Niroda Holdings Pty Ltd and Western Australian Planning Commission
[2017] WASAT 57
•7 APRIL 2017
NIRODA HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 57
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 57 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:226/2016 | 18 OCTOBER AND 16 DECEMBER 2016 | |
| Coram: | MR M SPILLANE (SENIOR MEMBER) | 7/04/17 | |
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Application by interveners for leave to intervene granted Question as to whether Tribunal has jurisdiction to determine application for review is answered in the negative Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | NIRODA HOLDINGS PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION DBNGP (WA) NOMINEES PTY LTD (IN ITS CAPACITY AS TRUSTEE OF THE DBNGP WA PIPELINE TRUST) DBNGP (WA) TRANSMISSION PTY LTD |
Catchwords: | Town planning Subdivision Endorsement of Deposited Plan Documents necessary when applying for endorsement of approval on plan Extent of review of conditions on refusal to endorse plan due to noncompliance with conditions |
Legislation: | Interpretation Act 1984 (WA), s 48, s 55 Planning and Development Act 2005 (WA), s 3(1), s 135(1)(a), s 138, s 142, s 142(1), s 143, s 143(1), s 145, s 146(1), s 151, s 155, s 251, Div 2, Div 3, Pt 10 Planning and Development Regulations 2009 (WA), reg 23, reg 24 State Administrative Tribunal Act 2004 (WA), s 9, s 37(3) Town Planning and Development Act 1928 (WA) |
Case References: | Accommodation International Limited and State Planning Commission (Town Planning Appeal Tribunal, Appeal No 41 of 1989) Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; (2010) 72 SR WA 324) Darling Downs Estate Pty Ltd and Western Australian Planning Commission [2016] WASAT 76 Drakeley and the City of Canning [2007] WASAT 160 Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Scutti v City of Wanneroo [2017] WASC 70 Western Australian Planning Commission v The Board of Valuers [2016] WASC 326 |
Orders | 1. By consent, the application by DBNGP (WA) Nominees Pty Ltd and DBNGP (WA) Transmission Pty Ltd for leave to intervene is granted.,2. The question as to whether the Tribunal has jurisdiction under s 251(4) of the Planning and Development Act 2005 (WA) to determine the application for review dated 26 July 2016 is answered in the negative.,3. The application for review is dismissed. |
Summary | Niroda Holdings Pty Ltd applied to the Tribunal to review a decision of the Western Australian Planning Commission to refuse to endorse its approval on a diagram or plan of survey of approved subdivision. One of the conditions of subdivision related to the Dampier to Bunbury Natural Gas Pipeline and the refusal had been based on noncompliance with that particular condition.,DBNGP (WA) Nominees Pty Ltd (in its capacity as trustee of the DBNGP WA Pipeline Trust), the owner and licence holder of the Dampier to Bunbury Natural Gas Pipeline and DBNGP (WA) Transmission Pty Ltd, the operator of the pipeline, both sought leave to intervene in the matter pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA).,Three preliminary issues were listed for hearing:,1) Whether the proposed interveners be granted leave to intervene.,2) Whether the Tribunal has jurisdiction to determine the application for review.,3) Whether the applicant is entitled to question the validity of a condition as part of a review under s 251(4) of the Planning and Development Act 2005 (WA).,Following a hearing in the matter the Tribunal answered the questions as follows:,1) The proposed interveners were both granted leave to intervene.,2) No right of review arose and therefore the Tribunal did not have jurisdiction to hear the matter and the application to review was dismissed.,3) At the time of review under s 251(4) of the Planning and Development Act 2005, the Tribunal's jurisdiction is to undertake a merits review of whether a particular condition needs to be complied with at the time of the application for endorsement of approval. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : NIRODA HOLDINGS PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2017] WASAT 57 MEMBER : MR M SPILLANE (SENIOR MEMBER) HEARD : 18 OCTOBER AND 16 DECEMBER 2016 DELIVERED : 7 APRIL 2017 FILE NO/S : DR 226 of 2016 BETWEEN : NIRODA HOLDINGS PTY LTD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
DBNGP (WA) NOMINEES PTY LTD (IN ITS CAPACITY AS TRUSTEE OF THE DBNGP WA PIPELINE TRUST)
DBNGP (WA) TRANSMISSION PTY LTD
Interveners
Catchwords:
Town planning Subdivision Endorsement of Deposited Plan Documents necessary when applying for endorsement of approval on plan Extent of review of conditions on refusal to endorse plan due to noncompliance with conditions
Legislation:
Interpretation Act 1984 (WA), s 48, s 55
Planning and Development Act 2005 (WA), s 3(1), s 135(1)(a), s 138, s 142, s 142(1), s 143, s 143(1), s 145, s 146(1), s 151, s 155, s 251, Div 2, Div 3, Pt 10
Planning and Development Regulations 2009 (WA), reg 23, reg 24
State Administrative Tribunal Act 2004 (WA), s 9, s 37(3)
Town Planning and Development Act 1928 (WA)
Result:
Application by interveners for leave to intervene granted
Question as to whether Tribunal has jurisdiction to determine application for review is answered in the negative
Application for review dismissed
Summary of Tribunal's decision:
Niroda Holdings Pty Ltd applied to the Tribunal to review a decision of the Western Australian Planning Commission to refuse to endorse its approval on a diagram or plan of survey of approved subdivision. One of the conditions of subdivision related to the Dampier to Bunbury Natural Gas Pipeline and the refusal had been based on noncompliance with that particular condition.
DBNGP (WA) Nominees Pty Ltd (in its capacity as trustee of the DBNGP WA Pipeline Trust), the owner and licence holder of the Dampier to Bunbury Natural Gas Pipeline and DBNGP (WA) Transmission Pty Ltd, the operator of the pipeline, both sought leave to intervene in the matter pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA).
Three preliminary issues were listed for hearing:
1) Whether the proposed interveners be granted leave to intervene.
- 2) Whether the Tribunal has jurisdiction to determine the application for review.
3) Whether the applicant is entitled to question the validity of a condition as part of a review under s 251(4) of the Planning and Development Act 2005 (WA).
1) The proposed interveners were both granted leave to intervene.
- 2) No right of review arose and therefore the Tribunal did not have jurisdiction to hear the matter and the application to review was dismissed.
3) At the time of review under s 251(4) of the Planning and Development Act 2005, the Tribunal's jurisdiction is to undertake a merits review of whether a particular condition needs to be complied with at the time of the application for endorsement of approval.
Category: B
Representation:
Counsel:
Applicant : Mr M Hotchkin
Respondent : Dr S Willey
Interveners : Mr J Thompson SC
Solicitors:
Applicant : Hotchkin Hanly
Respondent : State Solicitor's Office
Interveners : Clayton Utz
Case(s) referred to in decision(s):
Accommodation International Limited and State Planning Commission (Town Planning Appeal Tribunal, Appeal No 41 of 1989)
Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; (2010) 72 SR WA 324)
Darling Downs Estate Pty Ltd and Western Australian Planning Commission [2016] WASAT 76
Drakeley and the City of Canning [2007] WASAT 160
Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Scutti v City of Wanneroo [2017] WASC 70
Western Australian Planning Commission v The Board of Valuers [2016] WASC 326
Introduction
1 On 26 July 2016, an application under s 251(4) of the Planning and Development Act 2005 (WA) (PD Act) to review a decision of the Western Australian Planning Commission (Commission or respondent) to refuse to endorse its approval on a diagram or plan of survey of approved subdivision was filed by Niroda Holdings Pty Ltd (applicant) and the matter was listed for initial directions on 19 August 2016.
2 By letter of 16 August 2016, lawyers for DBNGP (WA) Nominees Pty Ltd (in its capacity as trustee of the DBNGP WA Pipeline Trust), the owner and licence holder of the Dampier to Bunbury Natural Gas Pipeline and DBNGP (WA) Transmission Pty Ltd, the operator of the pipeline, wrote to the Tribunal seeking leave to intervene in the matter pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
3 At a directions hearing on 19 August 2016, the Tribunal made orders programming the matter to a hearing on 18 October 2016, to determine the following issues:
1) Whether DBNGP (WA) Nominees Pty Ltd (in its capacity as trustee of the DBNGP WA Pipeline Trust) and DBNGP (WA) Transmission Pty Ltd (together, proposed interveners) be given leave to intervene in this proceeding under s 37(3) of the SAT Act.
2) Whether the Tribunal has jurisdiction under s 251(4) of the PD Act to determine the application for review dated 26 July 2016.
3) Whether the applicant is entitled to question the validity of condition 11 as part of a merits review proceeding under s 251(4) of the PD Act.
4 The parties each filed detailed written submissions in respect of the issues for determination and the matter came on for hearing before the Tribunal on 18 October 2016 when all parties made further oral submissions.
Background facts
5 The parties filed a detailed statement of agreed facts dated 11 October 2016, which set out the history of the matter. The relevant facts for the purpose of this matter are:
Background
1. The applicant is the registered proprietor of Lot B38 Lakes Road, North Dandalup (Land). The Land comprises the entirety of land the subject of Certificate of Title Volume I 042 Folio 711 (Land Title).
2. The Land is located in the district of the Shire of Murray, within the Peel Region of Western Australia.
3. The Land comprises approximately 164.3024 ha.
4. At the time of applying for subdivision approval the Land was partially vegetated, comprised a dwelling, a number of outbuildings and was used for cattle grazing.
Shire of Murray Town Planning Scheme No. 4
5. On or about 16 September 2011 the Land was rezoned from Rural to Special Rural through Amendment No. 258 to Shire of Murray Town Planning Scheme No. 4 (TPS 4).
6. At all material times item SR34 of Schedule 4 to TPS 4 (SR34) applied to the Land. SR34 was introduced into TPS 4 on 16 September 2011 and was amended on 2 October 2015.
7. At all material times the objective of the Special Rural zone under SR34 was 'to create a mixture of equestrian lots and rural residential lifestyle lots' (special provision 1) with the 'the minimum lot size within the zone shall be 1 ha' (special provision 2).
8. At all material times SR34 provided that:
'Use and development of land within the Dampier Bunbury Natural Gas Pipeline Corridor shall be in accordance with the "Land Use Guidelines Dampier to Bunbury Natural Gas Pipeline Corridor" or variations thereto. This includes the requirement to obtain approval from the Department of Regional Development and Lands or its equivalent or its delegates in addition to seeking the Planning Approval of Council, prior to commencing development (currently special provision 20),
and
'Land use within and beyond the Dampier to Bunbury Natural Gas Pipeline Corridor shall be in accordance with the Western Australian Planning Commission's Planning Bulletin 87 "High Pressure Gas Transmission Pipelines in the Perth Metropolitan Region" or variations or substitutions thereto. This includes adherence to buffer distances to sensitive premises based on the EPA's guidelines for risk assessment and mitigation' (currently special provision 21),
and
'A Memorial is to be placed on the title of all lots affected by the Dampier to Bunbury Natural Gas Pipeline Corridor to highlight its existence' (currently special provision 35).
Dampier to Bunbury Natural Gas Pipeline
9. The Dampier to Bunbury Natural Gas Pipeline (Pipeline) is located in a corridor secured by easements granted in favour of the State of Western Australia (Pipeline Corridor).
10. The Pipeline and Pipeline Corridor traverses the Land from north to south. An easement for the Pipeline Corridor is registered on the Land Title.
11. The section of the Pipeline on the Land comprises the mainline and a parallel loopline. The mainline and the loopline have diameters of DN500 and DN650 and were designed with 5.56mm and 8.72 mm wall thickness, respectively.
12. The Pipeline on the Land is located below ground.
Subdivision Application
13. On 9 December 2014 the applicant (as the contracted purchaser of the Land) applied to the respondent for subdivision approval of the Land under subdivision application no. 151107 (Subdivision Application). The Subdivision Application proposed the subdivision of the Land into 102 rural residential lots, ranging in size from 1 to 3 ha.
14. Two road reserves and twenty three lots intersect with the Pipeline Corridor under the Subdivision Application.
…
17. On 5 January 2015 the respondent wrote to DBNGP (WA) Nominees Pty Ltd (Pipeline Owner) seeking referral comment on the Subdivision Application. The respondent's letter stated amongst other things:
'Referral agencies are to use the Model Subdivision Conditions Schedule (October 2012) in providing a recommendation to the Commission. Non-standard conditions are discouraged, however, if a non-standard condition is recommended additional information will need to be provided to justify the condition ...
This proposal has also been referred to the following organisations for their comments'Water Corporation, Western Power, Fire & Emergency Services Authority, Health Department Of WA, Pipeline - (Dampier To Bunbury) and LG Shire Of Murray'.
18. On 16 February 2015 the Pipeline Owner provided referral comment to the respondent regarding the Applicant's application for subdivision.
19. At all material times the respondent's model conditions for gas pipeline condition E7 stated:
E7 'Prior to the commencement of subdivision works, the landowner/applicant shall prepare and implement as part of the subdivisional works a pipeline risk management/protection plan in accordance with Planning Bulletin 87 High Pressure Gas Transmission Pipelines in the Perth Metropolitan Region. (INSERT GAS PIPELINE OPERATOR)'.
20. On 10 March 2015 the respondent granted subdivision approval of the Land, subject to conditions (Subdivision Approval).
21. The Subdivision Approval contains the following condition:
'11. Prior to the commencement of subdivisional works, the landowner/applicant shall prepare and implement as part of the subdivisional works a pipeline risk management/protection plan in accordance with Planning Bulletin 87 High Pressure Gas Transmission Pipelines in the Perth Metropolitan Region. (DBNGP (WA) Nominees Pty Ltd'. (condition 11)
Dealings involving condition 11
22. In or around August 2015, the applicant engaged KCTT project civil engineers to commission a document entitled 'Pipeline Risk Management Plan' (August 2015 Rev A) (KCTT Report).
23. On 1 October 2015, representatives of the proposed interveners met with the applicant's consultant, Burgess Design Group, to discuss the KCTT Report.
… [Outlines history of correspondence and meetings in relation to the issue]
27. On 7 December 2015, the proposed interveners wrote to the applicant's former lawyers noting that the applicant had commenced subdivisional works on the Land and alleging that condition 11 was yet to be satisfied. The applicant has denied that condition 11 is yet to be satisfied.
28. On 5 February 2016, the proposed interveners wrote to the applicant, subsequent to the workshop on 2 November 2015, to confirm the actions required to be undertaken to implement the pipeline risk management/protection plan under condition 11.
29. On 29 March 2016, Burgess Design Group on behalf of the applicant requested clearance from the Pipeline Owner of condition 11.
30. On 7 April 2016, the Pipeline Owner wrote to Burgess Design Group setting out its views as to why condition 11 had not been satisfied.
31. On 15 April 2016, a roundtable meeting was held between the applicant, representatives of the proposed interveners, the Department of Mines and Petroleum, the Department of Planning and the Department of Lands.
32. On 21 Apri1 2016 Burgess Design Group (on behalf of the applicant) wrote to the respondent. Amongst other things, the correspondence included a modified plan of subdivision (Modified Plan). The Modified Plan depicted a deletion of the northern road reserve (which intersected with the Pipeline Corridor) and depicted a proposed amendment the western lot boundaries of proposed lots 9 to 31. The purport of the proposed boundary amendment was that the western boundary of those lots would extend only to the eastern boundary of the Pipeline Corridor. Under the Subdivision Approval the western boundary of those lots was located beyond the western boundary of the Pipeline Corridor.
33. On 20 May 2016, the Department of Mines and Petroleum wrote to the Department of Planning setting out its views as to whether the applicant's proposed subdivision on the Land is consistent with AS2885 and the proposed interveners' safety case.
34. On 24 May 2016, Pipeline Owner wrote to the Department of Planning requesting copies of various documents relating to condition 11.
35. On 8 June 2016, the Department of Planning wrote to the Pipeline Owner seeking advice from the Pipeline Owner and attaching correspondence from Burgess Design Group dated 21 April 2016 and from the Department of Mines and Petroleum dated 20 May 2016.
36. On 23 June 2016, the Department of Planning wrote to the applicant about condition 11. The Department of Planning expressed a view that:
a. a Pipeline Risk Management Plan (PRM) is to be prepared in accordance with Planning Bulletin 87 (PB 87) prior to the commencement of subdivision works;
b. PB 87 requires that the PRM is to be endorsed by the Pipeline Owner; and
c. as the PRM was not endorsed, the letter alleged that the applicant's intention to continue works irrespective of obtaining endorsement of a PRM would be in contravention of s. 219 of the PD Act and was advised not to take this course of action.
37. On 30 June 2016, the Pipeline Owner wrote to the Department of Planning responding to queries raised by the Department of Planning in its letter of 8 June 2016 and attaching a document prepared by the proposed interveners and entitled 'AS2885 Safety Management and ALARP Assessment' dated 29 June 2016.
Deposited Plan
38. Following the roundtable meeting on 15 April 2016, on 21 April 2016, the applicant's planners, Burgess Design Group, wrote to the respondent attaching (amongst other things): (i) the KCTT Report; and (ii) the Workshop Report (revision A, dated 9/11/2015), and requesting clearance of condition 11.
39. On 23 June 2016, Burgess Design Group, wrote to the respondent requesting clearance of condition 11. The letter was accompanied by a Form 1C Application form for Endorsement of Approval upon a Diagram or Plan of Survey (Deposited Plan), signed by Burgess Design Group, but not dated.
40. The Form 1C application for endorsement of the deposited plan was not accompanied at that time with:
(a) a deposited plan certified correct by Landgate;
(b) an endorsement fee; or
(c) written advice or evidence that conditions of the subdivision approval had been complied with or a statement or reasons and supporting information as to why the respondent should be satisfied the conditions will be complied with.
41. The respondent has delegated authority to its Statutory Planning Committee to determine applications under s. 145 of the PD Act pursuant to Instrument of Delegation 2016/01 Powers of Committees published in the Government Gazette on 29 April 2016 (pp. 1 to 5).
42. On 6 July 2016, the Pipeline Owner wrote to the Statutory Planning Committee attaching a request for deputation from the Pipeline Owner in respect of the Statutory Planning Committee meeting to be held on 12 July 2016.
43. The respondent's Statutory Planning Committee met on 12 July 2016 between 9 am and 12.40 pm. During this meeting the Statutory Planning Committee considered the applicant's request.
44. The Statutory Planning Committee resolved to refuse the applicant's request to clear condition 11. Specifically:
'That the Statutory Planning Committee resolves to refuse the request for approval upon the Diagram or Plan of Survey for the proposed subdivision (WAPC Ref. 151107 at Lot B38 Lakes Road, North Dandalup, for the following reasons:
1. The Form 1C application for endorsement of approval upon a Diagram or Plan of Survey is not accompanied by a 'certified correct' Deposited Plan or any written advice or evidence that conditions of the subdivision approval have been complied with; and
2. Condition 11 is unlikely to be satisfied because:
(a) DBNGP (WA) Nominees Pty Ltd, the clearing agency, has advised that the requirements of Condition 11 have not been satisfied;
(b) Clearance of Condition 11 would be inconsistent with the requirements of Planning Bulletin 87 in relation to endorsement of the Pipeline Risk Management Plan;
(c) There is insufficient information available to justify clearance of Condition 11 against the clearing agency's advice;
(d) The clearing agency has advised that clearance of Condition 11 would lead to an elevated risk of a gas pipeline failure. As such, it is considered this request does not satisfy the precautionary principle test.'
46. On [15 July 2016], the respondent, by email, informed the applicant that its request for clearance of condition 11 was refused.
47. On 26 July 2016, the applicant lodged the application for review in this proceeding.
48. On 16 August 2016, solicitors for the Pipeline Owner wrote to Tribunal (and copied to the applicant) alleging, as to jurisdiction of the Tribunal, that the respondent was not functus officio and that the matter remained to be determined by the respondent.
49. On 18 August 2016, the applicant wrote to the respondent, noting the submissions of the Pipeline Owner to the Tribunal, and stated that 30 days had passed since the date Deposited Plan 408049 was provided to the respondent, and thereby served a notice of default on the respondent[.]
Issue 1 - Whether DBNGP (WA) Nominees Pty Ltd (in its capacity as trustee of the DBNGP WA Pipeline Trust) and DBNGP (WA) Transmission Pty Ltd (proposed interveners) be given leave to intervene in this proceeding under s 37(3) of the SAT Act
6 Section 37(3) of the SAT Act under the heading 'Intervening in proceeding' states:
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.
7 In its submissions dated 28 September 2016, the proposed interveners dealt in some detail with both the test to be applied to an application for intervention and the reasons why they should be granted leave to intervene in the current matter.
8 The respondent supported the interveners' application 'largely for the reasons outlined' in the interveners' submissions, but also for the additional reasons that the Dampier to Bunbury Natural Gas Pipeline is a critically important infrastructure asset that is privately owned and that the proposed interveners have a level of expertise in the operation of the pipeline that is not replicated within the departments or agencies of the Western Australian State Government and, allowing intervention would ensure the Tribunal would have access to requisite information to make the correct and preferable decision.
9 The applicant did not contest the interveners' application and at paragraph 1 of its submissions in respect of that issue stated:
The Applicant informed the Proposed Intervener prior to its submissions that the Applicant consented to its application for leave to intervene, as it clearly had an interest in being heard and had significant statutory responsibility for the proper management of the Pipeline, such that it may be of assistance to the Tribunal.
10 At the opening of the hearing on 18 October 2016, counsel for the applicant reiterated that submission. The Tribunal confirmed that it was of the same view and would make an order by consent granting the proposed interveners leave to intervene.
11 In the circumstances, Issue 1 Whether DBNGP (WA) Nominees Pty Ltd and DBNGP (WA) Transmission Pty Ltd be given leave to intervene in this proceeding under s 37(3) of the SAT Act - is answered in the affirmative and leave is granted.
Issue 2 Whether the Tribunal has jurisdiction under s 251(4) of the PD Act to determine the application for review dated 26 July 2016
12 In Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116 (Forrest), a case extensively referred to by counsel for the applicant, the Court of Appeal set out the legal principles that should be applied in attempting to answer a question such as the one raised here and stated at [29] [32]:
The relevant legal principles were discussed in Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd (2010) 41 WAR 134. It is convenient to repeat them. It is necessary to distinguish between a precondition to the existence of a power and a condition regulating the exercise of a power. The failure to comply with a precondition to the existence of a power under the Act must always result in invalidity.
On the other hand, the failure to comply with a statutory requirement that is not a precondition to the existence of a power may, but not (in the absence of a statutory provision to the contrary) must, result in invalidity. This point is underscored in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. The majority in that case said:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment … There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue [91]. (footnotes omitted)
The majority in Project Blue Sky criticised the distinction between directory and mandatory requirements, which they said deflected attention from the real issue which is whether an act done in breach of the legislative provision is invalid. They continued:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid [93].
In Project Blue Sky, the court approved the approach taken in Tasker v Fullwood (1978) 1 NSWLR 20. In Tasker, the court identified the following propositions:
(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance will be derived from the terms of other statutes;
(2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance;
(3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute;
(4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement;
(5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms.
13 In a decision later the same year, Beech J in Western Australian Planning Commission v The Board of Valuers [2016] WASC 326 (Board of Valuers), in dealing with the same act under consideration here, namely the PD Act, confirmed that approach and stated at [120] [121]:
… Whether an act done in breach of a condition regulating the exercise of a statutory power is invalid is a question of statutory construction of the Act, to be determined in accordance with the principles in Project Blue Sky v Australian Broadcasting Authority.That question invites attention to whether it is a purpose of the PD Act that a valuation in breach of the provision is invalid. That is to be determined having regard to the language of the relevant provision, the scope and object of the PD Act as a whole and the consequences for the parties of holding void all acts done in breach of the condition.
The use of imperative language is a factor in determining whether compliance with a provision is essential to the validity of the exercise of a power. (Footnotes omitted)
- and at [125] Beech J further stated:
In this context, I think the enquiry dictated by Project Blue Sky must begin with the provisions of the PD Act, and not the PD Regulations. The first question is whether it is a purpose of the PD Act that a valuation made in breach of any procedural requirement that may be imposed by regulations prescribing the procedure to be followed on an application for valuation be, on that account, invalid. In my view, the answer to that question is, plainly, no. The WAPC accepted that that is so. There is no reason to think that the legislature intended that any breach of any procedural requirement contained in the PD Regulations would render a valuation invalid. Such a construction would give rise to a highly inconvenient result in a context where a procedural requirement might be formal in nature and be incapable of affecting the substance of a valuation. (Footnotes omitted)
A person to whom approval of a plan of subdivision has been given may, within the prescribed period
(a) submit to the Commission in the prescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and
(b) request the Commission to approve the diagram or plan of survey of the subdivision.
(Tribunal emphasis)
15 Section 145(4) of the PD Act states:
Subject to subsection (6), if the Commission is satisfied that
(a) the diagram or plan of survey is in accordance with the plan of subdivision approved …
- and s 145(6) states:
If, in the case of a diagram or plan of survey submitted
(Tribunal emphasis)
17 It is acknowledged that s 145(1)(a) also mandates that such diagram or plan of survey must be in 'the prescribed manner and form'.
18 Regulation 23 of the Regulations under the heading '[h]ow to apply for approval of diagram or plan of survey (Act s. 145)' states:
A person who, under section 145, submits to the Commission a diagram or plan of survey of a plan of subdivision that has been approved, must also submit a request in a form approved by the Commission.
(Tribunal emphasis)
19 Again as with s 145 it is a diagram or plan of survey which is the key document that must be submitted and reg 23 further stipulates that 'a person who submits such a diagram or plan of survey' must also 'submit a request in a form approved by the Commission'.
20 It was common cause that Form 1C is the relevant 'form approved' by the Commission that as per reg 23 'must also' be submitted and it was a Form 1C which was enclosed with the applicant's letter to the Commission dated 23 June 2016.
21 Form 1C, is headed 'Application for Endorsement of Approval upon a Diagram of Plan of Survey (Deposited Plan), Survey Strata Plan or Strata Plan'.
22 Under the heading 'Important information for applicants' it states:
1 The information on this form is required for endorsement of approval upon a diagram or plan of survey (deposited plan), survey strata plan or strata plan by the WAPC in accordance with the provisions of the Planning and Development Act 2005 and Strata Titles Act 1985.
2 A request for endorsement of approval upon a diagram or plan of survey of subdivision (deposited plan), survey strata plan or strata plan in accordance with the provisions of the Planning and Development Act 2005 and Strata Titles Act 1985 is to comprise of the following components:
(a) The diagram or plan of survey of subdivision (deposited plan), survey strata plan or strata plan. This is to be 'certified correct' by the Western Australian Land Information Authority (Landgate) and is to be submitted to the WAPC by Landgate.
(b) A copy of the diagram or plan of survey of subdivision (deposited plan), survey strata plan or strata plan that is to be 'certified correct' by Landgate.
(c) This completed form 1C (Please note one form 1C is required for each plan or stage of subdivision).
(d) The correct endorsement fee determined in accordance with the current schedule of fees.
(e) Written advice or evidence from the relevant agency/ies that condition/s of the subdivision approval have been complied with, including supporting documents such as copies of covenants and notifications. If such advice or evidence cannot be provided, a statement of reasons and supporting documentation is to submitted as to why the WAPC should be satisfied that the condition/s have been or will be complied with at the time a certificate of title is created or registered.
(Tribunal emphasis)
a) the diagram or plan 'certified correct';
b) a copy of diagram or plan 'certified correct';
c) the completed Form 1C;
d) the correct fee; and
e) written advice or evidence that conditions have been complied with or a statement of reasons and supporting documents as to why the WAPC should be satisfied that the conditions have been or will be complied with at the time a certificate of title is created or registered.
24 Counsel for the applicant submitted that it was the Form 1C that was the critical document and stated:
So if a form 1C has been submitted that is the prescribed form that is the manner that is addressed under section 145 and therefore grants jurisdiction to entertain the review. Alternative to that, it doesn't say when the plan is to be submitted. (T:63; 18.10.16)
25 The Tribunal does not agree with that submission. In the Tribunal's view, it is the 'diagram or plan of survey' which is specifically identified in s 145(1), reg 23 and Form 1C that is the critical document, not Form 1C.
26 The Tribunal accepts as held in Forrest that some documents not filed at the outset of an application may be filed later. However, in the Tribunal's view, in an application for endorsement of approval of a diagram or plan of survey, that does not apply to the 'diagram or plan of survey' itself.
27 Both s 145 and reg 23 are clear that it is 'a diagram or plan of survey' that is the key document to be submitted and on which every application must be based. Regulation 23 also makes it clear that Form 1C is to be filed 'in addition' to the diagram or plan of survey by the use of the words 'must also submit'.
28 Indeed the Form 1C itself lists 'the diagram or plan of survey' (paragraph (a)) as the first item required while a completed Form 1C is listed as the third necessary item at paragraph (c).
29 Form 1C on its own does not, in the Tribunal's view, engage the respondent's jurisdiction; at the very least, a diagram or plan of survey is required.
30 The question therefore is whether the failure to submit a diagram or plan of survey is a 'precondition to the exercise of a power' or a 'condition regarding the exercise of a power' and, if it was the latter, did that result in the application being invalid.
31 As stated by the Court of Appeal in Forrest at [29] [30] and referred to earlier:
… The failure to comply with a precondition to the existence of a power under the Act must always result in invalidity.
On the other hand, the failure to comply with a statutory requirement that is not a precondition to the existence of a power may, but not (in the absence of a statutory provision to the contrary) must, result in invalidity. This point is underscored in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. The majority in that case said:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[.]
… Whether an act done in breach of a condition regulating the exercise of a statutory power is invalid is a question of statutory construction of the Act, to be determined in accordance with the principles in Project Blue Sky v Australian Broadcasting Authority. That question invites attention to whether it is a purpose of the PD Act that a valuation in breach of the provision is invalid. That is to be determined having regard to the language of the relevant provision, the scope and object of the PD Act as a whole and the consequences for the parties of holding void all acts done in breach of the condition.
The use of imperative language is a factor in determining whether compliance with a provision is essential to the validity of the exercise of a power. (Footnotes omitted)
33 Keeping those principles in mind and looking at the statutory framework, the purpose of the PD Act is initially set out at s 3(1) to 'provide for an efficient and effective land use planning system in the State' and 'promote the sustainable use and development of land'.
34 Going then to the specific provisions dealing with subdivision which are set out at Div 2 and Div 3 of Pt 10 of the PD Act, s 135(1)(a) confirms that '[a] person is not to … subdivide any lot … without the approval of the Commission' with subsection (2) stating that a person who contravenes subsection (1) commits an offence.
35 Section 138(1) of the PD Act explains that '[t]he Commission may give its approval under section 135 or 136 subject to conditions which are to be carried out before the approval becomes effective'.
36 Section 142 of the PD Act addresses the requirements in dealing with local governments, local authorities or utilities services providers and s 143 under the heading 'Commission's duties when dealing with plan of subdivision'.
37 Section 145 of the PD Act, the principle section under consideration for the purposes of this matter, then deals with how a person who has previously had a plan of subdivision approved under s 138(1) may proceed to 'submit to the Commission in the prescribed manner and form a diagram or plan of survey' and 'request the Commission to approve the diagram or plan of survey' and endorse its approval on the diagram or plan.
38 The importance of that step and the Commission's endorsement of approval can be seen in s 146(1) under the heading 'No certificate of title for subdivided land without approved diagram or plan of survey' which states:
The Registrar of Titles is not to create or register a certificate of title under the Transfer of Land Act 1893 for land the subject of a plan of subdivision unless a diagram or plan of survey of the subdivision of that land has been endorsed with the approval of the Commission[.]
39 However, the importance of the Commission's endorsement under s 145(1) of the PD Act is even more starkly demonstrated when one examines the requirements of reg 24 of the Regulations headed 'Commission's duties on application under Act s. 145' which states:
(1) If the Commission, under section 145, endorses its approval on a diagram or plan of survey it must
(a) give the diagram or plan to the Registrar of Titles; and
(b) give a copy of the diagram or plan to the local government of the district where the land is situated.
40 It is clear from a perusal of the provisions of Div 2 and Div 3 of Pt 10 of the PD Act and in particular the provisions just outlined, that the Commission has the central role in managing the process by which individuals can subdivide land and acquire new titles.
41 Furthermore, the fact that reg 24, by the use of the word 'must' mandates that the Commission is obliged to give directly to the Registrar of Titles (and to the relevant local government) a diagram or plan of survey on which it endorses its approval, explains the necessity for the requirement contained in Form 1C that a diagram or plan of survey which is submitted to the Commission for endorsement under s 145(1) be 'certified correct' by Landgate.
42 In the present case, the only items filed with the Commission by the applicant on 23 June 2016 were:
1) a letter enclosing a copy of the approval no 151107 which had been granted on 10 March 2015;
2) a completed Form 1C; and
3) a copy of correspondence.
- No diagram or plan of survey and certainly no diagram or plan of survey 'certified correct' by Landgate was submitted. Further, the Tribunal notes that it was agreed (paragraph 40 of the agreed facts) that no fee had been paid as is also required by s 145(1) of the PD Act and no written evidence, statement of reasons or supporting documents in respect of any of the other 24 conditions originally imposed were submitted, other than in respect of condition 11. In fact, the Tribunal is surprised at how little of any of that information was before the Commission when it considered the matter.
43 The fact that no diagram or plan of survey was before the Commission when it made its decision on 12 July 2016, was confirmed by the Commission's first reason for refusal which stated:
1. The Form 1C application for endorsement of approval upon a Diagram or Plan of Survey is not accompanied by a 'certified correct' Deposited Plan or any written advice or evidence that conditions of the subdivision approval have been complied with[.]
44 The entire system by which one endeavours to get the Commission to endorse its approval on a diagram or plan of survey clearly relies on a diagram or plan of survey actually being submitted to the Commission and being before it when it makes its decision.
45 The Tribunal is satisfied that there is a clear statutory intention and requirement that a diagram or plan of survey should be submitted when an application under s 145(1) of the PD Act is made and a failure to do so does not engage the Commission's jurisdiction.
46 The failure to submit such a diagram or plan of survey may not be seen as 'a precondition to the existence of a power'. However, in light of the clear legislative framework and purpose of the PD Act, it is in the Tribunal's view, in the words of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky), a breach of 'a condition regulating the exercise of a statutory power' which, invalidates any application under s 145(1) that fails to attach a diagram or plan of survey.
47 Section 251(4) of the PD Act under which the present application to review is brought states:
An applicant given approval of a plan of subdivision who is aggrieved by the Commission's decision to refuse to endorse its approval on a diagram or plan of survey of the subdivision submitted to the Commission under section 145 may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision of the Commission.
48 In failing to submit a diagram or plan of survey as required by the statutory provisions outlined above, the application of 23 June 2016 was, in the Tribunal's view, for the reasons just outlined, invalid and did not engage the Commission's jurisdiction, therefore, no right of review to the Tribunal arises under s 251 of the PD Act.
Applicant's alternative argument
49 The applicant's alternative argument in respect of Issue 2 was explained by counsel in oral submissions as follows:
… as an alternative to our first argument that the valid application didn't require all of the material accompanying the form at the relevant time, even though it might fail to satisfy a precondition of the exercise of power, it doesn't invalidate the application itself, which means that the Tribunal does have review jurisdiction over the refusal.
Our alternative argument is that its failure to take into account the belated delivery of the deposited plan and proceed with it notification of its refusal on 21 June is a reviewable decision. Either way, we say the Tribunal has jurisdiction to entertain this application which is currently before you. (T:25; 18.10.16)
50 In its written submissions at paragraphs 18 and 19, the applicant had stated:
18. ….
(b) the decision to refuse to give approval, taken together with the decision to refuse to reconvene the meeting in order to accept the Deposited Plan as part of the application in order to deal with the application on its merits, constituted the reviewable decision communicated on 21 June 2016 [sic 15 July 2016].
19. The respondent incorrectly asserts at paragraph 39 of its Submissions that this application for review is from the Respondent's 'decision' on 12 July 2016. The application for review does not specify the date of the decision being reviewed.
51 There are therefore two parts to the applicant's alternative argument, namely:
1) the application for review does not specify the date of the decision being reviewed; and
2) the respondent's decision to notify the applicant of its refusal without reconvening the meeting in order to accept the deposited plan.
52 Dealing first with part 1, when one examines the applicant's application for review to the Tribunal at paragraphs 1 to 13 which set out the background to the application, at paragraphs 14 to 16 the applicant stated:
By email dated 15 July 2015 transmitted by Craig Shepherd of the Department of Planning the Respondent communicated its refusal to endorse the Deposited Plan. Page 7 of the agenda of the meeting of the Statutory Planning Committee of 12 July 2016 sets out the reasoning precipitating that refusal.
Section 251 of the PD Act sets out the Applicant's right of review in the State Administrative Tribunal. Relevantly, section 251(4) provides:
An applicant given approval of a plan of subdivision who is aggrieved by the Commission’s decision to refuse to endorse its approval on a diagram or plan of survey of the subdivision submitted to the Commission under section 145 may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision of the Commission.
Accordingly, the Applicant makes this Application for review in accordance with Section 251(4) of the PD Act.
53 The Tribunal is satisfied that despite the assertion in paragraph 19 of the applicant's submissions set out above that '[t]he application for review does not specify the date of the decision being reviewed', paragraph 14 of the application for review, also set out above, clearly identifies the decision of 12 July 2016 as the decision under review.
54 Going then to part 2, being the decision to refuse to reconvene the meeting in order to accept the deposited plan before notifying the applicant of its refusal, which was described by the applicant in oral submissions as the 'failure to take into account the belated delivery of the deposited plan'.
55 This refers to circumstances that arose after the Commission had made its decision and concluded its meeting on 12 July 2016.
56 At 2.52 pm the same day, the applicant's representative sent an email to the Commission and in the penultimate paragraph stated:
Lastly, please find attached herewith the Deposited Plan the subject of the Form 1C application. It is acknowledged that the 30 day time period for the Commission to deal with the Deposited Plan under s.251(4) of the Planning and Development Act 2005 now only begins to run, the application only now being made competent.
57 It is noted for the sake of completeness that the deposited plan lodged with that email was still not a 'certified correct' copy by Landgate as required by Form 1C (see agreed facts paragraph 45).
58 Part 2 of the applicant's alternative argument therefore appears to rely on the fact that the Commission, as an administrative decisionmaker, was in some way obliged to reconsider its decision of 12 July 2016 once it had received a diagram or plan of survey from the applicant, albeit after the Commission had made its decision but before that decision had been communicated to the applicant.
59 At paragraphs 12 and 13 of its written submissions the applicant stated:
Unless a decisionmaker exercising administrative power is functus officio in circumstances where only judicial review of its decision remains open, it has power to reconsider its decision in order to properly determine the merits of an application, unless the enabling statute expressly or by necessary implication precludes that power: see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, per Gleeson CJ at [7][13], per Gaudron and Gummow at paras [45][53].
A decisionmaker is not functus officio until it has completed its statutory function beyond the point at which it was possible to recall the orders or resolution which had purportedly been made: see Polo Enterprises Australia v Shire of Broome [2015] WASA 201, especially at paras [77][78], per Martin CJ.
60 The Tribunal acknowledges the principles set out in the High Court decision of Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 and indeed the provisions of s 48 and s 55 of the Interpretation Act 1984 (WA) in respect of administrative decisionmakers revisiting or remaking a decision. However, such right or ability is, in the Tribunal's view, entirely discretionary and depends on the facts involved.
61 The Tribunal is not satisfied on what was before it in the present case, that the respondent was in any way obliged to reconvene or to reconsider its decision of 12 July 2016 and indeed, it is clear that the respondent did not seek to do so.
62 The applicant in filing its application for review before this Tribunal relied on the Commission's decision of 12 July 2016 to base its application, not on any other decision that may have been or could have been made by the respondent or indeed, on any deemed refusal that may have arisen.
63 The Tribunal does not accept the applicant's submissions set out at paragraph 18(b) of its written submissions that the respondent's decision of 12 July 2016 to refuse to give approval, should, in some way, be taken together with its failure to reconvene its meeting, as the reviewable decision.
64 As set out earlier, in the Tribunal's view, the applicant's application of 23 June 2016 was fundamentally defective when it was filed and that defect was not cured by the lodging of a plan two hours after the respondent's decision had been made and no onus arose on the respondent to revisit or reconsider the matter.
65 For all of the reasons set out above, the Tribunal is not persuaded by the applicant's alternative argument and remains of the view that no right of review arises under s 251(4) of the PD Act.
66 The question as to whether the Tribunal has jurisdiction under s 251(4) of the PD Act to determine the application for review dated 26 July 2016, for the reasons outlined, is answered in the negative and the application for review will be dismissed.
Issue 3 - Whether the applicant is entitled to question the validity of condition 11 as part of a merits review proceeding under s 251(4) of the PD Act
67 In normal circumstances, due to the Tribunal's finding in respect of Issue 2, there would be no need to consider Issue 3. However, the Tribunal is conscious that the applicant has already filed a further application with the Tribunal in respect of the same matter and based on comments by counsel for the applicant, it may well be that in the new application the matter raised by Issue 3 may still be relevant.
68 Therefore, keeping in mind the Tribunal's s 9 objectives, particularly 'to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties', and as all parties have fully argued the matter the Tribunal will now proceed to deal with Issue 3.
69 It would appear that this issue arose from the allegation in the grounds of the applicant's review that 'Condition 11 lacks a planning purpose and is therefore invalid'.
70 It is clear from the parties submissions that the real contest between the parties is, not whether a right of review in respect of a condition of subdivision arises at the time when a request to endorse approval on a diagram or plan of survey is made pursuant to s 145(1) of the PD Act, but rather the extent of that review.
71 As the interveners submitted '[i]t is not controversial that a merits review exists under s. 251(4) of the Planning Act'.
72 In 1998, amendments were introduced to the Town Planning and Development Act 1928 (WA), as it then was, which saw an additional right of review now set out in s 251(4) and s 251(5) added to what was already available (which is retained in the current PD Act as s 251(2)), as a result of the decision in Accommodation International Limited and State Planning Commission(Town Planning Appeal Tribunal, Appeal No 41 of 1989) (Accommodation International).
73 As explained by the applicant at paragraph 25 of its submissions:
In the Accommodation International case … Mr Barker, presiding as Chairman of the Tribunal, suggested amendments to the Town Planning and Development Act to expressly confer a right to review a condition as an element of a refusal to approve a deposited plan.
74 The Hon J.A Cowdell in the second reading speech introducing the legislation stated:
…
The second right of appeal will overcome the problem where, in the case of a conditional subdivision approval, the complexities associated with satisfying conditions may not be known within the 60 day period which is allowed for the lodgment of an appeal following receipt of a decision.
75 The applicant at paragraph 29 of its written submissions set out its position in respect of what it said was the breadth of that review and stated:
… if the reason the Respondent refuses to approve a Deposited Plan is because it is not satisfied that a condition has been complied with, it is open to an Applicant to review that decision and to review the original condition in the course of doing so.
(Tribunal emphasis)
76 The respondent on the other hand argues that the second right of review is not an unqualified right. An unqualified right to challenge a condition arises in the respondent's view under s 251(2) of the PD Act at the time of the initial subdivision approval which states:
[a]n applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of conditions affixed to the granting of an approval referred to in subsection (1).
77 The respondent submitted the right of review that arises under s 251(4) and (5) only arises if the Commission refuses to endorse a diagram or plan of survey because a particular condition or conditions have not been satisfied and such review cannot look at the original imposition of that condition.
78 Counsel for the interveners argued that nothing within Accommodation International or the Second Reading Speech lends support for s 251(4) of the PD Act providing an applicant with a 'second bite of the cherry' to challenge the validity of the condition for a second time. They submitted that what was intended under s 251(4) and (5) of the PD Act was a merits review relating to whether an applicant ought to be required to comply with a valid existing condition when the endorsed plan is submitted for approval.
79 As referred to earlier, the Court of Appeal in Forrest, in relying on the High Court in Project Blue Sky, made it clear, and as Beech J reinforced in Board of Valuers, it is the wording of the statute one must look at.
80 Although the parties referred to the second reading speech as outlined above, Le Miere J in Scutti v City of Wanneroo [2017] WASC 70 in commenting on the use of extrinsic materials stated at [31]:
The High Court set out the proper approach to statutory construction in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (Alcan). In a passage which since has frequently been referred to with approval by members of the High Court, Hayne, Heydon, Crennan and Kiefel JJ said:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy [47].
82 In Drakeley and the City of Canning [2007] WASAT 160 at [12], the Tribunal made it clear that '[t]he Tribunal's task in review proceedings is not to undertake judicial review of an administrative decision, but rather to engage in an administrative review of the decision'. In Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79; (2010) 72 SR WA 324) (Caltex) her Honour Deputy President Judge Pritchard (as she then was), in dealing with the PD Act, addressed the issue in some detail and stated at [25] [31]:
… In the exercise of its review jurisdiction, the Tribunal conducts a merits review. That is, it stands in the shoes of the original decision maker, determines the facts following a hearing de novo and, within the legal framework of the enabling Act (and any other applicable legislation), is charged with reaching the correct and preferable decision at the time of the decision on the review: s 27 of the SAT Act.
The SAT Act draws a clear distinction between judicial review, and the merits review which the Tribunal exercises in its review jurisdiction: s 19 of the SAT Act. It is clear from the terms of the SAT Act as a whole, and s 19 in particular, that the Tribunal does not have jurisdiction to engage in judicial review and to pronounce, with any legal effect, on the validity of the acts of the decision makers whose decisions it is called upon to review.
As I have noted above, in its application Caltex contended that the Town did not have delegated power to make the decision the subject of the present application. That appears tantamount to a contention that the Town acted beyond the scope of its power in making the decision under review. The Tribunal could not pronounce on the validity of the Town's decision, in reliance on the Delegation, with any legal effect.
However, the manner in which the question is framed in the preliminary issue is slightly different to the contention put by Caltex. The preliminary issue raises the same issue in a somewhat less direct way, namely whether the Town had power under the Delegation to determine whether approval should be granted for the Development Application.
Given that the Tribunal's role is to stand in the shoes of the Town, and to reach the correct and preferable decision, in my view the preliminary issue should effectively be understood as raising the question whether the Tribunal itself, standing in the position of the Town as the original decision maker, has power under the Delegation to grant approval, or to refuse approval for, the commencement of the Development. Approached from that perspective, no issue arises of the Tribunal engaging in an exercise of purported judicial review.
The Tribunal (like the Town in the first instance) is required to consider the limits of its own authority to determine the Development Application in order to ensure that it does not exceed the authority given to it by the PD Act and the SAT Act. The principle was stated by Brennan J in Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242 as follows:
An administrative body with limited authority is bound, of course, to observe those limits. Although it cannot judicially pronounce upon the limits, its duty not to exceed the authority conferred by law upon it implies a competence to consider the legal limits of that authority, in order that it may appropriately mould its conduct. In discharging its duty, the administrative body will, as part of its function, form an opinion as to the limits of its own authority. The function of forming such an opinion for the purpose of moulding its conduct is not denied to it merely because the opinion produces no legal effect.
- …
Blackburn J, sitting in an administrative jurisdiction in Re Cilli's Objection (1970) 15 FLR 426 at 428 … noted that an administrative body 'must satisfy itself that all its proceedings are in accordance with the law. It must therefore receive and consider, whenever the point is taken, an argument that it has no jurisdiction. To say that is, in truth, to say no more than that it must at all times act lawfully.
When an administrative body declines to exercise a power in consequence of its opinion as to the limits of the authority conferred upon it by statute, the administrative body thereby seeks to conform with the expressed will of the legislature. But if an administrative body declines to exercise a power in consequence of its opinion that the legislature could not confer the relevant authority upon it, the will of the legislature expressly conferring that authority would, at least for a time, be overridden. … A consequence of such gravity throws doubt upon the proposition that an administrative body ought to consider the constitutional validity of a statute affecting its power.
The same principle was referred to, and applied, by his Honour Deputy President Judge Chaney (as he then was) in Health Resorts of Australasia Pty Ltd and Western Australian Planning Commission [2007] WASAT 60 at [21]:
Where a party raises an issue as to whether, under the enabling legislation, the original decision-maker had any authority to make the relevant decision, the Tribunal must necessarily decide, in the sense of forming an opinion, the question of whether or not any authority to make the decision exists. As the parties agreed, that proposition is supported by the conclusions expressed in Re Carey; Ex parte Exclude Holdings Pty Ltd and Ors [2006] WASCA 219 at [111] [115] (Martin CJ, Wheeler J agreeing).
(Tribunal emphasis)
83 What the Tribunal may undertake, therefore, is a merits review of a refusal by the Commission to endorse its approval on a diagram or plan of survey and, if the reason for that refusal is because a condition or conditions previously imposed on the subdivision have not been complied with, the Tribunal may undertake a merits review of that condition.84 Turning then to the relevant sections themselves and the language, scope and objects of the PD Act as a whole, subsections (4) and (5) of s 251 state:
(4) An applicant given approval of a plan of subdivision who is aggrieved by the Commission's decision to refuse to endorse its approval on a diagram or plan of survey of the subdivision submitted to the Commission under section 145 may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the decision of the Commission.
(5) If the Commission refuses to endorse a plan or diagram of survey of a subdivision because a condition affixed to the approval of the plan of subdivision has not been complied with, an application under subsection (4) may include an application for a review of that condition.
(Tribunal emphasis)
85 The interveners, at paragraphs 58 to 61 of their submissions in reply dated 14 October 2016, stated:
The jurisdiction conferred under s. 251(5) of the Planning Act must be interpreted in context by reference to the statute as a whole. This includes whether the Planning Act intended to provide a further mechanism for the respondent to reconsider individual conditions with which the applicant is dissatisfied (s. 144 of the Planning Act), and to provide for a de novo review of conditions by the Tribunal under s. 251(2) of the Planning Act, separately from a review of a decision under section 145 being carried out.
Given the available review mechanisms under section 144 of the Planning Act, and the possibility of legal review of such a decision, under section 251(1) and (2) of the Planning Act, by the Tribunal 'performing a function analogous to that performed by an inferior court' under the SAT Act: Re Carey; Ex Parte Exclude Holdings Pty Ltd & Ors [2006] WASCA 219 at [111], with associated time limitations (i.e. 28days for reconsideration by the respondent and 28days for a review application to the Tribunal), there exists no logical reason why section 251(5) of the Planning Act should be interpreted broadly to afford a 'second bite of the cherry' to review subdivision conditions following a decision by the Commission under section 145 to refuse to endorse its approval on a diagram or plan of survey of the subdivision.
The Planning Act is inconsistent with such a 'second bite of the cherry'. A right of review arises under s. 251(4) of the Planning Act solely in the context of resolving a dispute concerning whether the subdivision approval has been implemented to the point that new titles should be issued: s. 146 of the Planning Act. That is whether the approved lots are suitable for facilitating future development in accordance with the objective of 'promoting the sustainable use and development of land in the State': s. 3(1)(c) of the Planning Act. Section 251(4) of the Planning Act is not concerned with the grant (and review) of the subdivision approval itself.
Section 251(5) of the Planning Act merely recognises that in some cases the carrying out of Subdivision works, in a particular manner or by reason of changed circumstances (including but not limited to subdivision of adjacent land), has rendered one or more conditions unnecessary or inappropriate[.]
86 Keeping in mind the Tribunal's earlier comments in respect of Issue 2 regarding the subdivision process outlined in Div 2 and Div 3 of Pt 10 of the PD Act and the importance of that process in the context of how individuals can subdivide their land and acquire new titles, the Tribunal agrees and adopts the interveners submissions as outlined above.
87 It is also noted that s 151(1) of the PD Act under the heading 'Reconsidering conditions' states:
If the Commission under section 143 imposes conditions and the applicant concerned is dissatisfied with any such condition, that applicant may within 28 days of being notified of that condition request in writing the Commission to reconsider that condition.
88 That section grants to all applicants the right to have any conditions imposed at the time of initial approval reconsidered, even before an applicant's first right of review under s 251(2) arises.
89 The second right of review set out in s 251(4) and (5) of the PD Act and which is the review under consideration in this matter arises at the time the Commission's endorsement of approval is sought when a party is preparing to obtain new title.
90 However, the review of a condition only arises if the reason for refusal to endorse a diagram or plan of survey is 'because a condition affixed to the approval' has not been complied with. That is not, in the Tribunal's view, the same general right of review of a condition which arises under s 251(2) at the time of the initial subdivision approval.
91 As submitted by the interveners:
Section 251(5) of the Planning Act merely recognises that in some cases the carrying out of Subdivision works, in a particular manner or by reason of changed circumstances (including but not limited to subdivision of adjacent land), has rendered one or more conditions unnecessary or inappropriate.
92 Although the Tribunal does not rely on it, it is noted that the Hon J.A Cowdell's remarks in introducing the legislation largely reflects the substance of that submission. He stated:
The second right of appeal will overcome the problem where, in the case of a conditional subdivision approval, the complexities associated with satisfying conditions may not be known within the 60 day period which is allowed for the lodgment of an appeal following receipt of a decision.
93 It may well be, for example, that a condition properly imposed and which was relevant at the time of the initial approval, may have become nugatory by the time the applicant seeks to have the Commission's endorsement on its diagram or plan of survey prior to creating new titles. It may also be that a condition is not relevant to the particular stage of subdivision that the application for approval of endorsement relates to.
94 In Darling Downs Estate Pty Ltd and Western Australian Planning Commission [2016] WASAT 76 (Darling Downs), the Tribunal, in dealing with an application under s 251(4) and (5) of the PD Act, in respect of a matter where an applicant sought endorsement of a deposited plan for a stage of subdivision, in circumstances where compliance with a number of conditions had not been met, at [19] and [20] referred to what is commonly described as the 'Newbury test' where in Newbury District Council v Secretary of State for the Environment [1981] AC 578, the court stated:
… [T]he condition must fairly and reasonably relate to the proposed development, it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case.
(Original emphasis)
95 Then at [23] the Tribunal went on to state:
It is the Tribunal's view that the Newbury test does not strictly apply to this exercise in the sense that we are not revisiting the correctness of the imposition of the conditions across the whole original subdivision approval. However, the Tribunal considers that the Newbury test does inform the exercise required here under s 145 of the PD Act of what needs to be considered as to whether the subject conditions are relevant to this stage of the Darling Downs Estate, being Stage 1 is completed and Stage 2 is seeking approval, and whether there are any planning considerations that warrant refusal to endorse the Deposited Plan. Having said that, part of this exercise is to consider the correctness of the imposition of those conditions at this stage of the subdivision.
96 This Tribunal agrees with that explanation of what is available in respect of a review of a condition at this stage in the subdivision process.
97 As stated earlier, the Commission has a central role in managing the process by which individuals can subdivide land and obtain new titles.
98 Parliament has set out a clear statutory process for the subdivision of land and the creation of new titles, as outlined in Div 2 and Div 3 of Pt 10 of the PD Act and the Regulations which by the use of the words 'is to' or 'must' mandates the Commission, at particular times during the process, to undertake particular tasks (see s 138(2) and (4), s 142(1), s 143(1), s 145(4) and (5) of the PD Act and reg 24(1) and (2) of the Regulations).
99 In such a legislative framework with such serious consequences, it is entirely reasonable to expect applicants to make applications in a prescribed manner.
100 Furthermore, parties are granted structured reconsideration and review rights at particular stages (see s 155, s 251(2) and finally s 251(4) and (5) of the PD Act) and it is not unreasonable to expect parties to avail themselves of those opportunities at the appropriate stages.
101 If every applicant ignored the right of reconsideration under s 151 and the right of review under s 251(2) respectively, and simply waited to argue the merits of the initial imposition of a condition until they sought the Commission's endorsement of a diagram or plan of survey prior to the issue of new titles, it would, in the Tribunal's view, introduce unnecessary uncertainty into a structured statutory process and could leave the reconsideration under s 151 and the review provisions of s 251(2) of the PD Act largely redundant.
102 This was clearly not the intention of parliament when it sought to grant parties the additional right of review at the point of endorsement of the Commission's approval, when no such right previously existed.
103 If, however, an applicant has attempted to comply with the conditions previously imposed, evidence of which should be before the Commission as per Form 1C, but due to circumstances, one or more conditions are either not applicable or are no longer necessary, and that the Commission has refused to endorse the diagram or plan of survey due to noncompliance with those conditions, then a review of those particular conditions in those circumstances is clearly available.
104 Keeping all of the issues outlined above in mind and taking into account:
i) the purpose of the PD Act as whole;
ii) the language of the relevant provisions of the PD Act and the Regulations;
iii) the structured process of subdivision;
iv) the importance of the creation of new titles;
v) the reconsideration and reviews available to the applicants in the PD Act; and
vi) the availability of judicial review if necessary,
- the Tribunal is of the view that the scope of a merits review (whatever that may lawfully allow) of a condition under s 251(4) and (5) of the PD Act is limited to whether the condition previously imposed, should, or needs to be complied with, at the time the Commission is requested to endorse its approval on a diagram or plan of survey.
105 However, it is acknowledged, that the question of whether particular conditions should be complied with, may raise (in the words of the Tribunal in Darling Downs), 'the correctness of the imposition of those conditions at this stage of the subdivision', as part of that merits review.
Orders
1. By consent, the application by DBNGP (WA) Nominees Pty Ltd and DBNGP (WA) Transmission Pty Ltd for leave to intervene is granted.
2. The question as to whether the Tribunal has jurisdiction under s 251(4) of the Planning and Development Act 2005 (WA) to determine the application for review dated 26 July 2016 is answered in the negative.
3. The application for review is dismissed.
I certify that this and the preceding [105] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
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