Prendiville Superannuation Pty Ltd and Shire Of Dundas [No 2] - [2024] WASAT 84

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   PRENDIVILLE SUPERANNUATION PTY LTD and SHIRE OF DUNDAS [No 2] [2024] WASAT 84
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   16 MAY 2024
DELIVERED          :   9 AUGUST 2024
FILE NO/S:   DR 131 of 2022
BETWEEN:   PRENDIVILLE SUPERANNUATION PTY LTD
Applicant
AND
SHIRE OF DUNDAS
Respondent

Catchwords:

Review of decision by non-legally qualified member - Meaning of 'upon a matter involving a question of law' - Question whether jurisdictional errors fall within scope of review - Newbury test for validity of planning conditions - Extent of findings required under second limb of Newbury test - Question whether there is a requirement for findings as to both change and impact - Question whether there is a requirement as to quantum of impact - Adequacy of reasons - Question whether non-legally qualified member failed to consider arguments put by respondent

Legislation:

Planning and Development Act 2005 (WA), s 244

Result:

Applicant's application for review under s 244 Planning and Development Act 2005 (WA) is dismissed

Respondent's application for review under s 244 Planning and Development Act 2005 (WA) is dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr J Skinner
Respondent	:	Mr PL Wittkuhn

Solicitors:

Applicant	:	Thomson Geer - Perth
Respondent	:	McLeods

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

Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294
Anketell and Western Australian Planning Commission [2018] WASAT 100
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 321
La Rosa v City of Wanneroo [2006] WASC 304; (2006) 154 LGERA 11
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Paridis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Prendiville Superannuation Pty Ltd and Shire of Dundas [2023] WASAT 122
Reid v Western Australian Planning Commission [2016] WASCA 181
Sanders v City of South Perth [2019] WASC 226
Tillbrook and Western Australian Planning Commission [2011] WASAT 130
Urban Resources Pty Ltd and City of Swan [2016] WASAT 81
Western Australia Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150
Western Australian Planning Commission and Hogan [2018] WASAT 25
Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Norseman is a town located about 725 kilometres east of Perth, and more or less adjacent to the intersection of the Eyre Highway (which runs, more or less, east-west) and the Coolgardie-Esperance Highway (which runs, more or less, north-south).
Located about 180 metres east of that intersection, the Eyre Highway intersects with the northern terminus of Roberts Street, which then runs south into town.
The applicant (Prendiville) owns each of the lots on the southern side of the T-junction of the Eyre Highway and Roberts Street: Lot 2 is on the south-western corner and Lot 3 is on the south-eastern corner, with Roberts Street running between those two lots.
On Lot 2 is a BP roadhouse, which includes fuel bowsers for both light vehicles and trucks. It has been operational for many years.
Lot 3 has been used as an informal truck parking area for many years. It has no sealed areas, hardstand, marked bays or fuel bowsers. The respondent (Shire) granted approval for that use in June 1989 although, as will be seen, in the proceedings the subject of review, it denied that was so until the second day of the hearing.
On 28 June 2022, the Shire granted conditional approval for the development of Lot 3 for the purposes of 'Service Station and Transport Depot' in accordance with approved plans. The principal element of the 'service station' aspect of the proposal involves three unmanned truck refuelling bowsers covered by a canopy 13.5 m(L) x 8 m(W) x 6.4 m(H). There is no roadhouse proposed.
The applicant sought review of conditions xvii and xviii which, in effect and respectively, require the upgrade and maintenance of Roberts Street from a point 10 metres south of the Eyre Highway to Lot 3's southern boundary.
The application for review was heard on 1, 2 and 8 August 2023 by Member Lavery, who is not legally qualified.
During the preparation for, and during the first day of, the hearing the Shire insisted (contrary to Prendiville's assertion) that the pre‑existing use of Lot 3 was not approved. Understandably, that informed the nature of the case prepared by each party, including the evidence called. Most relevantly, the evidence primarily concerned the generation of traffic volumes, and associated traffic movement, likely to result from the development as if there was no pre-existing use of Lot 3.
On the second day of the hearing the Shire advised that the June 1989 approval of Lot 3 as a truck stop had been located. Member Lavery recorded in her reasons that, on that basis, the Shire accepted that it was only the additional or different traffic volumes and movement patterns resulting from the development, compared to the approved pre‑existing arrangements, that were relevant to her decision.
The extent to which Member Lavery did, or can, reach findings of fact regarding the evidence as to additional or different traffic volumes and movement patterns resulting from the development is at the heart of the applicant's case before me.
On 8 December 2023, Member Lavery determined to substitute condition xvii with one which requires a contribution to the upgrade of the relevant portion of Roberts Street in an amount to be agreed by the parties and, if such an amount cannot be agreed, to be determined by the Tribunal following a further hearing. She also determined to delete condition xviii: Prendiville Superannuation Pty Ltd and Shire of Dundas [2023] WASAT 122.
An attempt to mediate an agreed sum for the upgrade was unsuccessful. No further hearing has been held to determine the appropriate quantum. Rather, both the applicant and respondent now seek review of Member Lavery's decision pursuant to s 244 of the Planning and Development Act 2005 (WA) (PD Act).
That section provides for the review by a judicial member 'of a direction, determination or order' made by a non-legally qualified member 'upon a matter involving a question of law'.
For the following reasons I have determined to dismiss both applications.

The nature and extent of jurisdiction under s 244 of the PD Act

Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 is the only Supreme Court authority on the operation of s 244 of the PD Act. Each of the three Justices published their own set of reasons. In his reasons, Buss JA found it unnecessary to address the issue relevant to this case.
Pullin JA held that under s 244 of the PD Act an applicant for review must:
27… demonstrate that there has been some step taken by the [Tribunal] member [at first instance] in arriving at its conclusion which involved a 'question' of law. It is not necessary to show that there was an error of law before the applicant has a right to a review which 'arose for decision'… However, there must have been a 'question of law'. [internal citations omitted] If the law is referred to but the parties were not in issue about the law, then there will be no 'question' of law. In this case, some findings of fact had to be made about whether the land was viable for agricultural purposes [etc]…They raised questions of fact. The law was referred to [that is the legislative framework and the law concerning adverse planning precedent] but it was not in issue and there was therefore no question of law involved. It may be added that if it can be shown that there had been a matter involving a question of law in the proceedings, then the whole decision, and not merely the question of law is open to review. [internal citations omitted]
28If the issues involved in the case under review were only issues of fact, then there will be no question of law involved and there will be no right of review. …
At [111], Kenneth Martin J rejected a submission which he said would have the effect that 'a properly conducted s 244 review would require a judicial member to deal with questions of law not formulated or put for consideration on the review'.
In my view, Kenneth Martin J's finding at [111] is to the same effect as Pullin J's finding in [27]. That is, both Justices held that the question of law raised on a s 244 application must have been in issue before the non-legally qualified member at first instance.
However, their Honours differed in their views as to whether a review under the section may only proceed once an error of law is established. While Pullin JA at [27] (above) held that no error was necessary, Kenneth Martin J held the opposite: [51(b)] and [106].
Despite, or perhaps because of, that difference in views, 'the Tribunal's approach in a review under s 244 of the PD Act has consistently been that the inquiry by the judicial member is as to whether the non‑legally qualified member has made an error in relation to the question of law involved': Urban Resources Pty Ltd and City of Swan [2016] WASAT 81 [31] (Sharp DP). My own enquiries in this regard confirm Sharp DP's finding (see, for example, Western Australian Planning Commission and Hogan [2018] WASAT 25 [37]).
In taking such an approach, previous iterations of the Tribunal appear to have addressed alleged errors of law that were not 'before' the non‑legally qualified member.
In particular, they have addressed errors allegedly made by the non‑legally qualified member in the making of their decision such as might be addressed in an application for judicial review, i.e. questions going to jurisdictional error. Such an approach, with respect, appears to be inconsistent with the reasons of Pullin JA and Kenneth Martin J described above.
Several of the grounds advanced by the parties in this matter are of that character. I have addressed each of them despite my misgivings in this regard, but in any event in each case I have dismissed them on their merits.

Prendiville's application

On the face of its Amended Grounds for Review, Prendiville advances only one question of law, which is stated as follows:
Questions of law
1.The question of law the subject of this application, which was in issue between the parties, is whether a road upgrade contribution requirement can be lawfully imposed by way of a condition of the development approval the subject of the proceeding.
2.In particular:
(a)does such a condition reasonably and fairly relate to, or have a nexus with, the approved development - the second Newbury test; and
(b)is such a condition reasonable - the third Newbury test.
Statement of grounds
3.…
The 'question' is posed in the abstract - it asks whether 'a' contribution 'can' be lawfully imposed.
Despite that framing, I do not understand Prendiville's case to be so broadly put. Indeed, the two 'particulars' in paragraph 2 are (as their terms confirm) concerned with the second and third of the three limbs of a well-accepted test for the lawful validity of conditions that may be imposed on a development when approval is granted.
That three-limbed test is often described as the Newbury test after Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury).
By that test, a condition is valid if: (1) it is imposed for a planning purpose and not an ulterior purpose; (2) it reasonably and fairly relates to the development permitted; and (3) it is not so unreasonable that no reasonable planning authority could have imposed it.
That test was adopted and applied by two Justices of the High Court in Western Australia Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [57] (McHugh J) and [155] (Callinan J) and by this State's Court of Appeal: Reid v Western Australian Planning Commission [2016] WASCA 181 (Reid) [29].
There was no suggestion by either party at first instance that the Newbury test was not the relevant legal test for validity of a planning approval condition. That is clear from [14] - [16] of Member Lavery's reasons.
Before me the applicant did not suggest otherwise. As indicated above, the two particulars in paragraph 2 of Prendiville's Amended Grounds for Review contain within them references to the second and third limb of the Newbury test and at the hearing Mr Skinner, who appeared for Prendiville, confirmed that he did not assert that the legal test was anything different.
The particulars in paragraph 2 are also framed in the abstract but, as I understand its case, they should be understood as asserting that condition xvii, as framed by Member Lavery, does not satisfy either of the second or the third limb of the Newbury test and that Member Lavery erred in law in making her findings.
I will deal with the case regarding the second limb of the Newbury test first, before turning to the third limb.

Prendiville's challenge to condition xvii on the basis of Newbury's second limb

Prendiville's alleged question of law

The Court in Reid was concerned with a challenge to a condition imposed by the Tribunal on the basis of the second limb of the Newbury test. The Court held (at [37]) that the Tribunal's reasons had failed to establish that the condition in question fairly and reasonably related to the proposed development, saying:
[The relevant legal] principles require the establishment of a connection or relationship between the planning purpose for which the condition has been imposed, and the likely or possible consequences of the proposed subdivision. That connection or relationship must be established as a matter of fact. A relevant connection or relationship will not be established merely because the application for subdivision approval provides an opportunity or occasion to impose a condition in the furtherance of a proper planning purpose. Rather, the relevant connection or relationship must be between the planning purpose to be served by the condition and the likely or possible consequences of the proposed subdivision - such as a need for public open space, or a foreshore reserve, or improved road access as a consequence of residential subdivision and development. (Emphasis/underlining added)
That is, the Court held that the second limb of the Newbury test requires the decision-maker to make one or more findings of fact that establish a relationship between the planning purpose for which the condition is imposed and the likely or possible consequences of the proposed development.
Prendiville's paragraph 2(a) of its Amended Grounds for Review asks, in effect, whether condition xvii as formulated by Member Lavery reasonably and fairly relates to, or has a nexus with, the proposed development.
Given the Court's decision in Reid, Member Lavery's findings in that regard are findings of fact, not law.
As such, the question as framed does not appear to me to be a question of law but, rather, is a question of fact. That is, the issue raised by Prendiville appears entirely on all fours with the description by Pullin JA of the issue before him in [27] of Zampatti (above).
Notwithstanding that finding, in what follows I address the 'grounds' on which Prendiville relies.

Does the second limb of Newbury require separate findings as to both change and impact?

By paragraphs 3 and 4 of the Amended Grounds for Review, Prendiville accepts Member Lavery's finding that the development would likely result in an increase in truck numbers and changes in movement patterns but alleges that she erred in finding that that 'constituted a nexus for a contribution' to the road's upgrade:
3.'in the absence of it having been demonstrated on the evidence, or there being any evidence upon which the Tribunal could reasonably or properly find', that the increase in truck numbers and changes in traffic movements 'will result in any increased impact' to Roberts St;
4.'in the absence of any finding as to what upgrade is required' and there being no evidence upon which she could reasonably or properly found that any upgrade is required;
Mr Skinner's submissions at the hearing were to the same effect.
Underlying the ground in paragraph 3 is the contention that, in order to make a finding as to nexus, two factual findings are necessary: (1) that the development would result in certain matters changing; and (2) that those changes would have a particular impact.
I am far from satisfied that the law requires two separate findings. The passage in Reid quoted above speaks of the need to make factual findings about the consequences of the development. There is nothing in that passage that requires the concept of 'consequences' to be further broken down into smaller units. Neither am I satisfied that, as a matter of logic, such reductionism is required.
But in any event, Member Lavery's reasons make it clear that she found that the increase in truck numbers and the change in truck movement patterns resulting from the proposed development will, necessarily, have impacts on Roberts Street: [43], [47], [49] - [52].
Those paragraphs do not include a separate finding as to impact, but such a finding is, I find, necessarily implicit in those paragraphs, which held that the increase in truck traffic numbers and changes in movement patterns, which she finds will occur, warrant a contribution to the upgrade of Roberts Street.
In that regard I note that at [17], Member Lavery recorded the Shire's concession that it had located the 1989 approval 'and that the traffic and impact on the [sic] Roberts Street for the consideration of the Tribunal in this review is only that associated with the additional use of truck refuelling' under the proposed development (underlining added). That passage demonstrates that she was not ignorant of the issue of the impact of the changes likely to result from the development.
Mr Skinner was critical of Member Lavery's reasons for not separating out any findings as to impact from that of 'change'. But in my view no such separate finding is required. The finding that the change in traffic volume and pattern movements warrants a contribution to the Roberts Street upgrade makes clear the necessary implication that the change will cause an impact. Further, the finding necessarily implied is entirely consistent with human experience that an increase in heavy vehicles using a road will result in an increase in its wear and tear.
In making these findings, I have been conscious of the well‑established principle that the reasons of a non‑legally qualified member ought not to be read minutely and finely or with an eye being attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481, 491; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287.

Was there evidence upon which to make findings as to impact?

Paragraph 3 of Prendiville's Amended Grounds for Review alleges that there was no evidence about the impact of any changes to traffic volumes or movement patterns upon which Member Lavery could 'reasonably or properly' make findings. Mr Skinner also made that submission at the hearing.

A finding for which there is no evidence at all is an error of law, but there is no such error merely because the Tribunal finds facts wrongly or upon a doubtful basis or against the weight of the evidence: Paridis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 (Paridis) [54] ‑ [55].
For the reasons set out above in the previous section, I am not satisfied that such an error of law is one which falls within s 244 of the PD Act. But in any event, I do not accept that there was no evidence at all upon which Member Lavery could make a finding as to the consequences of the increase in traffic and changes to movement patterns.
As I have previously found, the finding that the development will likely result in an increase in truck traffic and changes to movement patterns and the finding that those changes warrant a contribution to Roberts Street's upgrade necessarily involves an implicit finding that the development will cause a different impact on the road. Prendiville does not suggest that there was no evidence to support the finding that there will be an increase in truck traffic and changes to movement patterns. There was, indeed, evidence to support that finding. Equally, as I find at paragraph 62 below there was evidence to support the finding that there was a need to upgrade Roberts Street. In my view that evidence provides a sufficient basis for the finding implicit in Member Lavery's reasons that there will be a relevant impact.

Was it necessary to make findings as to the quantum of impact in order to find a nexus?

Paragraph 4 of Prendiville's Amended Grounds for Review is in two parts. First, it submits that Member Lavery's failure to make a finding as to the magnitude of the upgrade to Roberts Street required by the development precludes a finding that there is a nexus.
In this sense I did not understand there to be a material distinction between the 'impact' of the development and the upgrade required. That is, in neither case did Member Lavery quantify the finding and, as I understand it, Prendiville, in effect, alleges that the magnitude of the upgrade will follow from the magnitude of the impact.
Either way, I disagree that a lack of a finding as to magnitude precludes a finding as to nexus.
The second limb of the Newbury test requires no more than that the condition 'fairly and reasonably relates' to the development the subject of approval.
Those adverbs are, on their face, not words of precision. At the risk of providing a gloss on words which do not require it, they speak of a relationship (a connection: Reid [39]) which is more than merely tenuous, speculative, ephemeral or trifling. A finding of such a relationship can be made notwithstanding that no precision is possible: Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 (Perrymead), 188.
That is, in my view, it was open to Member Lavery to find that the proposed development would have consequences that require a contribution to the upgrade of the road without determining how much that contribution should be, or even how it should be calculated.
Member Lavery found that the evidence before her did not allow a finding as to magnitude and made orders for a further hearing (in the absence of agreement) to determine the quantum of contribution. But her inability to make a finding as to magnitude does not mean that, as a matter of logic or law, she was unable to, or was precluded from, finding that there is a fair and reasonable relationship between the consequences of the proposed development (an increase in truck numbers and a change to traffic patterns) and a condition requiring a contribution to the upgrade of Roberts Street in an amount yet to be determined.

Was there evidence upon which to find Roberts Street will require an upgrade?

The second part of paragraph 4 of Prendiville's Amended Grounds for Review is to the effect that there was no evidence upon which Member Lavery could have found that the development will have an impact such that an upgrade of Roberts Street is required. As indicated above, that amounts to an allegation of an error of law. As also indicated above, I doubt that such an error falls within the scope of s 244 of the PD Act.
Mr Wittkuhn took me to a considerable volume of evidence regarding the current state of Roberts Street including photos and stills from drone video footage. In my view, and I find, that evidence is more than sufficient to demonstrate that the current state of Roberts Street is inadequate for a truck refuelling station on Lot 3.
Further, I find that that evidence, together with the evidence upon which Member Lavery found that the proposed development would result in an increase in truck numbers and a change in movement patterns, was sufficient for her to find that the development's approval will require an upgrade of Roberts Street.
In each case, by sufficient I mean that there is some evidence and not no evidence. Accordingly, and for the reasons set out above, there is no error of law.

Did Member Lavery give adequate reasons?

The fifth paragraph of Prendiville's Amended Grounds for Review asserts that Member Lavery failed to provide adequate reasons for her finding that a nexus exists between the development and condition xvii. In particular, that paragraph submits (as did Mr Skinner at the hearing) that there is a lack of reasons which identify the evidence going to the likely impact to Roberts Street due to changes to traffic volumes and movement patterns in circumstances where Member Lavery found that there was insufficient evidence to allow her to calculate the quantum of the appropriate contribution.
Section 77 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that reasons given for a final decision must 'include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based'.
I have already found that there was evidence to support the finding that the development would result in changes to traffic volumes and movement patterns and the finding that an upgrade of Roberts Street was required. I have also found that such evidence also supports the implicit finding that the changes would have an impact on Roberts Street.
At [51], Member Lavery states that she is 'convinced by the evidence of the respondent that there will be different and likely additional truck movements as a result of the introduction of truck refuelling onto Lot 3 …'.
Prendiville does not allege that the reasons are inadequate in relation to that finding. That paragraph refers to the evidence called on behalf of the respondent which, I find, is that described at [33] to [40]. In that regard:
(a)At [34] Member Lavery clearly accepted the evidence regarding changes to transport patterns as a result of both the ingress and egress for Lot 3 being by way of Roberts Street, compared to the current situation for Lot 2, in which trucks currently accessing Lot 2 from Roberts Street exit via Eyre Highway; and
(b)As to traffic volumes, at [36] - [40] she describes the evidence of Mr Kirk and Mr Laybutt regarding likely traffic volumes and at [51] she indicates her preference for the evidence of Mr Kirk, which was to the effect that the development will increase the attractiveness of the site to transport operators, leading to an increase in truck numbers.
Accordingly, in my view, Member Lavery has identified the evidence upon which she reached her findings as to changes to truck volumes and movement patterns. As I have previously noted, the finding that the changes to traffic volumes and movement patterns will have an impact on Roberts Street is implicit and is entirely consistent with ordinary human experience.
In my view, and I find, in light of the principle set out in para 49 above, the reasons provided by Member Lavery as to the changes are equally applicable to the impact (should such a finding be necessary). Accordingly, I find that there has been no failure to provide adequate reasons and, therefore, no error of law.

Prendiville's challenge to condition xvii on the basis of Newbury's third limb

I turn then to the question whether the conditions in question are (un)reasonable - the third Newbury test.
Traditionally, the third limb of Newbury was expressed by reference to what was known as Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223); that is, that the condition is so unreasonable that no reasonable decision-maker could have imposed it: Temwood [57] and [155].
However, in Sanders v City of South Perth [2019] WASC 226 (Sanders) [227] Quinlan CJ held that, since the High Court's decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li), 'the assessment as to whether a particular decision is legally unreasonable is not to be confined by reference to such a formula'.
However, while the High Court in Li expanded the concept of legal unreasonableness from one focused on the result to one that includes errors made in the decision-making process (Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 [60]), the discussion of the Chief Justice in Sanders regarding the third Newbury limb is limited to a result which is legally unreasonable, rather than being concerned with errors as to how the result was reached.
So, in Sanders Quinlan CJ referred to the reasons of Hayne, Kiefel and Bell JJ in Li at [228] in which they recognised that Wednesbury unreasonableness 'could more sensibly be taken to recognise that an inference of legal error may be objectively drawn even where a particular error of reasoning cannot be identified'. And later, his Honour quoted from the reasons of Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 [83], where they spoke of an 'error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances' (emphasis in original).
Accordingly, in my view the decision of Quinlan CJ in Sanders requires that an allegation that a condition breaches the third limb of Newbury requires a careful evaluation of the evidence within the particular factual context of the proposed development. If, having carried out such an examination, the conclusion is that the condition could not have been imposed 'if proper reasoning had been applied', then the condition is invalid as being unreasonable.
There is no doubt that an allegation that a decision is legally unreasonable alleges an error of law: Paridis [56].
However, for reasons already identified I doubt whether Parliament intended such a ground to form part of a judicial member's consideration under s 244 of the PD Act. More specifically:
(a)while an applicant at first instance might allege that the decision under review was legally unreasonable, the de novo nature of the review before the non‑legally qualified member means that such an allegation is irrelevant to their determination; and
(b)further, an allegation that the decision of the non-legally qualified member is legally unreasonable can only, necessarily, arise once that decision is made and it therefore cannot have been a live issue before the non‑legally qualified member. Accordingly, per Zampatti (above), such a matter is likely beyond the scope of s 244 review.
But in any event, Prendiville's grounds do not, in my view, allege legal unreasonableness as understood in light of the preceding discussion.
Paragraph 6 of Prendiville's Amended Grounds for Review is concerned with the course of action taken by Member Lavery in light of her finding, at [46], that there was 'insufficient evidence before [her] … to determine whether the condition meets this third Newbury test'.
Prendiville submits that, having reached that decision, Member Lavery 'erred in [her] reliance on Tillbrook and Western Australian Planning Commission [2011] WASAT 130, where the circumstances were more closely aligned with the decision in Anketell and Western Australian Planning Commission [2018] WASAT 100'.
Self-evidently, that is a claim that another result should have been reached, rather than a claim that the decision could not have been reached had proper reasoning been applied. That is, the ground does not allege legal unreasonableness at all.
Paragraph 7 of Prendiville's Amended Grounds for Review claims that, having found, at [51], that she had 'not been provided with sufficient evidence to enable the calculation [as to the amount of any contribution to the upgrade of Roberts Street] to be made', Member Lavery erred 'in speculating as to the amount of the contribution' in [52].
In my view, it is clear, and I find that Member Lavery did not 'speculate' as to the amount of the contribution. Rather, at [52], she suggested what she thought 'may' be the upper limit of any contribution.
The relevant passage in [52] is clearly not intended to bind either the parties or the Tribunal in any future calculation of quantum; it says only that a 'reasonable contribution may be in the order of up to a maximum of 50% of the cost of the upgrade …'.
As I have previously noted, the orders made provide for the resolution of the quantum by the Tribunal 'following a further hearing' if the parties are unable to agree. The wording in [52] is, as noted above, expressed in the possible, rather than the absolute.
In my view there is no basis for the proposition that such a statement could not lawfully be made in light of the previous finding that the evidence was insufficient to form a final view as to the proper quantum of any contribution.
Paragraph 8 of Prendiville's Amended Grounds for Review alleges that Member Lavery's 'reasons and decision … are otherwise manifestly unreasonable in circumstances where [she] failed to make a final decision following the hearing of the matter'.
This ground was the subject of more detailed submissions at the hearing but, with respect, I have struggled to identify a basis on which it was said that the course taken by Member Lavery was not legally open to her.
Prendiville's complaint is, in effect, that the decision gives the Shire another chance to put on evidence as to the magnitude of the impact of the development on Roberts Street, and therefore the quantum of the contribution it (Prendiville) should make to its upgrade.
I have some sympathy for the sense of grievance apparently felt by Prendiville. With the benefit of hindsight the prudent and proper course would have been for the Shire, upon acknowledging at the start of the second day of hearing that the pre‑existing use of Lot 3 had been approved by it in 1989, to seek an adjournment of the hearing to allow the parties to put on evidence that reflected that reality.
But neither the Shire's failure to take that course, nor any other reason, precluded Member Lavery from deciding the matter in the way that she did, which was a course that was very similar to, and appears to have been inspired by, Chaney J's decision in Tillbrook and WAPC [2011] WASAT 130 (Tillbrook). While it was submitted that the decision in Anketell and WAPC [2018] WASAT 100 (Anketell) was more analogous, it was not submitted that the decision in Tillbrook was legally wrong, or that adopting its approach was not legally open.
Accordingly, I find that the grounds upon which Prendiville relies are not made out and I dismiss its application.

The Shire's application for review

The Shire also seeks review of Member Lavery's decision. It does so on three grounds which are, in effect, as follows:
(a)she failed to consider the Shire's case that Lots 2 and 3 are a single planning unit and that, therefore, any condition going to Prendiville's contribution to the upgrade and maintenance of Roberts Street should be assessed on the basis that there is a redevelopment of both lots;
(b)she failed to consider the Shire's case that the original conditions xvii and xviii should be 'regarded as a sine qua non for the implementation of the proposed development'; and
(c)she failed to apply the principles that:
1.there is no need for exact proof that the condition directly matches the extent of the changes produced by the development;
2.that a condition may be imposed by which a proponent contributes to facilities or infrastructure which will also have a broader public benefit; and
3.that 'the essential test is that there also be a nexus with the fact of the development'.
I will address each in turn. Before I do so, I accept that each of the three grounds assert that Member Lavery made an error of law ‑ grounds 1 and 2 assert, in effect, a constructive failure to exercise jurisdiction (see, for example, Woolworths Ltd v Director of Liquor Licensing [2013] WASCA 227; (2013) 45 WAR 446, [66] - [70]; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 321, [27]) and ground 3 asserts a failure to apply legal principle.
However, for the reasons I have previously described, I doubt that such grounds are intended to be covered in an application under s 244 of the PD Act. In each case, they allege a failure of the single member which cannot have been in issue before her.
In any event, the three grounds are either misconceived, without merit or were not actively pursued. I will therefore dismiss the Shire's application.

The planning unit argument

Before Member Lavery, Mr Wittkuhn used the term or phrase 'planning unit' apparently without objection or complaint; no-one appears to have suggested that they did not know to what he was referring.
Nonetheless, while not uncommon amongst planners and planning lawyers, the term has no statutory basis in this State and, while it has been used by the Supreme Court in the context of existing/non‑conforming uses (La Rosa v City of Wanneroo [2006] WASC 304; (2006) 154 LGERA 11), it has not been so used in the context of a proposed development. Neither does it appear to have been used in this Tribunal.
Rather, in an application such as this, which concerns a proposed development, the land the subject of an application for development approval is described in the relevant form (cl 86 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) - the deemed provisions) by reference to both lot/diagram or plan number and street address.
Elsewhere in the deemed provisions reference is made to 'the land on which the proposed development is to be located' (cl 62(1)(b) of the deemed provisions) and 'the land the subject of the application' (cl 63(1)(a)(ii) of the deemed provisions), both of which phrases appear to refer back to the property described in the relevant form.
It is the descriptions used in the statute which must be the focus of any enquiry as to the identity of the relevant land in a particular case, not a shorthand phrase, such as 'planning unit'.
In Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2008] VSC 294, Kyrou J (then a Justice of the Victorian Supreme Court) on appeal from a decision of the Victorian Civil and Administrative Tribunal in which it (ie the VCAT) utilised the term 'planning unit' despite a similar statutory silence, detailed the term's historical development and the extent of its usage and then said as follows, which in my view (with respect) has much to commend it:
Labels such as 'planning unit' can sometimes assist in encapsulating in a shorthand manner the issue that a responsible authority or review body is called upon to decide. However, there are dangers in using labels as a substitute for the words of a statutory provision or legal principle, that sometimes outweigh their utility. [34]
I accept the Shire's submission that Member Lavery's reasons do not use the phrase 'planning unit'. But in my view, and I find, there is no legal error in that omission because her task did not require her to identify the 'planning unit'.

Rather, it required her to identify the land upon which the proposed development is to occur and, also, identify the consequences to that land, and to other land, likely to arise if the development proceeds.
At [12] and [52] of her reasons, Member Lavery found that the land on which the proposed development is to occur is limited to Lot 3.
Such a finding is entirely consistent with the Shire's development approval. That document identifies Lot 3 as the land the subject of the approval on the first page of the document. So does the approved Site Plan (FTC1544-1-CP4, Rev 6) which the Shire marked up by way of a red boundary line around Lot 3 and annotated with the words 'Extent of Development Approval'.
As a result, the Shire's allegation in its first ground that 'that there is a redevelopment of both lots' is wrong. There is no proposed development on Lot 2, which Member Lavery correctly held.
Further, for reasons that have already been described in relation to Prendiville's grounds, Member Lavery made findings as to the changes to vehicle volumes and movement patterns on land that included Roberts Street likely to arise if the development is approved.
This ground of review conflates the concept of a planning unit with the portion of land upon which the consequences of the proposed development will be felt. But Member Lavery made no such mistake. Her reasons clearly evidence that she was aware that the geographical extent of the effects of the development extended beyond Lot 3. For example, at [34] she relates the respondent's position (which she accepted - [51]) that:
trucks currently utilising Roberts Street to access the existing service station on Lot 2 enter from Roberts Street and exit onto Eyre Highway whereas trucks refuelling at Lot 3 would both enter and exit via Roberts Street causing additional truck movements [on Roberts Street].
For these reasons, I find that the first ground raised by the Shire is misconceived and I dismiss it accordingly.

The sine qua non argument

Sine qua non translates literally as 'without which, not'. In other words: without X, Y should not be permitted.
The Shire submits that it ran an argument before Member Lavery to the effect that the proposed development should not be permitted in the absence of a condition which requires Roberts Street to be upgraded to a standard sufficient and suitable for two truck stops/refuelling land uses, ie on Lots 2 and 3.
The Shire further submits that Member Lavery failed to address that argument (the sine qua non argument) which, it submits, amounts to an error of law.
I disagree for the following three reasons, which I briefly summarise and then develop a little more fully:
(a)First, the sine qua non argument was not an issue that Member Lavery was required to resolve. Rather, it was a rhetorical flourish used by the Shire in service of submissions that sought to persuade Member Lavery that the correct and preferable decision (which was the issue in question) was to uphold the two conditions.
(b)Secondly, any strength the sine qua non argument had was considerably diminished by the Shire's concession that the pre‑existing use on Lot 3 was approved in 1989 and, therefore, only the additional or different traffic generated by the proposed development on Lot 3 (i.e. the unmanned truck refuelling station) over and above the pre‑existing levels, were relevant to Member Lavery's decision.
(c)Thirdly, Member Lavery did engage with the substantive issue into the service of which the sine qua non argument was pressed.
As to the first reason, I start by emphasising there is nothing inherent in the phrase sine qua non which adheres to planning principles. Mr Wittkuhn did not suggest otherwise. The phrase is simply a neat verbal shortcut used by lawyers to describe something that is essential to the approval of something else.
Put another way, the phrase is not a term of art particular to planning which it might be expected Member Lavery should have understood as referring to a particular planning principle.
Neither was the phrase identified by the Shire as an issue to be determined. Rather, in the Shire's Statement of Facts, Issues, and Contentions (SSIFC) it was referred to in three Contentions in support of the following Issue:
Issue 1: is the imposition of condition (xvii) the correct and preferable decision on the merits, either in its exact form or in a form modified to set out a more precise methodology?
The relevant passages read as follows:
25On the merits of the matter before the Tribunal, it should be regarded as a sine qua non for the approval of the subject development, that the section of Roberts Road abutting Lot 3 should, at the commencement of the use, be at a [suitable] standard … [underlining added]
26Despite the fact that the existing service station generates some truck traffic … an upgrade is a sine qua non for the subject development proposal in its own right, and a full upgrade still fairly and reasonable relates to the subject development.[1]
[1] Paragraph 29 of the SSIFC also uses the phrase but only, in my view, in passing. That paragraph also forms part of the Contentions to Issue #1.
The underlined introductory words to paragraph 25 confirm the contention is concerned with the merits of the matter - the correct and preferable decision. What follows is a submission that encourages the Tribunal to see that the correct and preferable decision is the imposition of a condition requiring Prendiville to pay for the upgrade of the road. But it is only that, a phrase used in the service of a submission as to what the correct and preferable decision should be, which is, as identified in the SSIFC, the relevant issue to be determined.
Mr Wittkuhn's opening submissions before Member Lavery were to the same effect.
In its written submissions on this point before me, the Shire calls in aid the written evidence of several witnesses called by it at the hearing. None of them assists it. By way of example, the passages of Mr Kirk's evidence quoted in the written submissions were given under headings that asked whether a local government would 'normally require a proponent' to upgrade the road and which asked him to comment on the quality of other road frontages to Nullarbor roadhouses. Mr Dowling's evidence was that, in his experience, proponents accept that they bear the burden of upgrading road frontages to a suitable standard. He opines that a 'heavy haulage based use should not be imposed onto the road network unless it is fronting a section of decent quality public road'.
The passages relied upon are all perfectly acceptable and appropriate expressions of opinion that go to what the Shire submits should be the correct and preferable outcome. But they do no more than that. To the extent that the Shire expressed its preferred outcome as one that should necessarily follow if the proposed development was approved, I repeat that in my view that was properly understood to be no more than a rhetorical flourish.
That is, the issue that Member Lavery was required to resolve was whether the imposition of condition xvii was the correct and preferable decision, not whether condition xvii was a sine qua non to the approval of the development.
Secondly, the Shire's argument that the original version of condition xvii is a necessary consequence of the proposed development was made much more difficult by its (the Shire's) concession that as the pre‑existing use was/is approved, the only relevant consideration for Member Lavery was the traffic and associated impact 'associated with the additional use of truck refuelling under the June 2022 approval'.
Member Lavery recorded the concession at two places in her reasons: [17] and [22]. The Shire's written submissions before me sought to cast doubt that such a concession was made in circumstances where there is a gap in the transcript at the point immediately after Mr Wittkuhn acknowledges the 1989 approval, being a place where such a concession would likely have been made.
Paragraph 39 of the written submissions includes the rather remarkable submission that 'it cannot be' that such a concession was made, without explaining why that must be so.
Such a concession appears entirely consistent with, and indeed the logical consequence of, the acknowledgement of the 1989 approval. The second limb of the Newbury test requires a fair and reasonable relationship between the condition and the consequences of the approval to which it attaches, which in this case is the increase in traffic volumes and changes to movement patterns, not the cumulative total resulting from the development and any pre-existing development.
Further, such a concession appears consistent with the Shire's oral closing submissions to Member Lavery, in which the phrase sine qua non was mentioned only once, despite those submissions taking ~23 pages of transcript.
It is not at all clear how the Shire might have maintained an argument that a condition requiring Prendiville to pay for the entirety of an upgrade to Roberts Street is a necessary condition - a sine qua non ‑ to the approval of a development of Lot 3 where that lot, and Lot 2, already contribute traffic which impacts on that road.
However, to the extent that such an argument was maintained despite the Shire's acknowledgment of the 1989 approval, Member Lavery addressed its substance in her findings. That is my third reason for dismissing this ground of the Shire.
That is, Member Lavery determined that, while an upgrade of Roberts Street is appropriate, Prendiville should not be required to pay for it all but, rather, should only be required to pay for a fair proportion based on the extent to which the development adds to the traffic load, with such extent to be determined following a further hearing if not agreed.
Such an outcome is entirely consistent with the Shire's concession recorded at [17] and [22] of Member Lavery's reasons and subsequently addresses any residual aspect of the Shire's sine qua non argument.
Accordingly, I reject this ground of the Shire's application.

The relevant principles argument

The need for exact proof

The Shire submits that, on a fair and objective reading of her reasons, Member Lavery 'purported to impose a requirement that there be exact proof that the condition directly matches the extent of changes that the development will produce'.
In doing so, its written submissions assert that:
(a)her quote from Perrymead at [41] omits the passage which addresses this principle;
(b)at [47] she stated that the applicant 'should not be subject to a disproportionate burden but rather an appropriate contribution to the Roberts Street upgrade'; and
(c)at [50] she stated that the amount of any contribution 'needs to be determined having regard to the changes to the movement pattern of vehicles resulting from [this development approval]'.
At the hearing, Mr Wittkuhn's made no substantive oral submission in this regard.
As a factual description of the content of the relevant paragraphs of Member Lavery's reasons, the Shire's written submissions are accurate, but they are incomplete.
Significantly, at [27] Member Lavery noted the applicant's submission that 'there does not need to be a mathematical precision between a nexus … and the scope of a condition that is imposed'.
Further, her ultimate disposition of the matter as to condition xvii was to refer it for further hearing because, she held, there was insufficient material before her upon which 'to enable the calculation to be undertaken': [51]. In my view, her reference to a 'calculation' does not suggest that she intends to carry out a mathematical equation.
Indeed, at [52] she says that a 'reasonable contribution may be in the order of up to a maximum of 50%' (emphasis added), which suggests otherwise.
In my view, there is nothing in her reasons that suggests Member Lavery failed to apply the relevant principle. Rather, in my view, her reasons indicate that she was aware of the principle and that, when the time comes, she will apply it.
That last point, though, demonstrates another difficulty for the Shire in relation to this ground, which is that it is premature. Member Lavery has not made a final determination of the quantum or the means by which it is to be calculated. Rather, she has made orders by which that will be addressed at a further hearing should the parties not agree. Until that occurs, any complaint in this regard is largely speculative.

Community benefits

The Shire's written submissions include that 'on a fair and objective reading' of her reasons, Member Lavery 'did not engage with the possibility that a condition could be imposed which also benefits the public or which primarily is for a generalised community need'.
That (written) submission is made despite acknowledging that Member Lavery (at [41] of her reasons) quoted a passage in Perrymead which included the following passage: 'if [the condition] does reasonably relate, then it is not fatal if the condition also benefits the public at large to a greater or lesser degree'.
The Shire's written submissions are otherwise silent on this point. Equally, Mr Wittkuhn did not address this issue in oral submissions at the hearing.
It is not for me to go searching for material to support or undermine a party's case. In the absence of anything further in support of the assertion, I dismiss it.

Reasonableness

I am in much the same position in relation to the third aspect of the Shire's third ground.
The Shire's written submissions include that 'on a fair and objective reading' of her reasons, Member Lavery 'having found that the upgrade has a nexus with the development, overlooked that such nexus was the essential test as to the reasonableness of the condition'.
The Shire's written submissions are otherwise silent on this point. Equally, Mr Wittkuhn did not address this issue in oral submissions at the hearing.
On its face, the proposition that a finding as to nexus is 'the essential test as to the reasonableness of the condition' appears to be wrong in that the concept of a 'nexus' is concerned with the second limb of the Newbury test for validity, while (legal) reasonableness is the third limb. On that basis, the proposition appears incorrect.
But I do not need to pursue that issue any further. In the absence of anything of substance from the Shire in this regard, any further analysis would necessarily be based on speculation as to what the Shire's argument was.
For these reasons, I dismiss the third of the Shire's three grounds.

Conclusion and Orders

For the preceding reasons, I reject each of the grounds put forward by each of the parties.
It is important to note that in doing so I should not be understood to agree with Member Lavery's decision. Only if I accept that a question of law is raised and that an error of law has been made is it necessary for me to review the decision. Having determined that (at least) no error has been made, I have not embarked on that task.
I will make orders dismissing each application for review.

Post-script

Much of the difficulties arising in this case would have been avoided had the Shire earlier identified the 1989 approval. Its failure to do so was not an isolated example of a local government being unable to locate a prior approval. Modern record keeping may have improved, but is unlikely to entirely resolve, the issue. Section 49 of the Planning & Environment Act 1987 (Vic) mandates that each responsible authority must keep a register of all applications and approvals. I respectfully suggest that Parliament might consider the benefits of such a register when next amending the PD Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PN
Associate to Deputy President Judge Jackson
9 AUGUST 2024