MURRIN and CITY OF WANNEROO
[2016] WASAT 87
•20 JULY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: MURRIN and CITY OF WANNEROO [2016] WASAT 87
MEMBER: MR D AITKEN (MEMBER)
HEARD: 21 APRIL 2016
DELIVERED : 20 JULY 2016
FILE NO/S: DR 471 of 2015
BETWEEN: PHILIP MURRIN
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Practice and procedure - Application to extend time to apply for review of development approval - Town planning
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 17(1)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Result:
Application for extension of time for commencement of proceeding is refused
Summary of Tribunal's decision:
The applicant made an application out of time for a review of a development approval granted to him by the respondent. The review concerned whether the development approval had approved an increase in the height of a side retaining wall and a front retaining wall and a finished floor level for the applicant's proposed residence. Those matters were not sought in the development application, nor were they stated to be approved in the development approval. However, there was a notation on the plan attached to the development approval regarding 'FFL 19.200' which the applicant contended gave approval for those matters.
The Tribunal decided to determine, as a preliminary issue, whether the applicant was to be granted an extension of time to commence the proceeding.
The delay in the commencement of the proceeding was 96 days. The respondent conceded that the applicant had provided a sufficient explanation for a period of 55 days, but contended that the applicant had not provided a satisfactory explanation for the remaining 41 days.
The Tribunal considered the evidence provided by the applicant regarding his situation and his actions during that period and found it to be vague, inconsistent and unconvincing. The Tribunal therefore decided that the applicant had not given an adequate reason for his delay in making the application for review. The period of delay and failure to provide an adequate reason for the delay were factors against granting an extension of time.
The Tribunal decided that the applicant had an arguable case for review, although not a strong case and there would not be any significant prejudice to the respondent if an extension of time was granted. Those factors were in favour of granting an extension of time.
The Tribunal also decided that another factor which was relevant was that the applicant can make a further development application seeking development approval for the matters which he said should have been approved in the development approval which he was seeking to review and this was a factor against the granting of an extension of time.
Weighing up all of those factors, the Tribunal decided that the factors against granting an extension of time outweighed the factors in favour of granting an extension of time and that refusing to grant an extension of time would not work an injustice to the applicant. Therefore, the Tribunal decided not to extend the time for the commencement of the proceeding.
Category: B
Representation:
Counsel:
Applicant: Mr T Houweling
Respondent: Mr PD Lochore
Solicitors:
Applicant: Cornerstone Legal
Respondent: Squire Patton Boggs
Case(s) referred to in decision(s):
Di Virgilio v McCleary [2012] WASC 437
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Mr Philip Murrin is a registered proprietor of land situated at No 4 Nott Place, Yanchep (applicant's land) on which he wishes to build a residence (proposed residence) and associated works, including a swimming pool.
In this proceeding the applicant is seeking a review of a development approval granted to him by the respondent, the City of Wanneroo on 18 August 2015 (application for review).
However, the application for review was made out of time and the Tribunal decided to determine, as a preliminary issue, whether the applicant is to be granted an extension of time to commence the proceeding.
The preliminary issue was heard concurrently with the hearing of a similar preliminary issue in Matter CC 200 of 2016, regarding whether an extension of time should be granted to the applicant to apply for the review of the refusal of his application for a building permit for the proposed residence.
The issue to be determined
The issue to be determined is whether the Tribunal should grant the applicant an extension of time to make the application for review.
The relevant statutory provisions
The application for review has been made under s 252(1) of the Planning and Development Act 2005 (WA) and pursuant to s 17(1) of State Administrative Tribunal Act 2004 (WA) it comes within the Tribunal's review jurisdiction.
Under r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) an application to the Tribunal under its review jurisdiction must be made within 28 days from the date of the notification of the decision sought to be reviewed.
The development approval which the applicant is seeking to have reviewed was notified to the applicant on 18 August 2015 and the application for review should have been made by 15 September 2015. However, it was not made until 20 December 2015.
Rule 10 of the SAT Rules provides that the Tribunal may extend the time fixed under r 9 of the SAT Rules, which gives the Tribunal a discretion to grant an extension of time.
The exercise of the discretion to grant an extension of time
The general principles which apply to the exercise of the discretion to grant an extension of time are set out by Hall J in Di Virgilio v McCleary [2012] WASC 437 (Di Virgilio), at [38] - [41] as follows:
The power to grant an extension of time to commence proceedings is generally discretionary in nature. The use of the word 'may' in r 9 confirms the existence of a discretion here. Whether the discretion should be exercised in favour of the appellant in any case depends on an assessment of the particular facts and circumstances.
The discretion exists for the sole purpose of enabling a court or tribunal to do justice between the parties. It can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether there would be an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 459 (McHugh J).
In a passage quoted with approval and applied by Malcolm CJ with whom Kennedy and Franklyn JJ agreed in Gerando v Gerando (1997) 18 WAR 450, 454 Kennedy J held in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as follows:
In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.
In O'Connor and The Town of Victoria Park Barker J noted that the four factors identified by Kennedy J in Esther Investments had been referred to in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 by Brennan CJ and McHugh J. The correctness of those four factors had not been questioned by the High Court. Barker J applied those factors in determining whether an extension of time for a review of a decision of the Town Planning Appeal Tribunal should be granted in O'Connor.
Hall J notes at paragraph 45 of Di Virgilio, that those general principles are not exhaustive, nor do they limit the possible relevance of other factors. They are a useful guide to the exercise of the discretion, not a set of strict rules.
In Goedhart and Western Australian Planning Commission [2006] WASAT 49 at paragraph 21 the Tribunal stated that the threshold to establish an 'arguable case' is not particularly onerous and referred to the following statement by Kirby J in Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 540:
The party seeking indulgence [of an extension of time] bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile.
Agreed facts
The parties filed an agreed statement of facts, which states that:
•On 10 February 2015 the applicant submitted an application for development approval for the construction of retaining walls on the applicant's land (the first development application).
•On 26 February 2015 the respondent approved the first development application (DA2015/248).
•Between February 2015 and May 2015 the applicant constructed some retaining walls on the applicant's land.
•On 19 June 2015 the respondent sent a letter to the applicant (19 June 2015 letter) advising him that unauthorised work had been completed on the applicant's land in relation to a swimming pool.
•On 16 July 2015 two of the respondent's compliance officers attended the applicant's land and had discussions with the applicant. Later that day the applicant attended the respondent's offices and met with several officers of the respondent. At that meeting there was discussion about non-compliance matters on the applicant's land, issues regarding the height of the rear retaining wall and the proposed new finished floor level sought by the applicant.
•On 20 July 2015 the applicant submitted an application for development approval for form work on a pool area and to extend the height of the rear retaining wall (second development application).
•On 18 August 2015 the respondent approved the second development application (DA2015/1349).
•The applicant corresponded by email with the respondent's officers during the period from 9 September 2015 to 27 October 2015 raising his concerns regarding the two development applications.
•On 23 October 2015 the respondent sent a letter to the applicant (23 October 2015 letter), which informed the applicant that the height of the retaining walls which had been constructed on the applicant's land was not authorised under DA2015/248 or DA2015/1349.
•The respondent's officers and the applicant met on 30 October 2015 and at that meeting they disagreed as to what had been approved in DA2015/1349.
•On 6 November 2015 the respondent sent a letter to the applicant (6 November 2015 letter) regarding various matters, including the respondent's views on the issue of the finished floor level.
•On 20 December 2015 the applicant filed the application with the Tribunal which commenced this proceeding.
The evidence
The parties filed an agreed bundle of documents which was taken into evidence.
The applicant also put into evidence a witness statement by the applicant, an applicant's bundle of documents and a letter dated 14 December 2015 from the applicant's legal representative to the respondent. The applicant also gave oral evidence at the hearing.
The first development application sought approval for a 'retaining wall around the [applicant's land]' and the accompanying site plan shows a retaining wall along both the western and eastern side boundaries and along the northern rear boundary and partially across the southern front boundary. The rear and the western side retaining walls are shown as TOW 19.200 and the front and eastern side retaining walls are shown as TOW 18.700.
TOW is the acronym for 'top of wall' and the figures of 19.200 and 18.700 are references to AHD heights. AHD is the acronym for 'Australian Height Datum', which is the commonly used datum for height in metres above the designated mean sea level adopted in the AHD. The site plan also shows a 'proposed development (double storey) FFL 18.667' and a 'proposed pool'. FFL is the acronym for finished floor level, which is a building term indicating the finished level of the upper surface of the floor of a building. The figure of 18.667 is also a reference to an AHD height.
DA2015/248 states that planning approval is granted for 'Single House Addition (Retaining Wall)' as indicated on the attached site plan (which is the site plan that accompanied the first development application, with the TOW figures on it highlighted) and also states that the approval does not relate to any other development on the lot.
The 19 June 2015 letter states that it has come to the attention of the respondent that 'an unauthorised swimming pool has been installed at the [applicant's land] without first obtaining approval from the [respondent]'.
The second development application sought approval for 'form work to pool area' and 'extent (sic) height of rear retaining wall' and the accompanying site plan is a copy of the site plan which was attached to DA2015/248 with the TOW figure for the rear retaining wall changed to 20.100, a notation of 'form work around pool area blocks 350 x 50 x 1000' next to the 'proposed pool' and the FFL for the 'proposed development (double storey)' changed to 19.200.
DA2015/1349 states that it is an amendment to DA2015/248 and only relates to 'the proposed retaining wall and form work to pool area as nominated in red on the approved plan' and that it does not relate to any other development on the lot. The attached plan to DA2015/1349 is a copy of the plan that accompanied the second development application with the rear retaining wall outlined in red and the form work area around the pool outlined in red. Also on the attached plan there is a red line through 'proposed pool' and a red line through 'proposed development (double storey)' with the statement in red 'not part of this application'. There is also a red line under the 'FFL 19.200' of the 'proposed development (double storey)'.
The 23 October 2015 letter, after stating that the height of the retaining walls which had been constructed on the applicant's land was not authorised under DA2015/248 or DA2015/1349, goes on to state that the options which were open to the applicant to rectify the unauthorised development were either to reduce the height of the retaining walls to comply with the development approvals or to submit a development application for the retaining walls at an alternative height to those which had been approved. The letter then states that the respondent is unlikely to support the latter because a top wall height of 19.2 metres [AHD] for a front retaining wall does not comply with the respondent's Local Planning Policy 2.4 and there are alternative options available, such as terracing, and the height of the front retaining wall at that height would not be consistent with the existing streetscape. The letter then refers to an email from the applicant to the respondent dated 10 September 2015 (10 September 2015 email) in which the applicant had claimed that the proposed FFL of the two storey dwelling of 19.2 metres [AHD] was approved as part of DA2015/1349. The letter also states that the respondent denies it gave approval and that DA2015/1349 only relates to the rear retaining wall and the formwork of the swimming pool and did not grant any approval in respect of the two storey dwelling as this did not form part of the development application and consequently the respondent has not considered or granted approval for the FFL.
The 10 September 2015 email states that the northern (rear) retaining wall has been constructed to a height of 20.100 and that the other three retaining walls (each side and front) have been constructed to 19.200.
The 6 November 2015 letter refers to the meeting between the applicant and the respondent's officers on 30 October 2015 (incorrectly referred to as 30 November 2015 in the letter) and states that the letter is provided as formal advice in respect of the respondent's position on the applications which the applicant had lodged with the respondent and the further approvals which the applicant still required from the respondent in respect of the applicant's intention to proceed with his proposed two storey dwelling with a proposed FFL of 19.2 metres AHD. The letter acknowledges that when the applicant had met with the respondent's officers on or around 16 July 2015 the FFL of the dwelling and retaining wall levels of 19.2 metres were discussed as a proposal, but there was little or no background provided during the meeting and for the respondent to consider the proposal formally, a development application would need to be received and assessed. The letter also acknowledges that on the plan attached to DA2015/1349 the notation of FFL 19.2 was underlined, rather than crossed out, but states that this did not form part of the approval for DA2015/1349. The letter states that a development application with a proposed FFL of 19.2 metres may impact on other planning requirements including building height and overlooking and the application may be required to be advertised to adjoining landowners for comment and the respondent will not be in a position to advise whether an application for a FFL of 19.2 metres and heights of 19.2 metres for the eastern side and southern front retaining walls is capable of approval, until a detailed assessment had been conducted. A copy of the development application form and checklist was attached to the letter for completion and submission by the applicant.
Concession by the respondent
At the commencement of the hearing, the respondent conceded that the applicant has provided sufficient explanation for his delay in applying for the review up to the date on which he received the 23 October 2015 letter, which the respondent accepts was on or about 26 October 2015 (respondent's concession).
Therefore it is not necessary for the Tribunal to consider the evidence regarding the events prior to that date, nor the written submissions which were filed by the parties concerning events prior to that date.
Applicant's contentions
Taking into account the respondent's concession, the applicant's contentions may be summarised as follows.
The applicant says that he relied on DA2015/1349 to construct retaining walls on the applicant's land to 'comply with a height of FFL 19.200' which he says was approved in DA2015/1349.
The applicant says that the respondent's position is that the height of his retaining walls, particularly the front retaining wall, are not in keeping with the existing streetscape. The applicant says that his retaining walls are in keeping with the existing streetscape, that the respondent has previously approved greater retaining wall heights on properties in the immediate area surrounding the applicant's land and that the respondent's cut and fill policy is not consistently applied on properties surrounding the applicant's land.
The applicant says that after he received the 23 October 2015 letter, which informed him that the eastern side retaining wall and the southern front retaining wall have not been constructed in accordance with DA2015/248 or DA2015/1349, he tried to liaise with the respondent and was in regular contact with the respondent to try to resolve the issues with the development.
The applicant says that he made it clear to the respondent that an application would be made to the Tribunal in respect of both the development approval and the failure to grant a building permit if this could not be resolved between the parties.
The applicant says that his delay in applying for a review of DA2015/1349 was justified on the basis of a genuine belief that the issues with DA2015/1349 and the building permit could be resolved between the parties. He says that he only applied for a review of them after exhausting all attempts to resolve the issues with the respondent and this was in the interests of preserving the Tribunal's time and resources.
The applicant says that the respondent will not suffer any prejudice if the applicant is granted an extension of time to seek a review of the development approval.
Respondent's contentions
Taking into account the respondent's concession, the respondent's contentions may be summarised as follows.
Although the respondent concedes that the applicant has provided sufficient explanation for his delay in applying for the review up to the date on which he received the 23 October 2015 letter (on or about 26 October 2016), the respondent does not accept that the applicant should have had a period of 28 days after he received the 23 October 2015 letter to apply for a review and contends that the applicant should have done so promptly after that date. The respondent suggests a period of 14 days as being a more appropriate period within which the applicant should have filed an application for review, which period expired on or about 9 November 2015.
The respondent contends that the delay from that date onwards is unexplained.
The respondent contends that the application for review is fundamentally misconceived because the applicant is seeking to have the Tribunal approve development that was not requested as part of the second development application. The respondent says that this misconception is critical because the respondent could not approve what was not sought and the respondent has not considered the merits of what the applicant is seeking approval for, namely a TOW of 19.2 metres AHD for the eastern side and southern front retaining walls and a FFL of 19.2 metres AHD for the proposed two storey dwelling.
The respondent says that the applicant faces no injustice if the extension of time is not granted, because all he needs to do is to lodge a further development application.
The respondent contends that it will suffer prejudice if the extension of time is granted, because the review will proceed without the respondent having been able to undertake consultation with local residents and consider the planning merits of the increased height of the eastern side retaining wall and the front retaining wall and the FFL for the proposed residence at a height of 19.200 metres AHD, which the applicant seeks to have included in DA2015/1349.
Should an extension of time be granted?
DA2015/1349 was granted on 18 August 2015. The application for review of that development approval should have been made within 28 days of that date, namely by 15 September 2015.
The application for review was not made until 20 December 2015. That is a delay of 96 days after the date by which the application for review should have been made, which is a considerable delay in the context of a 28 day review period.
The respondent concedes that the applicant has provided a sufficient explanation for the delay in seeking a review up to 26 October 2015, but says that within a period of 14 days after that date, the applicant should have applied for the review of DA2015/1349. The respondent contends that the applicant has not provided a satisfactory explanation for the delay in applying for the review after the expiry of that period.
In his witness statement at paragraph 305 the applicant states that when he received the 6 November 2015 letter he submitted the appropriate paperwork to the Tribunal as soon as he could.
At paragraph 320 of his witness statement the applicant states that he has received medical treatment for stress relating to 'these ongoing issues'.
The applicant stated in his oral evidence that he had developed a medical issue where he ended up seeing his psychiatrist, psychologist and doctor as a result of what had happened and he was told by his psychiatrist to 'have a break from it and deal with it when [he] could.'
The applicant further stated in his oral evidence that he has posttraumatic stress disorder as a result of a serious injury he suffered during his service with the Royal Australian Air Force in the Middle East. He said that he has 'fuzzy days' when he cannot remember things or just has to 'put things down' and cannot deal with the situation and other periods when he has 'hypervigilance'.
Counsel for the respondent made the point during the hearing that the applicant did not include those explanations in his lengthy witness statement and only raised them during his oral evidence after he had seen the respondent's written submission that the period of delay from the receipt of the 23 October 2015 letter onwards is unexplained.
The applicant has not provided any evidence regarding the dates on which he saw his psychiatrist, psychologist and doctor and, in particular, the date on which he says that his psychiatrist told him to 'have a break'.
The applicant stated in his oral evidence that from October to December 2015 there were 30 emails that went backwards and forwards between him and different people, including the respondent's legal team and that there had not been one day where he had not dealt with issues pertaining to this matter.
The respondent made the situation and its position very clear in the 23 October 2015 letter and the 6 November 2015 letter, namely that the eastern side retaining wall and the front retaining wall had not been constructed in accordance with DA2015/248 and DA2015/1349 and that the applicant needed either to reduce the height of those retaining walls to the height which had been approved or to submit a development application for the height of those retaining walls to be increased.
In his witness statement at paragraphs 257 to 300, the applicant refers to the meeting he attended on 30 October 2015 with a number of employees of the respondent. He states that during that meeting he asserted that DA2015/1349 approved an FFL of 19.200, which therefore approved the height of the front retaining wall being built at that height (which is the height to which the applicant had already constructed the front retaining wall). He further states that the employees of the respondent disputed his assertion and he said 'F… it, let's go to SAT and get it sorted. They can decide what is relevant' and he then walked out of the meeting. At paragraph 301 of his witness statement the applicant then states that 'Several days later I lodged an application with SAT to have the matter resolved.'
That evidence indicates that on 30 October 2015 the applicant was clearly aware that the respondent's position was that the height of the front retaining wall and the eastern side retaining wall had not been approved and that he could make an application to the Tribunal for a review of DA2015/1349. His statement that he lodged an application with the Tribunal several days after that meeting is not correct, because the application for review was not filed until 20 December 2015.
The Tribunal finds the applicant's evidence regarding his situation and his actions between the date on which he received the 23 October 2015 letter and the date on which the application for review was filed to be vague, inconsistent and unconvincing.
The Tribunal has therefore decided that the applicant has not given an adequate reason for his delay in making the application for review after he received the 23 October 2015 letter, on or about 26 October 2015. That unexplained delay is a period of 55 days. If a period of 14 days, or even 28 days is allowed after 26 October 2015 for the applicant to have made an application for review, it still leaves a period of delay of 41 days, or at the very least 27 days of delay beyond that, which, in the context of a prescribed 28 day period to apply for a review, is significant.
The applicant faces considerable difficulty in succeeding in his argument that the red line under the notation 'FFL 19.200' on the plan attached to DA2015/1349 constitutes development approval for the eastern side retaining wall and for the front retaining wall to be built to that height. The second development application only sought approval for form work for the swimming pool and for the increase of the height of the rear retaining wall to 20.100. DA2015/1349 states that it is an amendment to DA2015/248 and only relates to the proposed retaining wall and form work to the pool area nominated in red and attached to it. On that plan, only the rear retaining wall and the form work around the pool are outlined in red. The respondent's argument that DA2015/1349 approved exactly what the applicant sought is a strong argument.
Although the applicant's case for review of DA2015/1349 is not strong, it cannot be said that it is hopeless, unarguable or bound to fail and therefore it must be concluded that the applicant has an arguable case.
There may be a degree of prejudice to the respondent if the extension of time is granted and the application for review proceeds, because the respondent will not have had the opportunity to go through the formal process which it says it would usually undertake regarding the increased height of the front retaining wall and the FFL for the dwelling. However that prejudice would not be significant because the respondent could still seek the views of neighbouring property owners and consider the planning merits and present those at the final hearing of the review.
In addition to the above factors, there is another factor which the Tribunal considers to be relevant. It is, as has been pointed out by the respondent, that the applicant can make a further development application seeking development approval for the increased height of the eastern side retaining wall and the front retaining wall and the FFL of the proposed dwelling of 19.200 metres AHD.
Following the consideration of the above factors the Tribunal has reached the following conclusion:
•There was a considerable delay by the applicant in making the application for review. This is a factor against granting an extension of time.
•The applicant has not given an adequate reason for the period of delay after 26 October 2015 in making the application for review. This is a factor against granting an extension of time.
•The applicant has an 'arguable case', in that it is not 'hopeless, unarguable or bound to fail, although it is not a strong case. This is a factor in favour of granting an extension of time.
•There would not be any significant prejudice to the respondent if the extension of time is granted. This is a factor in favour of granting an extension of time.
•The applicant can make a further development application seeking development approval for the height of the eastern side retaining wall and the front retaining wall to be built to a height of 19.200 metres AHD nor the FFL for the proposed dwelling to be 19.200 metres AHD. This is a factor against granting an extension of time.
Weighing up all of those factors, the Tribunal has decided that the factors against granting an extension of time outweigh the factors in favour of granting an extension of time and that refusing to grant an extension of time in these circumstances will not work an injustice to the applicant. Therefore the Tribunal has decided not to extend the time for the commencement of the proceeding.
Order
The Tribunal has made the following order:
1.The application under r 10 of the State Administrative Tribunal Rules 2004 (WA) to extend the time for the commencement of the proceeding is refused.
2.The proceeding is dismissed.
I certify that this and the preceding [60] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D AITKEN, MEMBER
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