MUSHROOM EXCHANGE PTY LTD and CITY OF KWINANA
[2015] WASAT 59
•6 MAY 2015
MUSHROOM EXCHANGE PTY LTD and CITY OF KWINANA [2015] WASAT 59
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 59 | |
| 28/05/2015 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:308/2014 | 6 MAY 2015 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 6/05/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Applications for leave to intervene and to make submissions dismissed | ||
| B | |||
| PDF Version |
| Parties: | MUSHROOM EXCHANGE PTY LTD CITY OF KWINANA HUGO BOMBARA MARIANNE BOMBARA |
Catchwords: | Practice and procedure Participation by third parties Town planning Intervention Leave to make submissions Applicant and respondent in mediation Proposed interveners had been invited to attend and attended first two mediation sessions to express their position Proposed interveners not invited to attend subsequent mediation sessions Whether applications for leave to intervene and to make submissions premature while matter is in mediation Whether allowing intervention at mediation stage of proceeding would be inconsistent with Tribunal's objectives |
Legislation: | Planning and Development Act 2005 (WA), s 3(1), s 242, s 243, s 246, Pt 14 State Administrative Tribunal Act 2004 (WA), s 9, s 31, s 31(1), s 37(3), s 38, s 46(1) |
Case References: | Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493 Franco and City of Nedlands [2015] WASAT 39 Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29 |
Summary | Mr and Mrs Bombara sought leave to intervene or, alternatively, to make submissions, in a planning review proceeding concerning the refusal by the City of Kwinana of an Environmental Management Plan submitted by the applicant for the City's approval in accordance with a condition of development approval for mushroom growing. Mr and Mrs Bombara own a onethird share in land adjoining the site the subject of the proceeding and propose to lodge a draft Local Structure Plan with the City that contemplates the development of their land for residential purposes.,The proceeding was referred for mediation and, with the consent of the parties, Mr and Mrs Bombara were invited to attend the mediation, together with their legal representatives and a consultant, subject to the discretion of the member conducting the mediation. Mr and Mrs Bombara attended the first two mediation sessions. The Tribunal subsequently dismissed Mr and Mrs Bombara's application for leave to attend the third mediation session. That session took place and the matter was adjourned for a fourth mediation session.,At the hearing of Mr and Mrs Bombara's application for leave to intervene or to make submissions, the applicant and the City informed the Tribunal that the likely outcome of the mediation process will be an invitation by the Tribunal to the City for reconsideration of the reviewable decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), and that the likely outcome of the reconsideration will be either resolution of the matter in terms of approval of the Environmental Management Plan or, at least, the narrowing of the issues in the proceeding.,The Tribunal dismissed Mr and Mrs Bombara's applications for leave to intervene or to make submissions. The Tribunal considered that these applications were premature at this stage of the proceeding, because the mediation may well result in the resolution of the proceeding, by means of reconsideration by the City and withdrawal of the application for review by the applicant, and because the issues in the proceeding are not known at this time and it cannot therefore be found at this stage that the intervention of Mr and Mrs Bombara is necessary to enable the Tribunal to meet its main statutory objectives set out in s 9 of the State Administrative Tribunal Act 2004 and the purposes of the Planning and Development Act 2005 (WA).,The Tribunal also considered that allowing intervention at this stage of the proceeding would be inconsistent with the Tribunal's objectives, because it is likely to subvert the process of mediation and reconsideration, particularly given that Mr and Mrs Bombara do not have an independent right to seek review of the decision the subject of the proceeding, nor, indeed, even a right or capacity to seek joinder in this proceeding. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : MUSHROOM EXCHANGE PTY LTD and CITY OF KWINANA [2015] WASAT 59 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 6 MAY 2015 DELIVERED : 6 MAY 2015 PUBLISHED : 28 MAY 2015 FILE NO/S : DR 308 of 2014 BETWEEN : MUSHROOM EXCHANGE PTY LTD
- Applicant
AND
CITY OF KWINANA
Respondent
HUGO BOMBARA
MARIANNE BOMBARA
Proposed Interveners
Catchwords:
Practice and procedure Participation by third parties Town planning Intervention Leave to make submissions Applicant and respondent in mediation Proposed interveners had been invited to attend and attended first two mediation sessions to express their position Proposed interveners not invited to attend subsequent mediation sessions Whether applications for leave to intervene and to make submissions premature while matter is in mediation Whether allowing intervention at mediation stage of proceeding would be inconsistent with Tribunal's objectives
Legislation:
Planning and Development Act 2005 (WA), s 3(1), s 242, s 243, s 246, Pt 14
State Administrative Tribunal Act 2004 (WA), s 9, s 31, s 31(1), s 37(3), s 38, s 46(1)
Result:
Applications for leave to intervene and to make submissions dismissed
Summary of Tribunal's decision:
Mr and Mrs Bombara sought leave to intervene or, alternatively, to make submissions, in a planning review proceeding concerning the refusal by the City of Kwinana of an Environmental Management Plan submitted by the applicant for the City's approval in accordance with a condition of development approval for mushroom growing. Mr and Mrs Bombara own a onethird share in land adjoining the site the subject of the proceeding and propose to lodge a draft Local Structure Plan with the City that contemplates the development of their land for residential purposes.
The proceeding was referred for mediation and, with the consent of the parties, Mr and Mrs Bombara were invited to attend the mediation, together with their legal representatives and a consultant, subject to the discretion of the member conducting the mediation. Mr and Mrs Bombara attended the first two mediation sessions. The Tribunal subsequently dismissed Mr and Mrs Bombara's application for leave to attend the third mediation session. That session took place and the matter was adjourned for a fourth mediation session.
At the hearing of Mr and Mrs Bombara's application for leave to intervene or to make submissions, the applicant and the City informed the Tribunal that the likely outcome of the mediation process will be an invitation by the Tribunal to the City for reconsideration of the reviewable decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), and that the likely outcome of the reconsideration will be either resolution of the matter in terms of approval of the Environmental Management Plan or, at least, the narrowing of the issues in the proceeding.
The Tribunal dismissed Mr and Mrs Bombara's applications for leave to intervene or to make submissions. The Tribunal considered that these applications were premature at this stage of the proceeding, because the mediation may well result in the resolution of the proceeding, by means of reconsideration by the City and withdrawal of the application for review by the applicant, and because the issues in the proceeding are not known at this time and it cannot therefore be found at this stage that the intervention of Mr and Mrs Bombara is necessary to enable the Tribunal to meet its main statutory objectives set out in s 9 of the State Administrative Tribunal Act 2004 and the purposes of the Planning and Development Act 2005 (WA).
The Tribunal also considered that allowing intervention at this stage of the proceeding would be inconsistent with the Tribunal's objectives, because it is likely to subvert the process of mediation and reconsideration, particularly given that Mr and Mrs Bombara do not have an independent right to seek review of the decision the subject of the proceeding, nor, indeed, even a right or capacity to seek joinder in this proceeding.
Category: B
Representation:
Counsel:
Applicant : Mr HH Jackson
Respondent : Mr CA Slarke
Proposed Interveners : Mr PJ McQueen
Solicitors:
Applicant : Glen McLeod Legal
Respondent : McLeods
Proposed Interveners : Lavan Legal
Case(s) referred to in decision(s):
Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493
Franco and City of Nedlands [2015] WASAT 39
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29
Introduction
1 Mr Hugo Bombara and Mrs Marianne Bombara (proposed interveners) own a onethird share in land at Thomas Road, Casuarina, which adjoins No 45 Orton Road, Casuarina, the site the subject of this proceeding. Mr and Mrs Bombara seek leave, pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to intervene in this proceeding. In the alternative, Mr and Mrs Bombara seek leave, pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act), to make a submission in respect of the application.
2 Section 37(3) of the SAT Act states as follows:
The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit.
3 Section 242 of the PD Act states as follows:
The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter.
Background
4 The proceeding before the Tribunal involves an application for review brought by Mushroom Exchange Pty Ltd (applicant) in respect of the decision of the City of Kwinana (respondent, City or Council) to refuse the applicant's application for approval of an Environmental Management Plan, pursuant to condition 18 of a development approval granted by the respondent to the applicant in 2009 for additions and alterations of an intensive agricultural use, namely, mushroom growing on the site. Condition 18 of the development approval states:
All processes associated with the operation of the business to be conducted in accordance with the approved Environmental Management Plan (EMP). The EMP is subject to annual review by the Town of Kwinana and is to incorporate any potential offsite impacts, new practices, technologies, or environmental sampling and monitoring associated with the operation of the business.
5 By its amended application, filed on 15 October 2014, the applicant seeks review of the refusal of its submitted Environmental Management Plan on the basis that the refusal of the Environmental Management Plan was a decision in respect of the exercise of a discretionary power by the respondent under the City of Kwinana Town Planning Scheme No 2 (Scheme). Clause 8.5 of the Scheme confers a right of review by the Tribunal of a decision of the respondent 'in respect of the exercise of a discretionary power under the Scheme' upon '[a]n applicant aggrieved by a decision of the Council'.
6 Following the commencement of the proceeding, the matter was referred for mediation on site and then at the respondent's office on 23 December 2014, and, with the consent of the parties, Mr and Mrs Bombara were invited to attend the mediation, together with their legal representatives and a consultant, subject to the discretion of the member conducting the mediation. The proposed interveners attended the mediation, together with their counsel. They also attended a subsequent mediation session on 3 February 2015.
7 On 20 March 2015, I heard and dismissed an application by the proposed interveners for leave to attend a scheduled third mediation session on 25 March 2015. The third mediation session took place on 25 March 2015, following which the member conducting the mediation made further orders requiring the applicant to 'present a summary of assumptions and standards for baseline conditions and those underlying the noise and odour reports to be prepared' (order 1), and requiring the respondent to provide a written response (order 2).
8 The mediation was also scheduled for a fourth mediation session to take place on 7 May 2015, that is, tomorrow:
… in order to discuss the response and what further modelling and other changes are required in order to consider documents filed and served pursuant to orders 1 and 2 and to set design parameters for future modelling as necessary.
9 Counsel for the applicant, Mr Jackson, and for the respondent, Mr Slarke, have both informed the Tribunal at the hearing today that they expect that the likelihood of the outcome of the mediation process will be an invitation by the Tribunal for reconsideration of the City's decision, pursuant to s 31(1) of the SAT Act, and that the outcome of the s 31 reconsideration is likely to be either resolution of the matter between the applicant and the respondent, in terms of approval of an Environmental Management Plan, or at least the narrowing of issues between them.
Proposed interveners' contentions
10 Mr and Mrs Bombara contend that they have a sufficient interest in the outcome of the proceeding and that it is appropriate for leave to be granted to them to intervene in the proceeding, or to make submissions. They contend that they have been affected by the mushroom farm on the site since, they say, it was expanded beyond the scope of the 2009 planning approval and they say that they have incurred significant legal and consultant costs in attempting to demonstrate that the Environmental Management Plan should not impose a purported buffer on their land.
11 Mr and Mrs Bombara have commissioned a number of studies and reports, including a site specific odour study on their land and the types of technology that are available to the mushroom farm on the site to reduce off-site impacts.
12 Mr and Mrs Bombara also propose to shortly lodge with the City a draft Local Structure Plan that contemplates the development of the proposed interveners' land for residential purposes, consistently with the lifting of the Urban Deferred classification of the proposed interveners' land and the site in 2013. Mr and Mrs Bombara contend that as a consequence of the preparation of the draft Local Structure Plan in respect of the proposed interveners' land, they have special knowledge about the strategic planning for the locality. They also contend that their odour experts are able to consider the odour impacts from the mushroom farm on the site in the context of the proposed urbanisation of the proposed interveners' land, as shown in the draft Local Structure Plan, and provide advice to the Tribunal, which the parties to the proceeding are unable to do due to their lack of special knowledge of the strategic planning for the locality.
Legal framework and principles
13 The legal framework and principles in relation to an application for leave to intervene and in relation to an application for leave to make submissions in respect of a planning review application are set out in my decision of Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29 (Wattleup) at [9] [17], and I incorporate those paragraphs of Wattleup into these reasons. As I said in Wattleup at [11], the Tribunal has a broad discretion under s 37(3) of the SAT Act to grant leave to intervene. However, as I also said in that paragraph:
… the established test for intervention has two principal elements, both of which must be established by a proposed intervener in order to be granted leave to intervene. …
14 The two principal elements, as I explained at [11] of the Wattleup decision, are as follows:
1) The proposed intervener must demonstrate at least an interest sufficient to meet the test for standing to seek judicial review, as stated in the decision of the High Court of Australia in Australian Conservation Foundation v Commonwealth of Australia(1980) 146 CLR 493 (ACF); and
2) The proposed intervener will generally need to demonstrate that its intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act and of the relevant enabling Act - in this case, the PD Act.
15 The main objectives of the Tribunal set out in s 9 of the SAT Act are as follows:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are
(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b) to act as speedily and with as little formality and technicality as is practicable, and minimise the cost to parties; and
(c) to make appropriate use of the knowledge and experience of Tribunal members.
16 The purposes of the PD Act, as set out in s 3(1) of that Act, include relevantly:
…
(b) provide for an efficient and effective land use planning system in the State; and
(c) promote the sustainable use and development of land in the State.
Consideration of applications for leave to intervene and to make submissions
17 In my view, the discretion of the Tribunal under s 37(3) of the SAT Act should be exercised against the granting of leave to intervene in these proceedings and the discretion of the Tribunal to grant leave to make a submission in respect of an application under s 242 of the PD Act should be exercised against granting leave to make a submission, in the circumstances of this case, at this stage, for the following reasons.
18 I accept the submission put by counsel for the applicant and for the respondent that Mr and Mrs Bombara's applications for leave to intervene and to make submissions in relation to the application are premature. I accept that and find that they are premature for the following two reasons.
19 First, as I have noted, the mediation process in this proceeding is ongoing and may well result in the resolution of the proceeding by means of reconsideration by the respondent and withdrawal of the application for review by the applicant. If that is the case, then there would be no 'proceeding' in respect of which to seek intervention (s 37(3) of the SAT Act) and there would be no 'application' in respect of which to hear or receive submissions (s 242 of the PD Act). It is, in my view, in the public interest and consistent with the Tribunal's objectives set out in s 9 of the SAT Act, to which I have referred, for the mediation process to be allowed to continue involving the applicant and the respondent. Importantly, the proposed interveners have no independent standing to seek review of the decision in respect of the Environmental Management Plan under the PD Act or the Scheme and have no right to seek joinder in this proceeding, because s 243 of the PD Act expressly excludes the Tribunal's power under s 38 of the SAT Act to allow joinder of any person in a proceeding for a review in accordance with Pt 14 of the PD Act. Nevertheless, the proposed interveners have been afforded procedural fairness by being invited to attend the first two mediation sessions and expressing their positions in relation to the proceeding in that process. The parties contend that they understand the proposed interveners' position and there is no basis to doubt that contention.
20 Secondly, the application for leave to intervene or to make submissions is premature at this stage, because even if the proceeding were to continue to an adjudication before the Tribunal, the issues in the proceeding are not known at this time. The application for intervention is premature, because it cannot be found at this stage that the intervention of the proposed interveners is necessary to enable to the Tribunal to meet the objectives of the SAT Act and of the PD Act.
21 Furthermore, it is well recognised, and not disputed by the proposed interveners, that interveners will not generally be permitted to raise issues in a proceeding not raised by the other parties. While, as I have said, the issues that the applicant and respondent may raise are not known at this stage, there is no basis to find, in my view, at this time, that whatever the issues ultimately are, as formulated by the parties, they will not be fully canvassed by those parties, in terms of the evidence that they lead and the submissions that they make. In particular, although Mr McQueen, counsel for the proposed interveners, submits that the evidence that will be presented by the applicant at a hearing may not be contested by evidence presented by the City, such a conclusion cannot be drawn at this stage. Further, if ultimately the matter does proceed to an adjudication and it is apparent that the respondent will not present evidence on an issue in the proceeding, either an issue raised by the parties or one that the Tribunal considers should be addressed, then the application for intervention can be brought again.
22 Finally, in terms of my reasons, not only can it not be found, in my view, at this time, that intervention is necessary to enable the Tribunal to meet its objectives in the SAT Act and of the PD Act, but I find that allowing intervention would be inconsistent with the Tribunal's objectives and, in particular, it would be contrary to the achievement of a resolution of the review 'fairly and according to the substantial merits of the case' and 'with as little formality and technicality as it practicable' and 'as speedily … as is practicable' and with minimum 'cost to [the] parties'. That is because, as I have said, the parties consider that the proceeding may well be resolved by means of the facilitative dispute resolution processes being undertaken and, in particular, mediation and a potential reconsideration.
23 I will shortly come to address the principal submissions made on behalf of the proposed interveners, one of which is that intervention will not adversely affect the mediation process and potential resolution of the proceeding through reconsideration. However, the evidence presented on behalf of the proposed interveners, in terms of an affidavit of Mr Hugo Bombara, clearly shows that the proposed interveners propose, as Mr Bombara himself says at paragraph 18 of his affidavit, that the mediation should be 'abandoned', and that the City should, rather than proceed through mediation with the applicant, 'recommence enforcement action against the mushroom farm'. Granting leave to intervene at this stage of the proceeding, in my view, would be inconsistent with the Tribunal's objectives, because it is likely to subvert the processes of mediation and reconsideration, particularly given that the proposed interveners do not have an independent right to seek review of the decision the subject of the proceeding, nor indeed, even a right or capacity to seek joinder in this proceeding.
24 In the circumstances of the ongoing mediation, it would be inconsistent with the objects of the Tribunal and, indeed, manifestly so, to allow leave to intervene in the circumstances at this time. It is likely to result in the proceeding, at the very least, going to an adjudication before the Tribunal, rather than a resolution, with far greater speed and far less cost, through mediation and reconsideration.
25 Mr McQueen, counsel for the proposed interveners, made a number of specific submissions that it is appropriate to address in turn.
26 First, Mr McQueen submits, with respect, entirely correctly, that s 37(3) of the SAT Act enables leave to be granted to intervene to a person 'at any time' and that a mediation falls within the definition of 'hearing' in s 3(1) of the SAT Act. There is no doubt that the Tribunal has a discretion to grant leave to intervene to a person while a review proceeding is in the process of mediation and if the Tribunal were to grant leave to intervene, then the intervener would become a party to the proceeding, for the purposes of the mediation, and any further process within the Tribunal proceedings.
27 However, for the reasons that I have given, it would be, in my view, inappropriate to exercise the Tribunal's discretion at this stage to grant leave to intervene or to make submissions in favour of Mr and Mrs Bombara. In particular, as I have said, it cannot be found that intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act and of the PD Act. The parties are fully engaged in a process of mediation in relation to the substantive matter and the substantial merits of the case, and, indeed, that mediation has already been informed by an awareness of the proposed interveners' position, as articulated at the first two mediations by them and by their counsel.
28 Secondly, Mr McQueen submits that s 31 of the SAT Act has the effect that a decision upon reconsideration is deemed to be the decision the subject of the review. Again, this submission is entirely correct. If the matter were to proceed to a reconsideration before the City, the substituted decision, if one is substituted by the City, is deemed by s 31(3) of the SAT Act to be the decision the subject of the review, unless the proceeding is withdrawn. However, as Mr Jackson submits, granting leave to Mr and Mrs Bombara to intervene at this stage may well subvert the process that the parties are engaged in, namely, leading to a reconsideration following mediation.
29 As I observed in Franco and City of Nedlands [2015] WASAT 39, at [27]:
Although s 31 of the SAT Act does not expressly require the consent of [all] parties, it would be unusual to invite a reconsideration at the request of one party and over the objection of [an]other party[.]
30 Although the Tribunal would have a discretion to invite a reconsideration by the City, at the request of the applicant and the respondent, and over the objection of the proposed interveners were leave granted to them to intervene in a proceeding, it would be unusual to invite a reconsideration over the objection of a party.
31 Furthermore, and even if the Tribunal were in such circumstances to invite a reconsideration, leave to withdraw the proceeding would be required under s 46(1) of the SAT Act if there were a decision upon reconsideration that the applicant is content with. If leave to intervene were granted to the proposed interveners at this stage, they would be parties which could object to leave being granted to withdraw the proceeding. Although the Tribunal would have a discretion to grant leave to withdraw a proceeding over the objection of a party, it would be highly unusual, particularly having granted leave to intervene to a third party, for the Tribunal to then grant leave to withdraw the proceeding over the objection of the third party.
32 The net result may well be that, although the applicant and the respondent are meaningfully engaged in a mediation process that they anticipate may lead to the resolution, promptly and with minimum costs, of this proceeding, they may be forced to participate in a full adjudication in consequence of the position expressed by the interveners, if leave to intervene were granted. As I have noted, Mr Bombara clearly has expressed the view in his affidavit that the mediation should be abandoned and the matter resolved otherwise.
33 Thirdly, Mr McQueen submits that this is an appropriate case in which to grant leave to intervene, having regard to the considerations and the decision in Wattleup, in which Alcoa of Australia Limited was granted leave to intervene in a proceeding. Mr McQueen submits that certain of the considerations in that decision are 'on all fours' with the circumstances of this case. In particular, as I noted in at [20] of the Wattleup decision, Alcoa proposed in that case to adduce evidence to test the veracity of the monitoring data relied upon by the applicant in relation to air quality, by reference to current and historical monitoring data held by Alcoa in relation to dust levels. In that case, Alcoa had considerable historical data in relation to dust in the locality. Mr McQueen submits that, similarly, in the circumstances of this case, Mr and Mrs Bombara have the benefit of air quality assessments in relation to odour undertaken by their consultants, in part for the purposes of the contemplated residential development of their land, and in the context of the mushroom facility on the site.
34 However, in my view, the circumstances of the present case are clearly distinguishable from the circumstances of the Wattleup case. In particular, the Wattleup case was scheduled for hearing before the Tribunal, even though, unusually, in that case, the proposed subdivider and the Western Australian Planning Commission were in agreement that subdivision approval should be granted and, indeed, proposed consent orders. However, in the Wattleup case, unusually, the application for review had been called in by the Minister for Planning under s 246 of the PD Act and the Minister had expressly directed the Tribunal to hear the application but, without determining it, to refer it to the Minister for determination with the Tribunal's recommendation. In the circumstances of this case, the matter is currently the subject of a mediation process and not listed for hearing before the Tribunal. Furthermore, the circumstances of Wattleup were unusual and, as was observed at [31] and [33] of that decision, in combination with the callin, 'exceptional', because the Tribunal had previously refused a subdivision application of part of the land the subject of that proceeding on the application of the precautionary principle.
35 As I have said earlier, if this matter proceeds to an adjudication before the Tribunal, and if it is apparent that the odour assessments or evidence proposed by the applicant would not be tested or sufficiently tested by the respondent, then an application for intervention by the proposed interveners can be made afresh and considered on its merits having regard to the circumstances at that time.
36 Finally, Mr McQueen submits that the proposed interveners have detailed evidence in relation to odour impact, knowledge of the proposed structure planning that they have undertaken and propose to undertake and, indeed, unique knowledge of potential odour impact in the context of the proposed structure planning. However, insofar as odour and strategic planning in relation to the adjourning land may be issues in this proceeding and noting that, at this stage, it is not known whether they would be issues in the proceeding if the matter proceeds to a hearing, the City, as the local strategic planning and development consent authority, has knowledge of both odour and strategic planning for the locality. It is not, in my view, necessary for leave to intervene to be granted at this stage in order for those issues to be ventilated in the proceeding either at mediation or at a final hearing, if those matters are ultimately issues between the parties in the proceeding.
37 I note, also and finally that if the matter does proceed to hearing in the Tribunal and if issues of odour and potential development of the proposed interveners' land and the interrelationship between those matters is an issue, then the City may well call evidence from the proposed interveners and/or their various consultants within the respondent's case. If the respondent ultimately does so, then that would be a relevant consideration as to whether to grant leave to intervene to the proposed interveners on the basis that it may well not be necessary to allow intervention to enable the Tribunal to meet its objectives in terms of having the evidence that they would present.
Order
38 For all of these reasons, I reject, at this stage, the application for leave to intervene or to make submissions and I make the following order:
1. The applications by Mr Hugo Bombara and Mrs Marianne Bombara for leave to intervene in this proceeding, pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA), and for leave to make a submission in relation to the application, pursuant to s 242 of the Planning and Development Act 2005 (WA), are dismissed.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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