Rakich and Anor and Western Australian Planning Commission

[2008] WASAT 42

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   RAKICH & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 42

MEMBER:   JUSTICE M L BARKER (PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   29 FEBRUARY 2008

FILE NO/S:   DR 38 of 2008

BETWEEN:   FRANK RAKICH

CECILIA RAKICH
Applicants

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Practice and procedure - Application to extend time to commence a proceeding - Review by President of determination of Tribunal upon a matter involving a question of law under Planning and Development Act 2005 (WA), s 244 - Allegation of invalidity of planning scheme withdrawn at hearing - Whether allegation of invalidity can be raised on review - Whether any question of law concerning the determination raised

Legislation:

City of Swan Town Planning Scheme No 9, Amendment No 382
Planning and Development Act 2005 (WA), s 244
State Administrative Tribunal Rules 2004 (WA), r 10

Result:

Application to extend time allowed
Determination of Tribunal in DR 104 of 2007 affirmed

Category:    B

Representation:

Counsel:

Applicants:     Self-represented

Respondent:     Ms TS Cole

Solicitors:

Applicants:     Self-represented

Respondent:     State Solicitor's Office

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

O'Connor and Town of Victoria Park [2005] WASAT 161

Rakich & Anor and Western Australian Planning Commission [2007] WASAT 294

REASONS FOR DECISION OF THE PRESIDENT: 

Summary of President's decision

1. Mr and Mrs Rakich sought an extension of time to apply for a review of a determination of the Tribunal in which it refused subdivision approval for a two‑lot subdivision.  However, the proposed application for review did not raise any question of law concerning the determination.  The application to extend time was allowed, but the application for review was dismissed.

Application to extend time

1. Mr and Mrs Rakich have applied, under r 10 of the State Administrative Tribunal Rules 2004 (WA), for an extension of time in which to seek review by the President, under s 244 of the Planning and Development Act 2005 (WA) (PD Act), of a determination made by the Tribunal on 13 November 2007 in which the Tribunal refused subdivision approval for a two‑lot subdivision – see Rakich & Anor and Western Australian Planning Commission [2007] WASAT 294.

2. Section 244 of the PD Act enables the President to review a determination upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member. The determination in question was made by the Tribunal when constituted by Senior Sessional Member Mr R Easton, who is not a legally qualified member.

3. The application for review must be made within one month after the determination is given to the party seeking review: PD Act s 244(3). In this case, the determination was given to Mr and Mrs Rakich by mailing it to their town planning consultant agent, Mr Sri Ramanathan, under cover of a letter dated 13 November 2007. Unfortunately, Mr Sri Ramanathan passed away in December 2007. He did not forward a copy of the determination to Mr and Mrs Rakich. Consequently, Mr and Mrs Rakich have had to apply for an extension of time in which to seek review. Their application was filed approximately five weeks out of time.

Proposed grounds for review

1. Mr and Mrs Rakich would like to advance arguments on review concerning the validity of Amendment No 382 to the City of Swan Town Planning Scheme No 9 (TPS 9), the merits of the proposed subdivision, their age, health and financial position, evidence given by an officer of the Department for Planning and Infrastructure at the hearing, and the preparation of an outline development plan by the City of Swan.  However, with one exception, none of these arguments involve a question of law.

2. The argument that involves a question of law relates to the validity of Amendment No 382 to the TPS 9. However, this argument was raised and then expressly abandoned by Mr Sri Ramanathan, on Mr and Mrs Rakich's instructions, at the hearing: see reasons for determination at [43].

3. Consequently, while this ground involves a question of law, it does not involve a question of law concerning the determination. The determination proceeded on the joint position of the parties that there is no issue concerning the validity of Amendment No 382. Having elected to abandon the issue of the validity of Amendment No 382 at the hearing, Mr and Mrs Rakich cannot raise that issue in a s 244 review.

4. In any case, the particulars of the allegation of invalidity are confused.

Consideration of application to extend time

1. The principal considerations in relation to whether to extend time for the commencement of a proceeding are:

   •the length of delay;

   •the reasons for delay;

   •whether there is an arguable case for review; and

   •whether the extension would cause prejudice:

   O'Connor and Town of Victoria Park [2005] WASAT 161 at [38] ‑ [51].

2. In this case, the length of delay is borderline, there is a reasonable explanation for the delay, and an extension would not cause any real prejudice.  I would therefore extend the time to seek review.

Conclusion

1. As the review does not involve a question of law concerning the determination, the application for review should be dismissed and the determination of the Tribunal should be affirmed.

Orders

1. I make the following orders:

   1.The application under r 10 of the State Administrative Tribunal Rules 2005 (WA) to extend the time in which the applicants may seek review by the President of the determination of the Tribunal made on 13 November 2007 in DR 104 of 2007 is allowed.

   2.The application for review is dismissed.

   3.The determination of the Tribunal made on 13 November 2007 in proceedings DR 104 of 2007 is affirmed. 

I certify that this and the preceding [12] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE M L BARKER, PRESIDENT