Price and Anor and Shire of Gingin - [2008] WASAT 210

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: PRICE & ANOR and SHIRE OF GINGIN [2008] WASAT 210

MEMBER: MR P McNAB (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 11 SEPTEMBER 2008

FILE NO/S: DR 174 of 2006

BETWEEN: RHODNEY KIM PRICE
KATHLEEN MARY PRICE
Applicants
AND
SHIRE OF GINGIN
Respondent

Catchwords:

Town planning - Development application - Preliminary point - Whether a reviewable decision before the Tribunal - Application in 2002 approved with condition relating to parking and cash-in-lieu contribution on holiday accommodation units - Parties negotiated over condition for considerable period - Applicants sought further planning approval in 2006 with plans showing certain deletions - Motivation of applicants included agitating issue in Tribunal - Shire declined to deal with the application on the basis that no new development was proposed - Shire maintaining that no reviewable decision was before Tribunal - Parties suspended jurisdictional argument pending mediation - Mediation talks breaking down - Proper tests for characterisation of 2006 application - Tribunal finding that there was a reviewable decision - Tribunal deciding that an objective reading of the 2006 application in the matrix of facts and circumstances that supplied the context to the application was the correct approach to characterisation - Application sought retrospective or validating approval as permitted under Scheme - Preliminary point determined in favour of the applicants

Legislation:

Planning and Development Act 2005 (WA), s 164
Shire of Gingin Town Planning Scheme No 8, cl 6.8
Town Planning Amendment Regulations 1999 (WA), cl 8.4
Town Planning Regulations 1967 (WA)

Result:

Preliminary point on Tribunal's jurisdiction determined in favour of the applicants

Category: B

Representation:

Counsel:

Applicants: Mr J Skinner
Respondent: Mr D Nicholson

Solicitors:

Applicants: Jackson McDonald
Respondent: McLeods Barristers & Solicitors

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

Aznavour Pty Ltd v City of Mandurah (2002) 124 LGERA 173
Bakker and City of Nedlands [2005] WASAT 106
Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPELR 490
Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36
Stockland Developments Pty Ltd v Thuringowa City Council (2007) 157 LGERA 49
The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303
The Turnbull Group v North Sydney Council [1998] NSWLEC 253
Vestey v Warrnambool City Council [2008] VCAT 963

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants, Mr and Mrs Price, developed some holiday accommodation units with the conditional approval of the Shire of Gingin in 2002. However, the parties remained in dispute about the parking arrangements imposed by the Shire of Gingin. The Shire of Gingin had asked for the applicants to provide cash‑in‑lieu in relation to the provision of 10 bays of on‑site vehicle parking in accordance with the provisions of the Shire of Gingin's town planning scheme.
Discussions between the parties about the extent of this obligation took place over a number of years and eventually the applicants indirectly sought to agitate the matter in the State Administrative Tribunal by seeking, in 2006, the Shire of Gingin's approval of the same development with some deletions to various plans.
The Shire of Gingin refused to accept that the 2006 application was a valid application saying that 'no new or additional development is proposed over and above what was approved' in 2006. The Shire of Gingin returned the application to the applicants, while at the same time offering to reduce the number of cash‑in‑lieu bays 'in order to expedite the resolution of the outstanding conditions'.
The Shire of Gingin maintained that the State Administrative Tribunal had no jurisdiction in the matter because there was no reviewable decision. However, the Shire of Gingin suspended its views on this matter while negotiations progressed under the State Administrative Tribunal's mediation process. Eventually these talks broke down and the jurisdictional point, which had been deferred, had to be decided as a preliminary point. This decision deals with that issue.
After reviewing the law in this area, the State Administrative Tribunal determined that there was a reviewable decision when one had regard to an objective reading of the 2006 application in the matrix of facts and circumstances that supplied the context to the application. The Shire of Gingin's town planning scheme contemplated such an application as one seeking retrospective or validating approval.
Accordingly, the matter was listed for directions with a view to the matter being programmed to a hearing. However, the State Administrative Tribunal recommended that, in the meantime, 'the parties should consider reviving their discussions to seek to work out a practical solution; the State Administrative Tribunal can of course supply a mediator to assist in this process'.

Introduction

Mr and Mrs Price (applicants), by their planning agent, commenced proceedings in the State Administrative Tribunal (Tribunal) on 30 May 2006 in respect of a proposed 'development' on their land located at No 1 (Lot 30) Hopkins Street, Lancelin (subject land) in the Shire of Gingin (Shire or respondent).
The applicants asked the Tribunal '[t]o determine that the application [that is, the proposed "development", see below] is competent and to approve it with appropriate conditions'. The grounds of review included: that there had been a deemed refusal; that the conduct of the respondent in relation to an earlier approval (from 2002) 'resulted in a denial of natural justice by preventing the exercise of a right of appeal'; and that the proposed development 'merely constitute[s] a renovation of an existing development'.
In March 2006, the applicants had applied to the Shire for 'planning consent' for the 'renovation of [their] existing chalets [on the subject land]'. This application was, in effect, neither received nor entertained by the Shire for the stated written reason that 'no new or additional development is proposed over and above what was approved by the [Shire]'s Chief Executive Officer [on 17 September 2002 under delegated authority]'. It was said by the Shire that 'there is effectively nothing to approve'.
The Shire's position is that the 2006 approval was identical to the 2002 approval which had already been given. The applicants' agent maintained that this was incorrect as 'the first [application in 2002] depicted car parking and the second [application in 2006] showed none'.
The Shire has also drawn attention to correspondence accompanying the March 2006 application which stated that:
The sole aim of this application is to reinstate our right of appeal to the tribunal in the future if it were to become necessary.
In place of an approval, the applicants were advised (in a letter dated 18 April 2006 returning the application) that the Shire's Council had voted (actually back in February 2006) to 'accept cash‑in‑lieu for six (6) car bays rather that the ten (10) car bays required [as a condition of the 2002 approval]'. A total of $6,216 (plus GST) was sought for the car bays and an associated dual‑use path. This figure was arrived at following a valuation of the land. The letter says that this offer '[acknowledges] that there is an existing hardstand car parking bay' and is framed in terms of '[expediting] the resolution of outstanding conditions'.

Mediation in the Tribunal

Thereafter, in this Tribunal, approximately a dozen sittings have been organised in an attempt to mediate between the parties. Those regular without prejudice discussions, the associated exchanges of correspondence and the other work done (including the resolutions of Council), in general terms, concerned the scope of what had been previously decided upon by the Shire, any variations in that position, and issues to do with the valuation of the land and the calculation of a cash‑in‑lieu contribution (if any).
In a sense, these discussions were a continuation of a 'conversation' that had already been going on for some time (see the facts ‑ not generally disputed by the respondent ‑ asserted by the applicants' counsel, set out below, concerning communications between the parties after 2002). Indeed, the respondent's resolution of February 2006, referred to in the respondent's letter to the applicants of 18 April 2006 (returning their second application), acknowledges, as we have seen, an existing hardstand car parking bay on the subject land, and makes what is tantamount to an offer to reduce the number cash‑in‑lieu bays 'in order to expedite the resolution of the outstanding conditions'.
However, the respondent has always maintained that there is, in law, no reviewable decision in this Tribunal. Sensibly, and to its credit, the Shire, on a without prejudice basis and agreed to by the applicants, suspended its position on this jurisdictional issue pending these lengthy talks between the parties. Much progress was made over the succeeding two years, but regrettably, discussions finally broke down in 2008 and the jurisdictional issue can no longer be avoided.
This issue is therefore to be determined upon the documents as a preliminary issue.

Legal representation

Both parties are now represented by lawyers, although that was not always the case. On 24 November 2006, the President of this Tribunal, Justice Barker, on the application of the respondent's lawyers, made the following order:
1.Being of the opinion that the application involves one or more questions of law, pursuant to s 239(2)(b) of the Planning and Development Act 2005 (WA), I direct that the parties may be represented by a legal practitioner.
Both parties have now made extensive written submissions on the preliminary jurisdictional issue. Before turning to those arguments it will be necessary to say a little more about the history of approvals in respect of the subject land.

2002 and 2006 applications: are there differences between the two?

The applications in this matter were all made under the Shire of Gingin Town Planning Scheme No 8 (TPS 8).
The 2002 application, in respect of certain holiday accommodation units, was approved by the respondent on 17 September 2002, subject to a number of matters, including the following condition:
4.The [applicants] must provide cash‑in‑lieu of the provision of on‑site vehicle parking in accordance with the provisions of Town Planning Scheme No. 8 for 10 bays at the time of application for a building licence.
It is common ground that the applicants have not yet complied with condition 4, although the development was otherwise commenced and has since been completed. A building licence was granted by the respondent in 2002.
The 2002 approval includes various site, layout and elevation plans prepared by 'Robin Adair Planning' (drawings A3 to A8) and were subsequently shown as stamped 'approved' by the Shire's delegate on 17 September 2002.
The 2006 application attaches certain stamped elevation drawings A5 and A6 (that is, identical to those approved in 2002) but also includes a further Robin Adair layout or site plan, presumably based upon one approved and stamped as such in 2002, showing various alterations in 2002, 2003 and 2005. Importantly, included in these revisions are express references to 'footpath deleted' (dated 2003) and 'verge parking deleted' (dated 2005).
Notwithstanding these apparent changes, the respondent submits that:
As the [March 2006 application] did not propose any new development from that originally approved by the [r]espondent (and since completed), the [r]espondent declined to assess [it], which was subsequently returned to the [a]pplicants.
Further background facts are asserted by the applicants, in Mr Skinner of counsel's written submissions, as follows:
2.…
(a)[A]t all material times, the [subject land] enjoyed and continues to enjoy non-conforming use rights under [TPS 8] for the use of holiday accommodation units;
(b)prior to the [2002 application] the [a]pplicants submitted an application for planning consent for the redevelopment of the [subject land] to provide 10 new holiday accommodation units and a new caretaker[']s residence …[;]
(c)the [r]edevelopment [a]pplication was subsequently withdrawn and replaced the [2002 application], to retain and renovate of [sic] 5 of the 6 existing holiday accommodation units and convert the remaining existing holiday accommodation unit to a caretaker[']s residence.
3.… [T]he [a]pplicants admit that the Notice of Approval of Planning Consent in respect of the [2002 application] was dated 17 September 2002 and was subject to [c]ondition 4 [as set out above] but state further that the [2002 application] was approved earlier by the Council of the [r]espondent, at its meeting on 21 May 2002.
4.Following the Council meeting on 21 May 2002, the [a]pplicants made several enquiries of the [r]espondent's officers in an attempt to clarify the basis for [c]ondition 4 (particularly the reference to 10 carparking bays) and the amount of the cash‑in‑lieu payment to be provided. The information requested was not able to be provided.
5.On receipt of the [2002 approval], the [a]pplicants did not seek to appeal against [c]ondition 4, as they were continuing to request information from the Shire in relation to [c]ondition 4, including to clarify the amount of the cash‑in‑lieu payment to be provided. [In relation to this matter, Mr Skinner then submits:] Had the [a]pplicants been provided at the time with the information ultimately provided in response to their requests, it is likely the [a]pplicants would have appealed against [c]ondition 4. In light of the non‑conforming use rights attaching to the [subject land] and the nature of the [2002 application], there are strong grounds to suggest that, on appeal, [c]ondition 4 would have been either deleted or varied.
6.In September 2002, the [a]pplicants applied for, and the [r]espondent issued, a [b]uilding [l]icence in relation to the building works the subject of the [2002 approval]. No cash‑in‑lieu was provided at the time of application for the [b]uilding [l]icence.
7.[The applicants say]:
(a)the renovation works the subject of the [2002 approval] were completed in 2002; and
(b)as [is] set out above, no cash‑in‑lieu payment was provided at the time of application for a building licence, as required by [c]ondition 4.
8.Regular correspondence and meetings in relation to [c]ondition 4 continued between the [a]pplicants and the [respondent] until at least November 2003. Various different numbers and configurations of carparking bays were proposed and considered by both [parties]. Further correspondence commenced in April 2005. At no time during this period was the [r]espondent able to specify any amount to be provided as a cash‑in‑lieu payment.
The Tribunal does not understand the respondent to be objecting to the essential narrative of facts set out in these submissions of the applicants' counsel.

Respondent's contentions

Mr Nicholson, counsel for the respondent, submits that four interrelated issues arise, as follows:
(a)whether the 2002 application 'was valid given that it proposed no new development and simply restated the [2006 application]';
(b)whether a decision was actually made by the respondent in relation to the 2002 application, 'given that the [2002 application] was not assessed and was returned to the applicants, and thus whether there was a legal basis for a right of [review] pursuant to [cl 8.6 of TPS 8]';
(c)whether the respondent 'was functus officio in relation to the [2006 application], such that a deemed refusal of the [2006 application] could not be attributed to the [r]espondent'; and
(d)whether either the respondent or the Tribunal, upon review, 'has the legal authority to revoke or vary a planning approval that has already been issued'.
He submits that the answers to all of these questions are adverse to the applicants and, therefore, that the Tribunal lacks jurisdiction to entertain the review.
In Bakker and City of Nedlands [2005] WASAT 106 (Bakker) at [14], the Tribunal there cited The Encyclopaedic Australian Legal Dictionary entry for functus officio, which may be conveniently reproduced here:
Administrative law Lat ‑ having discharged one's duty; having completed one's term of office; having ceased to hold some public appointment; having performed the authorised act and being unable to go back to it a second time. The state of an administrator or tribunal which has discharged its duty or performed its functions so that nothing further remains to be done. One who is functus officio is precluded from again considering the matter even if new arguments or evidence are presented ...
In the Tribunal's respectful opinion, for the reasons set out below, these various issues tend to coalesce into one overarching issue: what is the proper characterisation of the 2006 application?

Applicants' contentions in reply

Having regard to the approach of the Tribunal foreshadowed immediately above, so far as is relevant, Mr Skinner makes the following main points in reply:
1.The power to give retrospective approval should, in effect, be read both literally and widely. Hence: 'A necessary pre-requisite to the power to grant planning approval to a development already commenced or carried out is the right to apply for planning approval in respect of such a development. [T]here is no qualification that the application be in respect of development that was unauthorised or has not been the subject of an earlier approval'.
2.The applicants' expression of their 'subjective intention' in making the 2006 application (see the references above to their letter accompanying the 2006 application) 'is not relevant to the issue of whether [that] application was validly made'.
3.It is also not relevant that the respondent 'did not make in fact any decision in relation to the [2006 application]' because in that case the application is deemed under TPS 8 to have been refused 60 days after it was received by the respondent.
4.The respondent was not functus officio because it had further work to do in relation to such matters as the proposed changes to the works the subject of the 2002 approval or, in effect, the deletion of verge parking and cash-in-lieu requirements - whether such matters are characterised as the 'approval of a different subject matter' or an application for retrospective approval.
5.For broadly similar reasons, no question arises of the revocation or variation of the 2002 approval; rather a 'fresh, retrospective approval' is sought, leaving the 2002 approval retaining 'whatever legal effect it may currently have'.

Discussion of the issues

Bakker is relied upon by the respondent's counsel. That case, citing Aznavour Pty Ltd v City of Mandurah (2002) 124 LGERA 173 at 185 (Aznavour), concluded at [44] ‑ [45] that:
It would be inappropriate, to say the least, for this Tribunal to disregard or seek to distinguish these recent and clear comments from this State's highest court [a reference to Aznavour], and for the Tribunal to then hold that an implication permitting revocation or variation may be found in [the respondent's town planning scheme], whether read with s 48 of the Interpretation Act 1984 or otherwise …
[O]n the current planning law of Western Australia[,] neither the respondent nor, on review, this Tribunal has the power to entertain an application for revocation or variation, if that is what has been sought and decided.

On the related question of the proper characterisation of the decision under review, Bakker said, at [48] ‑ [50] (emphasis added):
[T]his Tribunal has already found that the decision under review is in both substance and form a decision by the respondent not to alter, amend or vary a previous planning decision of the respondent by the deletion or revocation of a condition previously imposed by the respondent. Thus the Tribunal, following the well‑established logic of [Re Donald and Australian Securities and Investments Commission (2001) 64 ALD 717], has 'identif[ied] the decision under review', and the identification of the decision in those terms for an administrative tribunal in this jurisdiction inexorably confines the decision to that point … and consequently attracts [the Aznavour] injunction that a decision to alter, amend or vary a previous planning decision of this type would be invalid.
Further, the function of this Tribunal is to review a decision, not to rewrite it. There is nothing in either the common law or in statute law that would relevantly permit this Tribunal to 'transmogrify' or 'recharacterise' the application and the decision under review so identified into something that they are or were not ‑ to use the apt terminology cited by Allsop J in another context in Winpar Holdings Ltd v National Consolidated Ltd [2001] FCA 1662 at [13].
So here, for example, neither the applicants' application to the respondent seeking an exemption, or more importantly, the decision in response, can now be seen as either an application and decision on retrospective consent or as a 'fresh' application. That is evidently not what the application sought, nor what it intended. The decision 'not [to] approve the deletion of [the] clause' speaks for itself. Moreover, as Sheppard J said in Secretary, Department of Social Security v Riley (1987) 17 FCR 99, at 104:
The matter [of confining the decision under review] is not without its practical importance. It is very difficult for a Tribunal to review a decision if the matter is completely at large. In a particular case it may have to do its best, but such a situation leads to great difficulty in defining issues and preparing evidence.
Section 164 of the Planning and Development Act 2005 (WA) (PD Act) came into force on 9 April 2006 (that is, after the date of the respondent's decision in this matter). It provides as follows:
164.Development may be approved after commencement
(1)A [local government authority] may grant its approval under a planning scheme or interim development order for development already commenced or carried out.
…
(3)[Subsection (1) does] not affect the operation of the provisions of Part 13 [dealing with enforcement and legal proceedings] in respect of development commenced or carried out before approval has been granted.
(4)Development which was unlawfully commenced or carried out is not rendered lawful by the occurrence of any subsequent event except the approval by the relevant responsible authority of that development.
(5)The continuation of development unlawfully commenced is to be taken to be lawful upon the grant of approval for the development.
The effect of s 164 of the PD Act is described in Planning Bulletin 76 of January 2006 ('Planning and Development Act 2005 and Related Legislation') at page 6 as follows (emphasis added):
[In] respect of development control, provision is made for what is known as 'retrospective approval' or a 'validating approval', that is[,] power for the WAPC or local government to grant approval to an otherwise acceptable development that has been carried out without approval first being obtained or at variance to an approval which has been granted. This provision is currently contained in the Model Scheme Text and will be extended to all schemes, including region schemes, by inclusion in the [new PD Act].
The Model Scheme Text referred to in this passage is Appendix B ‑ 'Model Scheme Text' of the Town Planning Regulations 1967 (WA) (Regulations); Appendix B was inserted into those Regulations on 22 October 1999: see the Town Planning Amendment Regulations 1999 (WA). Clause 8.4 of the Model Scheme Text provides as follows:
8.4.Unauthorised existing developments
8.4.1.The local government may grant planning approval to a use or development already commenced or carried out regardless of when it was commenced or carried out, if the development conforms to the provisions of the Scheme.
8.4.2.Development which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except the granting of planning approval, and the continuation of the development unlawfully commenced is taken to be lawful upon the grant of planning approval.
Note:1. Applications for approval to an existing development are made under Part 9 [dealing with applications for planning approval].
2.The approval by the local government of an existing development does not affect the power of the local government to take appropriate action for a breach of the Scheme or the Act in respect of the commencement or carrying out of development without planning approval.
By an amendment notified in the Western Australia, Government Gazette, No. 115 (22 June 2001), and largely shadowing the Model Scheme Text provision set out above, the following provision was inserted into TPS 8:
6.8Unauthorised Existing Developments
6.8.1The Council may grant planning approval to a development already commenced or carried out regardless of when it was commenced or carried out.
6.8.2Development which was unlawfully commenced shall not be rendered lawful by the occurrence of any subsequent event except the granting of planning approval[,] and the continuation of the development unlawfully commenced shall be deemed to always have been lawful development upon the grant of planning approval.
Thus, when the applicants applied to the Shire for planning approval in March 2006, a provision of the planning framework permitted approval in respect of certain unauthorised existing developments.
As the Planning Bulletin referred to above makes clear, the Model Scheme Text provision (and accordingly any corresponding clause made in its image, such as cl 6.8 of TPS 8) was designed to extend to approvals after the event, including the case where development is 'at variance to an approval which has been granted'. There seems to be no reason, having regard to either policy, purpose or context, to read that provision down so that the apparent objective of permitting, in a proper case, the fullest retrospective approval to be given is either defeated or unnecessarily restricted: cf Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36 at 60 ‑ 64 on the possible consequences of the giving of retrospective approval.
The result in Bakker, as we have seen, was that the decision there under review was determined to be 'in both substance and form a decision by the respondent not to alter, amend or vary a previous planning decision of the respondent by the deletion or revocation of a condition previously imposed by the respondent'. However, there was no suggestion in Bakker that any retrospective approval was being sought; Aznavour did not relevantly deal with that issue, and the applicable principle in that case (that is, preventing the 'recall' of a planning approval) was applied in Bakker.
Thus, Bakker, at [10], made the following observation on retrospectivity:
Neither party has, in their extensive written submissions, referred to whether the relevant Town Planning Scheme ('TPS 2') permits retrospective development approval. It appears that it does, as cl 6.2.1 of TPS 2 provides that 'The [respondent] may give planning approval of a development already commenced or carried out regardless of when it was commenced or carried out.' …
See also Bakker at [50], also reproduced above:
'[N]either the applicants' application to the respondent seeking an exemption, [n]or more importantly, the decision in response, can now be seen as either an application and decision on retrospective consent or as a 'fresh' application.'
Here, on the other hand, both parties have raised the issue of whether the proper characterisation of the March 2006 application to the respondent (that is, the process of 'identif[ying] the decision under review') was one where the applicants were, in fact, seeking retrospective approval. See, for example, [11(b)] of the respondent's submissions, albeit there characterising the 2006 application as lacking bona fides, or otherwise invalid because it 'apparently sought retrospective approval of a development already approved' by the respondent. However, the applicants submit that what was sought was, in substance or effect, retrospective approval.
I turn to consider that question of characterisation.

Characterisation of the March 2006 application

I have elsewhere remarked that '[i]t must be an incident of administrative or executive power (as occurs with judicial power in respect of any application made to a court) to properly characterise, within proper limits, an administrative application', such as an application for planning consent: The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303 at [42].
In The Turnbull Group v North Sydney Council [1998] NSWLEC 253, Sheahan J suggested, at [72] (emphasis added), that:
When one approaches the task of characterising an existing use[,] one adopts a liberal and broad construction in favour of the user, but when one characterises a development application, one closely examines the precise activities proposed.
Here, arguably, the 'precise activities proposed' expressly involved the removal of certain works shown on earlier approved plans.
On the general question of form versus substance in planning applications, the following remarks may be noted from Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPELR 490 at [16]:
[The relevant statutory provision] would apply to any application which seeks a preliminary approval which would, if approved, vary the effect of the local planning instrument, whether or not the intention to do so is expressly stated in the application. It must be an objective reading of the application which determines whether, and if so, 'the way in which the applicant seeks ... to vary the effect of any local planning instrument for the land'. That quoted passage must include the way in which the applicant wishes to alter the uses to which the land can be put under the planning scheme (including a 'consent' or a 're-zoning') and that must be a matter of objective fact, not of expressed purpose …
Stockland Developments Pty Ltd v Thuringowa CityCouncil (2007) 157 LGERA 49 (CA) at [69] endorsed the 'objective reading' approach set out in this passage. Keane JA, adopting principles derived from Federal constitutional law, added:
It is no doubt true to say that, generally speaking, the character of an application which is apt to affect the rights of a party is to be determined by 'the nature of the rights, duties and privileges which it creates, changes, abolishes or regulates'.
Arguably here, as a matter of 'objective fact' if not necessarily 'expressed purpose', the applicants were seeking to agitate the issue of their noncompliance with the 2002 planning approval by seeking approval for a different development. Their subjective motivations are secondary if, objectively, and whether expressly claimed or not, they seek a different planning outcome. Moreover, if it be relevant, the applicants' 2006 application, if capable of being approved, would change the nature of the rights associated with the planning approval attached to the land.
Recently, Bell J, in Vestey v Warrnambool City Council [2008] VCAT 963 (Vestey), examined at some length the extent to which other materials (whether described as extrinsic or not) could be used to ascertain the true meaning of an instrument of planning approval: see Vestey at [30] ‑ [63]. His Honour said, at [48] (emphasis added):
[W]hen it comes to interpreting an ambiguous provision in a planning permit, it is permissible to examine the objective matrix of facts and circumstances that supply the context in which the permit was issued, but not the subjective intentions or expectations of the parties.
I see no reason, in principle, why such an approach should not also apply to the analogous task of characterising a development application. The reference here to 'ambiguous' must, of course, be given its widest possible meaning, and adapted to the circumstances of the case:
The use of the word 'ambiguity' … is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful … (Repatriation Commission v Vietnam Veterans' Association of Australia (NSW Branch) (2000) 48 NSWLR 548, at 577‑578 cited by Bell J in Vestey at [42]).
Here, the 'objective matrix of facts and circumstances that supply the context' of the 2006 application must include: the deliberate deletions concerning parking and footpaths found on the accompanying plan; the long course of negotiations between the two parties prior to 2006; the letter attached to that application (seeking to 'reinstate our right of appeal' in respect of parking matters); and, importantly, the terms of the February 2006 resolution of the Shire conveyed to the applicants in response to their application. This resolution seeks to resolve the matter by offering a new deal on cash‑in‑lieu car bays.
Having regard to this context, the intention or the effect of the 2006 application was to seek the 'grant [of] approval to [a development] that has been carried out … at variance to an approval which [had] been granted'. Thus, there is attracted the power and the duty of the respondent to consider the application to it under cl 6.8 of TPS 8. This was not done, leading to a deemed refusal after 60 days when that duty was not exercised. Consequently, a right of review arose in this Tribunal. No relevant question of functus arises.
To conclude, there is a reviewable decision and the Tribunal has jurisdiction in the matter. Of course, nothing in these reasons necessarily determines the outcome of the review.
The matter will be listed for directions within 14 days of the date of these reasons for decision and then programmed for a hearing. In the meantime, the parties should consider reviving their discussions to seek to work out a practical solution; the Tribunal can of course supply a mediator to assist in this process.

Orders

For the reasons set out above, the Tribunal makes the following orders:
1.The preliminary question is answered favourably to the applicants. That is to say, the Tribunal determines that there is a reviewable decision, and that the Tribunal has jurisdiction in the matter.
2.The matter is to be listed for directions within 14 days of the date of this order.

I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR P McNAB, MEMBER