Moore River Company Pty Ltd and Western Australian Planning Commission
[2006] WASAT 269
•5 SEPTEMBER 2006
MOORE RIVER COMPANY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 269
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 269 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:277/2004 | 1 SEPTEMBER 2006 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 5/09/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted to substitute plans | ||
| A | |||
| PDF Version |
| Parties: | MOORE RIVER COMPANY PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Review of refusal of plan of subdivision Application to substitute amended plans Tribunal's jurisdiction to consider revised plans Whether new plans constitute a new proposal Whether Tribunal's power to exercise functions and discretions of decisionmaker enables Tribunal to review a substantially different proposal |
Legislation: | Planning and Development Act 2005 (WA), s 142, s 251, s 251(1) Shire of Gingin Town Planning Scheme No 8 State Administrative Tribunal Act 2004 (WA), s 9, s 13, s 27, s 27(2), s 29, s 29(1), s 29(9) Town Planning and Development Act 1928 (WA), s 70(2)(b), s 24 |
Case References: | Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71 Re Western Australian Planning Commission; Ex Parte Leeuwin Conservation Group Inc [2002] WASCA 150 Yaksich v Town Planing Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979; 19 December 1979) Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : MOORE RIVER COMPANY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 269 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 1 SEPTEMBER 2006 DELIVERED : 5 SEPTEMBER 2006 FILE NO/S : DR 277 of 2004 BETWEEN : MOORE RIVER COMPANY PTY LTD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning Review of refusal of plan of subdivision Application to substitute amended plans Tribunal's jurisdiction to consider revised plans Whether new plans constitute a new proposal Whether Tribunal's power to exercise functions and discretions of decisionmaker enables Tribunal to review a substantially different proposal
(Page 2)
Legislation:
Planning and Development Act 2005 (WA), s 142, s 251, s 251(1)
Shire of Gingin Town Planning Scheme No 8
State Administrative Tribunal Act 2004 (WA), s 9, s 13, s 27, s 27(2), s 29, s 29(1), s 29(9)
Town Planning and Development Act 1928 (WA), s 70(2)(b), s 24
Result:
Leave granted to substitute plans
Category: A
Representation:
Counsel:
Applicant : Mr P McQueen and Mr PJ McWilliams
Respondent : Mr RM Mitchell and Ms DE Quinlan
Solicitors:
Applicant : Lavan Legal
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71
Re Western Australian Planning Commission; Ex Parte Leeuwin Conservation Group Inc [2002] WASCA 150
Yaksich v Town Planing Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979; 19 December 1979)
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 An application to the State Administrative Tribunal by Moore River Company Pty Ltd for a review of the refusal by the Western Australian Planning Commission is due to be heard in November and December 2006. Moore River Company wished to substitute a new plan of subdivision in place of the plan originally considered by the Commission, so that the new plan would become the subject of the review by the Tribunal.
2 The Commission objected to the revised plan on the basis that it contended it constituted a substantially new proposal, which the Tribunal had no jurisdiction to deal with. The applicant argued that it was not a substantially new proposal, but merely dealt with some of the Commission's objections to the original plan. It also argued that, even if the revised plan did amount, in substance, to a new proposal, the Tribunal nevertheless had jurisdiction to review the new proposal.
3 The Tribunal determined that it could only allow the amendment to the application by the substitution of a new plan if the new plan was not, in substance, a different proposal. However, it did not consider that the revised plan was, in substance, a different proposal, and the application to substitute the plan should be allowed.
Introduction
4 On 23 September 2004, the respondent refused to approve a subdivision plan dated 27 October 2003 (the original plan). The original plan provided for 661 lots located in an area of Guilderton just south of the Moore River.
5 On 19 November 2004, the applicant lodged a notice of appeal against that decision with the former Town Planning Appeal Tribunal, the review function of which was transferred to this Tribunal on 1 January 2005. On 26 November 2004, the Minister for Planning and Infrastructure issued a direction pursuant to s 70(2)(b) of the Town Planning and Development Act 1928 (WA) (the TPD Act) requiring the Town Planning Appeal Tribunal to hear the appeal but, without determining it, refer it with its recommendations to the Minster for determination.
6 The application has undergone a process of mediation within this Tribunal, and is tentatively listed for hearing in late November 2006.
(Page 4)
7 The applicant now seeks to substitute an amended plan (the revised plan) in place of the original plan with a view to having the revised plan made the subject of the Tribunal's review.
8 The respondent lodged an objection to the revised plan on the ground that the Tribunal does not have jurisdiction to review the revised plan (or in this case make recommendations about it to the Minister) because the revised plan is so substantially different to the original plan as to amount to a new proposal.
9 The applicant contends that the revised plan does not amount to a new proposal. Alternatively it contends that, if the Tribunal does consider the plan to be a new proposal, it nevertheless has the jurisdiction, by virtue of s 29 of the State Administrative Tribunal Act 2004 (WA)(the SAT Act), to approve the revised plan.
10 It is necessary that this issue be determined as a preliminary issue so that the parties can properly identify the relevant issues for the purpose of the hearing.
The Tribunal's capacity to consider amended plans
11 The source of the Tribunal's jurisdiction is identified in s 13 of the SAT Act. Section 13 provides:
"13. Source of jurisdiction
(1) A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.
(2) In addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that this Act gives in relation to that matter."
"(1) An applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision of the Commission to refuse to approve any
- plan … in respect of which an application for approval was made to the Commission."
13 It was common ground between the parties that the requirement for the refusal to relate to a plan "in respect of which an application for approval was made to the Commission" did not mean that there was no capacity for this Tribunal to entertain some amendment to the plan. In Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1993) 84 LGERA 71 at 85, Murray J referred with approval to the decision of the Town Planning Appeal Tribunal in Yaksich v Town Planing Board (Unreported; Town Planning Appeals Tribunal; Appeal No 15 of 1979; 19 December 1979), where the Tribunal said:
"In our opinion it would be manifestly inconvenient if an appellant were unable to amend his application or plan in any respect in the course of or for the purposes of an appeal to the Tribunal. The question in any particular case must be whether the amendment if made will constitute a new proposal or whether the proposal as amended remains in substance the same proposal. This is a question of degree. We consider that the amended proposal in this case does not constitute a new proposal. We note that the practice of the Town Planning Appeal Tribunal of Victoria has consistently been to allow the substitution of modified plans where the modification does not in the opinion of the Tribunal amount to a new proposal: Clissold v Shire of Winchelsea (1978) 10 VPA 24."
14 Murray J agreed that "it is a convenient test" as to whether amendments should be allowed "to consider whether or not the nature of the amendment is so sweeping as to effectively convert the proposal the subject of the appeal into a new proposal". He added "if that is the substantive effect of what is done, clearly the appeal should be dismissed and the applicant should start again".
15 The applicant contends that the revised plan is not, properly viewed, a different proposal, and that the proposal to amend the plan satisfies the test identified in Pacesetter.
16 While maintaining that position, the applicant accepts that, in at least one respect, the change between the original plan and the revised plan is significant. It contends that, even if the changes to the plan do lead to the conclusion that the revised plan is not in substance the same proposal as the original plan, the Tribunal nevertheless has the jurisdiction to consider
(Page 6)
- the revised plan. That jurisdiction is said to arise from s 29 of the SAT Act. The relevant portions of s 29 are subsections (1) and (9). Those subsections provide:
"(1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
…
(9) To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker."
"It is my view that as a matter of statutory construction, and having regard to the apparent purpose of the relevant Part of the Town Planning and Development Act, there is no reason to regard the Commission's powers as limited only to the approval or rejection of the precise plan which is placed before it. I would doubt whether there is anything which should be seen as preventing the Commission from requiring or approving alterations to a plan submitted to it even if the result is approval of a plan which is radically and substantially different from that originally submitted (subject to a possible requirement to engage in further consultations pursuant to s 24 if the plan is in substance and reality a different one)."
18 The reference to s 24 is a reference to s 24 of the TPD Act, now repealed and replaced by s 142 of the PD Act, which requires the Commission to forward a plan to local government, public authority or
(Page 7)
- utility service provides, where it forms the opinion that a plan of subdivision may affect the functions of any of those organisations.
19 In reaching that conclusion, Wheeler J noted that the Court had been referred to authorities concerned with the amendment of proposals for subdivision before appellate tribunals, but concluded that those cases "do not appear … to be relevant since they deal with the necessarily limited jurisdiction of an appellant tribunal". Although Her Honour did not mention the particular cases to which she referred, I note that Pacesetter is mentioned as one of the cases cited in argument.
20 The applicant's contention is that, if the Commission was not prevented from approving a radically and substantially different plan from that originally submitted, the Tribunal is similarly unrestrained since, by virtue of s 29(1) it exercises the functions and discretions corresponding to those exercisable by the Commission. Mr McQueen, counsel for the applicant, drew support for that proposition from s 27 of the SAT Act, which provides that a review is to be by way of hearing de novo and may involve consideration of new material not before the original decision-maker. He emphasised that, by s 27(2), the Tribunal is required to produce the correct and preferable decision "at the time of the decision upon the review". He further pointed to the objectives of the Tribunal established by s 9 of the SAT Act, namely, to resolve questions according to the substantial merits of the case and to act as speedily and with as little formality and technicality as is practicable. It was to those objectives, he argued, that the conferral of the functions of the original decision-maker upon the Tribunal were directed.
21 The submissions of the applicant would have greater force were it not for s 29(9). That section declares that the Tribunal is not to deal with matter "that is different in essence from the matter that was before the decision-maker". Mr McQueen argued that, even if the plan submitted was, in substance, a different proposal (in the sense referred to in Pacesetter), it was not different "in essence". Rather, he argued, both the original plan and the revised plan are, in essence, plans for a coastal residential settlement featuring a central village or town centre. That being the essential nature of the revised plan, the applicant argues that s 29(9) does not preclude its consideration by the Tribunal.
22 I do not accept a submission that s 29 extends the capacity of the Tribunal to permit amendment of a plan or subdivision beyond the limits previously identified in Pacesetter. Section 29 is concerned with the entirety of the Tribunal's review jurisdiction. It is thus not surprising that
(Page 8)
- the words of s 29(9) do not utilise expressions used in decisions such as Yaksich and Pacesetter, which speak of amendments which are "in substance the same proposal". In my view, the words "different in essence" in s 29(9), in the context of applications concerning subdivision or development, simply restate the position as explained in Pacesetter. The powers conferred by s 29 are conferred on the Tribunal" when dealing with a matter in the exercise of its review jurisdiction". The "matter" which the Tribunal deals with when an application is brought under s 251 of the PD Act, is the decision of the Commission to refuse to approve a plan in respect of which an application for approval was made to the Commission. Whatever might be the scope of the Commission's power as explained by the Full Court in Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc, it is only the review of the decision in respect of the plan for which approval was sought that falls for determination by the Tribunal. Section 29(9) is specifically designed to make that position clear.
23 Section 142 of the PD Act (and its predecessor s 24 of the TPD Act) illustrates the practical difficulties with the proposition that the Tribunal has the jurisdiction to deal with a substantially different proposal from that considered by the Commission. If a proposal being considered by the Tribunal is substantially different from that previously considered, the referrals required under s 142 would need to be undertaken by the Tribunal. That is a function that the Tribunal is not equipped to undertake. It is for reasons of that nature that the Tribunal has, as Wheeler J observed in Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group In, a "necessarily limited jurisdiction".
24 It follows that the question for determination by the Tribunal is whether, in this case, the revised plan is so different from the original plan as to effectively convert the proposal into a new proposal.
The differences between the plans
25 The differences between the plans are conveniently summarised in the respondent's notice of objection to the amendment as follows:
"(a) The area which is subject to the subdivision application is substantially altered, in that:
(i) an area in the western portion of the subdivision area on the original plan, shown on the original plan as comprising 62 single residential lots
- ranging in area from 384 square metres to 699 square metres, one duplex lot of 744 square metres, one grouped housing lot of 1400 square metres and a public open space of 6402 square metres, has been deleted from the subdivision area on the revised plan; and
- (ii) an additional area, adjacent to the south-western portion of the subdivision area on the original plan and designated as a 'Coastal Foreshore Reserve' on the revised plan, has been added to the subdivision area on the revised plan;
- (b) The area of proposed public open space, to the west of the roundabout shown in the centre of the original plan ('the roundabout'), has been reduced in area (from 9094 square metres to 7419 square metres and moved to the north-east on the revised plan;
(c) An area to the south-west of the roundabout, designated as public open space on the original plan, is shown on the revised plan as comprising 12 residential lots ranging in area from 390 square metres to 420 square metres;
(d) An area to the north of the roundabout, shown on the original plan as an area comprising 15 residential lots ranging in area from 377 square metres to 468 square metres, is shown on the revised plan as two grouped housing lots of 1198 square metres and 2732 square metres in area and one retail lot of 2722 square metres in area;
(e) A 6 metre laneway located to the north of the roundabout on the original plan has been deleted, and the area on which the laneway was located is shown as part of a retail lot in the revised plan;
(f) An area to the east, south-east and south of the roundabout, in which single residential lots and one duplex lot were shown on the original plan, is shown on the revised plan as two grouped housing lots of 4907 square metres and 3672 square metres in area;
(Page 10)
- (g) An area to the east of the roundabout, shown as a single lot of 1995 square metres designated for residential development at R35 intensity on the original plan, is shown on the revised plan as a community facility lot of 2559 square metres in area."
26 The footprint of the proposed subdivision remains the same save for the deletion of the area comprising 62 lots in the western portion, and the addition of the coastal foreshore reserve. In relation to the coastal foreshore reserve, the respondent does not contend that the addition of that area renders the proposal substantially different. That is because the respondent accepts that it would have required the ceding of that area as a condition of any approval of the original plan of subdivision in any event.
27 The removal of the 62 lots on the western portion of the subdivision is explained by the Outline Development Plan (ODP) which has been approved in respect of this locality. The ODP was adopted by the respondent on 17 January 2000. The Shire of Gingin Town Planning Scheme No 8 (TPS 8) requires that subdivision must generally be in accordance with the adopted ODP for the relevant area. Minor departures from the ODP are permitted under TPS 8 provided the departures do not prejudice the progressive development of the area covered by the plan.
28 The ODP shows the area which is deleted from the revised plan as "caravan park/chalets". The effect of the excision of the 62 lots shown in that area has the effect of reducing the inconsistency between the original plan and the ODP.
29 The other changes in the revised plan also result in the subdivision layout depicted in the revised plan being aligned more closely with the ODP than is the original plan.
The planning consequences of the changes
30 Mr Kevin Sproat, a planner who designed the revised plan, explained that the deletion of the 5.26 hectare area of the caravan park site was made because the subdivision of that portion of the land into residential lots would be contrary to the present zoning. He explained that, while the developer took the view that the caravan park site was not the most suitable location for a caravan park, its ultimate location would be a matter of negotiation between the Shire and the respondent as part of further stages of subdivision.
(Page 11)
31 Mr Philip Woodward, the director of country planning with the Department of Planning and Infrastructure, provided a statement to the Tribunal in relation to the changes. He expressed the view that the location of the caravan park and the use of the land which is designated as caravan park under the ODP, can have a significant impact on the desirability, from a planning perspective, of the subdivision design of the remainder of the land. He considers that the location of the caravan park should take into account linkages with neighbourhood centres, other tourist facilities, access to the beach and access for vehicles towing caravans. He suggested that to proceed with the proposal without reviewing the ODP and resolving the location of the caravan park site is not in the interests of orderly and proper planning. He also expressed concern that if the caravan park was to remain as suggested in the ODP, then the change of the 12 residential lots to the southwest of the public open space between the caravan park and the neighbourhood centre would not be ideal.
32 The matters raised by Mr Woodward are matters which, if the revised plan were adopted for the review, would be raised as issues as to whether or not the subdivision should be approved. The fact that there may be arguments as to the planning merits of the configuration of the revised plan does not mean that the revised plan amounts to a substantially different proposal. Indeed the very issues which Mr Woodward raises in relation to the location of the caravan park would be issues necessarily agitated in the context of the original plan.
33 The applicant concedes that the excision of 62 lots cannot be described as an insignificant change to the plan of subdivision. It contends, however, that that significant change does not render the revised plan a different proposal. I agree. The revised plan represents a proposal for subdivision of a smaller area of land. The original proposal involved an area of land of approximately 65 hectares. The revised plan covers an area of 62.26 hectares approximately. The difference is the addition of the foreshore reserve of 2.4 hectares (which the parties agree is of no significance for present purposes), and the deletion of a discreet portion of the area, namely the 62 lots on the caravan parks site. If the revised plan is permitted to stand as the plan for the purposes of the application, the consequence is, in effect, the applicant is abandoning the application for subdivision in relation to those 62 lots. Otherwise, the differences in the two plans relate to the area around the roundabout which comprises the proposed village centre.
(Page 12)
34 Mr Woodward expressed concern that the uses in the village centre identified on the revised plan may conflict with existing zoning under TPS 8. However, he described the zoning inconsistencies between the plan and the ODP as "not unusual". He also expressed concern about the impact on amenity issues of proposed grouped housing lots in close proximity to lots designated for a community facility and retail uses.
35 Issues of that nature are simply arguments as to whether or not the plan should be approved. The mere fact that an amended plan raises new or slightly different amenity issues is not sufficient to render the new plan a "substantially different proposal".
Conclusion
36 In my view, the changes to the plan do little more than endeavour to accommodate some of the concerns expressed by the respondent in relation to the original plan. To the extent that there is a significant difference between the two, it is merely that the applicant is, for the purposes of the present application, abandoning its application to subdivide the 5.26 hectare area excised. It is not a substantially different proposal, and the applicant should be given leave to amend the application by substituting the revised plan as the plan the subject of review.
Orders
37 The applicant has leave to amend the application by substituting the revised plan (M18A SUB 11B dated 17 February 2006) as the plan the subject of review.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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