PIRONE and CITY OF STIRLING
[2010] WASAT 114
•10 AUGUST 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PIRONE and CITY OF STIRLING [2010] WASAT 114
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: 3 AUGUST 2010
DELIVERED : 10 AUGUST 2010
FILE NO/S: DR 211 of 2010
BETWEEN: ERNEST PIRONE
ROSE PIRONE
ApplicantsAND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Review of decision of non-legally qualified member - Whether grounds involve a question of law - Correction of order - Whether time limit for application to rectify order - Whether expense to applicants taken into account - Whether material mistake in description of privacy screen
Legislation:
State Administrative Tribunal Act 2004 (WA), s 17, s 78, s 83, s 83(1), s 83(2), Pt 3, Div 3
Planning and Development Act 2005 (WA), s 244
State Administrative Tribunal Rules 2004 (WA), r 9
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicants: Self-represented
Respondent: Mr L James and Ms A Wood
Solicitors:
Applicants: Self-represented
Respondent: Kott Gunning
Case(s) referred to in decision(s):
Pirone and City of Stirling [2009] WASAT 27
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicants, Mr Ernest and Mrs Rose Pirone sought a review by a judicial member of the Tribunal of a decision by a sessional member to correct an order made by the sessional member some 16 months earlier. The review was sought on the basis, first, that the application to amend the order should not have been accepted so late after the order had been made. The applicants also contended that the member failed to have regard to the expense which they had incurred in reliance on the order as originally drawn. Thirdly, the applicants contended that the original wording of the order had been intended by the sessional member, and accordingly there was no mistake capable of correction under s 83 of the State Administrative Tribunal Act 2004 (WA).
The review was sought pursuant to s 244 of the Planning and Development Act 2005 (WA). The Tribunal noted that reviews under that section were limited to determinations or orders on a matter involving a question of law. It examined whether the grounds for review asserted by the applicants did involve matters of law. It concluded that the sessional member had the capacity to amend the order pursuant to s 83 of the State Administrative Tribunal Act 2004 (WA), that there was no time limit within which applications under s 83 were required to be made, and that the expense incurred by the applicants did not require the sessional member to decline to amend the order. Accordingly, the Tribunal dismissed the application for review.
Introduction
In January 2008, Mr and Mrs Pirone sought a review by the Tribunal of a decision of the City of Stirling (City) refusing approval to construct a privacy screen along a part of the southern boundary of their property at No 4 (Lot 621) Hill View Road, Mt Lawley. The application for review was eventually determined on the documents by senior sessional member Mr Lloyd Graham who delivered written reasons for his determination on 18 February 2009 - see Pirone and City of Stirling [2009] WASAT 27.
On the same day, Mr Graham made orders to reflect the decision explained in his reasons. He made an order setting aside the decision under review, and ordered:
(a)That lattice screening be installed from the existing limestone pier on the rear property boundary to the south-east corner of the subject land of a type, height and alignment to match the existing lattice screen.
(b)That an obscure glazed screen be installed to a maximum height of 1.6 metres at approximately 1.1 meters from the rear property boundary across the full width of, and attached to, the existing gazebo.
(c)That the obscure glazed screen include provision for a gate (with safety lock) to allow access to the 1.1 metre 'gap' area between the screen and the rear property boundary.
The obscure glazed screen referred in para (b) was not installed by the applicants for some time, and the City took enforcement proceedings by way of prosecution against Mr and Mrs Pirone. Those proceedings were eventually withdrawn. Eventually, Mr and Mrs Pirone did install an obscure glazed screen at the location contemplated in order (b). The height of the obscure glazed screen was approximately 780 millimetres. On inspecting the screen, the City took the view that the intention reflected in the senior sessional member's reasons was that the screen should be at a height of 1.6 metres, rather than 'to a maximum of 1.6 metres'. Accordingly, the City made an application to the Tribunal to amend the order so as to replace the word 'maximum' with the word 'minimum'. That application was referred to the senior sessional member for consideration. He held a brief hearing on the question, at the conclusion of which he made an order on 15 June 2010 pursuant to s 83(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which substituted the words 'at a height of 1.6 metres' instead of the words 'to a maximum height of 1.6 metres' in para (b) of the orders.
Mr and Mrs Pirone then brought these proceedings seeking a review under s 244 of the Planning and Development Act 2005 (WA) (PD Act) of the amended order issued on 15 June 2010. It is that application to which these reasons are directed.
Statutory framework
The correction of the order was made pursuant to s 83 of the SAT Act. That section provides:
(1)The Tribunal may correct a decision it gives or a statement of the reasons it has given for its decision to the extent necessary to rectify -
(a) a clerical mistake;
(b) an error arising from an accidental slip or omission;
(c) a material miscalculation of figures or a material mistake in the description of any person, thing, or matter referred to in the decision; or
(d) a defect of form.
(2)The correction may be made -
(a) on a party’s application made in accordance with the rules; or
(b) on the Tribunal’s own initiative.
The review of the order is sought under s 244 of the PD Act. That section enables the Tribunal, constituted by a judicial member, of its own motion or upon application made by a party within one month of the giving of the order, to review a determination or order upon a matter involving a question of law made by the Tribunal when constituted without a legally qualified member. Mr Graham is not a legally qualified member as defined under the relevant provisions of the SAT Act.
Grounds
The application seeks a review on the following grounds:
(a)No consideration was made of the time frame between the issue of the order and the respondent's submission of a mistake in the order.
(b)No consideration was made that the applicants have, in fact, in following the order as stated undergone huge expense which otherwise would not have been the case had the City made a much earlier submission.
(c) Senior sessional member Lloyd Graham has conceded that he did want the order to read as written and because of this the applicants should not be prejudiced into having to once more construct the screening.
Ground 1
The applicants argue that it is at least implicit in the SAT Act that applications to correct a mistake in reasons should be made within 28 days of the making of the relevant order. They acknowledge that s 83 does not itself prescribe a time limit within which applications to rectify an order should be made. They point, however, to the provisions of s 78 of the SAT Act, which provides a time frame of 28 days within which a person may request that the Tribunal give written reasons for a decision.
In my view, the time limit for requesting reasons pursuant to s 78 cannot be read as providing a basis for the implication of a similar time limit in relation to applications under s 83. The two sections deal with quite different matters, and if it were intended to provide a time limit for applications made pursuant to s 83(2), it would have been a simple matter for the Parliament to have included a reference to the time limit within s 83.
In the course of argument, reference was made to the reference in s 83(2) to 'a party's application made in accordance with the rules'. Rule 9 requires that an application to the Tribunal under its review jurisdiction must be made within 28 days of the making or communication of the original decision.
Section 17 of the SAT Act describes what comes within the Tribunal's review jurisdiction. A matter is within the Tribunal's review jurisdiction if it expressly or necessarily involves a review of a decision. An application Pt 3 Div 3 of the SAT Act describes the nature of the review, and the Tribunal's powers on review. The rectification of a mistake pursuant to s 83 does not fall within the Tribunal's review jurisdiction. It is not a review of any decision in the sense contemplated in Part 3 Div 3 of the SAT Act. Section 83 creates a power, rather than a jurisdiction and it is a power conferred by the SAT Act itself. The time limit referred to in r 9 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) has no application to s 83 of the SAT Act.
There is no time limitation within which an application for rectification of a mistake in a decision or order is required to be made.
It follows that the senior sessional member had the power, under s 83 of the SAT Act, to rectify the order to correct any of matters referred to in s 83(1)(a) to (d). It cannot be said that the acceptance, and dealing with, the application to rectify the order so long after the order was made amounts to an error of law, and no basis therefore exists under s 244 of the PD Act to set aside the order of 15 June 2010 for that reason.
Gound 2
The applicants contend that the order should be set aside on the ground that the senior sessional member failed to take into account the expense incurred by them in installing an obscure glazed screen at a height which, on a literal reading of the 18 February 2009 order, complied with the terms of the order. They say that those costs would be entirely wasted if they are now required to remove that screen and replace it with a screen at 1.6 metres, a considerably more expensive option.
In my view this ground does not relate to a question of law. Rectification of the order under s 83 of the SAT Act is designed simply to enable the orders of the Tribunal to reflect their intended purpose. If the mistakes or errors described in s 83(1) exist then it is incumbent upon the Tribunal to correct those mistakes. That does not involve a review of the appropriateness of the order in the light of circumstances which may have taken place after the Tribunal's decision has been delivered and its orders made. While the outcome may seem harsh, the Tribunal's function under s 83 is to ensure that decisions or orders correctly reflect its intentions at the time the orders were made.
There is no basis under s 244 of the PD Act to set aside the amended order on the basis asserted in the second ground of review because that ground does not involve a question a law.
Ground 3
The third ground is essentially that the senior sessional member intended to express his reasons and order in the way that he did, and that there is thus no error or misdescription of the type referred to in s 83(1), and thus no basis upon which the order can be rectified.
Regrettably, the brief hearing which Mr Graham conducted in relation to the application under s 83 was not recorded, and no transcript of what was said is thus available. At the hearing in this matter, however, the parties were agreed as to the substance of what Mr Graham said. They agreed that Mr Graham said words to the effect 'I meant to express the order in the way that I did, but I can see that it can be ambiguous. I will therefore change the order so as to remove that ambiguity.'
Apparently, at the original hearing, the City had argued that the screen should be higher than 1.6 metres. Mr and Mrs Pirone's expert had argued that a 1.6 metre screen would provide adequate privacy albeit he was suggesting the screen should be constructed on the boundary, rather at the location ultimately specified by the Tribunal. The parties agreed that, at the hearing in relation to the s 83 application, Mr Graham said that the only reason that he had used the word 'maximum' was because he did not consider it reasonable for the applicants to be required to construct a screen higher than 1.6 metres. It was no doubt in that context that Mr Graham said he intended to use the words 'maximum height of 1.6 metres' when he drew the orders.
In my view, the comments made by Mr Graham at the s 83 hearing lead to the conclusion that there was an error or misdescription of the type described in s 83(1). In 'removing the ambiguity' by requiring the screen to be constructed at a height of 1.6 metres, Mr Graham was obviously expressing what he intended to convey by the words he used. It is quite clear from the senior sessional member's reasons that it was never suggested in the course of evidence at the hearing that a screen of any height lower than 1.6 metres was contemplated. There was therefore a material mistake in the description of the screen referred to in the order. The order, in its corrected form, is entirely consistent with the way the evidence evolved, and with the reasons Mr Graham expressed.
Mr and Mrs Pirone submitted that, on a proper reading of the reasons for decision, Mr Graham's sole reason for directing the construction of an obscure glazed privacy screen was to provide a balustrade to avoid safety risks associated with the possible collapse of the lattice screen which was to be constructed in accordance with para (a) of the orders. Although it is true that safety issues were referred to by Mr Graham in his reasons, the description of what was to be installed under para (b) of the orders, namely 'an obscure glazed privacy screen' suggests that the function of the screen was principally to address privacy issues. It is true that, after discussing the security issues relating to the lattice screen, the senior sessional member said (at [70]) 'for this reason alone, the Tribunal supports the installation of an obscure glazed screen to supplement the lattice screen'. Read in context, those words do not suggest that there was no other privacy concerns which supported the construction of the obscure glazed privacy screen. The words, in my view, can be fairly read as saying, in effect, that the security issues themselves would justify the erection of a screen as well as the other privacy concerns, rather than that being the sole reason for ordering construction of the screen was the security issue.
There is no suggestion that, the hearing in relation to the s 83 application, Mr Graham made any statement which would suggest that the requirement in para (b) of the orders was directed solely to separating people from the lattice boundary fence.
In my view ground 3 reveals no question of law which would support an order setting aside the senior sessional member's orders.
Conclusion
It follows that the applicants have failed to make out any basis upon which the determination involves a question of law, and accordingly the application for review under s 244 of the PD Act must be dismissed.
Order
The application is dismissed.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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