each of the grounds of appeal.

Ground 1: Failure to properly construe s 33 of the BF Act and the Firebreak Notice

The first ground of appeal advanced by the Appellant is that the Tribunal erred in law in construing the BF Act and the Firebreak Notice. The ground was expressed as follows:[10]
[10] Minute of Proposed Amended Grounds for Appeal dated 23 April 2024 (Amended Grounds).
In finding:
(i)at [30] that a Special Works Order can be issued for 'further hazard removal and/reduction work under section 33 of the [Act]';
(ii)at [36] that it was 'self-evident by reason of the process for obtaining a Special Works Order for further clearing which was explained in the Firebreak Notice'; and
(iii)at [36] that 'the [Appellant] could have applied for a Special Works Order via the Shire's Powers under the BF Act' at [37];
The Tribunal misconstrued the Firebreak Notice and s 33 of the BF Act in that:
(A)rather than Section 33 of the Act providing for a 'process' by which a person could apply for a Special Works Order and thereby 'obtain' it for the purpose of 'further clearing', section 33 of the Act conferred a power on a local authority to issue a coercive notice in addition to, or instead of, a Firebreak Notice upon any such person;
(B)section 33 did not provide for any 'process' by which anyone could apply for the issue of a Special Works Order; and
(C)the Firebreak Notice was neither 'self-evident' nor explanatory in respect of any such 'process' was found by the Tribunal.
Because, by Ground 1, the Appellant contends that the Tribunal misconstrued the BF Act and the Firebreak Notice made under s 33, it is necessary to consider the BF Act in some detail in order to give s 33 its proper construction. However, before doing so, it is necessary to say something about the principles of statutory construction.
The principles of statutory construction are well understood. They were recently restated by the Court of Appeal in Prichard v M 6:8 Legal Pty Ltd in the following passages:[11]
[11] Prichard v M 6:8 Legal Pty Ltd [2024] WASCA 4 [41] - [44].
This court recently reiterated the importance of statutory text to the exercise of statutory construction in Chief Executive Officer, Department of Water and Environmental Regulation v Waroona Resources Pty Ltd ([2023] WASCA 73 [28] ‑ [31]). Consistently with that discussion, statutory construction is a process of determining the objective meaning of the legislation by the application of recognised rules of interpretation to the legislative text, understood as a whole and in its context. As the High Court observed in Zheng v Cai ([2009] HCA 52; (2009) 239 CLR 446 [28]):
It has been said that to attribute an intention to the legislature is to apply something of a fiction. However, what is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor. Rather, judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws … the preferred construction by the court of the statute in question is reached by the application of rules of interpretation accepted by all arms of government in the system of representative democracy. (citations omitted)
The primacy of the language which Parliament has chosen to use was emphasised by French CJ, Hayne, Crennan, Bell and Gageler JJ in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd ([2012] HCA 55; (2012) 250 CLR 503 [39]):
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. (citation omitted)
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.
Legislative purpose is to be ascertained from what the legislation says, rather than any assumption about the desired or desirable reach or operation of the relevant provisions. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted. (This is why the appellant's attempt to rely on a statutory declaration by a member of Parliament at the time of enactment of the Amendment Act was properly rejected by the primary judge). Nor is it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.
The long title to the BF Act is:
An Act to make better provision for diminishing the dangers resulting from bush fires, for the prevention, control and extinguishment of bush fires, for the repeal of the Bush Fires Act 1937 and for other purposes.
The BF Act does not impose any general obligation on an owner or occupier of land to take steps to mitigate bush fire hazards. The BF Act, like most Acts, is divided into parts. Part I is concerned with preliminary matters. Part II deals with administration. Among other things, it contains the meaning of defined terms and sets out the power of the Fires and Emergency Services Commissioner, bush fire liaison officers and others. It permits the making of certain directions and provides the consequences for failing to comply with such directions.
Part III of the BF Act is headed 'Prevention of bush fires' and deals with matters that might be regarded as actions which assist in achieving that aim. For the most part, it prohibits the carrying out of specified activities at specified times, which are identified in declarations made by specific officers or authorities. Part III then permits the carrying out of the prohibited activities in particular circumstances. For example, s 22B prohibits the lighting of fires during a total fire ban declared by the Minister under s 22A unless the Minister has granted an exemption under s 22C.
It is also recognised in Part III that for the purposes of protecting property and crops from damage by fire, it may be necessary to undertake activities which are otherwise prohibited. For example, s 23 permits the burning of land during prohibited burning times when the purpose of the burning is the protection from damage by fire of a dwelling house or other building, or a stack of hay, wheat or other produce.
Section 33, which is within Part III, however, is of a different character to the provisions of that Part which prohibit certain activities subject to exception.
Section 33 of the BF Act provides as follows:
33.Local government may require occupier of land to plough or clear fire-break
(1)Subject to subsection (2) a local government at any time, and from time to time, may, and if so required by the Minister shall, as a measure for preventing the outbreak of a bush fire, or for preventing the spread or extension of a bush fire which may occur, give notice in writing to an owner or occupier of land situate within the district of the local government or shall give notice to all owners or occupiers of land in its district by publishing a notice in the Government Gazette and in a newspaper circulating in the area requiring him or them as the case may be within a time specified in the notice to do or to commence to do at a time so specified all or any of the following things —
(a)to plough, cultivate, scarify, burn or otherwise clear upon the land fire-breaks in such manner, at such places, of such dimensions, and to such number, and whether in parallel or otherwise, as the local government may and is hereby empowered to determine and as are specified in the notice, and thereafter to maintain the fire-breaks clear of inflammable matter;
(b)to act as and when specified in the notice with respect to anything which is upon the land, and which in the opinion of the local government or its duly authorised officer, is or is likely to be conducive to the outbreak of a bush fire or the spread or extension of a bush fire,
and the notice may require the owner or occupier to do so —
(c)as a separate operation, or in co-ordination with any other person, carrying out a similar operation on adjoining or neighbouring land; and
(d)in any event, to the satisfaction of either the local government or its duly authorised officer, according to which of them is specified in the notice.
(2)A notice in writing under subsection (1) may be given to an owner or occupier of land by posting it to him at his last postal address known to the local government and may be given to an owner of land by posting it to him at the address shown in the rate record kept by the local government pursuant to the Local Government Act 1995, as his address for the service of rate notices.
(2a)The provisions of subsection (2) are in addition to and not in derogation of those of sections 75 and 76 of the Interpretation Act 1984.
(3)The owner or occupier of land to whom a notice has been given under subsection (1) and who fails or neglects in any respect duly to comply with the requisitions of the notice is guilty of an offence.
Penalty: $5 000.
(4)Where an owner or occupier of land who has received notice under subsection (1) fails or neglects to comply with the requisitions of the notice within the time specified in the notice —
(a)the local government may direct its bush fire control officer, or any other officer of the local government, to enter upon the land of the owner or occupier and to carry out the requisitions of the notice which have not been complied with; and
(b)the bush fire control officer or other officer may, in pursuance of the direction, enter upon the land of the owner or occupier with such servants, workmen, or contractors, and with such vehicles, machinery, and appliances as he deems fit, and may do such acts, matters and things as may be necessary to carry out the requisitions of the notice.
(5)The amount of any costs and expenses incurred by the bush fire control officer or other officer in doing the acts, matters, or things provided for in subsection (4) —
(a)shall be ascertained and fixed by the local government and a certificate signed by the mayor or president of the local government shall be prima facie evidence of the amount; and
(b)may be recovered by the local government in any court of competent jurisdiction as a debt due from the owner or occupier of land to the local government.
(5a)A local government may make local laws in accordance with subdivision 2 of Division 2 of Part 3 of the Local Government Act 1995 —
(a)requiring owners and occupiers of land in its district to clear fire-breaks in such manner, at such places, at such times, of such dimensions and to such number, and whether in parallel or otherwise, as are specified in the local laws and to maintain the fire-breaks clear of inflammable matter;
(b)providing that things required by the local laws to be done shall be done to the satisfaction of the local government or its duly authorised officer.
(5b)Where an owner or occupier of land fails or neglects in any respect to comply with the requirements of local laws made under subsection (5a) the provisions of subsections (3), (4) and (5) apply mutatis mutandis as if those requirements were the requisitions of a notice given under subsection (1).
(5c)Nothing in subsection (5a) affects the power of a local government to give notice under subsection (1) nor its duty to do so if so required by the Minister.
(5d)Where the provisions of local laws made under subsection (5a) are inconsistent with those of a notice given under subsection (1) or under section 34 or 35, the provisions of that notice shall, to the extent of the inconsistency, prevail.
(6)A local government may, at the request of the owner or occupier of land within its district, carry out on the land, at the expense of the owner or occupier, any works for the removal or abatement of a fire danger, and the amount of the expense, if not paid on demand, may be recovered from the owner or occupier by the local government in a court of competent jurisdiction as a debt due from the owner or occupier to the local government.
(7)Nothing in this section authorises a local government —
(a)to set fire to the bush, or to require an owner or occupier of land to set fire to the bush, contrary to the provisions of section 17; or
(b)to make local laws authorising or requiring bush to be set on fire contrary to the provisions of section 17.
(8)Any amount recoverable by a local government under this section as a debt due from the owner or occupier of land is, until paid in full —
(a)a debt due from each subsequent owner in succession; and
(b)a charge against the land with the same consequences as if it were a charge under the Local Government Act 1995 for unpaid rates; and
(c)recoverable by the local government in the same manner as rates imposed in respect of the land are recoverable under that Act.
(9)In this section — owner or occupier of land includes a prescribed department of the Public Service that occupies land or a prescribed State agency or instrumentality that owns or occupies land.

The Appellant submits that, on its proper construction, the Firebreak Notice was not limited to authorising the carrying out of only the specified measures identified in that Firebreak Notice, but that it also authorised the owner or occupier to implement such measures as they reasonably thought fit provided that they met the minimum measure required by the Firebreak Notice. I do not accept that submission. A notice of the kind advanced by the Appellant would not be valid under s 33 of the BF Act. There are several reasons for coming to that conclusion.
First, by its terms, s 33 of the BF Act only allows for a local authority to issue a notice which requires its recipient to carry out the works identified in the notice.
Secondly, the section is compulsive in nature. Section 33(3) of the BF Act makes the failure to carry out the specified works an offence. It would be impossible for the local authority to prosecute the offence unless the activities which are required to be undertaken are identified with sufficient specificity. Allowing a landowner or occupier to determine what they regard as necessary works would not provide the necessary specificity.
Thirdly, s 33(4) and s 33(5) of the BF Act provide that where the relevant owner or occupier, having received a notice issued under s 33(1), fails or neglects to comply with the notice, the local authority is permitted to carry out the works and to recover the cost of doing so from the relevant owner or occupier. Again, that would not be possible if the section were said to authorise an owner or occupier to undertake whatever works they reasonably thought were necessary. For s 33(4) and s 33(5) to operate, the works which are to be undertaken as a result of the issuing of a notice under s 33 need to be sufficiently certain.
Fourthly, the construction advanced by the Appellant does not bear scrutiny when regard is had to other provisions of the Act. For example, s 35AB of the BF Act provides that a person may comply with bush fire risk treatment standards made by the Fire and Emergency Services Commissioner under s 35AA. Doing so is optional. Section 35AB(3) provides that an owner or occupier of land may comply with the bush fire risk treatment standards despite any other written law, except if compliance would result in the owner or occupier failing to comply with:
(a)another provision of the BF Act that has effect in relation to the land; or
(b)a provision of another written law that has effect in relation to the land and that is prescribed by the regulations for the purposes of s 35(3); or
(c)local laws referred to in s 33(5a) that apply to the land.
Had s 33 of the BF Act authorised an owner or occupier in receipt of a notice to do whatever fire hazard prevention work they thought to be necessary, one would have expected the section to be drafted in terms more akin to s 35AA and s 35AB of the said Act.
Finally, a notice authorising its recipient to do whatever works the recipient think necessary for fire hazard reduction would, in my view, be virtually meaningless.
The Appellant submits that the reasonable belief that an owner or occupier should take personal responsibility for deciding the extent of mitigating against bush fires must be an ancillary part of farming in a 'general farming' zone. It submits that an owner 'should not have to seek planning approval to remove vegetation under a power‑line if they think it is a safety hazard, or to clear trees on sandy soil to make space for vehicles which may need to move urgently on hard ground, whether arriving to put out a bush‑fire or vacating premises with whatever possessions one has'.[12] In my view, that submission does not assist in the construction of the BF Act and the scope of the Firebreak Notice nowhere.
[12] Appellant's Written Submissions dated 15 March 2024 at [58].
The Firebreak Notice included cl 7, which referred to the entitlement of the Respondent to issue what was described as a 'Special Works Order'. That clause was expressed as follows:
7.Special Works Order
The requirements of this Notice are considered to be the minimum requirement for fire prevention work not only to protect individual properties but the district generally. A separate Special Works Order may be issued to individual landowners pursuant to Section 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.
The Appellant submits that the specific reference in the Firebreak Notice to the specified works being the 'minimum requirements for fire prevention works' is an express acknowledgement that the measures stipulated were not to constrain the taking of further measures.
In my view, the Firebreak Notice is not reasonably capable of being understood in the way contended for by the Appellant. By its terms, the Firebreak Notice does not inform its recipient that they are authorised to undertake whatever bush fire mitigation works they regard to be necessary to reduce the risk of damage by bush fire. Rather, it expressly identified particular works which an owner or occupier was required to carry out, and also identified that the Shire might consider that there were additional works that would be required which would subsequently be identified in what was termed a 'Special Works Order'. Reference to the works identified in the Firebreak Notice being the 'minimum requirement for fire prevention work to protect not only individual properties but the district generally' cannot be understood to be 'authorising' or compelling the carrying out of additional unspecified works.
I accept the Appellant's submission that the advice that the works required to be carried out in compliance with a notice issued under s 33 of the BF Act are the minimum works that may be required might encourage landowners to consider what additional works they may regard as necessary to protect their property and the district more generally. But that is not at all the same thing as authorising, permitting or compelling an owner or occupier to carry out such additional works. Nor is it, as the Appellant submits, a notification to owners and occupiers that they should accept personal responsibility for identifying the measures they genuinely think should be taken to reduce bush fire hazards.
The Appellant submits that the Tribunal erred in law in finding that a 'Special Works Order' could have been issued under s 33 of the BF Act for further hazard removal and reduction works and in finding that the Appellant could have applied for such an order, because s 33 did not provide for the making of a 'Special Works Order' and did not provide for the process by which an owner or occupier could apply for such an order.
While s 33 of the BF Act makes no reference to 'Special Works Orders', in my view, the use of that term must be understood to have been a short‑hand reference to a more specific notice to an individual owner or occupier which a local government may give under s 33(1) of the BF Act. Such notices can be said to require the individual owner or occupier to whom it is directed to undertake 'special works' directed at the particular circumstances existing in respect of that person's property, in contrast with the generally applicable notice which can be issued to all owners and occupiers of land within the relevant district. The term 'special works' being used in contrast with the works which are required of all owners and occupiers in the relevant district.
In my view, when properly understood, cl 7 of the Firebreak Notice merely refers to the possibility that, because the Firebreak Notice was of general application, the Respondent might issue additional notices to individual landowners requiring them to do works additional to those required by the Firebreak Notice.
While I would not use the language used by the Tribunal in [29] of the Decision that the Firebreak Notice 'provides' for a Special Works Order, it is, in my view, tolerably clear that the Tribunal was, in that paragraph, identifying that by cl 7, the owners and occupiers of land to whom the Firebreak Notice was directed were being put on notice that actions beyond those required by the Firebreak Notice might be required of them by a separate notice referred to in cl 7 as a 'Special Works Order'.
At [36] of the Decision, the Tribunal referred to the 'process' for obtaining a 'Special Works Order' for further clearing having been explained in the Firebreak Notice. In one sense, the process was set out in cl 7. That process simply being that the Respondent could issue a separate notice under s 33(1) for other, additional works. But the Tribunal's reasons, when read in context, are directed at saying that should the Appellant have wished to undertake additional works which it considered necessary for fire prevention, there was a process by which it could obtain approval to do so from the Respondent under the BF Act.
The Appellant submits that the use of the word 'obtain' by the Tribunal at [36] suggests that the owner or occupier might apply for and obtain a 'Special Works Order'. It submits that this was an error because no such process is provided for in the BF Act.
A reading of the Firebreak Notice reveals that no process for the obtaining of a 'Special Works Order' was explained in it. There is also no process by which a landowner could apply for and obtain any such order provided for in either the BF Act or the Bush Fire Regulations 1954 (WA).
The Appellant submits that even if it were a matter of simply being in contact with the relevant local authority to request the issuing of a 'Special Works Order', it would be nonsensical to do so because no owner or occupier would want to put themselves in the position where they were then compelled to carry out the works identified in that notice and be at risk of committing an offence if they failed to do so, or at risk of having the local authority undertake the work at the owner or occupier's expense. The Appellant submits that this means the BF Act does not provide for notices of this kind.
While s 33 of the BF Act does not provide a process by which an owner or occupier may seek approval from the local authority to carry out fire mitigation works additional to those provided for in a firebreak notice issued under s 33(1), an owner or occupier who was committed to undertaking additional works and keen to ensure the works were authorised, would not be precluded from asking a local authority to issue a notice under s 33 of the BF Act identifying the works. The result would be that, upon issue of the notice, the recipient would then be compelled to carry out the specified works.
The Appellant also submits that the subject matter of the BF Act, preventing the hazards of bush fires, is inimical to the idea that permission needs to be sought for hazard reduction works. The Appellant submits that bush fires cross boundaries of municipalities and the hazards are, therefore, not susceptible to any particular local authority's view about the adequacy of safety measures. It also submits that a local authority may not have the necessary resources to process what could be numerous applications for approval to undertake works for specific properties in a short time, perhaps in an emergency. It submits that these considerations compel the conclusion that the Firebreak Notice authorised the Appellant to carry out whatever works it thought were required to reduce the risk of bush fire.
Whether or not a local authority is adequately resourced to undertake a particular task is not a factor to which the court has regard when undertaking the task of statutory construction. Nor do the other matters that were raised dictate the meaning of s 33 of the BF Act or the Firebreak Notice.
While, in my view, the Tribunal erred in saying that s 33 of the BF Act provided a process by which the Appellant could have obtained authorisation to carry out works additional to those specified in the Firebreak Notice, I do not find that the Tribunal erred in any other respect in interpreting s 33 of the BF Act or the Firebreak Notice. In my view, the error that the Tribunal made had no bearing on the outcome of the review application because, irrespective of that finding, the Tribunal was correct in finding that the Clearing was not authorised either by s 33 of the BF Act or the Firebreak Notice.
The Appellant's submission to the Tribunal was that the Clearing was not 'development' under the PD Act because it was a legitimate fire hazard reduction measure which was authorised by the Firebreak Notice and s 33 of the BF Act. The Appellant submits that the Tribunal, therefore, should have allowed the Appellant the opportunity to lead evidence of both its fire expert and Mr Lovegrove in order to establish that the works were genuine fire hazard reduction works. The Appellant submits that the Tribunal failed to allow it to lead evidence from those witnesses about that issue because it failed to properly construe s 33 of the BF Act.
Neither proposed witnesses' evidence was relevant.[13] It would only have been relevant if the Appellant's construction of the BF Act and the Firebreak Notice was correct. I have found that it was not.
[13] The Senior Member found that the fire expert's qualifications were not identified in his report or in the Appellant's oral submissions at [42] and [53] of the Decision and hence he refused to allow him to give expert evidence.
For the reasons above, Ground 1 will be dismissed.

Ground 2: Failure to take into account relevant considerations in the proper exercise of its discretion

The Appellant's Ground 2 was expressed as follows:[14]
In finding at [34] and [59] that the question before the Tribunal was whether the Appellant was authorised by the Firebreak Notice to undertake such works, the Tribunal erred in law by misconceiving the question it was required to determine, which was not whether such works were 'authorised' by the Firebreak Notice, but whether it was arguable on the evidence before the Tribunal that the works undertaken by the Appellant were made in good faith and for the proper purpose of protecting the safety of individuals in the event of a bush fire on and around the Appellant's property, having regard to the terms of the Firebreak Notice.
[14] Amended Grounds at [2].
I have already dealt with the proper construction of the Firebreak Notice in Ground 1 and why any evidence that the Clearing was carried out for the purposes of fire hazard reduction were not relevant. I have found that the Firebreak Notice is not to be interpreted in the way advanced by the Appellant.
I will dismiss Ground 2.

Ground 3: Failure to take into account mandatory relevant consideration

The Appellant alleges by Ground 3 that the Tribunal erred in failing to take into account a mandatory relevant consideration in the proper exercise of its discretion. Ground 3 was expressed as follows:
In finding:
(a)at [26] and [34] that principles of bush fire control management were irrelevant considerations, the Tribunal erred because those principles were relevant to whether the works the subject of the Direction were undertaken for the proper purpose of bush fire control management, in respect of which the Appellant's case was and is, that they did not constitute a 'development' under the Planning and Development Act 2005 (WA), such that the Direction was invalid;
(b)at [55] that the question of safety in the event of a bush fire was not a 'primary consideration' when the works the subject of the Direction were undertaken for the proper purpose of bush fire control management, and in substance ignoring its relevance, the Tribunal erred in failing to take into account a relevant consideration because it was at least arguable that any restoration of such vegetation as required by the Direction might lead to the very hazard the works were undertaken to remove, thereby (at least arguably) requiring the re-instalment of a bush fire hazard.
(c)The error was material because the Tribunal found at [35] that if the issue of fire safety was relevant, then the works should not be regarded as 'development', and at [73] that the Appellant did not have an arguable case because the clearing was not 'authorised by the Firebreak Notice'.
The Appellant submits that in order for this ground to be upheld, it must be established that 'bush fire control management' and 'safety' consequences of a refusal to set aside a direction were mandatory considerations which the Tribunal was required to take into account.[15]
[15] Appellant's Written Submissions dated 15 March 2024 at [63].
The Appellant submits that the considerations which the Tribunal regarded as irrelevant, but which it submits were mandatory considerations, went to establishing that the Clearing was not development because it was permitted under the Firebreak Notice issued under s 33 of the BF Act.[16]
[16] Appellant's Written Submissions dated 15 March 2024 at [65].
The Appellant submits that the mandatory relevant considerations are identified from an analysis of the SAT Act and the PD Act. It submits that:[17]
the discretion to set aside the Direction under the PD Act must have regard to the consequences of doing so, and if the subject matter relates to whether or not the impugned activity achieved another statutory purpose, or was authorized by other legislation, then whether or not it would be safe to reinstate such vegetation is bound to be taken into account.
[17] Appellant's Written Submissions dated 15 March 2024 at [66].
In my view, the Act which is to be construed in order to determine which, if any considerations must be taken into account in deciding whether to issue a direction under s 214 of the PD Act, is the PD Act itself and not the BF Act.
The Appellant's submissions do not address the construction of s 214 of the PD Act and why the considerations advanced by are mandatory ones under that section beyond simply asserting that its 'basic proposition is that it cannot be supposed that the Parliament intended to confer on a local authority under the PD Act the power, by way of a direction under s 214 of the PD Act, to reinstate a safety hazard, which the State delegated to it as a core piece of public responsibility under the BF Act'.[18]
[18] Appellant's Written Submissions dated 15 March 2024 at [25].
Whether something is a mandatory relevant consideration is a matter of statutory construction, having regard to the subject matter, scope and purpose of the Act.[19]
[19] Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 39 - 40 (Mason J).
The long title of the PD Act is:
An Act to provide for a system of land use planning and development in the State and for related purposes.
In my view, nothing about that long title provides any indication that consideration of whether there is a public interest in avoiding the reinstatement of a bush fire hazard is a mandatory consideration when the Respondent is considering the issuing of a direction under s 214 of the PD Act.
The purposes of the PD Act are set out in s 3(1) of the PD Act. The section provides as follows:
(1)The purposes of this Act are to —
(a)consolidate the provisions of the Acts repealed by the Planning and Development (Consequential and Transitional Provisions) Act 2005 (the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 and the Western Australian Planning Commission Act 1985) in a rewritten form; and
(b)provide for an efficient and effective land use planning system in the State; and
(c)promote the sustainable use and development of land in the State.
Section 3(2) is also relevant in determining the purpose and meaning of the PD Act. It provides that:
(2)If —
(a)the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 or the Western Australian Planning Commission Act 1985 expressed an idea in a particular form of words; and
(b)this Act appears to have expressed the same idea in a different form of words in order to use a clearer or simpler style,
the ideas are not to be taken to be different just because different forms of words were used.

In my view, there is nothing about the identified purposes of the PD Act that would require a local authority to consider whether the issuing of a direction under s 214 would result in the reinstatement of a fire hazard. The efficient and effective land use planning system provided for by the PD Act and the promotion of sustainable use and development of land within the State does not, to my mind, necessitate consideration of whether a safety hazard might be reinstated by the issuing of a direction to make good under s 214 of the PD Act.
Section 214 itself provides:
214.Illegal development, responsible authority's powers as to
(1)For the purposes of subsections (2) and (3) —
(a)a development is undertaken in contravention of a planning scheme or an interim development order if the development —
(i)is required to comply with the planning scheme or interim development order; and
(ii)is commenced, continued or carried out otherwise than in accordance with the planning scheme or interim development order or otherwise than in accordance with any condition imposed with respect to that development by the responsible authority pursuant to its powers under that planning scheme or interim development order;
(b)a development is undertaken in contravention of planning control area requirements if the development —
(i)is commenced, continued or carried out in a planning control area without the prior approval of that development obtained under section 116; or
(ii)is commenced, continued or carried out otherwise than in accordance with the approval referred to in subparagraph (i) or otherwise than in accordance with the conditions, if any, subject to which that approval is given.
(2)If a development, or any part of a development, is undertaken in contravention of a planning scheme or an interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person undertaking that development to stop, and not recommence, the development or that part of the development that is undertaken in contravention of the planning scheme, interim development order or planning control area requirements.
(3)If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development —
(a)to remove, pull down, take up, or alter the development; and
(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.
(4)The responsible authority may give directions under subsections (2) and (3)(a) and (b) in respect of the same development and in the same instrument.
(5)If it appears to a responsible authority that delay in the execution of any work to be executed under a planning scheme or interim development order would prejudice the effective operation of the planning scheme or interim development order, the responsible authority may give a written direction to the person whose duty it is to execute the work to execute that work.
(6)A direction under subsection (3) or (5) is to specify a time, being not less than 60 days after the service of the direction, within which the direction is to be complied with.
(7)A person who —
(a)fails to comply with a direction given to the person under subsection (2); or
(b)fails to comply with a direction given to the person under subsection (3) or (5) within the time specified in the direction, or within any further time allowed by the responsible authority,
commits an offence.
It is clear from the terms of s 214 of the PD Act that the responsible authority may, but is not required to, issue a direction under s 214(2) and (3).
In my view, there is nothing in s 214 of the PD Act itself that compels the Respondent (and hence the Tribunal, who in conducting a review, stands in the shoes of the Respondent)[20] to consider whether restoring the land to the position it was in before an 'illegal' development (to use the same shorthand as the heading of s 214 uses) would create a hazard which the Respondent has a significant responsibility for mitigating under the BF Act.
[20] SAT Act, s 29.
The construction advanced by the Appellant would mean that every time a local authority intended to issue a direction to:
(a)to remove, pull down, take up, or alter the development; or
(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority,
the local authority would be required to have regard to whether doing any of those things would reinstate a bush fire hazard, which, under the BF Act the person issued with the direction under the PD Act has a responsibility to mitigate.
The PD Act regulates approval for development in areas where the risk of bush fire would not be significant as well as in areas where such a risk may be significant. It also deals with developments of a kind where the removal of unauthorised development could never be said to require contemplation of whether that removal would reinstate a bush fire risk. For example, it is hard to conceive that a direction to pull down a dwelling built without development approval in the middle of St Georges Terrace would require the relevant local government to consider whether pulling the dwelling down would reinstate a bush fire hazard. In my view, although the consideration advanced by the Appellant may be relevant in some cases, it cannot be regarded as a mandatory relevant consideration which would necessitate that regard be had to it in every case simply because the local authority has been given certain important responsibilities under the BF Act.
That said, given that the power to issue a direction under s 214 of the PD Act is discretionary, the Respondent, and on review the Tribunal, could have considered whether compliance with the Direction which required reinstatement of the vegetation, would have resulted in the creation of a bush fire hazard. If the Tribunal had done so, it may have come to the view that the correct and preferable decision was to revoke the Direction. However, failure to have regard to that question did not amount to a jurisdictional error because that consideration was not a mandatory relevant consideration.
For the above reasons, I will dismiss Ground 3.

Ground 4: Failure to afford the Appellant procedural fairness

Ground 4 alleges that the Tribunal failed to accord the Appellant procedural fairness. The Ground and its particulars were expressed as follows:[21]
[21] Notice of Appeal to the General Division dated 20 November 2023.
The Tribunal erred in law by failing to afford the Appellant procedural fairness:
(a)in finding at [20], [21] and [69] that, in substance, the Appellant had elected to adopt a 'political strategy', in the misguided belief that it would persuade the Shire to withdraw the Direction; and further or alternatively;
(b)in finding at [23], [72] and [69] that the 'political strategy' was the primary, if not the sole, reason for the delay in exercising a right to seek review of the Direction within 28 days; and further or alternatively;
(c)in finding at [66] that the Appellant 'simply ignored' a caution which the Respondent had given the Appellant that it needed development approval to clear vegetation on the subject land.
Particulars
(a)The Appellant was not given an opportunity by the Tribunal to answer potential findings at ground 4(a) above because there was no evidence to support such findings, the Respondent did not make any submissions to support any such findings, and the Tribunal did not ask any questions or direct the attention of Counsel for the Appellant to the prospect that such findings might be made, so that it had an opportunity to address them;
(b)The Appellant was not given an opportunity to respond to any potential for the findings in ground 4(b) above, because those findings were not an obvious or natural evaluation of the evidence before the SAT to support an effective finding that the adoption of a 'political strategy' was, on the evidence, the only (unreasonable) reason for the failure to exercise the right of review within 2 days, without any evaluation of the evidence as to any other causes of delay; and
(c)The findings in ground 4(c) above was not explained by any reasons expressed in the Reasons for Decision, but if based on an email from the Appellant dated 6 January 2022 and/or the alleged 'caution' given by the Respondent to the Appellant on 22 May 2022, then the reliance on that evidence to support such a finding was incorrect because those matters related to a different area of the Subject Land than that identified in the Direction, and the potential for such a finding was not communicated to the Appellant, nor was it a natural and obvious evaluation of the evidence before the Tribunal.
Particulars
(a)It was not reasonably open to infer any communication to any Minister at State or Federal level responsible for the administration of Departments with a relevant interest in such matters was only for the purpose of applying 'pressure' upon the Respondent, as it was equally open to infer that the Respondent was seeking assistance of those in senior government positions responsible for such issues, including the balance between the value of vegetation to be removed for the safety of those living in and around the Appellant's land, as the question of safety for the 'district' generally gave rise to wider considerations than matters only between the Appellant and the Respondent.
(b)The adverse inference was drawn without:
(i)the Respondent being given notice that such an inference may be drawn;
(ii)any cross-examination of the director of the Appellant by the Respondent regarding the purpose for which such correspondence was sent; and
(iii)the Tribunal asking the director of the Appellant to explain his state of mind regarding his conduct.
(c)The failure to afford procedural fairness in respect of those findings was material because, in effect, the length of, and reason for, the delay so found by the Tribunal and cited at [72] as a reason in itself for refusing the application, despite the Tribunal finding at [60] ‑ [61] that there was no prejudice to the Respondent, and without considering whether there was any point during that period when the delay should not weigh against the Appellant if steps to persuade the Respondent to withdraw its Direction was reasonably pursued if it avoided the need for an application to the Tribunal.
As the Court of Appeal recently noted in Bajaj v Pekin,[22] it has often been said that fairness is a practical rather than an abstract concept and that the concern of the law is to avoid practical injustice. What is required by procedural fairness is a fair hearing, such that, where a denial of procedural fairness is alleged, the focus is to enquire as to the decision‑maker's processes, rather than its actual decision. What amounts to a fair hearing in any particular case will depend upon all of the circumstances.[23]
[22] Bajaj v Pekin [2024] WASCA 55 [59] (Lundberg J) (Vaughan & Vandongen JJA agreeing), referring to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] - [38] (Gleeson CJ).
[23] Minister for Immigration and Border Protectionv WZARH(2015) 256 CLR 326 [52] and [55] (Gageler & Gordon JJ).
As Tucker LJ stated in Russell v Duke of Norfolk,[24] in a passage that has frequently met with approval in the High Court of Australia:[25]
The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.
[24] Russell v Duke of Norfolk [1949] 1 All ER 109, 118.
[25] See, for example, Kioa v West (1985) 159 CLR 550, 613.
Natural justice requires that a party has brought to its attention matters which are adverse to its case which are relied upon, and that the party be given an opportunity to deal with those matters.[26]
[26] Kioa v West (629).
The Appellant submits that the Tribunal erred in finding that the Appellant had elected to adopt a 'political strategy' in order to have the Direction withdrawn. The Appellant submits that, in not providing it with an opportunity to answer that potential finding in advance, the Tribunal failed to accord it procedural fairness. The Appellant says this is particularly so in circumstances where the evidence did not support that finding and the Respondent had not sought such a finding, meaning that the Appellant could not have anticipated that finding being made.
The Appellant also submits that the Tribunal erred in law by failing to accord the Appellant procedural fairness in finding at [23], [69] and [72] that the 'political strategy' was the primary, if not the sole reason for the delay in bringing the application for review. The Appellant submits that had it been aware of the Tribunal's intention to so find, it would have pointed to evidence that would have demonstrated that there were periods of time when the delay should not weigh against it, because the delay was attributable to the action of the Respondent or reasonable actions of the Appellant which, had it been successful, would have obviated the need for a review by the Tribunal.[27]
[27] Appellant's Written Submissions dated 15 March 2024 at [84].
The Tribunal referred to:
1.the fact that the Appellant copied its communications with the Respondent to the Federal Member for Canning; and
2.refused to allow officers of the Respondent access to the land unless the majority of elected councillors could also attend,
and described that conduct as a 'strategy' adopted with the intention to 'apply political pressure'. At [21] of its Decision, the Tribunal also stated that the Appellant was 'perfectly entitled to deploy political means to achieve an outcome' and that that was not the point on which it was focussed.
When regard is had to the entirety of [21] ‑ [24] of the Decision, one can readily discern that the point which the Tribunal was making was that the Appellant was well aware that it was entitled to seek review in the Tribunal within 28 days of the date in which the decision was received and chose not to bring an application for review within that time, instead focussing its efforts on persuading the Respondent to withdraw its Direction. The Tribunal said at [20] ‑ [24]:
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. 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.
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 Mr Osborn from the Shire. Even after seeking legal advice, that advice resulted in the Shire being, in effect, told that 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 seek to deploy means to have it withdrawn. He explains that:(citation omitted)
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.
Only when it was apparent that its strategy to persuade the Shire to withdraw the objection had failed, did the Applicant seek to engage the Tribunal's jurisdiction.
The Tribunal did not in fact refer to a political strategy. It referred to a strategy to engage consultants and to apply political pressure to persuade the Respondent to withdraw the Direction.
The Appellant submits that there was no material before the Tribunal from which it could have found that almost all its correspondence with the Respondent was copied to politicians. The Appellant submits that had it been aware of the Tribunal's intention to characterise its conduct in this way, it could have demonstrated that it was not the case that almost all of its correspondence was copied to politicians.
It may be that there was no factual basis for the Tribunal's statement that the majority of the Appellant's correspondence with the Respondent was copied to politicians. However, in my view, the Tribunal's reference to the Appellant having adopted a strategy of engaging consultants and politicians in an effort to have the Respondent withdraw the Direction is not to be regarded as a finding adverse to the Appellant in the sense contended for by the Appellant. In my view, what is adverse to the Appellant is the finding that the delay was not inadvertent, or the result of a lack of awareness of the requirement to apply for review within 28 days. It is well known that part of a politician's role is to assist in the resolution of a constituent's problems. As the Tribunal acknowledged, seeking to involve politicians to assist with the resolution of problems is a common and legitimate approach to problem-solving in our democracy. In my view, describing the Appellant's conduct as adopting of a 'political strategy' (which, in any event, were not the precise words used), does not connote a criticism of the Appellant's conduct. It is simply a description of the fact that the Appellant chose to pursue a path to achieve its desired end other than the commencement of a review application in the Tribunal. Therefore, whether the Tribunal was wrong to find that all of its communications were copied to politicians is, in my view, immaterial.
The Appellant also submits that the characterisation of the activities it undertook before commencing the review application in the Tribunal as a 'strategy' mischaracterised its conduct. The Appellant says that the use of the word 'strategy' implies the existence of some process which is designed before it is commenced. The Appellant submits that, had it known that the Tribunal intended to characterise its conduct in that way, it would have been able to identify for the Tribunal evidence which would have demonstrated that it had no pre‑existing plan in mind.

As with the use of the term 'political', I do not regard the term 'strategy' to have been used in a pejorative sense by the Tribunal. The Macquarie Dictionary defines the noun 'strategy' as follows:[28]
Noun (plural strategies)
1.a plan which is devised to achieve a particular outcome.
2.a cunning plan involving skilful management in getting the better of an adversary or attaining an end; stratagem.
I accept that the second of those definitions might be regarded by some as less than complimentary, but only by reference to the use of the word 'cunning'. Clearly, the Appellant, in this case, has taken exception to the characterisation and considers that it implies some criticism of its approach. In its submissions, the Appellant submits that the use of the expression 'political strategy' was a 'pejorative description' and 'an attack on [Mr Lovegrove's] bona fides - painting him as a calculating schemer rather than a farmer puzzled by the Respondent's attitude and seeking to set it right'.[29]
[28] Macquarie Dictionary (9^th ed, 2023) 'Strategy' (defs 1 and 2).
[29] Appellant's Outline of Oral Submissions dated 6 May 2024 at [30].
The Tribunal did not identify any craftiness or deception in the Appellant's approach. The term 'strategy' can only be understood to have been used by the Tribunal to mean that the Appellant implemented a plan to engage with the Respondent with the assistance of consultants and politicians who might assist in advocating for the withdrawal of the Direction.
The Appellant submits that it had no plan which it identified up‑front and put in motion and therefore no 'strategy' was implemented by it at all, and that the Tribunal was wrong to find that there was. It is submitted that if the Tribunal had made the Appellant aware of its intention to characterise its conduct in that way, it could have pointed to evidence that there was no plan. The Appellant submits that it was denied procedural fairness by not being given notice of the Tribunal's adverse finding that it adopted a 'strategy'. I do not accept that the use of the word 'strategy' required the Tribunal to find that the approach taken by the Appellant had been laid out with precision in advance. In this case, all that was meant by the Tribunal's use of that term is that the Appellant embarked on a course of engaging with the Respondent, through which it hoped to persuade the Respondent to withdraw the Direction. That finding was clearly open on the material before the Tribunal.
The reason for the delay was a crucial matter in determining whether leave to commence the review proceeding would be granted. The parties had made submissions about the reason for the delay. In that circumstance, the Tribunal did not deny the Appellant procedural fairness by failing to identify in advance of the publication of its Decision that it intended to find that the delay was the result of the choice it made to pursue efforts to persuade the Respondent to withdraw the Direction, rather than to apply to the Tribunal for review of the decision within the required 28 days.
There is no doubt that the significant delay in commencing the review application did influence the decision to refuse the application for an extension of time to seek review of the Direction in the Tribunal. The application to the Tribunal was made 316 days after the Direction was made. The time limit for commencing a review was 28 days.[30] The Appellant did not give evidence that it was unaware that the application was to be commenced within 28 days. The correspondence provided to the Appellant with the Direction informed it that a review could be sought within 28 days.[31]
[30] SAT Rules, r 9(a).
[31] Appeal Papers, page 9; Direction provided on 23 May 2022.
The Appellant submits that by failing to assess what was being done by the Appellant over the 316 days and by failing to consider how much delay was attributable to the Appellant and to the Respondent, the Tribunal did not properly assess the reasons for the delay and therefore fell into error.
The Appellant submits that had it been aware that the Tribunal intended to characterise the delay as a 'sitting on its hands', 'ignoring', and 'walking past' its review rights, it would have been able to point to the fact that much of the time was taken waiting for the Respondent to respond to its experts' communications. It says that it had engaged experts who it anticipated would have been able to persuade the Respondent that the Clearing had been undertaken for the purposes of bush fire hazard mitigation and that, had it been able to lead that evidence of the communication between those experts and the Respondent, the Tribunal would have been able to find that much of the delay was caused by the Respondent's approach to dealing with the Appellant's communication.
In my view, even if the Respondent had failed for some time to respond to the Appellant's communication about the Direction or responded without engaging with substantive matters raised by the Appellant (as the Appellant contends was the case), the overall delay in commencing the review proceeding is attributable to the Appellant. At some point the Appellant should have appreciated that the process it was engaging in was not productive, even if the reason for that was attributable to the Respondent.
The delay, and whether to grant leave in the face of the delay, were clearly in issue. In my view, there was no failure to draw to the Appellant's attention the proposed finding that the Appellant took a course of seeking to persuade the Respondent to withdraw the Direction rather than to commence proceedings in the Tribunal for a period of 316 days, which meant that the Tribunal found the grant of leave was not justified.
The Appellant also submits that the Tribunal erred in law by failing to accord the Appellant procedural fairness in finding at [66] of the Decision that the Appellant simply ignored a caution which had been given to it by the Respondent that it needed a development approval to clear vegetation on the relevant land.
The Appellant submits that the finding was not explained in the Tribunal's reasons, but that if it were based on an email from the Appellant dated 6 January 2022 and/or the caution given to it by the Respondent in an email dated 22 May 2022, then reliance on that caution was an error because the caution and email related to a different area of land. The Appellant submits that had the Tribunal made its potential finding known to the Appellant, it would have had an opportunity to clarify that matter with the Tribunal.
The Respondent accepted that the caution given related to the clearing of land other than the land to which the Direction related.
It may well be that the Tribunal, at [20] and [66] of the Decision, misapprehended the land to which the caution related. That may have been a matter that could have been clarified with the Tribunal had the Tribunal's intention to make that finding been drawn to the Appellant's attention in advance of the publication of the Decision. However, in my view, the fact that the Appellant had been cautioned was not material to the decision reached by the Tribunal about delay. This is because the impugned paragraphs were clearly referring to the fact that the Appellant did not exercise his right of review within the 28 days required by r 9 of the SAT Rules and instead adopted an alternative course of action. As such, the existence of a caution before the Clearing took place did not bear upon the issue of delay.
In my view, there was a clear factual basis for the Tribunal's findings as to the reasons for the delay. No examination of the mind of the director of the Appellant regarding his conduct would have altered the fact that the Appellant engaged in attempts to have the Direction withdrawn for a very significant period of time instead of applying to the Tribunal for review, despite knowing of the time limit.
As President Pritchard recently stated in Wood and Law Complaints Officer as Delegate of the Legal Profession Complaints Committee:[32]
The time limits for the commencement of applications in the Tribunal, in so far as they apply in review applications, reflect the fact that there is clearly a public interest in the finality and certainty of decisions which are amenable to merits review by the Tribunal. To permit the review of such decisions after a delay, much less a substantial delay, can be productive of great uncertainty, not only for decision makers (who will ordinarily be expected to be consistent in their decision making) but for third parties who may be affected by such decisions.
More generally the public interest in the commencement and finalisation of litigation without delay recognises that as time passes, memories fade, and documentary evidence may be lost, and in some cases, such consequences may make it impossible for justice to be done.
[32] Wood and Law Complaints Officer as Delegate of the Legal Profession Complaints Committee [2024] WASAT 35 (Wood) [101] ‑ [102].
In that case the President, Justice Pritchard referred to the fact that the application for review had been lodged by Mr Wood some 10 months out of time and described that as a 'very significant delay'.[33] Her Honour also expressed the view that a delay of that length weighed heavily against the grant of an extension of time in the absence of a good explanation for the delay.[34]
[33] Wood [35], [100].
[34] Wood [104].
In my view, given the very significant delay in commencing the review in the Tribunal in this case, it was clearly open to the Tribunal to decide that, despite having been made aware of the time limit applicable to making a review application in the Tribunal, the Appellant has taken a different path for a period of time which, in the circumstances, ought not to have been excused by the grant of leave to commence the review application notwithstanding the lack of prejudice to the Respondent. No material procedural fairness was denied to the Appellant by the Tribunal in reaching that conclusion.

Leave to appeal

I return then to the question of leave to appeal.
I have found that there was no merit to any of the grounds of appeal advanced by the Appellant. I do not regard any of the grounds to have been reasonably arguable. In that circumstance, I would refuse the grant of leave to appeal.

Conclusion

In light of the conclusions I have reached above, I will make orders refusing leave to appeal and dismissing the appeal.
I will hear the parties as to the issue of costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FS
Associate to the Hon Justice Glancy
4 SEPTEMBER 2024