LWP PROPERTY GROUP PTY LTD and CITY OF SWAN

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: LWP PROPERTY GROUP PTY LTD and CITY OF SWAN [2011] WASAT 64

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 4 APRIL 2011

DELIVERED : EDITED REASONS DELIVERED ORALLY ON 4 APRIL 2011

FILE NO/S: DR 303 of 2010

BETWEEN: LWP PROPERTY GROUP PTY LTD
Applicant
AND
CITY OF SWAN
Respondent
INVESTA RESIDENTIAL GROUP PTY LTD
Intervener
OAKOVER VINEYARDS PTY LTD & ORS
Interveners

Catchwords:

Practice and procedure - Intervention - Town planning - Structure planning - Development plan - Ellenbrook Estate - Review of requirement imposed in approval of Development Plan that applicant make a contribution of 57% to the cost of constructing a bridge over Ellenbrook - Council modelling and position is that applicant's and proposed interveners' developments will collectively generate 97% of traffic on bridge and that each landowner should pay a proportionate contribution to construction based on its traffic generation for bridge - Whether proposed interveners have a sufficient interest - Whether discretion to allow intervention should be exercised - Whether Tribunal has jurisdiction to determine the percentage of costs of constructing the bridge which should be attributable to the applicant

Legislation:

City of Swan Local Planning Scheme No 17, cl 4.7.2, Sch 4, Sch 7 cl 4
Planning and Development Act 2005 (WA), s 242, s 243
State Administrative Tribunal Act 2004 (WA), s 9, s 36, s 37(3), s 38
Town Planning Development Act 1928 (WA), s 62, s 63

Result:

Leave granted to intervene

Category: B

Representation:

Counsel:

Applicant:     Mr CS Williams
Respondent:     Mr CA Slarke
Intervener:     Mr MJ Hardy
Interveners                   :     Mr PJ McQueen

Solicitors:

Applicant:     Solomon Brothers
Respondent:     McLeods
Intervener:     Hardy Bowen
Interveners                   :     Lavan Legal

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

Australian Conservation Foundation Inc v Commonwealth of Australia (1981) 146 CLR 493
Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305
Re State Administrative Tribunal; ex parte McCourt [2007] WASCA 125; 34 WAR 342
Viento Property Ltd and Western Australian Planning Commission [2009] WASAT 229

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

LWP Property Group Pty Ltd sought review by the Tribunal of the decision of the City of Swan to approve the development plan (a form of local structure plan) for Village 7B of the Ellenbrook Estate subject to a requirement that LWP Property Group Pty Ltd pay 57% of the cost of constructing a bridge over Ellenbrook. This percentage was based on modelling of traffic likely to use the bridge. The modelling also indicated that 40% of the traffic likely to use the bridge would be generated by the development of two other parcels of land. The owners of the other parcels of land sought leave from the Tribunal to intervene in the proceeding pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA). The intervention applications were opposed by LWP Property Group Pty Ltd and supported by the City of Swan.
Following the hearing, the Tribunal gave an oral decision in which it granted the other landowners leave to intervene in the proceeding. The Tribunal found that, based on the issues identified in the parties' statements of issues, facts and contentions, and as distilled by the Tribunal, the proposed interveners have a sufficient interest in the subject matter of the proceeding over and above that enjoyed by the public generally or a segment of the public. The Tribunal also found that discretion should be exercised to allow intervention as:
•intervention is necessary for the Tribunal to be able to resolve the proceeding fairly and according to the substantial merits of the case and to come to the correct and preferable decision in relation to the development plan;
•the interests of the proposed interveners and the material to be advanced by them will not be adequately dealt with by the parties; and
•there is not likely to be any material lengthening of the proceeding or increase in costs if leave to intervene were granted.
In the course of its reasons, the Tribunal rejected the argument presented by LWP Property Group Pty Ltd that the Tribunal does not have jurisdiction to review a requirement that the applicant contribute a particular percentage to the construction of the bridge.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows:

Introduction

Investa Residential Group Pty Ltd (Investa) owns land originally described as Lot 4 on Diagram 83544 and now subdivided into a number of staged parcels at Railway Parade in Upper Swan (Investa land). Oakover Vineyards Pty Ltd (Oakover) and others own a large parcel of land to the south of the Investa land comprising Lots 13255, 13256 and 1 Railway Parade, Upper Swan, Lots 2, 3 and 27 Apple Street, Upper Swan, Lots 28, 30, 32 and 34 Orange Avenue, Upper Swan and Lot 35 Rose Street, Upper Swan (Oakover land).
Investa and the owners of the Oakover land have each made an application for leave to intervene in this proceeding pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) or alternatively for leave to make submissions in relation to this application pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act). Section 37(3) of the SAT Act states as follows:
The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit.
Section 242 of the PD Act states as follows:
The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.
The proceeding involves an application brought by LWP Property Group Pty Ltd (LWP) for review of the decision of the City of Swan (City or Council) to approve the development plan in relation to Village 7B of the Ellenbrook Estate (Village 7B) pursuant to the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme) subject to a requirement that the developer of Village 7B, that is, LWP, be required to make a contribution to the cost of constructing a bridge over Ellenbrook connecting two sections of Railway Parade through or adjoining the Investa land.
Village 7B adjoins the Investa land to the north and west. Village 7B is zoned Special Use Zone No 4 under LPS 17. Clause 4.7.2 and Sch 4 of LPS 17 require that subdivision and development of land zoned Special Use Zone No 4 be subject to, among other planning instruments, an approved 'local structure plan', which is also referred to in Sch 4 of the Scheme as a 'development plan'. Under cl 4 of Sch 7 of the Scheme:
An approved development plan together with all approved amendments shall apply in relation to the land within the area of the development plan as if it was an amendment to the scheme.
The City currently estimates that the bridge over Ellenbrook will cost $8.1 million to construct. The City has included the bridge in its five year capital works program, which proposes construction in the 2014 2015 financial year. Based on its current modelling of traffic likely to use the bridge, the City estimates that 57% of traffic using the bridge will be generated by Village 7B, 33% of traffic will be generated by the Oakover land, 7% of traffic will be generated by the Investa land and 1% of traffic will be generated by Ellenbrook Village 7A, with the remaining 2% of traffic being generated by other sources.
The City proposes that LWP, Investa and the owners of the Oakover land contribute to the construction cost of the bridge in proportion to these percentages. Therefore, according to the City's current modelling, 97% of the traffic that would use the proposed bridge would be generated by the land the subject of this proceeding, the Investa land and the Oakover land, and 97% of the cost of the $8.1 million for construction of the bridge should be borne by the owners of these three parcels in the same proportions.

Applicable principles in relation to intervention and leave to make submissions

I summarised the applicable principles in relation to intervention and leave to make submissions in Viento Property Ltd and Western Australian Planning Commission [2009] WASAT 229 (Viento Property Ltd) at [13] [17]. I incorporate those paragraphs into these reasons.

Proposed interveners' submissions

Investa was represented by Mr Michael Hardy. Mr Hardy relied on a witness statement of Ms Kelli Howell, which refers to:
•the nature of the landholding of Investa;
•the history of development of that land by way of the adoption and endorsement of an outline development plan, applications for subdivision approval and obligation imposed upon Investa to upgrade and/or construct Railway Parade from Apple Street to the northern boundary of the Investa land, including, relevantly, a contribution for the bridge; and
•the deferral of the calculation of Investa's contribution for those works, pending the implementation of stage 2 of the subdivision of the Investa land.
The bridge in question in this proceeding is proposed by the City to be located directly to the east of the Investa land. Mr Hardy submitted that Investa has a sufficient interest for intervention because the proposed bridge and a portion of the road network immediately abuts the Investa land and the obligation of Investa to contribute to certain roadworks and the bridge is contingent upon future negotiations with the City. Mr Hardy submitted that:
Investa has a clear and unequivocal interest in the determination of any questions affecting:
(a)the provision of infrastructure in the locality; [and]
(b)the allocation of costs between landowners and State and local government instrumentalities with respect to those works.
Mr Hardy submitted that the participation of Investa will assist the Tribunal 'to reach the correct and preferable decision'. In particular, Investa would call evidence in relation to the proposed and approved developments on its land. Mr Hardy also referred to the effect of intervention by his client on the proceeding. He acknowledged that there will be an impact, but said that the impact will not broaden the scope of the issues apparently before the Tribunal, as evidenced by the parties' statements of issues, facts and contentions, and will not replicate the position necessarily adopted by either party. He also submitted that any impact on the conduct of the proceeding should:
be balanced against the requirement that the correct and preferable decision be reached even if the conduct of the proceedings is marginally expanded as a consequence of intervention.
Mr Paul McQueen appeared on behalf of Oakover. The Oakover land is presently zoned Rural. However, an application for the rezoning of that land from Rural to Urban Deferred is presently pending. I will refer to the evidence in relation to the current position of the rezoning application later in these reasons.
Mr McQueen indicated that if leave were granted to intervene to his clients, evidence would be presented by Professor David Caddy, a town planner, and Mr Benham Bordbar, a traffic engineer. Their evidence would indicate the precise nature of development contemplated for the Oakover land and the importance of placing development on that land, and traffic consequences of such development, into a regional context.
Similarly to Mr Hardy, Mr McQueen submitted that his clients:
… [do] not seek to introduce new issues, nor to simply agitate [matters] capable of being dealt with by the current parties to the review proceedings …
He submitted that, without intervention being allowed by his clients, the Tribunal would not:
… be able to make fully [informed] findings in relation to the need for or quantum of any contributions to the proposed Bridge from the Applicant or Oakover, or indeed any land owner nearby, without hearing expert evidence in relation to the [Oakover] land.
Mr McQueen also submitted that, if his clients were not allowed leave to intervene, the effect would be to deny procedural fairness in the particular circumstances of this case.

Parties' submissions

Mr Christopher Williams appeared on behalf of LWP and opposed the applications for intervention on two primary bases. The first basis, which was clearly the principal basis put forward, was that the Tribunal does not have jurisdiction to determine the percentage of costs of constructing the bridge which should be attributable to and required of LWP. Mr Williams referred to the fact that the Tribunal's general power of joinder of a person as a party under s 38 of the SAT Act is expressly excluded by s 243 of the PD Act. Mr Williams submitted:
The obvious assumption behind section 243 of the PD Act is that the interests of all people other than the applicant can be adequately presented by the local government or other applicable decisionmaker in circumstances where the interests of other people (such as neighbours) are only indirectly affected by any application concerning someone else's property.
That assumption is plainly inapplicable in a situation like the present where the condition under review seeks to require a percentage contribution to significant infrastructure expenses for a bridge on land outside the applicant's land. The percentage, if any, imposed on the applicant will directly impact on the percentage, if any, which will or may be imposed on each other landowner who may be required to contribute to that expense. That direct impact on other landowners is obviously different from the indirect impact contemplated by section 243 of the PD Act.
Accordingly there are two possible constructions of the SAT Act and Part 10 of the PD Act. The first construction is that the effect of section 243 of the PD Act is to modify the principles of natural justice insofar as they relate to persons other than the applicant for review whose rights are directly affected by the subject matter of the application for review in the manner referred to in the previous paragraph.
The other construction is that applications for review pursuant to section 252 of the PD Act cannot involve determinations of matters which will directly affect the rights of the parties in that manner. In the absence of clear words necessarily intending that third parties be denied natural justice in relation to review applications brought pursuant to section 252 of the PD Act which directly affect them in that manner, the latter construction should be preferred over the former.
The result is that the Tribunal has no jurisdiction to make a decision that will directly affect the rights of third parties in that manner. This outcome is not surprising. It is difficult, if not impossible, to conceive of circumstances where the grant by a local government of an approval, as opposed to the exercise by local government of legislative function including initiating the amendment of a local planning scheme, could directly impact the rights of a party other than the applicant for approval.
Whilst there will often be an indirect effect on another party's rights, an obvious example being the impact on the market value of land adjacent to land in respect of which a particular development approval is granted, this is not the same as the third party's interests being directly affected in the manner referred to above.
Further or alternatively, Mr Williams submitted that it is 'impossible' for the Tribunal to make any decision regarding the sources of traffic that will use the bridge if it is constructed and the proportions of traffic that will be generated by each source, given the current level of uncertainty as to the development in the relevant area.
Mr Williams also made some specific submissions in relation to Oakover's and Investa's applications which I will identify and address later.
Mr Craig Slarke appeared on behalf of the City and supported the applications for intervention. Mr Slarke submitted that the City's fundamental objective is to establish that there is a planning justification for the construction of the bridge. The City, Mr Slarke said, is also concerned that the contributions which are made to the construction of the bridge are fair and equitable.
The City seeks some certainty in this proceeding in relation to the contribution of LWP. While the City imposed a 57% contribution requirement on LWP based on its traffic modelling, Mr Slarke indicated that the split of contributions between the three principal parcels of land that would generate 97% of the traffic using the bridge is not a fundamental concern for the City, although the split is no doubt, he submitted, of fundamental concern for LWP and the proposed interveners. Mr Slarke submitted that the outcome of the review:
… plainly has the potential to have direct and significant financial consequences for both the proposed interveners …
and that financial interest of that nature would be sufficient to meet the test for standing identified in Australian Conservation Foundation Inc v Commonwealth of Australia (1981) 146 CLR 493 (Australian Conservation Foundation), relevant extracts from which were set out in Viento Property Ltd. Mr Slarke submitted that:
It is unlikely that the proposed interveners' interests will be adequately protected merely by having the right to make submissions.
He submitted that it is likely that the proposed interveners will seek to call evidence relevant to both the question of the need for the bridge and any contributions that might be made towards its construction. Mr Slarke submitted that '[t]he Tribunal is likely to be assisted by that evidence'.

Do the proposed interveners have a sufficient interest?

Among other related issues raised by the City, the City's statement of issues, facts and contentions identifies the following issues for determination:
…
3.Are there any other existing or proposed subdivisional developments which may appropriately be required to make a developer contribution to the cost of the Bridge?
4.If the answer to Issue 2 is "yes", and having regard to the answer to Issue 3, how should any developer contributions be calculated?
…
The City's accompanying contentions in relation to issue 3 include the following:
It is desirable and appropriate for the Tribunal's determination in the review to reflect on whether Lot 4, the Amendment Land or any other land, such as Ellenbrook Village 7A, should make any contribution to the cost of the Bridge and, if so, in what proportions.
The reference to 'Lot 4' in this paragraph is a reference to the Investa land, and a reference to the 'Amendment Land' is a reference to the Oakover land. The contentions of the City in relation to issue 4 make reference to the traffic generation, in its traffic modelling referred to earlier, attributable to Village 7B, the Oakover land and the Investa land, and contain the following statement:
The most appropriate method of determining the developer contributions towards the cost of constructing the Bridge is to apportion the contributions based on the level of Bridge traffic each traffic generator gives rise to.
In its statement of issues, facts and contentions, LWP rejects the formulation of issues in the City's statement of issues, facts and contentions. However, importantly, the issues referred to as the 'alternative issues' raised by LWP in its statement of issues, facts and contentions include the following:
…
CIs the existing road network adequate to accommodate the additional traffic volume generated by proposed further development that will use the road network?
DIf the answer to Issue C is 'no', what needs to be done to make that road network adequate?
EIf the answer to Issue C is 'no' and the answer to Issue D is that specified upgrades or changes to the existing road network are required, how should any developer contribution be calculated, having regard to issues including:
(i)Any other existing or proposed development which may appropriately be required to make a contribution to the cost of the upgrade or change to the road network; and
(ii)Any local or regional planning benefit the upgrade or change to the road network may satisfy.
…

LWP's accompanying contentions in relation to issue E of its alternative issues are as follows:
If it is found that a condition or modification requiring the upgrade or change to the existing road network is required and can be validly imposed, then the final pool of those required to contribute should take into account all land likely to gain benefit, including:
(i)Lot 4 and the Amendment land;
(ii)the lots sitting south of lot 4 and north of the Amendment land; [and]
(iii)the proposed industrial land north of Maralla Road.
In addition, an amount should be apportioned to reflect the benefit to the local and district road network.
Again, the reference to 'Lot 4' in this paragraph is to the Investa land, and the reference to the 'Amendment land' is a reference to the Oakover land.
It is clear from both sets of issues identified by the City and LWP that each of the proposed interveners has a sufficient interest or a special interest such as would give it standing in judicial review proceedings in relation to the subject matter of this proceeding in accordance with the test formulated by the High Court of Australia in the Australian Conservation Foundation.
The proposed interveners have a special interest in the subject matter of this proceeding over and above that enjoyed by the public generally or a segment of the public. The City's modelling, as indicated earlier, suggests that 97% of the traffic that would use the bridge in question would be generated by Village 7B, the Investa land and the Oakover land. If, as LWP contends, the existing road network is adequate to accommodate traffic generated by Village 7B and that development does not give rise or contribute to the need for the bridge, then the contribution required by the prospective interveners for the construction of the bridge is likely to be greater, perhaps significantly greater.
Furthermore, the City's issues 3 and 4, and LWP's issue E, in particular, require direct and detailed consideration and analysis of development and traffic generated by development on the proposed interveners' land. While, in this proceeding, the Tribunal cannot directly determine what developer contributions the proposed interveners should be required to make for the bridge, in order to properly address the issues identified by the parties, the Tribunal may well, at least by implication, identify appropriate contributions for the proposed interveners.
In any case, if the Tribunal were to determine, having regard to development on the proposed interveners' land, that LWP should pay less than 57% of the cost of the bridge, it is likely that the proposed interveners would have to increase their contributions for the bridge. Therefore, the proposed interveners are clearly likely to suffer a material disadvantage in the sense contemplated by Gibbs J in Australian Conservation Foundation at 530 if LWP succeeds on one of its contentions.
Based on the issues in the parties' statements of issues, facts and contentions, the proposed interveners can also clearly show, 'actual or apprehended injury or damage' to their 'business or economic interests', to quote Mason J in Australian Conservation Foundation at 547.
During the hearing of the intervention applications, there was debate between the parties as to what is the proper scope of the issues in this matter. Mr Williams submitted, correctly, that the issues that I have referred to in LWP's statement of issues, facts and contentions are predicated on findings in relation to earlier issues being made against the position of the LWP. LWP's primary position is that there is no nexus between Village 7B and the bridge in question, and moreover, that the planning for Ellenbrook over the past 15 or more years has been predicated on different traffic arrangements. However, issues C to E form part of the issues identified by LWP.
Mr Williams submitted that, in terms of the range of outcomes in this proceeding and in terms of the issues that are to be debated, the issues are, firstly, whether a contribution should be required for the bridge by LWP, having regard to the lack of nexus and alternative traffic arrangements planned over many years, and secondly, if the answer to the first broad inquiry is 'yes', whether the Tribunal should impose a 57% contribution or not.
However, as Mr Hardy and Mr McQueen each submitted and as Mr Slarke agreed, the present proceeding is a de novo matter, the purpose of which, under the SAT Act, is 'to produce the correct and preferable decision at the time of a decision upon the review'. It is part of the Tribunal's function in such a review matter to, with the parties' assistance, formulate issues. Generally the Tribunal will formulate issues consistently with the parties' statements of issues, facts and contentions; however, it is not unusual in review proceedings of this nature for the Tribunal to distil from statements of issues, facts and contentions, common issues, and, indeed, in appropriate cases, to raise fresh issues.
This is entirely proper, provided that the parties are afforded procedural fairness in relation to the formulation of issues and are able to address them. Ultimately, the Tribunal is required, in proceedings of this nature, to exercise an independent statutory discretion and, in particular, to achieve a decision that accords with orderly and proper planning. As Mr Hardy and Mr McQueen therefore submitted, the formulation of the inquiry in the manner articulated by Mr Williams is too narrow.
It is clear, based on the issues raised by the parties in their respective statements of issues, facts and contentions and the general scope of the matter, that the issues for determination in this proceeding are, or at least include without limiting other issues that the LWP may raise:
1)Whether there is a nexus between Village 7B and the bridge.
2)If the answer to 1 is 'yes', whether a dollar amount or percentage contribution for the construction of the bridge can be imposed in this proceeding, having regard to the evidence, upon LWP.
3)If the answer to 2 is 'yes', what dollar amount or percentage contribution should be imposed on LWP.
In my opinion, for reasons that I have given, the proposed interveners clearly have a sufficient or special interest in relation to this proceeding and in relation to those issues at least. In my opinion, the issues that I have focused on, while not the sole issues in the proceeding, are closely related to the other issues that have been or are likely to be raised, all of which ultimately concern the bridge in question, and whether, and if so, to what extent LWP should be required to contribute to its construction cost.

Should the Tribunal exercise discretion to allow the proposed interveners to intervene?

In my opinion, discretion should be exercised to allow the proposed interveners to intervene in the somewhat unusual circumstances of this case for the following reasons.
The proposed interveners and the City have demonstrated, in my view, that the intervention is necessary to enable the Tribunal to meet its objectives stated in s 9 of the SAT Act. Those objectives are:
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case;
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
The key objectives in this case are contained in s 9(a) and s 9(b) of the SAT Act. The proposed interveners are, in my view, likely to make an important contribution to the proper disposition of the issues before the Tribunal. Importantly, this proceeding involves a strategic planning review in relation to the terms of a development plan, which is a strategic planning instrument. A strategic planning review application is likely to be broader in scope than a development or subdivision assessment application. This is because strategic planning is intended to guide the formulation, or at least assessment, of specific subdivision or development applications. More particularly in this case, the issues formulated by the parties in their statements of issues, facts and contentions, as I have distilled them earlier, will require detailed consideration of the development likely to take place on the interveners' land, the traffic generation of such development, and the relative proportions of traffic generated by Village 7B and the proposed interveners' land in respect of the bridge.
Without intervention, the Tribunal is unlikely to be able to resolve this proceeding fairly and according to the substantial merits of the case. Indeed, arguably, without intervention in the unusual circumstances of this case, the Tribunal is unlikely to be able to come to the correct and preferable decision in relation to the development plan.
Mr Williams submitted that the proposed interveners are not, in fact, in the possession of special knowledge and would not add materially to the resolution of the matter. I accept, however, the submissions based on the evidence of Ms Howell, Professor Caddy and Mr Bordbar, that the interveners in this case, both in their personnel and expert witnesses who have been involved in proposals for the development of the respective properties for some considerable period of time, do have detailed and particular knowledge that would not be available to the City. Moreover, Oakover intends to present expert evidence applying a more regional perspective to the issues in this proceeding than appears to be the case on either party's analysis. The Tribunal, it appears, would be assisted in coming to the correct and preferable decision by such evidence and analysis.
The interests of the applicants for intervention and the material to be advanced by them will not be adequately dealt with by the parties. As the City submitted, the contribution split between the landowners is not of fundamental importance to it. The City's primary position is that there should be a bridge and that it should be fairly paid for by the developers of the properties that will primarily create the need for the bridge. The City also has an interest to ensure that there is as much certainty created by this proceeding as possible. However, the individual proposed interveners do have different interests from the City in relation to their contributions.
In my view, it is in this case unlikely that the proposed interveners' interests will be adequately protected merely by having the opportunity to make submissions, as the witnesses that are proposed to be called by the proposed interveners have specific and detailed knowledge and, in relation to Oakover's witnesses, a perspective that involves a regional element that is not the subject of other parties' positions.
I therefore consider that, as Mr McQueen submitted, the Tribunal would not be able to make a fully informed finding in relation to the need for or quantum of any contributions to the proposed bridge without granting intervention in this case. This submission was supported by the evidence of Professor Caddy and Mr Bordbar.
In relation to the impact of the proposed intervention on the proceeding, intervention will result in additional evidence and additional submissions. However, it has not been suggested on behalf of LWP, and I am satisfied that it would not be the case, that intervention would necessitate any additional hearing days beyond those listed for early May 2011. Furthermore, there is not likely to be, in my view, any material increase in costs to the parties before the Tribunal. The matter is likely to be concluded within the same timeframe as would be the case without intervention. Furthermore, as submitted on behalf of Investa, intervention would not broaden the scope of the issues before the Tribunal and would not replicate the positions of either party. As I mentioned earlier, the issues in this case are not restricted in relation to contribution, to whether to impose a 57% contribution or a zero contribution on LWP. The issues in addition to whether there is a nexus between Village 7B and the bridge are or include, if there is a nexus, whether a dollar amount or a percentage contribution can be imposed on LWP in this proceeding and, if so, what dollar amount or percentage contribution should be imposed. Within the scope of this inquiry, which the Tribunal is required to undertake in order to properly discharge its function, the proposed interveners would be of assistance but would not broaden the scope of the inquiry, even if they ultimately contend for a different percentage contribution on the part of LWP and by implication on their own parts.
A final consideration that also, in my view, justifies the granting of leave to intervene is that, as submitted by Mr Hardy for Investa, the disposition of these proceedings has a clear capacity to affect the contingent obligations of Investa, as evidenced by the witness statement of Ms Howell. In the particular circumstances of this case, it would, in my view, be contrary to procedural fairness to not allow Investa and Oakover, with their clear interest, to intervene and call evidence.
I have given consideration to whether leave to intervene should be limited to the issues that I have specifically referred to, namely issues 3 and 4 in the respondent's statement of issues, issues C to E in the applicant's statement of issues, and the issues as I have distilled from them and the nature of the matter in these reasons. Ultimately, as I said earlier, the range of issues in this case are related, indeed intimately related, and it would not be appropriate in my view to limit intervention to those specific issues in the circumstances.
As I said earlier, LWP presented two primary submissions, of which the first was its principal submission. That submission is that the Tribunal does not have jurisdiction to make an order in this proceeding the effect of which is to impose a requirement on LWP to contribute a certain percentage to the costs of construction of the bridge.
I do not accept this submission for the following five reasons.
Firstly, contrary to the assumption in LWP's submissions, this proceeding is not a subdivision or development assessment review, but rather, is a strategic planning review, as I have mentioned, in relation to a development plan, which is a strategic planning instrument. While it may be unusual in a development or subdivision review for the assessment and outcome to directly affect the rights and interests of third parties, it is less unusual for that to be the case in relation to a strategic planning review which, by its nature, is a broader inquiry and sets the stage for individual subdivision and development proposals.
Secondly, however, even if the matter were a subdivision or development assessment review, it may be necessary as a matter of orderly and proper planning and in order to come to the correct and preferable decision at the time of the decision upon the review, to determine, as the City sought to do in its decision, the level of developer contribution, even though to do so may require an understanding of the nature and level of development that is likely to occur in the development area more broadly. In Ironbridge Holdings Pty Ltd and Western Australian Planning Commission [2007] WASAT 305 (Ironbridge Holdings), the Tribunal said the following at [24] [26]:
In Lloyd & Ors v Robinson & Anor (1962) 107 CLR 142, the High Court of Australia recognised at 153 that where:
'the subdivision for which [approval was sought] was one of a series by means of which an area, fairly to be considered as a whole, was being gradually carved up and placed on the market … it was well within the limits of a proper understanding of the [Commission's] functions under the Act to insist, at appropriate stages in the course of application for approval to the constituent subdivisions, that open space be suitably located within the total area to satisfy reasonable requirements in respect of the total area.'
Dalyellup/Tuart Brook is an urban development area which is fairly to be considered as a whole. The proposed subdivision is one of a series by which Dalyellup/Tuart Brook is being gradually carved up and placed on the market.
Just as the High Court recognised that it is appropriate and reasonable for a developer contribution for public open space for a subdivision to be determined in the context of a whole urban development area, so too it is reasonable and appropriate for a developer contribution for roadworks in the case of the proposed subdivision to be determined in the context of the whole of Dalyellup/Tuart Brook. The traffic generated by the proposed subdivision, which is a "constituent subdivision" of Dalyellup/Tuart Brook, can only be meaningfully assessed in terms of impact and infrastructure need if the traffic generation of Dalyellup/Tuart Brook is considered as a whole. Similarly, a reasonable developer contribution for the proposed subdivision towards roadworks can only be determined by apportionment of the total cost of roadworks reasonably required by the development of Dalyellup/Tuart Brook between each of the constituent subdivisions that collectively generate the infrastructure need.
It may not always be possible to identify a development area in the same way as was recognised for the purpose of determining developer contributions in Ironbridge Holdings. It may at the time of the decision upon review in a particular case not be possible, therefore, to determine a particular dollar amount or a particular percentage contribution towards the provision of a particular infrastructure need, even where a particular development or subdivision or strategic planning proposal has a nexus to that infrastructure. Given that planning is, as Mr Hardy observed, a fluid process, it is not certain that in this case a percentage contribution can be determined, having regard to the wider development area. However, that is a matter for evidence and submission at the final hearing. I am satisfied, based on the City's position at least, that from its perspective, there is, in effect, a development area in this case comprising substantially the LWP land and the land of the proposed interveners. Of course, the City's analysis may be tested, perhaps strenuously, by the other parties at the final hearing. The Tribunal's essential task, as I have mentioned earlier, is to undertake a de novo hearing, standing in the shoes, as it were, of the City, and come to the correct and preferable decision at the time of the decision upon the review.
Thirdly, LWP's primary submission is based, as Mr Slarke submitted, on a misunderstanding of the effect of a single sentence in the decision of the Court of Appeal in Re State Administrative Tribunal; ex parte McCourt [2007] WASCA 125; 34 WAR 342 (McCourt). The sentence upon which LWP's primary submission is premised is at [41] of the Court of Appeal's decision, and is as follows:
In our respectful opinion, the importance of the distinction between sections 37 and 38 [of the SAT Act] rests in another aspect of the concept of intervention as that concept has traditionally been understood, being that in the absence of any statutory intention to the contrary, an intervener, unlike a party, will ordinarily be allowed only to support or oppose a position contended for by one or other of the parties to the proceedings, and will not be permitted to expand the issues to be decided.
There are a number of points to be made in relation to LWP's reliance on this part of the Court of Appeal's decision. The first is that the Court of Appeal's reference to an intervener being 'unlike a party' was not intended to deny the intervener the status of being a party under s 36 of the SAT Act. Section 36 of the SAT Act specifically identifies 'a party to a proceeding before the Tribunal' as, in addition to the applicant, a person joined as a party under s 38 of the Act, and any other person specified in the SAT Act or in an enabling Act to be a party, 'a person intervening in the proceeding'. Rather, the Court of Appeal determined that, unlike other parties that is, in this case, unlike the applicant and respondent interveners will ordinarily only be allowed to support or oppose a position contended for by one or other of the parties and will not be permitted to expand the issues to be decided.

The second point to be made is that the Court of Appeal held that intervention is not limited to the advancement of the public interest, but can include the advancement of private interests. The Court of Appeal said, at [40]:
Nor is there anything in the notion of intervention as opposed to joinder as a party which suggests that the concept is designed with public rather than private interests in mind. While the position under each statute must of course depend upon the terms of the statute, rights of intervention, exceptional cases aside, are ordinarily accorded only to persons who "wish to maintain some particular right, power or immunity in which they are concerned".
Therefore, an intervener can advance a private interest, although the intervener may generally only support or oppose a position contended for by one or other of the other parties to the proceeding and will not be permitted to expand the issues to be decided.
The third point to be made is that, as Mr Hardy observed, the Court of Appeal prefaced the words relied on by LWP with the word 'ordinarily'. As Mr Hardy submitted, there may well be cases in which an intervener, particularly in order to assist the Tribunal to come to the correct and preferable decision, may be allowed to adopt a broader position. However, as the counsel for the proposed interveners both emphasised, the interveners in this case will not exceed the injunction of the Court of Appeal that they not expand the scope of the inquiry. As Mr McQueen pointed out, the concluding words of the paragraph from which LWP extracted the part of the decision on which it relies are as follows:
In the context of town planning, where a very wide range of concerns are relevant to any decision, one can readily see why Parliament would limit the scope of the inquiry before the administrative tribunal to the matters at issue between the applicant and the decisionmaker, as it has done through sections 62 and 63 of the TPD Act.
The reference to s 62 and s 63 of the 'TPD Act' are to those sections of the Town Planning and Development Act 1928 (WA), which are now s 242 and s 243 of the PD Act. The involvement of the proposed interveners would not expand the range of issues in this proceeding, although they bring to bear a different perspective in relation to those issues.
The fourth reason why I do not accept LWP's primary submission is that it would, if correct, in my view, substantially undermine LWP's and all applicants' right of review in a manner not contemplated by the SAT Act or the PD Act. If LWP were correct in its primary contention, an applicant could not seek review as to the percentage of contribution required by an original decisionmaker, nor could it seek of the independent review tribunal the imposition of a specific percentage to avoid protracted negotiation and dispute between the applicant and the consent authority that would otherwise be a very real prospect. In my view, that could not possibly have been the intention of the Parliament in enacting s 243 of the PD Act.
Finally, it is not necessary, in order to avoid the concern upon which LWP's primary submission is premised, to limit LWP's right of review in this case to only whether a nexus exists, and not also to whether a contribution in a particular amount or percentage could be imposed, and if so, to what extent it should be imposed. As Mr Slarke submitted, the answer to LWP's concern about the potential impact of planning review proceedings (in which joinder is excluded) on third parties is the availability of intervention under s 37(3) of the SAT Act.
The Parliament, in planning review proceedings, could have, but did not, exclude intervention. The Court of Appeal in McCourt provided useful guidance in relation to the application of the power to grant intervention. I am satisfied that the applications made in this case by Investa and Oakover are consistent with the principles set out in the decision of the Court of Appeal and in the decisions summarised in Viento Property Ltd.
As to LWP's alternative submission that it is 'impossible' for the Tribunal to make a decision regarding the sources of traffic that will use the bridge and the proportions of traffic that will be generated by each source, given the current level of uncertainty about development of land in the area, this is an argument which will, if pressed to hearing, require evidence and assessment. Mr Williams fairly recognised that this argument, in his words, 'comes very close' to a matter for final hearing. In my view, the argument crosses the line and cannot be properly assessed without final hearing.
I will now finally briefly turn to the key specific arguments presented by LWP in relation to each of the two interveners. As to Oakover, two arguments were presented. First, Mr Williams submitted that intervention should not be allowed because the Oakover land remains zoned Rural and that this distinguishes it from the Investa land and reduces Oakovers' interest in the proceeding. However, the evidence establishes that the Oakover land has been the subject of some considerable planning in the form of an application for rezoning. Professor Caddy gave evidence that the rezoning application was referred by the City to the Western Australian Planning Commission (Commission) and was considered by the Commission's District Planning Committee. The District Planning Committee recommended that the land should be rezoned. The rezoning application, however, was held in abeyance pending the finalisation of the Commission's planning study, known as Directions 2031.
In the final version of Directions 2031, the majority of the Oakover land was identified as within an urban development area commencing in 2011. The northernmost part of the Oakover land was excluded from that urban development area for two reasons: first, the Department of Minerals and Petroleum was concerned that there may be a sand resource on the land that should be exploited before urban development; and secondly, the Environmental Protection Authority was concerned that the land may provide habitat for the endangered Western Swamp Tortoise.
Since that time, Oakover has commissioned and obtained expert assessments in relation to these issues. Professor Caddy said that the Department of Minerals and Petroleum is now satisfied that there is no longer a sand resource, and that while there is a potential issue about a clay resource, this will not affect the overwhelming majority of the land currently excluded from the urban development area in Directions 2031. Oakover has received expert advice that the land is not habitat for the Western Swamp Tortoise. However that issue is ultimately determined, it appears, from Professor Caddy's evidence that the rezoning which was originally only to Urban Deferred may well now be directly to Urban, if not for the whole of the Oakover land, then at least for the overwhelming majority of it. As Professor Caddy said, it is not a matter of 'if' but 'when' the land is rezoned for urban development.
Secondly, LWP submitted in relation to both of the applicants for intervention that intervention should be refused because the proposed interveners would be limited if intervention were granted to contending for or against the position of the City that is, that LWP pay 57% of the cost of the bridge or that LWP should pay no contribution towards the bridge. However, for reasons given earlier, the scope of this review proceeding is not limited in that way. Oakover and Investa may contend, if the evidence supports such a contention, that a different percentage than 57% of the cost should be paid by LWP.
For these reasons, in my view, the applications by Investa and Oakover for leave to intervene in the proceeding under s 37(3) of the SAT Act should be granted.

Orders

1.Pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) Investa Residential Group Pty Ltd, Oakover Vineyards Pty Ltd, Morris and Carole Yelas, G and M Candeloro Nominees Pty Ltd, Guiseppe Candeloro, John Hallatt, Milan Glavota and Thelma Kendall are granted leave to intervene in this proceeding.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER

[2011] WASAT 64

04/04/2011