MAKRO WAREHOUSE PTY LTD and CITY OF MANDURAH (S)
[2005] WASAT 51
•6 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: MAKRO WAREHOUSE PTY LTD and CITY OF MANDURAH (S) [2005] WASAT 51
MEMBER: JUSTICE M L BARKER (PRESIDENT)
MR P McNAB (MEMBER)
MS M CONNOR (MEMBER)
HEARD: 31 MARCH 2005
DELIVERED : 6 APRIL 2005
FILE NO/S: RD 285 of 2004
BETWEEN: MAKRO WAREHOUSE PTY LTD
Applicant
AND
CITY OF MANDURAH
Respondent
Catchwords:
Practice and procedure - Stay application - No express power to stay - Jurisdiction of Tribunal - Cessation direction by local government authority - No appeal brought from decision of Tribunal affirming cessation direction - No application to vary date of effect - Whether power of Tribunal to make "ancillary" orders extends to a stay - Application dismissed on jurisdictional and discretionary grounds
Legislation:
State Administrative Tribunal Act 2004 (WA), s 29(5), s 73(1), s 105, s 106
Town Planning and Development Act 1928 (WA), s 10
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr PN Burke
Respondent: Mr CA Slarke
Interested Party : Mr BD Luscombe for Woolworths Ltd
Solicitors:
Applicant: Hardy Bowen
Respondent: McLeods
Interested Party : Mallesons Stephen Jacques
Case(s) referred to in decision(s):
Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12
Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7
McCleary v Commonwealth Director of Public Prosecutions (1998) 20 WAR 288
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Case(s) also cited:
Nil
JUSTICE M L BARKER (PRESIDENT), MR P McNAB (MEMBER), MS M CONNOR (MEMBER):
REASONS FOR DECISION
Introduction
On 14 February 2005 the Tribunal dismissed an application for review of a decision to issue a written cessation direction under s 10 of the Town Planning and Development Act 1928 (WA) (TP&D Act) in relation to a development undertaken in contravention of the respondent's town planning scheme: Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7 (original SAT decision).
It is common ground between the parties that the practical effect or consequence of the original SAT decision affirming the decision to issue a cessation direction is that the Applicant must "stop, and not recommence" its existing operation: s 10(2) of the TP&D Act.
On 31 March 2005 the Tribunal dismissed a further application by the applicant seeking a stay of the operation of the original SAT decision. We now publish our reasons for dismissing that application.
Background
When the original SAT decision was made on 14 February 2005, then counsel for the applicant, Mr Hardy, orally sought a "stay" application. The then presiding member invited Mr Hardy to make a formal application to the Tribunal, with any necessary expedition and on a proper basis, and such an application was eventually made to this Tribunal on 2 March 2005 (application).
The application is styled as seeking "a stay of the operation of the [(s 10)] Notice issued by the respondent" and is supported by a written statement made by an officer of the applicant that it was "estimate[d]" that three months would be needed for the applicant to investigate "alternative sites" or, failing that, to wind up its operations on the subject land (see [13] of the statement of Mr Simon Feldman dated 28 February 2005 filed by the applicant).
The written application does not specify any provision of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) or any other Act, regulation or rule conferring jurisdiction or power on the Tribunal to make the order sought. The stay is not sought because of the lodging of an appeal (or an application for leave to appeal against the original SAT decision). In fact, no appeal has been brought. In any event, it would seem that only the Supreme Court could stay the operation of a decision of the Tribunal in such circumstances: cf s 106(1) of the SAT Act.
At the Tribunal's request, both parties filed short written submissions on the issue of the jurisdiction or power of the Tribunal to make the order sought, and generally. An interested party, namely Woolworths Ltd (see Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7 at [35]), was given leave to make short written submissions on these issues. In light of the conclusions that the Tribunal has reached on the application it is unnecessary to consider the submissions of the interested party in any detail.
As appears from the applicant's written submissions, the basis of the application for a stay is said to be s 73(1) of the SAT Act which empowers the Tribunal to make certain "ancillary" orders. However, before considering the scope of s 73(1) of the Act, it is convenient to mention one other provision of the SAT Act which is relevant to the present issues.
Date of effect of decisions
Section 29(5) of the SAT Act provides as follows:
"(5) The decision-maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision-maker's decision –
(a) is to be regarded as, and given effect as, a decision of the decision-maker; and
(b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect."
Neither at any time prior to, nor at the time of the making of the Tribunal's original decision, nor at any subsequent time (assuming, in respect of the last case, that this were possible) has, or had, an application been made under s 29(5) for the Tribunal to vary the date of effect of the Tribunal's original decision. Thus, the decision made by the Tribunal had effect on the date the decision to issue a cessation direction had effect (s 29(5)(b)). It is unnecessary in the present application to consider further the scope or operation of s 29(5) of the SAT Act.
The stay application
As has been mentioned, at the hearing of the application on 31 March 2005, counsel for the applicant, Mr Burke, expressly grounded – and limited – the application to a power in the Tribunal said to arise out of s 73(1) of the SAT Act. That provision is as follows:
"73. Conditional and ancillary orders and directions
(1) A power of the Tribunal to make an order or give a direction (the 'primary power') includes the power to make the order subject to conditions and the power to make any ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power." (Emphasis added)
As we understand Mr Burke’s argument, the power to make an ancillary order would extend to any case, in effect, where it was just or convenient to stay a decision. Counsel submitted that this position was established here on two grounds:
(1) It would enable the applicant to conduct an "orderly withdrawal" of its operations without "the risk of proceedings for failure to comply" with the Tribunal's order.
(2) The stay would be appropriately ancillary "to achieve the purpose of the Order as it operates to avoid an inadvertent breach of the Order by the Applicant without derogating from the force and effect of the Order".
As is recognised by the applicant in its second proposition above, a threshold issue for the applicant is that s 73(1) of the SAT Act requires the identification of the purpose sought to be achieved in connection with the exercise of the primary power of the Tribunal to make an order. As is set out above, the applicant suggests that the purpose of the order is "achieved" by avoiding an inadvertent breach of the order and allowing an orderly withdrawal of the applicant's operations.
The "primary power" exercised here was an order dismissing the application and affirming the decision under review; therefore, the order was intended to and had the effect of affirming the issue of a written cessation direction in respect of an unlawful development. That was the "purpose" for which the primary power was exercised.
In Koala Motels Pty Ltd v Chief Licensing Inspector (1977) 18 ALR 12 at 14 Muirhead J said:
"It is important to note that the word 'ancillary' has a special meaning. It means less than supplementary or supplemental to – it means 'subservient' or 'subordinate' the derivation being from the Latin 'ancillaris' – 'ancilla' being a handmaid – a person who in the good old days was regarded as subservient to her mistress and perhaps even to her master."
With respect to Mr Burke, the Tribunal cannot see how an order in effect delaying compliance with a cessation direction can be viewed, as a matter of logic, as subservient or subordinate to the purpose identified, namely the cessation (ie, an obligation to "stop") – which is required to be effected now – of unlawful development.
And, the same result would follow even if "ancillary" were to be regarded as meaning "supplementary" or "incidental" or some other related term (cf McCleary v Commonwealth Director of Public Prosecutions (1998) 20 WAR 288 at 320, where Ipp J discusses Koala Motels and notes, in addition, that "[a]ccording to the Macquarie Dictionary, 'ancillary' means 'accessory; auxiliary', and 'ancillary relief' means 'supplementary or incidental relief sought in addition to the main relief …'.").
Exercise of discretion
In any event, even if we had the power to do so the Tribunal is not persuaded that it would be a proper exercise of discretion to grant a stay in the circumstances of this application.
The applicant has been on notice since on or about 27 September 2004 (see Makro Warehouse Pty Ltd and City of Mandurah [2005] WASAT 7 at [3]) that it might have to cease or limit its operations. Since that time this Tribunal has affirmed the cessation direction decision and a period of nearly two months has passed since the primary issue was argued before us. The time limited for an application for leave to appeal to the Court of Appeal (see ss 105(3) and (5) of the SAT Act) has long since expired and, as we have already observed, no appeal has been brought by the applicant. Assuming for the present that it were possible, no application has ever been made to vary the date of effect of the original SAT decision.
The point of s 10 is to bring unlawful development to an end on proper notice "not less than 60 days after the service of the direction" (see s 10(6) of the TP&D Act). The section's evident purpose would be improperly frustrated if this Tribunal became a vehicle for long delays in the enforcement of town planning schemes whenever a local government authority took steps under s 10 of the TP&D Act.
In addition, there is much to be said for the recognition of, if not the application of, the related observation made by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 603, that:
"The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality [of administrative decisions] is a powerful consideration."
Of course, nothing that we have said here is intended to limit the discretion of the Tribunal elsewhere under the SAT Act to stay a decision under review or even, in an appropriate case, to delay the date of effect of its own decision under s 29(5).
Conclusions and orders
For these reasons, on 31 March 2005 the Tribunal dismissed the application seeking a stay of the operation of the Tribunal’s decision of 14 February 2005.
I certify that this and the preceding 6 pages comprise the reasons for judgment of the State Administrative Tribunal.
________________________
Hon Justice Michael Barker
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