MURRIN and CITY OF WANNEROO
[2016] WASAT 88
•20 JULY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING ACT 2011 (WA)
CITATION: MURRIN and CITY OF WANNEROO [2016] WASAT 88
MEMBER: MR D AITKEN (MEMBER)
HEARD: 21 APRIL 2016
DELIVERED : 20 JULY 2016
FILE NO/S: CC 200 of 2016
BETWEEN: PHILIP MURRIN
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Practice and procedure Application to extend time to apply for review of refusal to grant building permit Building Act 2011 (WA)
Legislation:
Building Act 2011 (WA), s 20, s 20(1), s 20(1)(n), s 20(2), 119(a)
Building Regulations 2012 (WA), reg 18(2)
Health Act 1911 (WA), s 107(2)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 17(1)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
State Planning Policy 3.1 - Residential Design Codes (2015)
Result:
Application for extension of time for the commencement of the proceeding refused
Summary of Tribunal's decision:
The applicant made an application out of time for a review of the refusal of an application to the respondent for a building permit. 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 172 days. The respondent conceded that the applicant had provided a sufficient explanation for the delay all but for a period of 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 application had not given an adequate reason for his delay during that period 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 did not have an arguable case for review because the requirements of s 20 of the Building Act 2011 (WA) had not been met and that, of itself, was sufficient reason to refuse an extension of time because to grant it would be futile.
The Tribunal decided that there would not be any significant prejudice to the respondent if an extension of time was granted, which was a factor 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 application for a building permit and this was a factor against granting an extension of time.
After considering all of those factors the Tribunal decided that refusing to grant an extension of time in these circumstances will 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 P D Lochore
Solicitors:
Applicant: Cornerstone Legal
Respondent: Squire Patton Boggs (AU)
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 refusal of his application to the respondent, the City of Wanneroo for a building permit for the proposed residence (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 DR 471 of 2015, regarding whether an extension of time should be granted to the applicant to apply for the review of a development approval granted to him by the respondent on 18 August 2015 in respect of the applicant's land.
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 119(a) of the Building Act 2011 (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 application for a building permit was refused on 3 August 2015 and the application for review should have been made within 28 days of that date, namely by 31 August 2015. However, it was not made until 19 February 2016.
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 [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 [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 2 July 2015 the applicant submitted an application for a building permit (building permit application), which was received by the respondent on 7 July 2015.
•On 13 July 2015 the respondent sent a letter to the applicant (13 July 2015 letter) informing him that the building permit application could not be assessed until certain items are addressed.
•The building permit application was deemed to have been refused on 3 August 2015.
•On 23 October 2015 the respondent sent a letter to the applicant (23 October 2015 letter), which further advised the applicant regarding the deficiencies in the building permit application.
•On 30 October 2015 the applicant attended a meeting with the respondent's officers.
•On 6 November 2015 the respondent sent a letter to the applicant (6 November 2015 letter) regarding various matters, including reference to the building permit application.
•On 19 February 2016 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 building permit application sought a permit to build a new two storey dwelling, shed, alfresco and below ground swimming pool. It was accompanied by various prescribed information. It stated that the applicant and Jennifer Murrin were to be the builder and was accompanied by an owner builder approval granted by the Building Commission.
The 13 July 2015 letter stated that a preliminary assessment of the building permit application had been completed and four items needed to be addressed so that a full assessment could be carried out. The first item stated that the proposed finished floor level was 0.5 metre higher than that approved under planning approval DA2015/248 (which had been granted to the applicant on 26 February 2015) and the applicant needed to either provide amended plans or obtain amended development approval. The second item stated that the driveway appeared to be over 6.0 metres maximum and amended plans were required. The third item stated that the finished floor level for the garage and vehicular access needed to be provided. The fourth item stated that engineering certification was required that the swimming pool has no effect on adjacent land due to its proximity to the boundary and proposed retaining wall.
The 13 July 2015 letter further stated that if that information was not submitted within 21 days of the date of the letter the application would be refused. The applicant did not submit the requested information and therefore on the expiry of that 21 day period on 3 August 2015 the application for a building permit was deemed to be refused.
On 20 July 2015 the applicant submitted an application for development approval for formwork on a pool area and to extend the height of the rear retaining wall. On 18 August 2015 the respondent approved that development application (DA2015/1349).
The 23 October 2015 letter states that the building permit application does not meet the deemedtocomply provisions of the Residential Design Codes (R-Codes) primarily because it has a proposed finished floor level (FFL) of 19.2 metres and the applicant is required to submit a development application for the proposed two storey dwelling including the FFL of 19.2 metres. The letter further states that the building permit application cannot be assessed or further considered until the unauthorised development in respect of the retaining wall and the effluent system application are resolved.
The figure of 19.2 metres is a reference to an AHD height. 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. 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 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. 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 has been conducted. A copy of the development application form and checklist was attached to the letter for completion and submission by the applicant. The letter also repeats the advice given in the 23 October 2015 letter that the building permit application cannot be assessed or further considered until the unauthorised development in respect of the retaining wall and the effluent system application are resolved.
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.
The respondent also conceded that when the applicant made his application to the Tribunal for the review of DA2015/1349 on 20 December 2015 he intended to also apply for the review of the dismissal of the building permit application. Therefore it is not necessary for the Tribunal to consider evidence regarding events during the period from 20 December 2015 to 19 February 2016 when the application was made to commence this proceeding.
Applicant's contentions
Taking into account the respondent's concession, the applicant's contentions may be summarised as follows.
The applicant says that the respondent had no proper basis for refusing the building permit application and that it is not sufficient for the respondent to refuse that application on the basis of noncompliance issues with DA2015/248 and DA2015/1349.
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 had 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 the refusal of the building permit application 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 refusal of the building permit application.
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 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 there is no arguable case because under s 20(2) of the Building Act 2011 (WA) the building permit must not be granted unless the respondent is satisfied as to each of the matters mentioned in s 20(1). The respondent says that the applicant has not satisfied the requirements of s 20(1)(n), which provides that the applicant must have obtained each authority for the proposed building work that is prescribed. Regulation 18(2) of the Building Regulations 2012 (WA) prescribes three authorities, two of which are applicable to the building permit application in this matter. The first authority is approval under s 107(2) of the Health Act 1911 (WA) for the installation of an apparatus for the treatment of sewerage, because the applicant's land does not have access to mains sewers. The second authority is development approval under the Planning and Development Act 2005 (WA), which is required due to the proposed FFL of 19.2 metres AHD for the dwelling the subject of the building permit application. The respondent says that neither of those authorities has been obtained by the applicant.
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 obtain the necessary development approval and approval for sewerage treatment apparatus and then either submit the information requested by the respondent in the 13 July 2015 letter or submit a fresh application for a building permit with all relevant materials.
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 substantive merits of the proposed residence.
Should an extension of time be granted?
The building permit application was deemed to be refused on 3 August 2015. The application for review of that refusal should have been made within 28 days of that date, namely by 31 August 2015.
The application for review was not made until 19 February 2016. That is a delay of 172 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 and after 20 December 2015, but contends that the applicant has not provided a satisfactory explanation for the delay in applying for the review between those dates.
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 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 and up to 20 December 2015, when he made this application for the review of DA2015/1349. 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, that still leaves a period 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 a significant period of delay.
The Tribunal accepts the respondent's contention that the applicant does not have an arguable case due to the requirements of s 20 of the Building Act 2011 (WA) not having been met.
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 complete its process of considering the substantive merits of the proposed residence. However, that prejudice would not be significant because the respondent could still seek the views of neighbouring property owners and consider the merits of the proposed residence 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 application for a building permit.
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 delay after 26 October 2015 in making the application for review. This is a factor against granting an extension of time.
•The applicant does not have an 'arguable case', which of itself is sufficient reason to refuse an extension of time, because to grant it would be futile.
•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 application for a building permit. This is a factor against granting an extension of time.
After considering all of those factors, the Tribunal has decided 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 [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D AITKEN, MEMBER
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