Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd
[2018] WASCA 213
•3 DECEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL -v- DCSC PTY LTD [2018] WASCA 213
CORAM: BUSS P
MURPHY JA
MITCHELL JA
HEARD: 5 NOVEMBER 2018
DELIVERED : 3 DECEMBER 2018
FILE NO/S: CACV 57 of 2018
BETWEEN: PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL
Appellant
AND
DCSC PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
Citation: PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL -v- DCSC PTY LTD [2018] WASC 145
File Number : GDA 14 of 2017
Catchwords:
Planning and Development - Whether preliminary decision by State Administrative Tribunal as to classification of proposed land use under a local planning scheme has binding effect or gives rise to accrued rights - Effect of amendment to local planning scheme - Whether in making final decision as to whether development approval should be granted the Tribunal is required to have due regard to the provisions of the local planning scheme as amended - Authority of the presiding member of a development assessment panel to institute an appeal
Legislation:
Interpretation Act 1984 (WA), s 37
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 18
Planning and Development Act 2005 (WA), s 241, s 252
State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 31, s 36, s 51A, s 105
Result:
Appeal allowed
Cross-appeal dismissed
Respondent's application in an appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr C S Bydder |
| Respondent | : | Mr M C Hotchkin |
Solicitors:
| Appellant | : | State Solicitor's Office |
| Respondent | : | Hotchkin Hanly |
Case(s) referred to in decision(s):
Attorney General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545
Attorney-General (Queensland) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485
Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
City of Cockburn v McNiece Industrial Systems Pty Ltd (Unreported, WASC, Library No 5523, 24 September 1984)
DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104
DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2017] WASAT 114
Director of Public Works v Ho Po Sang [1961] AC 901
Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1
Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178
Esber v The Commonwealth (1992) 174 CLR 430
LS v Mental Health Review Board [2013] WASCA 128
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Owners of Strata Plan 18449 v City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASC 145
Re Minister for Planning; Ex parte City of Canning (1998) 101 LGERA 284
Robertson v City of Nunawading [1973] VR 819
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93
Shire of Augusta-Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55
Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14
The Colonial Sugar Refining Co Ltd v Irving [1905] AC 369
The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227
UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968
Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379
JUDGMENT OF THE COURT:
Summary
The appellant is the presiding member of the Southern Joint Development Assessment Panel (Panel). On 14 December 2015, the Panel refused to grant development approval for the respondent's proposed development in Dunsborough. The Panel's authority to determine the application for development approval was conferred by the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations). Those regulations are made under the Planning and Development Act 2005 (WA) (Planning Act).
The respondent applied for a review of the Panel's decision by the State Administrative Tribunal. The Tribunal dealt with the proper classification of the proposed use under the City of Busselton Local Planning Scheme No 21 (Scheme) as a preliminary matter (Preliminary Decision).[1] The Tribunal found that the respondent's proposed use was properly classified as a 'Convenience Store' rather than a 'Service Station' under the Scheme as it then stood. The classification was significant for the decision to grant or refuse development approval. A 'Convenience Store' was a permitted use while a 'Service Station' was a discretionary use under the Scheme.
[1] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104
After the Preliminary Decision, the Tribunal heard the respondent's review application on 1 and 2 February 2017. On 4 August 2017, City of Busselton Local Planning Scheme No 21 - Amendment No 1 (Scheme Amendment) came into force. That was after the hearing but before the Tribunal delivered its reserved decision on the respondent's review application. Relevantly, the definition of 'Service Station' was amended so as to capture the respondent's proposed use on the facts which had been agreed before the Tribunal.
On 23 August 2017, the Tribunal delivered its reserved decision, granting conditional development approval for the development under the Scheme (Final Decision).[2]
[2] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2017] WASAT 114.
At the time that it delivered the Final Decision, the Tribunal was unaware of the fact that the Scheme Amendment had come into force. The appellant appealed against the Final Decision to the General Division of this court under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The appellant contended that the Tribunal erred in law by failing to have regard to the terms of the Scheme as in force at the date of the Final Decision (which incorporated the Scheme Amendment).
In the Primary Decision,[3] the primary judge granted leave to appeal but dismissed the appeal. Her Honour did so for two reasons. She held that the Preliminary Decision was binding upon the parties and the Tribunal in making the Final Decision and was not a matter open to be challenged in the appeal to the General Division. Alternatively, the respondent had an accrued right to have the review application determined in accordance with the Preliminary Decision, which was preserved by s 37(1)(c) of the Interpretation Act 1984 (WA).
[3] Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASC 145.
The appellant now appeals to this court against the Primary Decision. For the following reasons, that appeal should be allowed. The Final Decision should be set aside and the matter sent back to the Tribunal for reconsideration in accordance with these reasons.
Factual and procedural background
The relevant land and the Scheme
The respondent is the owner of land located in the Dunsborough town centre (Land). The land is within the local government district of the City of Busselton (City). It is zoned 'Business' under the Scheme.
The Scheme, which has effect as if enacted by the Planning Act,[4] comprises the Scheme text and maps. The Scheme also includes the 'Deemed Provisions' of sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Scheme Regulations).[5] A planning scheme may also be required to include any applicable 'Model Provisions' in sch 1 to the Scheme Regulations which are in force at the time the planning scheme is approved.[6]
[4] Section 87(4) of the Planning Act.
[5] See s 256(5)(b) and s 257B(2) and (3) of the Planning Act read with reg 8(1)(c) and reg 10(4) of the Scheme Regulations.
[6] Section 257A of the Planning Act read with reg 10(2) of the Scheme Regulations.
In the present case, there is no material difference between the relevant Deemed Provisions and the Scheme text. It will be convenient to refer to the Deemed Provisions.
Subject to presently immaterial exceptions, cl 60 of the Deemed Provisions prohibits a person from commencing or carrying out any works on, or using, land in the Scheme area unless the person has obtained the development approval of the City. One of the matters to which the City is required to have due regard when considering an application for development approval is 'the aims and provisions of th[e] Scheme'.[7] The City may determine an application for development approval by granting approval, with or without conditions, or refusing to grant approval.[8]
Zoning table and relevant definitions
[7] Clause 67(a) of the Deemed Provisions.
[8] Clause 68(2) of the Deemed Provisions.
The zoning table to the Scheme identifies the uses of land which are permitted, permissible and not permitted in the various zones. A 'Convenience Store' is a 'P' use in the Business zone, meaning that the use is permitted by the Scheme provided that the use complies with the relevant development standards and the requirements of the Scheme. A 'Service Station' is a 'D' use, meaning that the use is not permitted unless the City has exercised its discretion by granting planning approval. Development approval remains necessary for both 'P' and 'D' uses.
The terms 'Convenience Store' and 'Service Station' were defined in sch 1 to the Scheme in the following manner:
'Convenience Store' means land and buildings used for the retail sale of convenience goods being those goods commonly sold in supermarkets, delicatessens and newsagents, but including the sale of petrol and operated during hours which include, but which may extend beyond, normal trading hours and providing associated parking. The buildings associated with a convenience store shall not exceed 300m2 net lettable area.
'Service Station' means any land or buildings used for the retail sale of petroleum products and motor vehicle accessories and for carrying out greasing, tyre repairs, minor mechanical repairs to motor vehicles but does not include a transport depot, panel beating, spray painting, major repairs or wrecking.
Application for development approval
In its application for development approval dated September 2015, the respondent proposed a development it described as a 'Convenience Store'. The proposed development principally comprised three double sided fuel bowsers and a 188m2 retail building. The building would be used for the sale of groceries and other items commonly sold in supermarkets, delicatessens and newsagents, as well as automotive supplies.[9]
[9] Statement of Agreed Facts before the Tribunal (Green AB 254 - 255).
The respondent elected[10] to have the proposed development determined by the Panel, on the basis that the estimated cost of the development was more than $2 million. As a consequence, the respondent's application for development approval had to be determined by the Panel as if the Panel were the responsible authority (the City) and could not be determined by the City.[11]
Panel's decision
[10] Under reg 6 and reg 7 of the DAP Regulations.
[11] Under reg 8(1) of the DAP Regulations.
On 14 December 2015, the Panel resolved to refuse the respondent's application for development approval.[12] At the time of making this decision, the Panel had before it a report of the City which indicated that '[o]fficers are of the opinion that the land use is appropriately classified as 'Service Station''.[13]
Provision for review of the Panel's decision
[12] Statement of Agreed Facts before the Tribunal (Green AB 254 - 255).
[13] Annexure PDB1 to the affidavit of Phillip Bruce Dobson sworn 26 June 2018 (Yellow AB 11 - 28).
Regulation 18(2) of the DAP Regulations provides that a person who has made a DAP application may apply to the Tribunal for review, in accordance with pt 14 of the Planning Act, of a determination by a DAP to refuse the application, as if the determination were a determination of a responsible authority.
Section 252(1) of the Planning Act, which is in pt 14, provides that, subject to a presently immaterial exception:
[I]f:
(a)under a planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority; and
(b)a person has applied to the responsible authority for such a grant; and
(c)the responsible authority has:
(i)refused the application; or
(ii)granted it subject to any condition,
the applicant may apply to the [Tribunal] for a review, in accordance with this Part, of the responsible authority's decision.
Section 252(2) of the Planning Act, which the respondent also relies on, relevantly provides:
Subject to subsections (1) and (3), an applicant may apply to the [Tribunal] for a review, in accordance with this Part, of the responsible authority's decision under a local planning scheme … as to:
(a)the classification of a use under the planning scheme; or
(b)the permissibility of a use that is not listed under the planning scheme.
Review application
On 4 January 2016, the respondent applied to the Tribunal for a review of the Panel's decision.[14] The appellant was named as the respondent to that application. The review application indicated that it was made under reg 18 of the DAP Regulations for review of a decision of the Panel.
Preliminary Decision
[14] Under reg 18(2)(a) of the DAP Regulations read with s 252(1) of the Planning Act.
On 22 January 2016, the Tribunal made orders by consent that it was to determine the question of the proper land use category. At this time, both parties considered it appropriate that the proper use classification of the proposed development be determined as a preliminary issue. The primary judge found:[15]
At that time it was contemplated by the parties that if it was found by the Tribunal that the proposed land use was to be properly characterised as 'convenience store', as defined in [the Scheme], the Panel may wish to both mediate and reconsider its position in light of such a finding. However, if the proposed use was to be found to be 'service station' the hearing on the review of the remaining matters:
(a) would most likely proceed to a hearing without mediation or reconsideration by the Panel; and
(b) the matters to be considered by the Tribunal would not be confined to the range of potential objections that can be raised in respect of a permitted use. This is because the range of matters that can be raised to properly form objections to a permitted use are significantly less than the matters that can be raised as objections to a discretionary use.
Consequently, when the parties reached agreement in January 2016, it was contemplated that the determination of the preliminary issue of the 'use' of the land [proposed] in the development application would be binding on the parties and thereby establish the manner in which the balance of the matters to be determined on review would be conducted.
[15] Primary Decision [9] - [10].
Due to an administrative error, the hearing of the preliminary issue was delayed as it was overlooked by the Tribunal.[16] On 22 April 2016, the Tribunal substituted an order that the issue of whether the proposed land use was correctly classified as a 'Convenience Store' or a 'Service Station' under the Scheme be determined as a preliminary issue.[17] A hearing of that question was held on 26 May 2016. On 25 August 2016, the Tribunal made an order that the preliminary issue was answered as follows:
The proposed use is correctly classified as 'Convenience Store'.
[16] Primary Decision [11].
[17] Agreed Chronology item 8.
The appellant did not institute an appeal against the Preliminary Decision.
Reconsideration by Panel
On 23 September 2016, the Tribunal made an order under s 31(1) of the SAT Act inviting the Panel to reconsider its decision.[18] On 14 November 2016, the Panel reconsidered the respondent's application and, while recognising the Tribunal's classification of the proposed use, again decided to refuse to grant development approval, essentially for the reasons previously given.[19]
Hearing of review application
[18] Agreed Chronology item 13.
[19] Agreed Chronology item 16.
The review application was heard by the Tribunal on 1 ‑ 2 February 2017. Both parties proceeded with that hearing on the basis that the proposed development was properly classified as a 'Convenience Store' under the Scheme. The Tribunal reserved its decision.
While the decision was reserved, the respondent's solicitors made a number of enquiries as to when the reserved decision would be delivered. The President of the Tribunal granted a number of extensions to the 90 day period within which a reserved decision is to be delivered, under s 76 of the SAT Act. The last extension, to 11 August 2017, was granted on 26 July 2017.[20]
Scheme Amendment
[20] Agreed Chronology item 27.
The Scheme Amendment was initiated by the City at a council meeting on 26 August 2015.[21] On 4 August 2017, notice that the Minister had approved the Scheme Amendment was published in the Government Gazette. Relevantly, the Scheme Amendment amended the definition of 'Service Station', in the following terms:
[21] Primary Decision [7].
The [City] under and by virtue of the powers conferred upon it in that behalf by the [Planning Act] hereby amends the [Scheme] by:
…
1.5Amending Schedule 1 "Interpretations" by:
…
b.Amending the following definitions to read:
…
vii."'Service Station' means premises other than premises used for a transport depot, panel beating, spray painting, major repairs or wrecking, that are used for:
(a)the retail sale of petroleum products, motor vehicle accessories and goods of an incidental or convenience nature; or
(b)the carrying out of greasing, tyre repairs and minor mechanical repairs to motor vehicles;"
On publication of the Minister's approval in the Government Gazette, the Scheme Amendment had full force and effect as if it were enacted by the Planning Act.[22] Between the time when the Scheme Amendment came into force on 4 August 2017 and the Tribunal's determination of the review application on 23 August 2017, neither the Tribunal nor the parties were aware that notice of the Minister's approval had been published in the Government Gazette.
Tribunal's Final Decision
[22] Section 87(4) of the Planning Act.
On 23 August 2017, the Tribunal published its Final Decision which granted the respondent development approval under the Scheme, subject to conditions. In doing so, the Tribunal referred to the classification of the proposed development under the Scheme as a 'Convenience Store' and the significance of that being a permitted use.[23]
[23] Final Decision [2] - [3], [130], [200].
On 24 August 2017, the solicitor for the appellant received notice of the Tribunal's Final Decision.[24]
[24] Affidavit of Stephen James Willey sworn 19 September 2017, par 18.
On 25 August 2017, the solicitor for the appellant became aware that notice of the Minister's approval of the Scheme Amendment had been published in the Government Gazette.[25]
Appeal to the General Division
[25] Affidavit of Stephen James Willey sworn 19 September 2017, par 19.
The appellant then sought leave to appeal against the Final Decision to the General Division of the Supreme Court, under s 105 of the SAT Act. The relevant ground of appeal was that the Tribunal erred by granting the application for development approval on the basis that the proposed use of the land was classified as 'Convenience Store' when the correct classification was 'Service Station', as that term was defined from 4 August 2017. The question of law raised by that ground[26] was whether the Tribunal erred by failing to have regard to the terms of the Scheme as in force at the date of its decision (which incorporated the Scheme Amendment).
[26] As required by s 105(2) of the SAT Act.
It is common ground that, in making the Final Decision, the Tribunal did not have regard to the Scheme as affected by the Scheme Amendment.
The respondent opposed the grant of leave to appeal, and applied to strike out the appeal as an abuse of process. It also raised a preliminary issue about the competence of the appellant to institute the appeal to the General Division.
Primary Decision
On 12 February 2018, the primary judge heard the appellant's application for leave to appeal, its appeal and the respondent's application. On 10 May 2018, the primary judge granted leave to appeal on the ground noted above[27] and dismissed the appeal.
[27] Which was ground 1 of the appeal.
In summary, the primary judge held that:
(1)The appellant was authorised to institute the appeal, and did not require the authority of an effective resolution of the Panel to do so.[28]
(2)The questions of law raised by the relevant ground of appeal were of general importance and gave rise to sufficient doubt about the correctness of the Tribunal's decision so as to justify the grant of leave to appeal.[29]
(3)The appeal should not be struck out as an abuse of process.[30]
(4)The Tribunal's determination of the preliminary issue was binding upon the parties and the Tribunal in making the Final Decision and was not a matter open to be challenged in the appeal to the General Division.[31]
(5)Alternatively, the respondent had an accrued right to have the review application determined in accordance with the Tribunal's determination of the preliminary issue, which was preserved by s 37(1)(c) of the Interpretation Act.[32]
[28] Primary Decision [21] - [25].
[29] Primary Decision [31] - [33].
[30] Primary Decision [34].
[31] Primary Decision [37] - [99], esp at [98].
[32] Primary Decision [102] - [156], esp at [154] - [156].
The primary judge also ordered the appellant to pay the respondent's costs of the appeal to the General Division on a party and party basis, to be assessed if not agreed. The primary judge did not accede to the respondent's application for its costs to be paid on an indemnity basis.
Appellant's appeal to this court
The appellant now appeals to this court against the Primary Decision on two grounds.
Ground 1 in effect contends that the primary judge erred in law in holding that the Preliminary Decision was binding on the parties and the Tribunal. The appellant contends that the primary judge should have held that, despite the Preliminary Decision, the Tribunal was required to make the correct and preferable decision on the law applicable at the time of the Final Decision.
Ground 2 in effect contends that the primary judge erred in law in holding that the respondent had an accrued right to have the review application determined in accordance with the Tribunal's determination of the preliminary issue. The appellant contends that, because the respondent did not have an accrued right to have its review application determined under the Scheme as in force before the Scheme Amendment, the law applicable to the application for review was the Scheme as amended by the Scheme Amendment.
As explained in oral submissions,[33] the respondent's principal argument in response to these grounds appears to be as follows:
(1)The respondent accepts that it applied for a review of the decision to refuse the application for development approval under s 252(1) of the Planning Act, read with reg 18(2) of the DAP Regulations.
(2)However, the respondent also contends that it applied for a review of the Panel's decision under the Scheme as to the classification of the proposed use under the Scheme. The right to apply for a review of the Panel's classification of the proposed use as a 'Service Station' was conferred by s 252(2) of the Planning Act, read with reg 18(2) of the DAP Regulations.
(3)The Tribunal directed that the aspect of the proceedings comprising the review application under s 252(2) be heard and determined separately.
(4)The Tribunal's separate determination of that aspect of the proceedings was a final and binding determination of the classification of the proposed use under the Scheme, which gave rise to an accrued right which was preserved by s 37 of the Interpretation Act.
Respondent's cross-appeal to this court
[33] Appeal ts 89 - 90.
The respondent cross-appeals against the Primary Decision on two grounds.
Ground 1 of the cross-appeal in effect contends that the primary judge erred in law in finding that the appellant was authorised to institute the appeal, either at all or in the absence of an authorisation by the Panel.
Ground 2 of the cross-appeal in effect contends that the primary judge erred in law in granting the appellant leave to appeal solely on the ground that there was sufficient doubt about the correctness of the Tribunal's decision. The respondent in effect contends that it was not open to find that there was doubt as to the correctness of the Tribunal's decision. The respondent also contends that the merit of the appeal was only one consideration to be taken into account, and the primary judge failed to take into account considerations relevant to whether the appeal was competent and an abuse of process.
Ground 2 of the cross-appeal also contends that the primary judge erred in failing to consider whether the appellant should pay the costs of the appeal in the General Division, including the respondent's strike-out application, on an indemnity basis.
Respondent's application in an appeal
By an application in the appeal dated 27 June 2018, the respondent applied for orders that the appeal be struck out and that an order for indemnity costs be made in the appeal to this court and to the General Division. It seeks those orders on the basis that the appeal to this court is, and the appeal to the General Division was, an abuse of process and instituted without lawful authority.
On 24 August 2018, Murphy and Mitchell JJA referred the respondent's application to the hearing of the appeal.
Issues for determination
Against the above background, the issues raised for determination in this appeal and the answers to those issues are as follows:
(1)Was the respondent's review application made under s 252(2), as well as s 252(1), of the Planning Act, read with reg 18 of the DAP Regulations? Answer: no.
(2)Was the appellant authorised to institute this appeal and the appeal to the General Division? Answer: yes.
(3)Did the Preliminary Decision have binding effect so as to preclude the Tribunal from considering the effect of the Scheme Amendment in making the Final Decision? Answer: no.
(4)Did the respondent have a right to have the Tribunal determine the review application on the provisions of the Scheme as they stood prior to the Scheme Amendment which was preserved by s 37 of the Interpretation Act? Answer: no.
(5)Are the appeals an abuse of process? Answer: no.
(6)Was leave to appeal to the General Division properly granted? Answer: yes.
Those issues are addressed below. The answers to issues 4 and 5 resolve the costs issue referred to at [45] above in favour of the appellant.
Issue 1: Basis of the review application
The respondent's submission that the Tribunal was dealing with a review application made under s 252(2) of the Planning Act should not be accepted.
Section 252(2) refers to a responsible authority's decision under a local planning scheme as to the classification of a use under the planning scheme or the permissibility of an unlisted use. The italicised words indicate that the planning scheme must provide for the responsible authority to make a decision as to those matters. The legal consequences of such a decision will be provided for in the planning scheme.
An example of such a decision is that provided for in cl 18(4) of the Model Provisions and cl 4.4.2 of the Scheme. Under those provisions, for example, the City may determine that a use not specifically referred to in the zoning table, and that cannot reasonably be determined as falling within a use class referred to in the zoning table, is consistent with the objectives of a particular zone. The legal effect of such a determination, when validly made, is that the relevant use is one that may be permitted in the zone subject to conditions imposed by the City.
A further decision of the kind contemplated by s 252(2) is that considered by the Full Court of the Supreme Court in Re Minister for Planning; Ex parte City of Canning.[34] In that case, the court was relevantly concerned with an 'IP' use which, under the relevant planning scheme, was:
[N]ot permitted unless it is determined by the council to be incidental to a use determined by the council to be the predominant use and is approved as such by the council.
It was held that a decision as to whether an IP use was incidental to another use was not a discretionary decision, and therefore could not be the subject of an appeal to the Minister under the equivalent of s 252(1) of the Planning Act.[35]
[34] Re Minister for Planning; Ex parte City of Canning (1998) 101 LGERA 284.
[35] Kennedy J at 287, Murray J at 292, Anderson J at 296.
The Town Planning and Development Act 1928 (WA) (1928 Act), which was the predecessor to the Planning Act, did not include an equivalent of s 252(2). It may be inferred that s 252(2) was introduced into the Planning Act to allow for an appeal from a non-discretionary decision of the kind identified in Ex parte City of Canning. However, such a decision does not arise whenever a responsible authority merely considers the classification of and categorises a use under the scheme; for example, in the course of deciding whether, in the exercise of its discretion, to approve an application for development approval. A right of review only arises under s 252(2) of the Planning Act where the planning scheme provides for a responsible authority to make a decision as to the proper classification or permissibility of a use and provides for the legal consequences of that decision.
Counsel for the respondent referred to the unreported decision of the Full Court of the Supreme Court in City of Cockburn v McNiece Industrial Systems Pty Ltd.[36] That case concerned an appeal from a refusal to grant prohibition directed to the Minister for Planning. The writ was sought to restrain the Minister from hearing an appeal under the 1928 Act. Such an appeal was only available in respect of the exercise of a discretionary power. The council had refused development approval on the basis that the proposed use was a 'noxious industry', which was prohibited under the relevant town planning scheme. The council contended that because what was proposed was a noxious industry which it had no power to approve, its refusal was not a discretionary decision and the Minister had no power to entertain an appeal from the decision.
[36] City of Cockburn v McNiece Industrial Systems Pty Ltd (Unreported, WASC, Library No 5523, 24 September 1984).
Wallace and Brinsden JJ resolved the case by reference to whether the proposed use was correctly classified as a noxious industry under the scheme. While Burt CJ agreed with Wallace J that the proposed use was a noxious industry, his Honour resolved the appeal on the following basis:[37]
The Shire may or may not have misunderstood the concept of 'noxious industry'… If it did not, then its decision was correct and it was a decision which did not involve the exercise of any discretion and the appeal subsequently made [to] the Minister is not an appeal 'in respect of the exercise of a discretionary power' … If, on the other hand, the appellant Shire misunderstood the meaning of the expression 'noxious industry' … then the Shire has declined to exercise its discretion and the proper remedy would be mandamus compelling it to reconsider the application and to exercise its discretion controlled by relevant criteria with reference to it. … That having been done the second respondent, if dissatisfied with the result, could then appeal to the Minister from the exercise of that discretionary power. But as things stand at present there is no such right of appeal.
[37] McNiece (3 - 4) (Burt CJ).
This aspect of Burt CJ's reasons, the correctness of which may be open to debate, did not deny the capacity of the Minister, where there was a discretionary decision, to form a view as to the classification of a proposed use under the relevant scheme. It might be apprehended that s 252(2) was also, in part, directed to address uncertainty created by this aspect of the decision in McNiece.[38] That could support an argument that a refusal to approve development on the basis that it involved a prohibited use is in substance a 'decision under a local planning scheme as to the classification of a use under the planning scheme'. However, the City's decision in the present case was clearly discretionary and there is no suggestion that its view as to the land use classification itself was determinative of the outcome of the development application. The decision of the Tribunal in Owners of Strata Plan 18449 correctly recognised the Tribunal's authority to categorise a proposed use in the course of the exercise of its review jurisdiction under the predecessor to s 252(1) of the Planning Act.
[38] As to which see the cases discussed in Owners of Strata Plan 18449 v City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346 [30] - [53], the discussion in Denis McLeod, Planning & Development WA (at 8 November 2018) [3.252.5] - [3.252.6] and debates on the relevant provision of the Bill for the Planning Act at Western Australia, Parliamentary Debates, Legislative Assembly, 22 September 2004, 6368 - 6369; 6371 - 6372 (Ms C L Edwardes, member for Kingsley, Ms A J McTiernan, Minister for Planning and Infrastructure).
Even if there was a decision to which s 252(2) of the Planning Act was capable of applying, the sub-section is relevantly expressed to operate subject to s 252(1). This reflects an intention that decisions falling within the scope of s 252(1) of the Planning Act are to be the subject of a review under that sub-section rather than s 252(2). Put another way, s 252(2) gives a right of review only where none is provided by s 252(1) of the Planning Act. In that manner, s 252(2) operates to close any legislative 'gaps' of the kind identified in Ex parte City of Canning and, possibly, McNiece. It follows that s 252(2) of the Planning Act is not engaged when a local government merely considers the classification of and categorises a use under a planning scheme, in the course of making a discretionary decision which is properly the subject of a review under s 252(1).
In the present case, the Scheme did not empower the Panel to make a decision, with any legal consequence, as to the classification of the respondent's proposed use of the Land under the Scheme. In considering an application for development approval, the Panel was required to have due regard to the provisions of the Scheme. It may be accepted that in doing so, the Panel may have formed a view as to the classification of the proposed use. Such a view may have informed, but would not of itself determine, the outcome of the exercise of the discretionary power. But, in doing so, the Panel was not making a decision under the Scheme as to the proper classification or permissibility of the use which had any legal consequence provided for by the Scheme. There was no decision in the present case to which s 252(2) of the Planning Act was capable of applying.
Further, any finding by the Panel as to the classification or permissibility of the use proposed by the respondent would be merely a part of its exercise of discretion to grant or refuse development approval. There would be no relevant legislative 'gap' for s 252(2) of the Planning Act to fill in these circumstances. The right of review would be provided by s 252(1) rather than s 252(2) of the Planning Act for the reason noted at [58] above.
Counsel for the appellant submitted that, in any event, reg 18(2) of the DAP Regulations only relevantly picks up the right of review in s 252(1) of the Planning Act where a decision is made by the Panel. It is unnecessary to resolve this question in the present case as, for the reasons explained above, s 252(2) of the Planning Act did not provide for any right of review on its own terms.
For the reasons explained above, the only right of review engaged by the respondent in the present case was that provided for by reg 18(2) of the DAP Regulations read with s 252(1) of the Planning Act. It follows that the respondent's principal argument, summarised at [41] above, fails at its second step.
Issue 2: Appellant's authority to institute the appeals
Under s 105 of the SAT Act, a 'party to a proceeding' may appeal from a decision of the Tribunal in the proceeding.
Section 36(4) of the SAT Act provides that the 'decision-maker' is a party to a proceeding in the Tribunal's review jurisdiction. Section 3(1) of the SAT Act defines 'decision-maker' to mean a person who makes a reviewable decision.
Under s 17(1) of the SAT Act, a matter comes within the Tribunal's review jurisdiction if the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision. Under s 17(3), such a decision is a 'reviewable decision' for the purposes of the SAT Act.
The Planning Act is an enabling Act.[39]
[39] See s 3(1) of the SAT Act (definition of 'enabling Act') read with s 252(1) of the Planning Act and reg 18(2) of the DAP Regulations.
As discussed above, the respondent's review application was made under reg 18(2) of the DAP Regulations read with s 252(1) of the Planning Act.
In this case, the reviewable decision is the decision by the Panel, in the exercise of the power conferred by cl 68(2) of the Deemed Provisions read with reg 8(1) of the DAP Regulations, to refuse to grant development approval of the respondent's proposed development.
Under s 171A(3) of the Planning Act, unless otherwise provided under the DAP Regulations, a determination by a DAP of a prescribed development application is to be regarded as, and has effect as if it were, a determination of the responsible authority to which the application was made.
Regulation 18(3) of the DAP Regulations relevantly provides:
Despite section 171A(3) of the [Planning] Act and any other provision of these regulations, for the purposes of the [SAT Act], other than section 31, the presiding member of a DAP is:
(a)the decision-maker in respect of a determination of a DAP application by the DAP …; and
(b)the respondent in any application for review of the determination …
Regulation 18(1) provides that 'decision-maker' has the same meaning as in s 3(1) of the SAT Act.
Section 31 of the SAT Act, which is an exception to the general rule provided for in reg 18(3), allows the Tribunal to invite a decision‑maker to reconsider a decision. Regulation 18(4) of the DAP Regulations provides that for the purposes of that reconsideration, the decision-maker is the DAP that made the reviewable decision.
The effect of these provisions is that, for the purposes of the SAT Act, the appellant was the 'decision-maker' in relation to the refusal to grant the respondent development approval. The only exception is where the Tribunal invited the Panel to reconsider the decision under s 31 of the SAT Act.
The appellant was therefore a party to the respondent's review application to the Tribunal, under s 36(4) of the SAT Act. As a party, the appellant was given the right to appeal from the Tribunal's decision, subject to the grant of leave to appeal, by s 105(1) of the SAT Act. Nothing in the DAP Regulations required the appellant to obtain authorisation from the Panel to exercise that right.
As a party to the appeal to the General Division, the appellant has a right of appeal against the Primary Decision under s 58(1)(b) of the Supreme Court Act1935 (WA).
For these reasons, the appellant was authorised to appeal to the General Division and to this court.
Issue 3: Binding effect of the Preliminary Decision
The starting point for the consideration of this issue is to recognise that what is involved in the Final Decision is the exercise of a purely executive power by an administrative tribunal. The legal effect of the grant of development approval by the Tribunal, if valid, is to:[40]
(1)preclude the City from exercising its powers as a responsible authority to issue directions under s 214 or take action under s 215 of the Planning Act on the basis that the respondent has commenced or carried out development in contravention of cl 60 of the Deemed Provisions;
(2)preclude the Supreme Court from granting an injunction under s 216 of the Planning Act on the basis that the respondent has contravened cl 60 of the Deemed Provisions; and
(3)prevent the respondent from committing an offence against s 218 of the Planning Act by carrying out development in contravention of cl 60 of the Deemed Provisions.
[40] See Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 [95] - [103].
It is no part of the Tribunal's function in exercising this purely executive power to make any final or binding determination as to the legal effect of a planning scheme. The Preliminary Decision was no more than a step taken by the Tribunal in the exercise of its purely executive power to grant or refuse development approval under the Scheme. Neither the Preliminary Decision nor the Final Decision were capable of making any binding determination as to the operation of the Scheme.
The above approach is consistent with the approach taken by this court in The Match Group v Metropolitan South West Joint Development Assessment Panel.[41] The court recognised that the Tribunal had no jurisdiction to decide a preliminary issue as to the operation of a planning scheme when there was no decision by the decision-maker as to that issue. In the present case, the City and the Panel had no power to make any binding determination as to the operation of the Scheme. It follows that the Tribunal also lacked that power in the exercise of its review jurisdiction.
[41] The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227 [20] - [23].
The approach is also consistent with that adopted by the Full Court of the Supreme Court of Tasmania in Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd.[42] The court recognised, in a broadly similar legislative context to the present, that a planning decision of an administrative tribunal was incapable of giving rise to an issue estoppel.
[42] Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14 [134] - [154].
Therefore, irrespective of whether the Preliminary Decision involved the Tribunal separately determining an aspect of the proceedings under s 51A(1)(a) of the SAT Act, the Preliminary Decision could not bind the parties in the appeal before the primary judge. The Tribunal may determine a preliminary question, and may decline to revisit the issue in the absence of a change of law or a change of circumstances. However, its determination of the preliminary question cannot insulate the Tribunal's ultimate determination from judicial review by the Supreme Court on appeal.
In any event, the Preliminary Decision determined no more than the classification of the proposed use under the Scheme as it stood prior to the Scheme Amendment. It said nothing about the proper classification of the proposed use under the Scheme as amended by the Scheme Amendment. If, as contended by ground 2 of the appeal, the Tribunal was required to have regard to the classification of the proposed use under the Scheme as affected by the Scheme Amendment, the Preliminary Decision did not determine that classification.
It is unnecessary to consider the extent to which the Tribunal might exercise its power to make a binding declaration under s 91 of the SAT Act in the exercise of its review jurisdiction under the Planning Act. Such a power, which is only exercisable by a judicial member,[43] was not available to the senior member who made the Preliminary Decision.
[43] Section 91(2) of the SAT Act.
For the above reasons, ground 1 of the appeal is established. The primary judge erred in finding that the determination of the proper classification of the proposed use in the Preliminary Decision was binding upon the parties and the Tribunal and was not a matter open to be challenged in the appeal to the General Division.
Issue 4: The respondent's claim as to an accrued right
It follows from the above conclusions that the primary judge erred in finding that the Preliminary Decision gave rise to any accrued rights for the purposes of s 37 of the Interpretation Act. The Preliminary Decision did not give rise to any rights, accrued or otherwise.
However, it is necessary to consider the respondent's alternative contention that it had an accrued right to have its review application to the Tribunal determined in accordance with the Scheme as it stood prior to the Scheme Amendment.
Section 37(1) of the Interpretation Act relevantly provides:
Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears:
…
(c)affect any right … accrued, established or exercisable … prior to the repeal;
…
(f)affect any investigation, legal proceeding or remedy in respect of any such right …,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced … as if the repealing written law had not been passed or made.
The primary judge held that amendments to legislation by substitution of a new provision constitutes a repeal within the meaning of s 37(1).[44] Her Honour cited the decision of the High Court in Dossett v TKJ Nominees Pty Ltd as authority for that proposition.[45] The appellant accepts that the Scheme Amendment was a 'repeal' for these purposes.[46] However, it should be noted that, in Dossett, there was an express repeal and substitution of the relevant section, which was an operative and not merely definitional provision. In this context, it has been noted that the predecessors to the Interpretation Act[47] drew a distinction between amendment and repeal which hinged on the substance of the provision rather than the form in which the provision was cast.[48] The same distinction is drawn by the provisions of the Interpretation Act.[49]
[44] Primary Decision [106].
[45] Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1.
[46] Appellant's Submissions, par 42.
[47] Namely the Interpretation Act 1918 (WA) and the Interpretation Act 1898 (WA).
[48] Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545 [47].
[49] See s 3(3), s 5 (definitions of 'amend' and 'repeal'), s 30, s 33, s 42(6)(b) and s 43(4) of the Interpretation Act.
The respondent submits that, prior to the Scheme Amendment, it had an accrued right to have its review application determined in accordance with the law as it stood at the time of the Panel's allegedly erroneous decision. It submits that the repeal of the former definition of 'Service Station' did not affect that right or the Tribunal proceedings in respect of that right. For this purpose, the respondent principally relied on the decision of the High Court in Esber v The Commonwealth.[50]
[50] Esber v The Commonwealth (1992) 174 CLR 430, 440 - 441.
In Western Australian Planning Commission and CPP Pty Ltd, Barker J, sitting as President of the Tribunal, expressed the view that:[51]
The decision in Esber seems to have been accepted, for some years, as an unassailable authority for the proposition that provisions such as s 37 of the Interpretation Act protect the right of a person who has commenced an administrative review proceeding before the right to commence such proceeding is taken away or the law governing the substantive subject matter on the proceeding is changed by a repealing law, to have the review proceeding determined in accordance with the law as it stood before the repealing law came into operation; subject of course to any clear statutory expression in the repealing statute or other law to the contrary.
[51] Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 [58].
CPP was concerned with the Tribunal's review of the refusal of a subdivisional approval. At the time of the Commission's refusal, s 20(5) of the 1928 Act provided that the Commission was generally not fettered by provisions of a town planning scheme in approving subdivision. At the time of the Tribunal's review, the 1928 Act had been repealed and s 138(2) of the Planning Act generally required the Commission to have due regard to the provisions of an applicable local planning scheme and not to give an approval that conflicted with its provisions. Despite expressing some reservations about the result, Barker J saw no persuasive ground to distinguish Esber, which he was required to follow. He found that the provisions of s 20(5) of the 1928 Act continued to govern the Tribunal's determination of the application.[52]
[52] CPP [77].
While the result in CPP may have been correct, in our view Barker J stated the general principle for which Esber stands too broadly. The holding in Esber cannot be divorced from the particular statutory context with which the High Court was concerned.
Relevantly, the High Court in Esber was concerned with s 49 and pt V of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act). Section 49 of the 1971 Act provided for the Commissioner for Employees' Compensation, on request, to determine whether a worker could redeem an entitlement to workers' compensation by receipt of a lump sum. Part V of the 1971 Act gave a worker a right to apply to the Administrative Appeals Tribunal (AAT) for a review of the decision under s 49. The question for the AAT was whether the Commissioner's decision to reject Mr Esber's application to redeem was the correct and preferable decision on the material before the AAT. After the review application was made but before the AAT heard the application, the 1971 Act was repealed as a whole. The substituted legislation did not give a right of redemption to a worker at Mr Esber's salary level.
The majority (Mason CJ, Deane, Toohey and Gaudron JJ; Brennan J dissenting) held that the application of the provisions of the 1971 Act was continued under a transitional provision of the substituted Act. While that was enough to dispose of the matter, the majority went on to hold that those provisions also continued to apply under s 8(c) and (e) of the Acts Interpretation Act 1901 (Cth). Those provisions were similar to s 37(1)(c) and (f) of the Interpretation Act, although s 8 expressly referred to rights acquired or accrued etc under the repealed Act. The majority said that the first step in the consideration of s 8 was to identify the right which was said to be acquired or accrued under the repealed Act.[53]
[53] Esber (439).
The right which the majority identified was described as a right of Mr Esber:[54]
(1)'to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act';
(2)'to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim'; and
(3)'to have the decision of the delegate reconsidered and determined by the [AAT]'.
[54] Esber (440).
This right was held to be more than merely a 'power to take advantage of an enactment' or a 'mere matter of procedure'. It was a 'substantive right' protected by s 8 of the Acts Interpretation Act that was not affected by the repeal of the 1971 Act.[55] As was observed in Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources,[56] the cases cited for the right being a 'substantive right' by way of analogy were cases in which an entitlement to appeal was held to be a vested right.[57]
[55] Esber (440 - 441).
[56] Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178 [35].
[57] Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 and The Colonial Sugar Refining Co Ltd v Irving [1905] AC 369, both cited at Esber (440).
Esber relevantly dealt with the following scenario. Before an enactment providing for certain entitlements under a statutory regime was repealed, Mr Esber:
(1) had a right to have a determination of a claimed entitlement or benefit under the regime provided for by the enactment;
(2) had asserted or claimed the entitlement or benefit; and
(3) had a vested right to have the decision of the administrative decision‑maker reviewed.
The latter right, ie, the right of review, was protected by s 8 where the enactment providing for the statutory regime of entitlements and the right of review was repealed prior to the determination of the review instituted by Mr Esber. That was so even though Mr Esber had not established his entitlement before the primary decision‑maker and, in that sense, was assumed not to have an accrued right to the entitlement.
Esber is therefore authority for the proposition that a right to obtain a merits review by a tribunal of an administrative decision may be a right protected by provisions such as s 37 of the Interpretation Act. That may be so even if the making of the initial application to the primary decision-maker did not result in the acquisition or accrual of an entitlement or benefit provided for under the repealed enactment.
Generally, a person seeking planning approval from a planning authority does not have, or claim, an existing right to a particular planning decision. Rather, the person seeks a decision in their favour which, if and once made in their favour, gives the person, at that point, an accrued right. Ordinarily, a person seeking planning permission is only entitled to a decision based on the planning law as it stands as at the date of the decision.[58]
[58] See, for example, Robertson v City of Nunawading [1973] VR 819, 825 - 826 and Director of Public Works v Ho Po Sang [1961] AC 901, 919 - 920, both cases being cited in Esber (440), and Dubler [36].
Consistently with Esber,[59] an accrued right may nevertheless arise once an application for review by an administrative tribunal is instituted after planning consent is refused by the planning authority. However, it remains necessary to consider the statutory scheme and the nature of the right to review which is said to be affected by the repeal.[60]
[59] See also Shire of Augusta-Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55 [38] - [40], [84], [164].
[60] Attorney-General (Queensland) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485 [50].
In Esber, it was significant that both the operative provision (s 49) and the provisions conferring a right of review (pt V) of the 1971 Act had been repealed. But for the operation of s 8 of the Acts Interpretation Act, what would have been lost was Mr Esber's right to have the AAT hear and determine his review application (which had already been made) in respect of the Commissioner's decision under s 49 of the 1971 Act.
In the present case, the respondent's right was conferred by s 252(1) of the Planning Act. That right was to a 'review, in accordance with [pt 14], of the responsible authority's decision'. The responsible authority's decision, which was the subject of that review, was the result of the exercise of the power to grant (either conditionally or unconditionally) or refuse to grant development approval under cl 68(2) of the Deemed Provisions. That power was, under cl 67(a) of the Deemed Provisions, to be exercised having due regard to the 'aims and provisions of this Scheme'. Section 241(1) of the Planning Act required the Tribunal, in determining an application in accordance with pt 14, to have due regard to 'relevant planning considerations', which must include the relevant provisions of a local planning scheme. Section 27 of the SAT Act provided for the review to be conducted by way of a hearing de novo, and identified the purpose of the review as being to produce the correct and preferable decision at the time of the decision upon the review. For these purposes, the 'time of the decision upon the review' is the time of the Tribunal's decision.[61]
[61] LS v Mental Health Review Board [2013] WASCA 128 [93] - [94].
The reference to the 'provisions of this Scheme' in cl 11.2(a) of the Scheme is to the provisions of the Scheme in force at the time that the decision to grant or refuse development approval under cl 11.3 is made. Those provisions, rather than the provisions of the Scheme as it stood prior to the Scheme Amendment, were the 'provisions of this Scheme' to which the Tribunal was to have regard when it made the Final Decision.
Having regard to these provisions, the right which the respondent had was not a right to have its application for development approval determined by reference to the provisions of the Scheme as they stood at the date that the review application was made. Rather, the right was to have the Tribunal consider whether, at the time of the Tribunal's decision, the correct and preferable decision, having due regard to the provisions of the Scheme then in force, was to grant (conditionally or unconditionally) or refuse development approval for the proposed development.
That right did not arise under any provision of the Scheme affected by the Scheme Amendment. There may be room for debate as to whether s 37 of the Interpretation Act goes beyond equivalent provisions in other jurisdictions and protects rights which do not arise under the repealed law. There may also be room for debate as to whether, as a matter of substance, the relevant parts of the Scheme Amendment effected a repeal, rather than an amendment, of the Scheme. However, it is unnecessary to resolve those questions in the present case.
In this case, the only possible repeal is the deletion of the former definition of 'Service Station' in the Scheme.[62] Quite apart from s 37 of the Interpretation Act, that repeal did not in any way affect the right of the respondent referred to at [104] above. As a consequence, there was no relevant work for s 37 to do. Nor did the deletion of the former definition of 'Service Station' have any effect on the appellant's rights. The deletion of the definition did not affect the classification of the proposed use of the Land as a 'Convenience Store' for the purposes of the Scheme. It was rather the introduction of the new definition of 'Service Station' which is said to have altered the classification of the proposed use under the Scheme. However, the introduction of that new provision was not a 'repeal' to which s 37 could apply. In any event, the introduction of the new definition did not affect the right referred to at [104] above.
[62] Under s 5 of the Interpretation Act, the term 'repeal' includes to 'rescind, revoke, cancel, or delete'.
Therefore, when the Scheme Amendment came into force, the respondent did not have a right to have its application for development approval determined in accordance with the provisions of the Scheme as they stood prior to the Scheme Amendment. Nothing in the Scheme Amendment had any effect on the respondent's right to a review of the Panel's decision refusing development approval. The Tribunal was required to have due regard to the provisions of the Scheme as they stood at the time of its determination of the respondent's review application.
Therefore, ground 2 of the appellant's appeal is established.
Issue 5: Abuse of process
Given the above conclusions, there is no basis on which the appeal to the General Division or the appeal to this court can be regarded as an abuse of process.[63] The appellant was authorised to institute the appeals, which do not involve an attempt to re-litigate any issue which had previously been the subject of a final and binding determination. Counsel for the respondent properly conceded that his argument about abuse of process must fail if the appellant's grounds of appeal were found to be established.[64]
[63] As to which see Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93, [5] - [10], [118] - [119] and the recent decision in UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968 [1], [83], [126].
[64] Appeal ts 103.
Issue 6: Leave to appeal to the General Division
Putting aside matters which have fallen away in the above discussion, the respondent relies on the following circumstances (which it says the primary judge wrongly failed to consider) as justifying a refusal of leave to appeal to the General Division:
(1)The parties agreed to have the classification of the proposed use determined in a binding manner as a preliminary issue;
(2)There was an unreasonable delay in the Tribunal proceedings, without which the review application would have been dealt with prior to the Scheme Amendment; and
(3)The appellant failed to inform himself and the Tribunal as to the publication of the Minister's approval of the Scheme Amendment prior to the decision.
As the review application was required to be determined by reference to the provisions of the Scheme as affected by the Scheme Amendment, these matters did not justify or require the refusal of leave to appeal. The second matter was not the fault of the appellant. Fault for the third matter could be attributed to both parties (neither of whom controlled the scheme amendment process and neither of whom kept track of the progress of the Scheme Amendment). The first matter does not justify the refusal of leave if it is concluded that the Tribunal failed to apply the applicable law.
Disposition
For the reasons explained above, in making the Final Decision, the Tribunal erred in law by failing to have due regard to the provisions of the Scheme as affected by the Scheme Amendment.
On the facts agreed by the parties before the Tribunal, the respondent's proposed use of the Land fell within the definition of 'Service Station' under the Scheme as affected by the Scheme Amendment. It was proposed to be premises, other than premises of an excluded kind, used for the retail sale of petroleum products and goods of an incidental or convenience nature.
Before this court, counsel for the respondent was careful to preserve the respondent's capacity to contest the classification of the proposed use under the amended provisions, including by withdrawing its agreement as to the relevant facts.[65] However, on any view the Scheme Amendment was capable of affecting the Tribunal's conclusion as to the proper classification of the respondent's proposed use of the Land. The error of law in failing to have due regard to the provisions of the Scheme in force at the time of the Tribunal's decision was material, in that the error went to a central issue for consideration (whether the proposed use was permitted or discretionary) and is likely to have impacted on the reasoning process actually adopted by the Tribunal.[66]
[65] Respondent's Submissions, par 82 - 84; appeal ts 99 - 101.
[66] See Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 [130] - [131].
Therefore, the appellant's appeal must be allowed and the respondent's cross-appeal dismissed. The Tribunal's decision should be set aside and the matter sent back to the Tribunal for reconsideration, by the Tribunal differently constituted, in accordance with these reasons.
Orders
For the above reasons, the following orders should be made:
(1)The respondent's application in an appeal dated 27 June 2018 is dismissed.
(2)The appellant's appeal is allowed.
(3)The respondent's cross-appeal is dismissed.
(4)Orders 3 and 4 made on 10 May 2018 by the Supreme Court in GDA 14 of 2017 are set aside, and the following orders are substituted:
(a)The appeal is allowed.
(b)The orders made on 23 August 2017 by the State Administrative Tribunal in matter number DR 475 of 2015 are set aside.
(c)The matter is sent back to the Tribunal for reconsideration, by the Tribunal differently constituted, either with or without the hearing of further evidence as the Tribunal determines, in accordance with the reasons of the Court of Appeal.
The parties should be heard as to the costs of the appeal to this court and the appeal to the General Division, as well as any ancillary orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
ASSOCIATE TO THE HONOURABLE JUSTICE MITCHELL3 DECEMBER 2018
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