Rennet Pty Ltd and City Of Joondalup
[2006] WASAT 183
•16 JUNE 2006
RENNET PTY LTD and CITY OF JOONDALUP [2006] WASAT 183
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 183 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:147/2006 | 16 JUNE 2006 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 16/06/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application to make submissions dismissed | ||
| B | |||
| PDF Version |
| Parties: | RENNET PTY LTD CITY OF JOONDALUP |
Catchwords: | Planning and development Application by third party to make submissions Whether sufficient interest Whether discretion should be exercised to permit submissions Whether applicant would assist Tribunal in reaching correct decision Nature of issues in proceedings |
Legislation: | Planning and Development Act 2005 (WA), s 242, s 243 Strata Titles Act 1985 (WA), s 23, s 26(5) State Administrative Tribunal Act 2004 (WA), s 38 |
Case References: | Nil Nil |
Orders | 1. On or before 30 June 2006 the applicant is to file and serve any responsive statement of evidence by Mr Perinne, any supplementary bundle of documents and written submissions on the proper construction of s 23 of the Strata Titles Act 1985.,2. On or before 14 July 2006 the respondent is to file and serve submissions in response on the construction point.,3. On or before 7 July 2006 the respondent is to file and serve any further witness statements in relation to amenity issues arising under s 23(2)(c) of the Strata Titles Act 1985.,4. The listings for 27 and 29 June 2006 are vacated.,5. The matter is listed for hearing for three days commencing at 10.00 am on 24 July 2006.,6. Between 10 July and 14 July 2006 the traffic experts to be called by each party are to further confer with one another in the absence of the parties and prepare a further joint statement of: ,(a) the issues in the parties' Statements of Issues, Facts and Contentions which are within their expertise;, (b) the matters upon which they agree in relation to those issues;,(c) the matters upon which they disagree in relation to those issues; and,(d) the reasons for any disagreement. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : RENNET PTY LTD and CITY OF JOONDALUP [2006] WASAT 183 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 16 JUNE 2006 DELIVERED : Edited reasons delivered extemporaneously on 16 JUNE 2006 FILE NO/S : DR 147 of 2006
- DR 138 of 2006
- Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Planning and development Application by third party to make submissions Whether sufficient interest Whether discretion should be exercised to permit submissions Whether applicant would assist Tribunal in reaching correct decision Nature of issues in proceedings
Legislation:
Planning and Development Act 2005 (WA), s 242, s 243
Strata Titles Act 1985 (WA), s 23, s 26(5)
(Page 2)
State Administrative Tribunal Act 2004 (WA), s 38
Result:
Application to make submissions dismissed
Category: B
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Mr CA Slarke
Solicitors:
Applicant : Hardy Bowen
Respondent : McLeods
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Edited transcript of reasons given ex tempore
1 This is an application by the Mullaloo Progress Association, which I will refer to as MPA, for leave to make submissions in relation to two applications that are before the Tribunal. One of those sets of proceedings, which is DR138 of 2006, relates to a direction issued under the Planning and Development Act 2005 (WA), and the other, DR147 of 2006, relates to the refusal by the respondent to sign a certificate pursuant to s 23 of the Strata Titles Act 1985 (WA).
2 Originally the applications sought joinder pursuant to s 38 of the State Administrative Tribunal Act 2004 (WA), but it is accepted now on behalf of MPA that by reason of the provisions of s 243 of the Planning and Development Act 2005 and s 26(5) of the Strata Titles Act 1985, joinder under s 38 is not possible in relation to either of these applications. So instead they fall to be decided as applications for leave to make submissions pursuant to s 242 of the Planning and Development Act 2005.
3 The proceedings involve three issues as disclosed by the applications and the Statements of Issues, Facts and Contentions that have now been exchanged between the parties. The first issue, put broadly, is whether or not the development, which is a development of a tavern and other premises for other uses in Mullaloo, complies with the development approval, and in particular whether it complies with two conditions of the approval relating to parking. So that issue will involve an examination of what was the approval, what has been developed and whether the two match.
4 The second issue, broadly put, is whether or not there was a variation to the approval by the grant of a building licence in relation to a plan which, I assume, differs somewhat from the plan as originally approved. And the third broad issue is whether or not, by reason of events surrounding the issue of that building licence, there is an estoppel operating in favour of the applicant which prevents the respondent relying on the notices that have now been issued.
5 In order for the Tribunal to grant the application for leave to make submissions, MPA needs to establish two matters. The first is that it has a sufficient interest in the matter the subject of the review, and then the second is that, if so, the Tribunal should exercise its discretion to permit the making of submissions. In relation to that second issue, the matter has proceeded on the basis that the MPA would need to bring to the
(Page 4)
- proceedings something which is not otherwise going to be fully canvassed in the course of the proceedings and would thereby assist the Tribunal to reach the correct and preferable decision.
6 In order to establish that it has a sufficient interest, the applicant relies, I think. on what might be couched as three broad propositions. The first is that its constitution has as one of its objects that it should, in effect, act as an advocate for residents of Mullaloo in relation to any matters that affect the amenity of their area. It relies on that constitutional objective as indicating an interest in the matters the subject of this review, which it asserts are matters which affect the amenity of residents of areas around the tavern and people resorting to the area.
7 The second broad basis of the interest claimed is that the MPA holds meetings on premises near to the tavern and has suffered the impact of what it says are the inadequate parking arrangements provided for the tavern. So it asserts a direct detriment as a result of the alleged failure to comply with the conditions.
8 The third proposition, which is one that emerged out of the written submissions and discussions during oral submissions, was that the MPA contends that it has demonstrated, or is able to demonstrate, that the respondent has not in effect done its job properly in some respects, and that the MPA would be able to assist by arguing the matter on a more factually correct foundation than might the respondent.
9 Dealing with the first of those - the constitution. It is my view that, although the constitution determines the nature of the body, and therefore makes it appropriate for it to take an interest in civic matters on behalf of residents, by itself, the mere constitutional objective of becoming involved in matters affecting the amenity of residents is not enough to establish a sufficient interest for the purposes of the Planning and Development Act 2005.
10 It is necessary, in my view, to demonstrate some particular interest, some particular impact of the matters the subject of the proceedings in order to establish a sufficient interest, and the mere existence of a constitutional objective would not meet that requirement.
11 The second matter is the question of interference with the use of premises nearby by the MPA, which inference, it asserts, is occasioned by the inadequacy of parking at the tavern site. In looking at the question of sufficient interest it is necessary, in my view, to demonstrate that there is an interest over and above the interests of ordinary members of the public,
(Page 5)
- including members of the public who reside in the general locality. In other words, the fact that members of a community have an interest in the outcome of planning decisions nearby, in the sense that the decisions may generally impact on the amenity of the area, is not, by itself, enough. There must be some interest demonstrated above that general interest of any member of the public. Otherwise the consequence would be that every member of a community could come in as a ratepayer, say they are interested in the amenity of their area, and that they wish to make submissions. That would simply be inconsistent with the operation and the processes that the Tribunal must necessarily undertake, and is not what is contemplated by the term "sufficient interest" in the Planning and Development Act 2005.
12 In this case, it is arguable that, if it is the case that the MPA has suffered a particular detriment as a regular user of nearby premises, that detriment might, in some circumstances, be adequate to establish a sufficient interest to be heard. It is necessary, I think, to look at the particular issues arising in the proceedings before me, before determining whether, in this case, the impact which is complained of creates a sufficient interest. I propose to come back to this question after I have looked at those issues.
13 That brings me to the issues that are before the Tribunal with a view to considering what it is that the MPA might bring to the proceedings which would assist the Tribunal in its task of reaching the correct and preferable decision on the review before it. As I have said, the first issue is whether or not the building, as constructed, is in accordance with the terms of the development approval.
14 There is an issue which Mr Sideris has raised on behalf of the MPA about the proper construction of the approval. The position of the respondent in these proceedings is that the approval is for, in effect, 126 bays on site. The approval originally took into consideration 34 bays which had been provided, or at least had been paid for, by the applicant off site. Those additional bays were taken into consideration in approving the plans which depicted 126 bays on site. That led to a resolution by the respondent's Council which provided, in paragraphs 1 and 2, that:
"1. The council exercises its discretion in relation to clauses 4.5 and 4.8 of the District Planning Scheme Number 2 and determines that, (a) the variation for the provision of 160 car bays in lieu of 210 car bays; (b) the front setback of nil in lieu of 9 metres, and (c) a rear
- setback of nil in lieu of 6 metres are appropriate in this instance.
- 2. Council approves the application received on 20 December 2001 and revised plans dated 17 May, 5 June and 19 July submitted by the architects."
15 Mr Sideris contends that the approval must be, or rather that he would argue at a hearing that the approval, properly construed is, for 160 car bays on site because of the exercise of discretion recorded in the first paragraph of that resolution.
16 During the course of argument I looked to the report which was made by the officer of the respondent which led to the recommendation which formed the ultimate Council resolution. That recommendation was quite clear in its terms, that the provision of 160 car bays related to the provision of 126 on site and 34 off site. It was put to me by the respondent that the revised plans depicted the 126 bays on site, and that is entirely consistent with the officer's report, and is clearly the case.
17 It seems to me that although, as Mr Sideris said, he has not fully ventilated arguments in relation to that, there is simply no room for any tenable argument that the approval was for 160 bays on site. The approval is clearly contained in par 2 of the Council resolution. It is an approval of an application and plans, and therefore approval of what is depicted on the plans. The fact that the (probably unnecessary) resolution recording the exercise of discretion does not set out that, of the 160 car bays, 34 would be off site, simply does not lead to any reasonably arguable proposition that the Council was somehow approving something quite different from the revised plans which were before it. So although Mr Sideris simply sought to raise the issue without fully arguing it, I am not satisfied that the issue itself can take the proceedings any further.
18 The other matter which Mr Sideris contended he could bring to the Tribunal's deliberations in relation to the first issue was to bring evidence, or at least make submissions, concerning the question of compliance from the perspective of the local residents, as distinct from the perspective of the Council or the applicant, which are the only perspectives that would otherwise be presented to the Tribunal.
19 However, I am not satisfied that submissions on that basis would add anything to the process. The reason for that is that the question of what was approved and what has been built are, in the end, objective matters. Subjective opinions, whether as to the impact of the non-conformity, if
(Page 7)
- there is some, or as to how one approaches the evidence that will be led on those matters, really has no place. The question is one which I am told by counsel will be dealt with by appropriately qualified experts called by either side. Those experts will be required, following the Tribunal's usual procedures, to confer, to prepare a joint report and to give their evidence concurrently and be asked questions by the Tribunal and, if necessary, by the parties. That process simply would not be assisted by having a third party making submissions on what is, in the end, an objective fact-finding exercise.
20 The other two issues, which I can deal with together, namely whether or not the building licence constituted a variation of the approval and whether there is an estoppel arising, are of course substantially questions of law. Again, they are matters which the Tribunal needs to approach having the benefit of submissions, but in respect of which subjective views of local residents, or indeed subjective views of anybody else, including the applicant and the respondent, really have no part to play in the decision-making process.
21 So I am not satisfied that, in relation to any of the issues that will fall for determination by the Tribunal, having submissions made by the respondent simply on the basis that they would like the Tribunal to know how they feel about these matters, would in fact assist the Tribunal in its function.
22 I want to deal with the third proposition by which the MPA seeks to demonstrate, that it has a sufficient interest in the matter, and make some general comments about some of the other submissions made by the MPA in its written submissions. That proposition is that the respondent has not, in effect, done its job properly or that it would not present the case as well as the MPA would do. There were references in the MPA's submissions to its ability to bring documents forward that it fears the respondent may have lost or may otherwise not bring forward.
23 In my view, the difficulty with that proposition is that it is a generalised assertion which is impossible to accept where, as here, we have a respondent which has taken the action which has given rise to these proceedings, namely, issued a notice and refused to sign a certificate on the basis that there is a non-compliance with the planning approval, and has then entered into the proceedings taking an active adversary role arguing the very case which the MPA no doubt assert it should be arguing.
(Page 8)
24 In relation to documents, for example, the MPA does not point to any particular document that it says it can provide. Its submissions simply lack any sufficient basis for asserting that the case to be put by the respondent in relation to non-compliance with the approval will be deficient in any way. There are assertions made about the way the respondent has gone about its task in relation to this whole development, and in relation to these proceedings and assertions concerning the conduct of its solicitors. In my view, there is no basis for concern about the adequacy of the case to be put by the respondent. It has at all times approached the proceedings in an appropriate and fully adversarial way, and as counsel for the respondent has observed, the respondent is alive to its obligation under the State Administrative Tribunal Act 2004 to assist the Tribunal to make the correct and preferable decision.
25 So I am satisfied that the issues which are before me are likely to be fully and appropriately aired by the cases to be presented by the respective parties. So it follows that, having that view as to what the MPA may bring to the proceedings, I do not believe that it should be given the leave which it seeks. It is not necessary, therefore, for me to determine whether, had I believed that it could make a contribution to the proceedings, it would have demonstrated a sufficient interest to get it over the threshold for the purpose of the statute.
26 What is clear to me from the submissions that have been made is that the MPA is really seeking to have the proceedings conducted as though they were, in effect, an open forum for community discussion. That is, I think, summed up by the last sentence in the MPA's most recent set of submissions where it said that:
"The Mullaloo Progress Association look forward to now receiving due recognition and to further being able, along with all affected ratepayers, to being allowed to attend the debating of both of these matters in the SAT in an open forum."
27 There are a number of comments made in the submissions generally about the earnest desire of the MPA to have an open hearing. I suspect what is being referred to in that expression when used by the MPA is something different from what the Tribunal would consider an open hearing. I say that because the hearing will be open. It is open to the public to observe, but it is not open to the public to participate in the form of a debate as in a community forum. And there are reasons for that. Those reasons are that the State Administrative Tribunal is required by the provisions of the State Administrative Tribunal Act 2004 to follow certain
(Page 9)
- processes, including observing all the rules of natural justice. It is not a forum which is simply designed to listen to a whole range of varying views, however relevant they may be to the particular matters at issue, and seek some sort of consensual outcome. It is a process where necessarily there are parties, there are constraints about who can become a party, and once the identity of the parties is established then there are procedures which must be observed to ensure that natural justice is afforded.
28 So for those reasons I have reached the view that the application to make submissions should be refused, and there will be an order in those terms.
Orders
The Tribunal makes the following orders:
1. On or before 30 June 2006 the applicant is to file and serve any responsive statement of evidence by Mr Perinne, any supplementary bundle of documents and written submissions on the proper construction of s 23 of the Strata Titles Act 1985.
2. On or before 14 July 2006 the respondent is to file and serve submissions in response on the construction point.
3. On or before 7 July 2006 the respondent is to file and serve any further witness statements in relation to amenity issues arising under s 23(2)(c) of the Strata Titles Act 1985.
4. The listings for 27 and 29 June 2006 are vacated.
5. The matter is listed for hearing for three days commencing at 10.00 am on 24 July 2006.
6. Between 10 July and 14 July 2006 the traffic experts to be called by each party are to further confer with one another in the absence of the parties and prepare a further joint statement of:
(a) the issues in the parties' Statements of Issues, Facts and Contentions which are within their expertise;
(b) the matters upon which they agree in relation to those issues;
(c) the matters upon which they disagree in relation to those issues; and
- (d) the reasons for any disagreement.
I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT
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