Nicholls and City Of Mandurah

[2008] WASAT 141

NICHOLLS and CITY OF MANDURAH [2008] WASAT 141

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 141
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:258/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	24/06/08
No of pages:	17	Judgment Part:	1 of 1
Result:	Preliminary issues determined in respondent's favour
Category:	A
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Parties:	JOHN NICHOLLS CITY OF MANDURAH
Catchwords:	Town planning ­ Referral by Minister under s 211 of the Planning and Development Act 2005 ­ Scope of referral ­ Whether scope of referral wider than under previous legislation ­ Whether issues subject of referral
Legislation:	City of Mandurah Town Planning Scheme No 3 Interpretation Act 1984 (WA), s 19 Peel Region Scheme Planning and Development Act 2005 (WA), s 3(1), s 3(2), s 211, s 242 State Administrative Tribunal Act 2004 (WA), s 37, s 38 Town Planning and Development Act 1928 (WA), s 18
Case References:	Evans v Shire of Murray (2004) WATPAT 197 Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 Lakes Action Group Associated Inc and Shire of Northam [2005] WASAT 8 Lakes Action Group Association Inc and Shire of Northam [2004] WATPAT 195 Swadling v Sutherland Shire Council (1994) 82 LGERA 431

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NICHOLLS and CITY OF MANDURAH [2008] WASAT 141 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 JUNE 2008 FILE NO/S : DR 258 of 2007 BETWEEN : JOHN NICHOLLS

Applicant

AND

CITY OF MANDURAH
Respondent

Catchwords:

Town planning ­ Referral by Minister under s 211 of the Planning and Development Act 2005 ­ Scope of referral ­ Whether scope of referral wider than under previous legislation ­ Whether issues subject of referral

Legislation:

City of Mandurah Town Planning Scheme No 3

Interpretation Act 1984 (WA), s 19
Peel Region Scheme
Planning and Development Act 2005 (WA), s 3(1), s 3(2), s 211, s 242
State Administrative Tribunal Act 2004 (WA), s 37, s 38
Town Planning and Development Act 1928 (WA), s 18

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Result:

Preliminary issues determined in respondent's favour

Category: A

Representation:

Counsel:

Applicant : Self-represented
Respondent : Mr C Slarke

Solicitors:

Applicant : Self-represented
Respondent : McLeods

Case(s) referred to in decision(s):

Evans v Shire of Murray (2004) WATPAT 197
Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60
Lakes Action Group Associated Inc and Shire of Northam [2005] WASAT 8
Lakes Action Group Association Inc and Shire of Northam [2004] WATPAT 195
Swadling v Sutherland Shire Council (1994) 82 LGERA 431


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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The Minister for Planning and Infrastructure referred certain representations made by Mr John Nicholls to the Tribunal under s 211 of the Planning and Development Act 2005 (WA). The Minister, by her referral, sought a report and recommendation in relation to Mr Nicholls' representations.

2 After the parties identified with precision the particular representations said to have been made, the City asserted that, with one exception, the representations identified did not come within the purview of s 211 of the Planning and Development Act 2005 (WA). With respect to the one matter which was capable of coming within the ambit of the section, the City argued that that matter had not been the subject of any representation by Mr Nicholls to the Minister.

3 The Tribunal considered the proper construction of s 211 of the Planning and Development Act 2005 (WA), having regard to previous decisions concerned with the predecessor to that section, namely s 18(2) of the Town Planning and Development Act 1928 (WA). It concluded that matters which might be the subject of report and recommendation under s 211 did not include a review on the merits of an existing planning approval, nor an attack on the validity of an existing planning approval. All but one of the issues that Mr Nicholls contended should be the subject of report were found by the Tribunal not to be susceptible to report under s 211. With respect to the remaining matter, the Tribunal agreed with the City that that matter had not been the subject of any representation to the Minister.

4 Accordingly, the Tribunal determined the preliminary issues in favour of the City and indicated that it would report to the Minister the conclusion that none of the matters which Mr Nicholls claimed to have been the subject of the Minister's referral were capable of report and recommendation from the Tribunal.

Introduction

5 By letter dated 26 July 2007, the Minister for Planning and Infrastructure (Minister) referred certain representations made by Mr John Nicholls to the Tribunal for report and recommendation. The referral was made under s 211 of the Planning and Development Act 2005 (WA) (PD Act). The letter attached a schedule which was said to be a tabulation of the issues raised in the representation. Mr Nicholls' representations were contained in a letter

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dated 31 July 2006. The 39 matters outlined in the schedule were a mixture of complaint as to aspects of the City of Mandurah's (City) handling of a development application, assertions as to certain facts surrounding that application, and submissions as to how the application should have been dealt with.

6 The Minister's letter specified six matters said to arise from the matters set out in the schedule in respect of which the Minister said, "it would be of assistance to receive the Tribunal's advice". These matters included seeking advice on the apparent interpretation by the City of its planning scheme; the proper construction of a particular clause of the scheme; whether the City was obliged to have regard to a particular State Planning Policy when it made its decision; and whether the City's assessment of the building as a five-storey rather than a six-storey building represents a failure to effectively implement the scheme.

7 The matters in respect of which the Minister sought advice were, in large part, effectively requests for advice as to the proper construction of the scheme and as to some of the considerations which apparently led to the City's decision.

8 At the first directions hearing of the matter in the Tribunal, the Tribunal referred the matter to a compulsory conference in order to distil and identify the issues in relation to which the Tribunal should report and make recommendations to the Minister.

9 The particular development had been the subject of an earlier decision by the Tribunal - see Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 (Health Resorts decision). Following the initial compulsory conference, the applicant asserted that the earlier Health Resorts proceedings (to which he was not a party) had not been finally resolved, and sought to have further issues determined in those proceedings. Because the Tribunal had made final orders in the Health Resorts matter, it declined to re-open these proceedings. It did, however, result in some delay in identifying with clarity the issues before the Tribunal in these proceedings.

10 At the compulsory conference, the parties were directed to file Statements of Issues, Facts and Contentions. They complied with those directions. Those documents enabled the applicant to identify what he considered to be issues for investigation and report to the Minister, and for the City to outline its position in relation to those issues.

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11 A further directions hearing was set down to enable the parties in the Tribunal to agree the issues for report. Prior to the directions hearing, the Tribunal proposed a list of the issues that appeared to have been identified by one or both of the parties in their statements of Issues, Facts and Contentions. At the directions hearing, that list was discussed and the parties agreed that the issues for consideration and report were as follows:

"(1) On its proper construction does clause 4.10.3.4(a) of TPS 3 require that Council determine that the development would have no adverse affect [sic] on the amenity of the area?

(2) Was Council's approval given without proper regard to clause 4.10.3.4(a), and in particular was the assessment process properly carried out and soundly based.

(3) Did Council fail to comply with its own policies (LPP 12) in relation to its calculation as to the height of the proposed development?

(4) Whether Council should have imposed a lower height limit pursuant to clause 4.10.3.6 of TPS 3 for the proposed development.

(5) Whether issue 4 was the subject of representations referred by the Minister.

(6) Whether the Council's approval contained a condition requiring WAPC approval and if so whether Council is obliged to enforce that condition.

(7) Whether issue 6 was the subject of representations referred by the Minister.

(8) Was Council obliged to, and did it fail to, have regard to DC 6.1?

(9) Does the Council's treatment of the application as a 5 storey building constitute a failure to properly enforce or implement TPS 3?

(10) Whether issue 9 was the subject to representations referred by the Minister.

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(11) Whether the approval was within power in the absence of an Outline Development Plan or Guided Development Plan as referred to in paragraph 2.3 of Part A - Height Standards Development Height Policy.

(12) Whether issue 11 was the subject of representation referred by the Minister.

(13) What recommendations should the Tribunal make to the Minister in light of its findings?

(14) Is it within the scope of s 211 of the Planning and Development Act 2005 (WA) for the Tribunal to consider and report on any or all of issues 1, 2, 3, 4, 6, 8, 9 and 11."

12 A number of the issues challenged, in effect, the Tribunal's jurisdiction to enquire and report on the substantial issues raised in Mr Nicholls' Statement of Issues, Facts and Contentions. The balance of the issues went to the merits of the proposal, and the validity of the City's processes in granting the approval. It was agreed that those issues going to the Tribunal's jurisdiction, namely issues 5, 7, 10, 12, and 14, should be determined as preliminary issues and should be determined on the papers.

13 Issues 5, 7, 10 and 12 involve an examination of the representations made by Mr Nicholls to the Minister, and the referral by the Minister to the Tribunal. Issue 14 involves a wider question as to the scope of s 211 of the PD Act. The respondent contends that, with the exception of issue 6, none of the issues were within the scope of representations which might be examined under s 211 of the PD Act. In respect of issue 6, the respondent contends that the issue did not form the subject matter of any representation referred by the Minister.

The development

14 The proposed development the subject of Mr Nicholls' representations is for a multi-storey redevelopment of a property known as Blue Bay Motel at No 11 (Lot 701) Oversby Street, Halls Head in the City of Mandurah. The development approval process has had an unusual history.

15 The original application for approval was lodged in November 2004. The site is located within the northern portion of Halls Head and is located approximately 200 metres east of the Indian Ocean. The proposed

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redevelopment involves construction of (what the Tribunal earlier found to be) a six-storey motel.

16 On 27 July 2005, the City, by its delegated officer, gave an approval to commence development subject to certain conditions. However, at the request of the City, the applicant made a second application for approval in February 2006. On 18 July 2006, the council of the City approved the February application subject to a number of conditions. The approval also contained a footnote advising that the proposed development is subject to the State Government Development Control Policy 6.1 – Country Coastal Planning Policy (DC 6.1), and that the application would need to be assessed under the provisions of the Peel Region Scheme (PRS) by the Western Australian Planning Commission (WAPC).

17 The applicant then made application to the WAPC under protest, arguing that no approval was, in fact, required under the PRS. The WAPC nevertheless considered the application, and resolved to approve it subject to removal of the upper level, described by the applicant as a mezzanine floor, but found by the Tribunal to be a sixth storey.

18 The developer, Health Resorts of Australasia Pty Ltd (Health Resorts), sought review of the WAPC decision, and the Tribunal upheld Health Resorts' contention that no separate approval was required under the PRS, and concluded that Health Resorts was at liberty to proceed with the development, subject only to obtaining a building licence.

The scope of s 211 of the PD Act

19 Although identified as the last of the issues for determination in the proceedings, the determination as to the scope of s 211 of the PD Act bears upon all the substantive issues upon which the applicant seeks the Tribunal's report to the Minister. If particular issues are found to be outside the scope of issues which might be considered for that purpose, it is not then necessary to consider whether those issues were the subject of representations by Mr Nicholls to the Minister, and referral by the Minister to the Tribunal. It is convenient, therefore, to deal with issue 14 first.

20 Sections 211(1) to s 211(4) of the PD Act provide:

"211. Minister may give orders to local government

(1) A person aggrieved by -

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(a) the failure of a local government to enforce or implement effectively the observance of a local planning scheme; or

(b) the failure of a local government to execute any works which, under a local planning scheme or this Act, the local government is required to execute,

may make representations to the Minister.

(2) The Minister may determine not to take any action in response to the representations or, if the Minister considers it appropriate to do so, the Minister may refer the representations to the State Administrative Tribunal for its report and recommendations.

(3) For the purposes of making a report and recommendations on a referral under subsection (2), Part 14 applies with such modifications as may be necessary, as if the referral were an application for review.

(4) On holding an inquiry or receiving a report and recommendations from the State Administrative Tribunal, the Minister may order the local government -


(a) to do all things necessary for enforcing the observance of the scheme or any of the provisions of the scheme; or
(b) to do all things necessary for executing any works which, under the scheme or this Act the local government is required to execute,

as the case requires."

21 Section 211 of the PD Act replaced s 18 of the former Town Planning and Development Act 1928 (WA) (TPD Act). Section 18(2) provided:
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"A person may make representations to the Minister if the person is aggrieved by the failure of a local government to -

(a) enforce effectively the observance of a town planning scheme in force under this Act, or any of the provisions of the scheme; or

(b) execute any works, which under the scheme or this Act, the local government is required to execute."

22 Section 18(2)(a) and s 18(2)(b) were, in substance, identical to s 211(2) and s 211(3) of the PD Act. Section 18(2c) of the TPD Act provided:

"If, after holding an inquiry or receiving a report and recommendations from the State Administrative Tribunal, the Minister is satisfied that the local government has failed -

(a) to enforce effectively the observance of a scheme or a provision of a scheme; or

(b) to execute any works which the local government is required under a scheme or this Act to execute,

the Minister may order the local government to do all things necessary to enforce the observance of the scheme or provision or to execute the works."

23 It can be seen that s 18(2c) conferred on the Minister the same power as is now found in s 211(4) of the PD Act.

24 The difference between the present legislation and the former legislation is the inclusion of the words "or implement" in par (a) of s 211(1) of the PD Act. Mr Nicholls contends that the inclusion of those words should be taken to have expanded what was previously seen to be a limitation on the scope of referrals under s 18 of the TPD Act.

25 In Evans v Shire of Murray (2004) WATPAT 197, the Town Planning Appeal Tribunal considered a referral, under s 18 of the TPD Act, by the Minister of certain representations made concerning an approval granted by the Shire of Murray for the construction of houses on a floodway. The approvals were granted contrary to advice from the Waters and Rivers Commission. The substance of the complaint made to the Minister was that the Shire of Murray should not have acted contrary to the advice and should have made a different decision under its town

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planning scheme. The President of the Tribunal accepted the submission that "a representation could not take the form of a de facto appeal in respect of a decision given on a development application" (see [19]). In relation to assertions by the appellant that the decision amounted to an improper exercise of power and bad faith in the exercise of that power, the President concluded that they were matters which did not fall to be determined as part of the process under s 18. Rather, he considered that allegations of that nature were only capable of resolution by application for prerogative relief or declaration in the Supreme Court. The Tribunal did not possess any declaratory powers.

26 In Lakes Action Group Association Inc and Shire of Northam [2004] WATPAT 195, the former Town Planning Appeal Tribunal dealt with a referral under s 18 of the TPD Act relating to the establishment of a quarry. The letter of referral by the Minister enclosed copies of advice from the Department of Planning and Infrastructure and the State Solicitor's Office. The letter from the State Solicitor's Office had posed certain questions, and the Minister's referral requested that the Tribunal address those questions. Those questions went beyond the subject matter of the representation which gave rise to the referral. The Tribunal concluded (at [18]) that no scope exists within the Act for the Minister to enlarge or widen the scope of the enquiry to include matters which were not the subject of the representation first made to her. The President said, (at [15]) "it is the referral of the representations with which the section is concerned, not a broad-based enquiry of the Minister's instigation, rather the instigation is that of the representor".

27 The matter the subject of the representation was, however, said to have been validly referred, and responsibility for report to the Minister fell to this Tribunal when it assumed the functions of the former Town Planning Appeal Tribunal in January 2005. The issuewhich had been referred was whether the quarry was the subject of any approval. If, as the Lakes Action Group contended, the use was not the subject of approval, then it was alleged that the Shire had failed to enforce its scheme by taking appropriate action to prevent the use continuing. In the course of the proceedings before the Tribunal, however, the Lakes Action Group raised an additional allegation that, if there had been an approval, it was not valid. In Lakes Action Group Associated Inc and Shire of Northam [2005] WASAT 8, the Tribunal determined that the question of validity of approval granted pursuant to a scheme was not one susceptible to examination in proceedings referred under s 18(2a) of the PD Act. It reached that conclusion on the basis that the representation would not fit the description of a "failure of a local government to enforce effectively the

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the observance of a town planning scheme in force under" the TPD Act. It was therefore not amenable to reference by the Minister to the Tribunal, but rather could only be dealt with by application for prerogative relief or declaratory relief in the Supreme Court. Underlying that conclusion was the proposition that a person who holds an approval is entitled to rely on the validity of the approval until such time as it is quashed or declared invalid by a court of competent jurisdiction – see Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 436.

28 As already observed, s 211 of the PD Act introduced the words "or implement" which had not been part of s 18 of the TPD Act. Mr Nicholls contended that the introduction of those words had the effect of broadening the scope of s 211 reviews. I do not accept that submission. There are several reasons for that conclusion.

29 It is not argued that the approach taken by the former Town Planning Appeal Tribunal and by this Tribunal to the scope of s 18 was incorrect. For the reasons explained by the Town Planning Appeal Tribunal in Evans v Shire of Murray and Lakes Action Group Association v Shire of Northam, and by this Tribunal in the Lakes Action Group matter, the Tribunal was limited under s 18 of the TPD Act to a report and recommendation only on matters which were the subject of representations to the Minister, and only on the basis that those matters do not involve a review of the merits of a discretionary decision or an attack on the validity of an approval granted and communicated to the applicant for development. In my view, the position remains the same under s 211 of the PD Act as it was under s 18 of the TPD Act.

30 Section 3(1) of the PD Act identifies one of the purposes of the Act as being to consolidate the provisions of various repealed Acts including the TPD Act.

31 Section 3(2)reads as follows:

"If -

(a) the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 or the Western Australian Planning Commission Act 1985 expressed an idea in a particular form of words; and

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(b) this Act appears to have expressed the same idea in a different form of words in order to use a clearer or simpler style,

the ideas are not to be taken to be different just because different forms of words were used."

32 It is of significance that s 211(4) confers on the Minister precisely the same powers as previously existed under s 18(2c) of the PD Act. Those powers include the power to order the local government to do all things necessary for enforcing the observance of the scheme or any of the provisions of the scheme. The word "implement" has not been used in s 211(4).

33 If it was intended that the Minister could declare an approval invalid, or determine that, on the merits, an approval ought not have been granted, a specific power to make such orders would be required. It is not to be found in s 211. The power under s 211(4) to order the local government to do something cannot affect the validity of an approval obtained by an applicant for development.

34 The construction of s 211(1) for which Mr Nicholls contends would result in a report and recommendation of the Tribunal which could serve no practical purpose. If the Tribunal were to report to the Minister that it considers that a particular approval should not have been granted on the merits, or alternatively was invalid, the Tribunal could not recommend any action by the Minister to remedy that position. That is because the Minister would have no power under s 211 of the PD Actto set aside the existing approval.

35 In my view, the introduction of the words "or implement" into the section is an example of the expression of the same idea in a different form of words, and no different idea is to be taken to emerge from the use of those different words.

36 As the City submits, in the context of the local planning scheme, the implementation by a local government of the observance of the scheme might include putting into effect planning instruments which the scheme contemplates ought to be adopted by a local government. In the context of the City of Mandurah Town Planning Scheme No 3 (TPS 3) that might include instruments such as outline development plans, technical guidelines and local planning policies. If a local government failed to do the things which its local planning scheme contemplates, that would appear to be the sort of matter for which the Minister's intervention might be appropriate. Matters of that kind might well

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have come within the operation of s 18(2) of the TPD Act, as failures to enforce effectively the observance of a town planning scheme. The introduction of the word "implement" expresses that proposition more clearly.

37 If Mr Nicholls' contentions as to the breadth of s 211(1) of the PD Act were accepted, the effect would be to introduce into the Act a form of third party rights of appeal, albeit subject to the cooperation of the Minister. That construction would be quite inconsistent with s 243 of the PD Act, which excludes the operation of s 38 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which deals with joinder of parties. A clear object of the PD Act is that third party involvement in planning appeals is limited to making submissions under s 242 of the PD Act or, possibly, intervention under s 37 of the SAT Act. The construction of s 211 of the argued by Mr Nicholls would be inconsistent with that statutory objective.

38 Mr Nicholls argues that a broader interpretation of s 211 of the PD Actshould follow from the fact that the Minister has maintained her request for a report and recommendations throughout these proceedings. During the course of the proceedings, Mr Nicholls wrote to the Minister expressing a concern as to the approach being taken by the Tribunal to limitations as to the scope of s 211. At one point, because of concerns about the Tribunal's approach, Mr Nicholls indicated to the Minister that he did not wish to pursue the proceedings in the Tribunal. Notwithstanding that indication, the Minister did not seek to withdraw her referral to the Tribunal. (Mr Nicholls subsequently resumed his active participation in the proceedings). Mr Nicholls argues that, because the Minister maintained the referral in the face of suggestions that it may go beyond the scope of the Tribunal's jurisdiction, and because the Minister was responsible for the carriage of the PD Act through the legislature, it should be taken that the Minister intended that s 211 of the Act should have a broad operation. That was, at least impliedly, suggested to be the reason that the Tribunal should construe the scope of s 211 widely.

39 The matters to which Mr Nicholls refers are not matters which can properly be taken into account as an aid to the construction of a statutory provision. The Interpretation Act 1984 (WA) identifies certain approaches to be taken to the interpretation of statutes. Section 18 requires that an interpretation which would promote the purpose and object underlying the written law is to be preferred to a construction that would not promote that purpose or object. Section 19 deals with various documents and materials that can be considered to confirm the meaning of words conveyed in

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the provision, or to resolve ambiguities, obscurities or absurd or unreasonable results. The matters which might be taken into account do not include conduct of the Minister of the nature identified by Mr Nicholls.

40 In my view, under s 211 of the PD Act, the Minister is not empowered to refer, and the Tribunal is not empowered to report and make recommendations on:

(i) representations that an existing approval of a development should not, on the merits of the case, have been granted, or

(ii) representations that an approval for development granted by a local government under a local planning scheme is invalid.

Are the referred matters within the scope of s 211?

41 It is quite clear that issues 2, 3, 4, 8 and 9 all go to the merits of the City's decision to approve the development. Were the criticisms of the council's approach to the grant of approval made out, they would not, in my view, constitute a failure of a local government to enforce or implement effectively the observance of a local planning scheme, within the meaning of those words in s 211 of the PD Act.

42 Issues 1 and 11 attack the validity of the development approval. Those matters, too, are beyond the scope of s 211 of the PD Act for report and recommendation.

43 It follows that the Tribunal should decline to deal with issues 1, 2, 3, 4, 8, 9 and 11 of the identified issues. It is therefore not necessary to consider issues 5, 10 or 12 which deal with whether issues 4, 9 and 11 were the subject of representation referred by the Minister. Even if they were the subject of representation, they could not be the subject of report and recommendation by the Tribunal.

44 That leaves issues 6 and 7.

Was issue 6 the subject of representations referred by the Minister?

45 The City accepts that issue 6, namely whether the council's approval contained a condition requiring WAPC approval, and if so whether council is obliged to enforce that condition, is a matter going to the enforcement or implementation of the observance of TPS 3. The City contends, however, that the issue was not the subject of the referral by the Minister to the Tribunal.

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46 Issue 6, as presently formulated, emerges from par 53 of the applicant's Statement of Issues, Facts and Contentions. In that paragraph, the applicant asserts that the respondent's approval to the development was conditional upon WAPC approval. In response, the City asserts that no such condition was imposed on the development approval.

47 A review of the representations contained in Mr Nicholls' letter to the Minister of 31 July 2006 reveals that there is no suggestion in that letter that the City's approval was conditional upon assessment by the WAPC. Nor does the Minister's letter of 26 July 2007 make that assertion.

48 In his written submissions, Mr Nicholls contends that:

Issue 6 "was identified in (the Health Resorts decision) from footnote 2 in the City's conditions for the grant of planning consent sent to the developer on 16 August 2006, after (Mr Nicholls') 31 July 2007 [sic 2006] representation to the Minister. This footnote, however, states 'the proposed development is subject to the State Government Development Control Policy 6.1 - Country Coastal Planning and, under the provision of the Peel Region Scheme, a development approval must also be assessed by the Western Australian Planning Commission'. The wording of this footnote directly ties issue 6 to the City's obligation under the State's DC 6.1 (cl 3.5.5i) which was unresolved at the time the City approved the 'modified' redevelopment. The City's obligation under DC 6.1 is covered by the appellant's 31 July 2006 representation to the Minister and is identified by the Tribunal as issue [8]."

49 The applicant's acknowledgement that the representations were made by the Minister prior to the communication of the development approval and the advice contained in the footnote to the approval, makes it self-evident that a failure to enforce a condition of that development approval, said to be incorporated in the footnote, did not form part of the representations made to the Minister. As I have already determined above, the question of the City's regard to DC 6.1 is not a matter amenable to report and recommendation under s 211 of the PD Act (Issue 8). To the extent that Mr Nicholls' letter of 31 July 2006 complains of the failure of the City to have regard to DC 6.1, it is dealt with as issue 8. Issue 6 formed no part of the representations made to the Minister, and thus no part of the representations
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referred to the Tribunal by the Minister.

50 I might add, although it is not strictly necessary to do so, that I do not, in any event, consider that the development approval contained a condition requiring approval by the WAPC. The footnote was an advice note. The background to the advice note is explained in the Health Resorts decision. The advice was, as the Tribunal determined in the Health Resorts case, erroneous in the sense that the operative resolution under the Peel Region Scheme did not, in fact, require approval of the proposed development by the WAPC.

51 In his written submissions, Mr Nichols suggested that, as well as considering the preliminary issues, the Tribunal should "also provide directions as to the standing of" issues 6 and 8. What is meant by "standing" is not clear. Mr Nichols' concern appears to be that the question as to whether the City was obliged to, and did, take account of DC 6.1 has not been the subject of determination by the Tribunal. That is so because the question has not, either in these proceedings or in the Health Resorts proceedings, fallen for determination. The Tribunal does not have the jurisdiction to do other than determine issues within its jurisdiction. In the Health Resorts decision, the preliminary questions included whether any approval of the WAPC was required. The Tribunal determined that answer in Health Resorts' favour. Having done so, there was nothing further for the Tribunal to do. Its jurisdiction was exhausted. It could not have embarked on an enquiry as to whether the City should have had, or did have, regard to DC 6.1. In these proceedings, having concluded that those questions are not capable of being answered on the referral from the Minister, the Tribunal has no jurisdiction to deal with those issues.

Conclusion

52 For the foregoing reasons, the preliminary issue should be decided as follows:

(i) Issue 14 - It is not within the scope of s 211 of the PD Act for the Tribunal to consider and report on any of issues 1, 2, 3, 4, 8, 9 and 11.

(ii) Issues 5, 10 and 12 - It is not necessary to consider these issues in light of the Tribunal's conclusion on issue 14;

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(iii) Issue 7 - Issue 6 was not the subject of representations referred by the Minister.

53 Those conclusions have the result that none of the matters identified by Mr Nicholls and the City as having been referred by the Minister is capable of amounting to a failure of the local government to enforce or implement effectively the observance of a local planning scheme within the meaning of s 211 of the PD Act. The Tribunal will therefore report that conclusion to the Minister and recommend that, by reason of the Tribunal's conclusion, no action is open to the Minister under s 211(4) of the PD Act.

I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT