Macri v Western Australian Planning Commission - [2014] WASC 153

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MACRI -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASC 153

CORAM: KENNETH MARTIN J

HEARD: 20 MARCH 2014

DELIVERED : 9 MAY 2014

FILE NO/S: GDA 13 of 2013

MATTER :An appeal and application for leave to appeal pursuant to Order 65 of the Rules of the Supreme Court

BETWEEN: ANNA MACRI
First Applicant
GUISEPPE MACRI
Second Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR P McNAB (SENIOR MEMBER)
Citation  :MACRI and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 157
File No  :DR 402 of 2012

Catchwords:

Appeal - Planning law - Preliminary issue decided by State Administrative Tribunal - Subdivision of rural land with abattoirs - Conditional approval by planning authority to subdivision - Objection to conditions - SAT holds conditions valid and permissible - Applicants seek leave to challenge asserted error of law in SAT

Legislation:

State Administrative Tribunal Act 2005 (WA), s 105

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

First Applicant              :     Mr M Hotchkin
Second Applicant          :     Mr M Hotchkin
Respondent:     Mr I A Repper

Solicitors:

First Applicant              :     Hotchkin Hanly
Second Applicant          :     Hotchkin Hanly
Respondent:     State Solicitor for Western Australia

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Dunbar v Commissioner of Police [2007] WASAT 90
Macri v WAPC [2013] WASAT 157
Paridis v Settlement Agents Supervisory Board of Western Australia [2007] WASCA 97; (2007) 33 WAR 361
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

KENNETH MARTIN J: This is an application for leave to appeal a decision of the State Administrative Tribunal (Senior Member P McNab).
In brief summary, the West Australian Planning Commission (WAPC) gave conditional approval to a subdivision application by the applicants on 20 August 2012 seeking the subdivision of the single lot 5164 Leggoe Road, Beaufort River, into two lots of 38.4 (Lot A) and 123.4 (Lot B) hectares respectively.
Currently situated on lot 5164 is the Beaufort River Meats abattoir, which includes three waste water treatment ponds. The abattoir is classified as licensed premises under the Environmental Protection Act 1986 (WA). There are also four existing residences with ancillary structures on the lot.
Lot 5164 is zoned regional rural under the Shire of Woodanilling Town Planning Scheme No 1.
The proposed subdivision as sought by the applicants would separate abattoir waste water treatment ponds and the abattoir manager's residence (all on proposed Lot A) from three other existing residences on the residue of the subject land.
It is not controversial that the purpose of the subdivision application by the Macris was to facilitate the sale of their abattoir business upon the proposed, discrete Lot A.
The executory contract of sale embodying a proposed conditional contract of sale between the applicants and Wellard Animal Production Pty Ltd was tendered without objection. Annexure A to that contract displays conditions of sale, including condition 15 (see, reduction in area of property).
On 8 November 2012, the proposed subdivision was conditionally approved by WAPC, subject to two conditions.
The two conditions were:
1. The subdivision being in accordance with the plan dated 5th November 2012 (attached), including the redline changes placed thereon requiring the entirety of the EPA licence area (Licence: L6826/1994/12) being included within proposed Lot A. (Western Australian Planning Commission.)
2. A notification, pursuant to Section 154 of the Planning and Development Act 2005 is to be placed on the certificate(s) of title of proposed lot B advising of the existence of a hazard or other factor. Notice of this notification is to be included on the diagram or plan of survey (deposited plan). The notification is to state as follows: 'This lot is in close proximity to an existing abattoir and has the potential to be adversely affected by odours, noise, dust and/or light emissions that are associated with the continued operation of that land use.' (Western Australian Planning Commission)
Condition 2 has not been challenged. It was wholly uncontentious both before SAT and on application to this court. However, condition 1 has been and is strongly challenged.
The substantive effect of condition 1, as imposed by WAPC, is to shift and redraw the proposed dividing boundary between proposed new Lots A and B. The line is redrawn by WAPC in such a way that the area of proposed Lot A would be extended by approximately 20% - through movement of the vertical south-eastern boundary some distance to the east, to: (a) capture one extra existing residence and sheds, as seen at the south of the redrawn boundary; (b) increase the area of Lot A by about 8 hectares up to 46.4 hectares; and (c) cause the dimensions of the as redrawn Lot A to coincide more substantively with the area of a licence as issued by the Environmental Protection Authority in respect of the operation of the Beaufort River Meats abattoir.
The appellants would not accept this condition. They instituted proceedings on 22 November 2012 in the SAT, seeking the WAPC's decision be reviewed.
Under State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27(1) a review of the decision to impose the condition by WAPC was by way of a fresh hearing – a rehearing de novo. However, within that looming review context, a preliminary hearing was first held in the SAT to determine whether condition 1 could be validly imposed by WAPC. That question was dealt with as a preliminary question or preliminary issue by SAT. A further review would be needed if the answer to the preliminary question as to WAPC's power to impose condition 1 is in the affirmative. The further review question would be whether condition 1 in all the presenting subdivisional circumstances is appropriate or not.
The preliminary issue as to WAPC's power to impose condition 1 was dealt with by SAT on 13 August 2013 under the decision of Senior Member McNab: see Macri v WAPC [2013] WASAT 157. McNab SM concluded at [21] that condition 1 was capable of being validly imposed. Those reasons are the subject of the appeal notice lodged in this court on 21 August 2013, seeking leave to appeal.
Leave to appeal is sought on only two grounds. Before addressing them, however, there emerges in light of a recent decision of the Court of Appeal in this State, namely, The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50, an issue as to whether it was open to the SAT to determine such a preliminary question. Both parties to this application submitted in the affirmative. I accept their submissions. In my view, the answer is clearly 'Yes'.
I do not read the Court of Appeal's decision in Match Group as suggesting SAT lacks power to determine a preliminary issue. Rather, I read the reasons, particularly at [18] as an endorsement of a principle as stated by Judge Chaney, as his Honour then was, in Dunbar v Commissioner of Police [2007] WASAT 90 [19]. His Honour had there observed it was 'not open to the SAT to exercise some other discretion vested in the decision maker where a decision in the exercise of that discretion is not the subject of the review'. The Match Group reasons (particularly [20] – [21]) expose that in that matter there had been no underlying decision by the Panel about the correct construction of sch 12 in relation to the Development Contribution Area (DCA) 13. Hence in Match Group the formulation of the preliminary issues (see [29]) was problematic since the Panel had never dealt with the point attempted to be resolved by SAT as a preliminary issue.
In the present case, condition 1 has been imposed by the WAPC in an asserted exercise of its powers to determine a subdivision application. Inherent in that decision is the power of the WAPC to impose such a condition. The issue of power was live below. If there was no power for WAPC to impose a condition in such terms, then that issue was fully live on a review of the WAPC's decision by SAT. SAT could hardly make an order for the imposition of a condition which was not lawful and within the power of the WAPC to impose in the first place.
The present situation is, therefore, fundamentally and clearly distinguishable from the Match Group decision. Nor do I read the Match Group decision as suggesting SAT cannot hear a proper preliminary issue as a part of how it properly deals with its overall process of de novo review.

Reasons of SAT

Returning to the decision of McNab SM, I note these observations at [16], [17], [19] and [20]:
[16]In my view, the possibility of a change in ownership by reason of the creation of a separate lot with two or three existing residences upon that land is sufficient, in and of itself, to attract subdivision controls directed at ameliorating and otherwise regulating any potential land use conflict.
[17]There appears to be no direct authority on this precise issue, and my own researches in the limited time available have not thrown any light on the point.
…
[19]Even accepting, for the sake of argument, Mr Hotchkin's submission that all of these cases may be distinguished as they mostly deal with real, clear or non-hypothetical land use conflicts that are unconnected with the circumstances of the case presently before the Tribunal, they establish, in my view, a principle wide enough to include the regulation at the point of subdivision of the effects that flow or might conceivably flow from the creation of a separate lot in itself in relation to the subject land.
[20]Accordingly, I would hold that condition 1 has been imposed for a proper planning purpose and has, on its face, a rational and reasonable basis in the related EPA licence boundaries. (emphasis added)
SAT's dispositional order, relevantly, at [21] was:
1.Without prejudice to the applicants' right to seek or to continue with merits review on these matters, the Tribunal determines the preliminary issues as follows:
Condition 1 under review is in the circumstances of the case capable of being imposed as it pursues a proper planning purpose and, on its face, has a reasonable and rational basis to the extent that it has a boundary fixed by reference to an EPA licence boundary.
On 21 August 2013, an application for leave to appeal to this Court from SAT was filed identifying three grounds of appeal. Later, the third ground was abandoned.
I refer to the two surviving grounds of appeal submitted as a basis for leave to appeal, in the following terms:
1.The State Administrative Tribunal erred in law by failing to find that Condition 1 was invalid in purporting to significantly alter the application sought to be approved.
2.The State Administrative Tribunal erred in law in failing to grant approval without Condition 1 by having regard to the relevant planning considerations, in finding that there was a need to protect against prospective land use conflicts said to arise by a change in land tenure when such conflicts could not relevantly arise by a change in land tenure.
The matter was argued with the benefit of the respective parties' written submissions, namely (a) applicants' submissions of 31 October 2013 and (b) respondent's submissions of 8 November 2013.

Ground 1

As regards ground 1, the essential nub of the argument as put by the applicant is that an error of law had been made both by WAPC and SAT because condition 1 had 'significantly altered' the character of the approval sought by the appellants under their subdivision application. It was put that condition 1 ought never to have been imposed and the WAPC ought properly to have just refused the subdivision application outright, rather than by imposing condition 1.
Underlying this ground's argument, however, is a base contention that this Court is in a position to assess the asserted error both by the WAPC and by SAT in circumstances where condition 1 is said to effect a 'significant alteration' to the subdivision application. That alteration is as a result of a redrawing of the boundary under condition 1 to effectively increase the area of subdivision Lot A by 8 hectares and correspondingly reduce the area of proposed Lot B in the same amount.
By my assessment, ground 1 is not a ground of law, which is necessary in order to found a proper basis to meet s 105(2) of the SAT Act, and therefore to appeal to this Court. In Paridis v Settlement Agents Supervisory Board of Western Australia [2007] WASCA 97; (2007) 33 WAR 361 Buss JA observed [53]:
If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2).
His Honour proceeded to observe [56]:
A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law: see Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431, 437 – 438.
Whilst I can easily countenance how SAT, as part of its de novo review of the decision of WAPC, might evaluate whether WAPC's condition 1 boundary adjustment has delivered a significant alteration to the character of the application, I cannot accept that this Court is in a similar position. The word 'significantly', juxtaposed against the concept of alteration of the application, necessarily betrays a need for an evaluative process which invokes some assessment of facts as well as law in this Court. That is a fatal problem for ground 1.
If it is first accepted that it is within the power of the WAPC to adjust, or revise, or alter a proposed boundary delineation in the context of a subdivision application and then, second, that a power of boundary alteration by WAPC is only constrained by the concept of the subdivisional application not being 'significantly altered', then it becomes crystal clear that what is really at issue is a factual evaluation of degree. That evaluation of factual contentions as to what is, or is not, significant as an alteration falls well outside s 105(2).
Recognising that potential deficiency, there was a late application by counsel for the applicant in reply submissions to amend ground 1, now proposing to add further words. The extra words were 'as it was manifestly unreasonable' (ts 46 – 50).
Counsel submitted his proposed application for leave was made with an eye to the mixed law and fact hurdle raised during argument – and to better align ground 1 to observations made in Paridis at [56] concerning legitimately challenging by appeal a tribunal's finding as manifestly unreasonable.
Application to amend ground 1 by adding the extra words was opposed by the respondent. This was on the basis the amendment proposed would alter the character of the appeal ground. I reserved my decision in respect of the proposed amendment to ground 1.
After some reflection, my view is that leave should not be granted to allow the amendment - since it does fundamentally alter the character of the ground. Effectively, ground 1 would become a challenge based on showing Wednesbury unreasonableness per Associated ProvincialPicture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. This would be, I agree, going too far, too late.
Furthermore, it seems that an attack against the validity of condition 1 under proposed ground 2 would more than embrace a challenge grounded upon asserted unreasonableness.
Accordingly, leave to amend ground 1 is refused. I further refuse leave to appeal in respect of the unamended ground 1, on the basis that it, at best, only raises a question of mixed law and fact given its underlying factual degree notion of a significant alteration to the subdivisional application.

Ground 2

Ground 2 is in the following terms:
The [SAT] erred in law in failing to grant approval without Condition 1 by having regard to the relevant planning considerations, in finding that there was a need to protect against prospective land use conflicts said to arise by a change in land tenure when such conflicts could not relevantly arise by a change in land tenure.
Ground 2 was developed in writing, then orally by counsel for the applicants.
As regards so-called irrelevant planning considerations, the argument runs, as I understand it, along these lines. There is already an abattoir situated on the undivided lot. The applicants have sought to sell off a proposed subdivided Lot A on which the existing abattoir is situated on a conditional basis, so as to comply with s 140 of the Planning and Development Act 2005 (WA) (a successor to s 20 of the old Town Planning and Development Act 1928 (WA) which prohibited dealings with parts of a lot rather than an entire lot. The currently noxious matters as associated with the abattoir already subsist - such that this application is not a future development application scenario.
There is already a subsisting abattoir with associated noxious qualities. Hence it is put that it is not a legitimate planning purpose, in accord with the Planning and Development Act for the WAPC (or SAT) to proceed on any basis of concerns about a future land use conflict scenario - under which different owners or occupiers of residences on proposed Lot B might complain about the abattoir and associated noxious emanations from the as proposed Lot A. As to what is a planning purpose, see the observations of McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 by reference to the now repealed Town Planning and Development Act.
So, by ground 2 it is contended that there has been a serious error by conflating concerns about the future ownership of the separated and subdivided Lots A and B, giving rise to possible 'land use conflicts', in circumstances where a land use conflict 'already exists'.
I reject ground 2 as conceptually misconceived.
In a context of what is or is not a relevant planning consideration for WAPC (or SAT) warranting potential imposition of a condition tied to a subdivisional approval such as condition 1, I assess it as both relevant and appropriate for a planning approval entity to have in mind possible future conflict ramifications of dividing an existing lot.
Avoiding future land use conflicts must surely be a relevant planning consideration. I reject any submission that it is unreasonable, let alone manifestly unreasonable, for a planning authority such as WAPC to have in mind as a consideration future land use conflicts. To proceed otherwise on my assessment would defy logic and commonsense, indeed strike at the very rationale for having a planning body assessing proposed subdivisions at all. By its very nature, the statutory function of a 'planning' body must involve a prospective consideration of matters that may arise in the future.
Of course, it is an entirely separate conceptual question, yet to be determined by SAT, whether the boundary realignment condition 1 as imposed was appropriate or not. That is a matter for another day before SAT.
Hence, as regards the question raised under proposed ground 2, my view is that leave should be refused, as it must necessarily be rejected on the merits.
In the end, the application for leave to amend and for leave to appeal on both grounds fails. Taxed costs should follow this event.