RICHARDSON and CITY OF SWAN - [2022] WASAT 17

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   RICHARDSON and CITY OF SWAN [2022] WASAT 17
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   24 FEBRUARY 2022
DELIVERED          :   28 FEBRUARY 2022
PUBLISHED           :   28 FEBRUARY 2022
FILE NO/S:   DR 184 of 2021
BETWEEN:   DANIEL RICHARDSON
Applicant
AND
CITY OF SWAN
Respondent

Catchwords:

Nil

Legislation:

Environmental Planning and Assessment Act 1979 (NSW), s 80, s 81(1)(a)
Local Government (Administration) Regulations 1996 (WA), reg 10
Local Government Act 1995 (WA), s 5.25(1)(e)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 68(2), cl 70, cl 70(1), cl 70(2), cl 77, cl 77(4)
State Administrative Tribunal Act 2004 (WA), s 26, s 26(e), s 31, s 31(1), s 31(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr A McGlue
Respondent	:	Mr C Slarke

Solicitors:

Applicant	:	Lavan
Respondent	:	McLeods

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

AAA Egg Company Pty Ltd and Shire of Gingin [2013] WASAT 149
Aznavour Pty Ltd v City of Mandurah [2002] WASCA 320
Bakker and City of Nedlands [2005] WASAT 106
Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350
Ex parte Renouf (1924) 24 (SR) NSW 463
Franco and City of Nedlands [2015] WASAT 39
Hillgrove Pty Ltd v Town of Claremont (1996) 15 SR(WA) 265

Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230

Panagopoulos v Willoughby City Council (1992) 78 LGERA 270
Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 41; (2010) 71 SR (WA) 171
Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 77 NSWLR 287; (2009) 168 LGERA 59
R v Berri District Council; Ex parte H L Clark (Berri) Pty Ltd (1984) 36 SASR 404
Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254; 73 LGERA 258
Sentinel Orange Homemaker Pty Ltd v Davis Investment Group Holdings Pty Ltd (in liquidation) [2021] NSWSC 550
Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740; (1973) 28 LGRA 218
Townsend v Evans Shire Council [2000] NSWLEC 163; (2000) 109 LGERA 336

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

On 11 August 2021 the respondent granted conditional approval for the amendment of a development approval granted in 2018 for works to be done to a property at 77 James Street, Guildford.
Following an application for review filed with the Tribunal the parties attended mediation at the conclusion of which the Tribunal invited the respondent to reconsider its decision 'on or before 28 February 2022'.
On 2 February 2022 the respondent determined to vary its previous decision in a way which resolved matters to the satisfaction of the applicant.
However, shortly after the meeting of 2 February 2022 several members of the council of the respondent signed a notice of motion indicating an intention to revoke the decision of 2 February 2022 and remake it in a manner consistent with the decision of 11 August 2021 (Notice of Motion).
On 11 February 2022 the Tribunal granted an interim injunction preventing the respondent from acting upon the Notice of Motion until 25 February 2022 or further order.
That injunction was granted on the basis that an application for declaration would be made promptly and the matter determined before the date on which the Notice of Motion is to be considered, being 28 February 2022, which is also the date on which the Tribunal's invitation for reconsideration expires.
By email dated 14 February 2022 solicitors for the applicant sought a declaration to the effect that the respondent does not have the legal power to revoke its reconsideration decision made at the Council meeting of 2 February 2022.
For the reasons that follow, the Tribunal declines to make the declaration sought.

Facts

The parties filed a Statement of Agreed Facts on 16 February 2022 which is sufficiently brief to include in its entirety despite some repetition with the above summary:
1.The Applicant is one of the owners of the Property at 77 James Street, Guildford (Property).
2.There is an existing residential dwelling at the Property.
3.In 2018, the Respondent granted development approval for proposed alterations and additions to the dwelling on the Property.
4.On 10 June 2020, the Applicant submitted an application to the Respondent to amend the development approval, pursuant to clause 77 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), given that various design changes were proposed.
5.The amendment application was determined by the Respondent at its Council meeting on 11 August 2021.
6.The Council of the Respondent resolved to approve the amendment application, albeit subject to a number of conditions.
7.The Respondent issued a "Notice of determination on application for development approval" on 20 August 2021.
8.On 1 September 2021, the Applicant commenced this application for review, with a view to challenging some of the conditions imposed by the Respondent on the development approval (via the decision on the amendment application), which required:
8.1a proposed front fence to be redesigned;
8.2a proposed gazebo to be setback from a boundary with a neighbour; and
8.3a proposed balcony to be removed from the proposal altogether.
9.The parties attended mediation on 9 November 2021.
10.At the conclusion of the mediation, the Tribunal made orders in the following terms:
1. The applicant is to provide an amended application as discussed at the mediation to the respondent on or before 23 November 2021.
2. Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent is invited to reconsider its decision on or before 28 February 2022.
3. The matter is listed to directions hearing, to be conducted by teleconference, on 11 March 2022 at 9:30 am.
11.The Respondent reconsidered the decision under review at the Council meeting held on 2 February 2022.
12.At the meeting on 2 February 2022, the Council resolved to approve the amended plans and impose a new set of conditions of development approval, on terms that would allow the Applicant to erect the proposed balcony and to place the proposed gazebo in the desired location. A new condition was also imposed in relation to the design of the proposed front fence.
13.The Respondent has not issued a "Notice of determination on application for development approval" with respect to the 2 February 2022 decision.
14.From the perspective of the Applicant, the reconsideration decision of Council made on 2 February 2022 resolves the issues for determination in this application for review.[1]
15.Shortly after the Council meeting on 2 February 2022, aCouncillor gave notice of a motion, pursuant to section 5.25(1)(e) of the Local Government Act 1995 (WA) and regulation 10 of the Local Government (Administration) Regulations 1996 (WA), to revoke the reconsideration decision made by Council on 2 February 2022.
16.A copy of the notice of motion is appended as Attachment A.[2]
17.The terms of the resolution made by the Council at the meeting on 2 February 2022 are set out in the notice of motion under the heading "Part A - Revocation Motion".
18.The notice of motion also records that the mover of the motion proposes a new motion (if the revocation motion carries) for the Respondent to impose a new set of development approval conditions, as set out under the hearing "Part B - Notice of New Motion". The effect of the new motion, if carried, would be to reaffirm the original reviewable decision made on 11 August 2021.
19.Subject to the outcome of this declaration application, the Council of the Respondent intends to vote upon the proposed revocation motion at a Special Council meeting on 28 February 2022.
20.If the proposed revocation motion is carried and the Council then carries the proposed new motion, the issues for determination in this application for review will remain unresolved from the perspective of the Applicant, which could necessitate a final hearing.

Prima Facie Case

[1] This paragraph was amended by consent of both parties at the hearing on 24 February 2022.

[2] A copy of the Notice of Motion is appended to these Reasons as Attachment A.

The circumstances in the present case bear a striking similarity to those in Franco[3], which the applicant in this case relies upon.
[3]Franco and City of Nedlands [2015] WASAT 39.
In Franco, the applicant sought review of the deemed refusal of three development applications for single houses on adjoining properties.
Following mediation, the City was invited to reconsider the applications, which it did, determining to grant conditional approval in each case.
However, the day after that reconsideration, and before any notification of the decision granting approval had been made, the City's CEO received a rescission motion seeking revocation of the decision to grant conditional approval.
That rescission motion had been anticipated by the CEO who had previously that day written to the applicant's consultant advising of the likelihood that Council would receive a 'rescission motion' and went on to say that the applicant 'should not assume formal approval will be issued'.
A special meeting was convened to consider the rescission motion and the applicants sought an interim injunction restraining the respondent City from considering that motion.
Parry DP granted that interim injunction, holding that there was a prima facie case that the Council was precluded from varying the substituted decision, or setting aside the substituted decision and substituting another decision, pursuant to s 26 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).[4]
[4] Franco at [21].
Section 26 of the SAT Act states as follows:
After the commencement of a proceeding for the review of a decision the decision maker cannot:
(a)vary the decision; or
(b)set aside the decision and substitute its new decision,
unless —
(c)that is permitted by the enabling Act; or
(d)the parties to the proceeding consent; or
(e)the decision maker is invited under section 31 to reconsider the decision.
That is, Parry DP in Franco held that there was a prima facie case that the Council's reconsideration decision exhausted the power granted to it pursuant to the Tribunal's invitation to reconsider under s 31 of the SAT Act and that, unless there was another power provided by s 26(c) or (d) (and it was held that there was not) the Council was precluded by s 26(a) and (b) from making a further decision.
It is critical to note that the decision in Franco concerned an application for an interim injunction. The purpose of that injunction was to protect the status quo until an application could be made seeking a declaration as to the correct legal position.[5]
[5] Franco at [15].
It would appear that no such application was made and the matter resolved informally.
That is relevant because, as noted above, although I granted an interim injunction on the basis of a prima facie case, I do not propose to accede to the applicant's request for a declaration.
To that extent it might be said that in doing so I am departing from the Tribunal's previous decision in Franco. The applicant submitted that such a course should not be 'lightly' taken.[6]
[6] Applicant's Outline of Legal Submissions in Support of Application for Declaration dated 22 February 2022 (Applicant's Outline), para 42.
The cases and principles relied upon by the respondent in this case were not put to Parry DP in Franco who was required by the circumstances to act promptly.
It is also significant in this regard that his Honour expressed himself in terms of a prima facie case. That is, his Honour quite properly reserved his final position to the application for declaration which in the event never occurred.
For these reasons I do not consider this decision to be a departure from the Tribunal's decision in Franco but if it is the departure is justified.

Procedural History

As is noted above, the Tribunal invited the respondent to reconsider its decision by orders made following the mediation on 9 November 2021.
That reconsideration occurred at the Council's meeting on 2 February 2022.
By letter of 9 February 2022 the applicant sought an urgent directions hearing. By further letter dated 10 February 2022 the applicant indicated it wished to use the directions hearing (which had by that stage been listed for 11 February 2022) to apply for an interim injunction.
At the hearing on 11 February 2022 I granted the injunction by orders which restrain the respondent 'until 25 February 2022 or further order of the Tribunal from acting upon the Notice of Motion … which seeks to revoke and/or change the decision of Council made on 2 February 2022 in relation to lot 29 (No. 77) James St Guildford.'
In reasons which I delivered ex tempore I found that there was a prima facie case that s 26 of the SAT Act precluded the respondent from acting upon the rescission motion so as to remake the decision it made on 2 February 2022.
As should be apparent by now I have reached a view that differs from that which formed the basis of the injunction.

The Parties' Submissions

The applicant's primary case is that which Parry DP found amounted to a prima facie case in Franco - that having reconsidered its decision pursuant to s 31 of the SAT Act, s 26 of that Act now precludes the respondent from setting aside that reconsidered decision and substituting any new decision because none of s 26(c), (d) or (e) applies.[7]
[7] Applicant's Outline, paras 117.
That is, the applicant says:
(a)the decision of 2 February 2022 was a reconsideration of the earlier refusal under s 31 of the SAT Act of the earlier decision;
(b)section 31(1) of the SAT Act and cl 77(4) of the deemed provisions both only allow a single reconsideration decision being made;
(c)having made its decision on 2 February 2022 the respondent has exhausted its power of reconsideration;
(d)the decision made on 2 February 2022 now constitutes the decision under review by the Tribunal; and
(e)section 26 of the SAT Act therefore applies to preclude any further decision of the respondent to vary or set aside the decision unless any of s 26(c), (d) or (e) apply (none of which does).
The respondent's case is that the decision of 2 February 2022 was not effective pursuant to cl 70(2) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (the deemed provisions) because notification of it had not been given and, therefore, revocation was possible so as to allow the decision to be remade.
Put another way, the respondent submitted that it was not functus officio because notification of the decision of 2 February 2022 had not been given and, pursuant to cl 70(2) of the deemed provisions, thedetermination was not 'complete'.
That is, the respondent submitted that 'until such time as a Council decision upon the determination of an application for development approval has effect, [which only occurs upon receipt by the application of notice of the decision cl 70(2)] the Council's "hands are not tied" and its decision may be revoked'.[8]
[8] Respondent's Submissions Opposing Application for Declaration dated 18 February 2022 (Respondent's Submissions), para 8.
Central to the question of the power to revoke is the regime established by the Local Government Act 1995 (WA) (LG Act).
Section 5.25(1)(e) of the LG Act provides a power to make regulations in relation to 'the circumstances and manner in which a decision made at a council or a committee meeting may be revoked or changed (which may differ from the manner in which the decision was made)'.
Regulation 10 of the Local Government (Administration) Regulations 1996 (WA) (LGARegs) then sets out the criteria which must be met before a council may revoke or change a previous decision including that a motion to revoke or change a previous decision must be supported by a certain number of councillors and be signed by them.
As counsel for the applicant noted at the hearing, those powers are procedural not substantive – they do not provide a power to revoke, they merely control the exercising of that power.
However, I agree with counsel for the respondent who, in answer to the above submission, submitted that the power to revoke is clearly implicit, if it were not there would be no work for the section and regulation to do.
In that regard I adopt with respect the decision of Street ACJ in Ex parte Renouf[9] who found it 'undisputed' that 'a council has power in the ordinary course of carrying out its business to rescind or vary its resolutions … It could not carry out its duties effectively without that power …'.
[9] Ex parte Renouf (1924) 24 (SR) NSW 463, 466.
The question in the present case is the extent to which that power is limited by the statutory regime established by the SAT Act and/or the Planning and Development Act 2005 (WA) and the relevant planning schemes.

Consideration

The respondent relies upon cl 70 of the deemed provisions which provides as follows:
(1)As soon as practicable after determining an application for development approval, the local government must give the applicant written notice of the determination in the form of the "Notice of determination on application for development approval" set out in clause 86(4).
(2)The determination has effect on the day on which the notice of determination is given to the applicant.
Those provisions create a two-step process, the first of which is the making of a determination of which the applicant is then notified by the giving of a notice in the relevant form.
The respondent says that unless and until a determination made under cl 68(2) (for the grant of development application) or cl 77(4) (for the approval of an application to amend a development approval) is made effective by the giving of notice under cl 70(2) the determination is vulnerable to be revoked or changed.
A similar two-step regime of: (1) decision; followed by (2) notification, is in place (and has been in place for a very long time) in NSW and the respondent relies on the decision of the New South Wales Land and Environment Court in Townsend[10].
[10] Townsend v Evans Shire Council [2000] NSWLEC 163; (2000) 109 LGERA 336, at [15] [22].
The decision in Townsend is but one of a long and extensive line of NSW decisions.
The line of authority begins with Renouf which concerned an application for approval of a plan of subdivision and for which the statutory regime provided no express power of reconsideration. Street ACJ held:
That a council has power in the ordinary course of carrying on its business to rescind or vary its resolutions is undisputed. It could not carry out its duties effectively without that power, but it is contended that, in the circumstances of this case, it was bound by the decision to which it came on the 1^st April, and that it acted in excess of its powers in afterwards purporting to recall or revoke it. I am unable to agree. Reliance was placed upon the use of the word decision in the Act, and it was urged that in passing a resolution of approval the council had in fact decided the matter, and that, having done so, it then became functus officio. I do not attach any particular significance to the use by the Legislature of the word decision. It has used a word which … is a popular and not a technical or legal word, and all that was intended was, I think, that the council should consider applications, and, after considering them, should determine what was to be done in respect of them. Before a decision on an application has been communicated to the applicant, and, therefore, before it can have been acted on in any way, I can see no reason why the council should not reconsider any determination it may have come to. Without alleging anything in the nature of want of good faith, circumstances will readily suggest themselves in which the interests of good municipal government it would be proper and desirable that an application should be reconsidered, and it would be unreasonable that the council should not have the power of reconsideration. I do not overlook the argument that applications of this kind are not matters of mere domestic or internal concern, but that, in such cases, the council is exercising a statutory power of interfering with individuals in the exercise of their rights of ownership over land, and that no power of reconsideration is conferred in terms by the Act; but I do not think that this concludes the matter. I think, on the contrary, that as long as the council acts in good faith it has an inherent power to reconsider its determination before notifying its decision to an applicant, and the Legislature seems to have contemplated this, and to have provided against undue delay, by enacting in s. 341 that if a decision is not given within 40 days an applicant may appeal to a district court judge.[11]
[11] Renouf, 466 467 (emphasis added).

Shanahan[12] was heard ~50 years after Renouf and concerned an application for approval for the erection of a building under the LocalGovernment Act 1919 (NSW).
[12] Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740; (1973) 28 LGRA 218.
The Council approved the application on 11 September 1973 but before the termination of the meeting a rescission motion was lodged.
The application was brought by two individuals, one of whom was a councillor who, quite properly, had recused himself from the meeting during determination of the application and who became aware (informally) of the result when he rejoined the meeting.
Both applicants sought a declaration that the approval of 11 September 1973 was valid and subsisting. StreetCJ in Eq considered the decision in Renouf as well as several other subsequent decisions to the same effect and said as follows:
Running throughout this line of cases is the requirement of a decision, and a communication of that decision, by a council before approval such as is here under consideration passes beyond the subsequent control of the council, whether by way of rescission or alteration. And equally running throughout that line of cases is the necessity for the communication of the approval to have some formal character as being authenticated on behalf of the council. Admittedly it need not be under the seal of the council. But clearly enough it must be more than that which took place in the present case, namely a mere informal ascertainment by the second plaintiff, an alderman of the council, of what had taken place in the council meeting during his absence. I consider, accordingly, that the decision by this council that the building approval be granted had not gone beyond the recall of the council, in that it had not been the subject of notice to the applicants so as to tie the council's hands.[13]
[13] Shanahan, 744.
In Townsend Lloyd J noted the provisions of s 80 of the Environmental Planning and Assessment Act 1979 (EPAAct) (which is in very similar terms to cl 68(2) and cl 77(4) of the deemed provisions) and s 81(1)(a) of the same Act as well as cl 68A and cl 69(1) of the relevant regulations which together provide (in similar fashion to cl 70(2) of the deemed provisions) that notice must be given in a form which provides, amongst other things, the date on which the decision being notified is effective. He then held, referring to both Renouf and Shanahan:
The provisions of the Act and Regulation to which I have referred show that there is no effective development consent until a formal notice of determination is given to the applicant.[14]
[14] Townsend at [19].
On that basis he held that the council had not acted unlawfully in failing to give a notice of its decision in circumstances where a notice of motion to rescind that decision was received before the deadline by which such notice must be provided.[15]
[15] Townsend at [21].
Very recently Darke J of the NSW Supreme Court followed that line of authority in Sentinel[16] which concerned the entitlement of the parties to the deposit monies under a contract for the sale and purchase of property which had been terminated.
[16] Sentinel Orange Homemaker Pty Ltd v Davis Investment Group Holdings Pty Ltd (in liquidation) [2021] NSWSC 550.
In issue was whether development approval had been granted in time, which was a condition precedent to the contract. There was no doubt that the Council had made its decision before the relevant deadline and that formal notice of that decision had not been given prior to that date.
There was also no doubt that a representative of the defendant (Mr Basha) had become aware of the decision prior to the relevant deadline of the council's determination but it was unclear as to how that information had been obtained save that it was 'informally'.
Darke J referred to several authorities including Shanahan and other cases referred to by Street CJ in Eq in that case and held:
Mr Basha was informed in some fashion that the Council had given its approval to the development application. The means by which that information was conveyed is unclear on the evidence. One possibility is that the information came from a live stream of the meeting. If that is so, I do not think that it would amount to the giving of a notification of the determination made by the Council. A witnessing of the proceedings of the Council as they happen, whether the witness is present in the audience or is viewing from a remote location, may enable the witness to ascertain that the Council has made a certain decision, but this is not the same as receiving a notice from the Council that a certain decision has been made.
Another possibility is that the information came from a text message from a Council staff member. Such a communication might be capable of amounting to a notice from the Council that a decision had been made to approve the development application. However, in the absence of firm evidence of the contents of the text message and the status within the Council of the sender of the message, I would not be prepared to find that the text was in the nature of a formal communication of the Council's decision, made by a person authorised to do so (see Shanahan …, 744). A similar point can be made about any communication made by telephone, which was another possibility mooted by the plaintiff.[17]
[17] Sentinel at [61] [62].
One of the authorities referred to by Darke J is Notaras.[18] That decision forms part of a line of cognate cases which have held that a formal notice of determination which is inconsistent with the terms of the determination is invalid.
[18] Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230.
The leading decision in this regard appears to be Pselletes.[19]
[19] Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 77 NSWLR 287; (2009) 168 LGERA 59.
In Pselletes the NSW Court of Appeal was concerned with an application for various alterations to a dwelling including the construction of a balcony. Following objection to the balcony by a neighbour, the applicant unconditionally withdrew so much of the application as related to the balcony. The council officer's report recommended approval of the application excluding the balcony and the delegated officer's decision was made in the same terms. However, the Notice of Determination on its face purported to approve the entirety of the original development application, including the proposed balcony.
At [47] the Court[20] held that the authorities:
make it clear that as a matter of statutory construction it was the determination of the consent authority under s 80(1)(a) [of the EPA Act] to grant consent to a development application which constitutes the development consent and that the notice of determination issued pursuant to s 81(1) does not in itself constitute that consent but is merely evidence of it. The juxtaposition, as well as the text of each of these provisions, makes this clear as a matter of statutory interpretation.
[20] The decision of Tobias JA constituted the decision of the Court with Ipp JA and Sackville AJA agreeing with him.
That is, although the decision has been made it does not have effect if notice of the decision has not been properly given.
The respondent submitted that the only relevant difference between the statutory regimes in NSW and WA was that the NSW regime required notice to be given which must contain the date on which the approval is to take effect, whereas in WA cl 70(2) provides that the approval takes effect upon the giving of that notice.
It was said that the WA regime more clearly enunciates that the decision of approval remains inchoate until notice is given and therefore there is even more reason to reach the view reached in the NSW cases than is the case under the NSW regime.
I am not convinced that that is so but I need not determine that question at this stage.
The applicant's case in this regard insists that cl 70 provides for a twostep process the second of which, the giving of notice:
is simply to confirm that the date of a development approval is taken to be the date upon which a determination notice issues to a proponent (which can be relevant to things such as substantial commencement periods and exercising review rights).
… the purpose behind clause 70(2) … is not to provide local government with a second layer of discretion to exercise in the development application process.[21]
[21] Applicant's Outline, paras 26-27.
As noted above, the NSW cases are consistent with the view that the decision/ notification process is a 'two-step' process but as also noted above they conclude that although there are two steps, the process is not complete until the second step has been carried out and, until that occurs, the first step may be revisited. I see no reason why the same result ought not to follow here in relation to cl 70(2).
In addition to Franco, which is addressed above, the applicant cited two previous decisions of the Tribunal in support of its contention that the respondent is functus officio upon the making of a decision without the need for notice of that decision to be given.
The first case relied upon is AAA Egg.[22] In my view the decision doesn't assist either way. It concerned the proper construction of an unusual council resolution which on its face didn't determine the application one way or another.
[22] AAA Egg Company Pty Ltd and Shire of Gingin [2013] WASAT 149.
The second case relied upon by the Applicant is, in my view, supportive of the respondent's position rather than the applicant's. In Project Development[23] the applicant sought review of a refusal for use of part of a building for a liquor store. A previous approval had been granted for the construction of the building and its use for various purposes but specifically excluded use for the purposes of a liquor store. The council made that clear by deleting the words 'and liquor store with drive through facilities' from the approval.
[23] Project Development WA Pty Ltd and City of Bayswater [2010] WASAT 41; (2010) 71 SR (WA) 171.
At paragraphs [16] and [17] Parry SM (as his Honour then was) said:
Before the Council issued a notice of determination in relation to the development approval, the City received a written request from three councillors to rescind the planning approval of 24 February 2009. The rescission motion was put to a special Council meeting on 15 April 2009, where it was lost. As a result, the Council's substantive resolution of planning approval of 24 February 2009 took effect.
On 16 April 2009, the Council issued its notice of determination of planning approval, subject to 20 conditions. … Significantly, the description of the proposed development did not include a liquor store or bottle shop and drive through facilities. …
Accordingly, Parry SM held that '[o]n the proper construction of the City's planning approval of 16 April 2009 [i.e. the date of the notice, not the determination] there was no approval of the liquor store in Shop 2'.[24]
[24] Project Development at [33].
Project Development therefore appears to support both the view that the correct legal position is consistent with that of the respondent's submissions and that that correct legal position reflects the practice of a least some local governments in this State.
In its written submissions the respondent noted the decision of Aznavour[25] as authority for the proposition that in the absence of specific legislative provision, a development approval cannot be amended or revoked.
[25] Aznavour Pty Ltd v City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173.
At the hearing counsel for the applicant referred to that case and proposition, and noted that cl 77 of the deemed provisions provides explicit power to vary or cancel a development approval on application by a landowner but not on a local government's own initiative.
It is therefore necessary to consider that decision.
Aznavour concerned judicial review proceedings in which it was said that conditions imposed by the respondent on 25 October 2001 were invalid in that they were inconsistent with conditions previously imposed on 20 February 2001 in relation to the same proposed development.
Although the Court found that there was no such inconsistency (and the relevant passages as to the power to revoke might therefore be described as obiter), the decision is accepted as authority for the proposition that there is no power in Western Australia to revoke a grant of development approval absent express statutory power.[26]
[26] See, for example, Bakker and City of Nedlands [2005] WASAT 106 at [42] - [45].
Miller J said at [25]:
The submissions of the applicants that in the absence of the [sic a] legislative provision allowing revocation or variation of a planning approval, a purported revocation or variation is invalid are undoubtedly correct. It is unnecessary to refer to the cases cited in support of that proposition, because in my view, the resolutions … did not constitute a revocation or variation of condition 2.2 of approval to Stage 1 at all.
It seems to me likely that the authorities to which Miller J found no need to refer are those referred to in the following passage from RobertsSmith J at [38]:
It was common ground that there is no legislative provision which would enable the first respondent to revoke or vary a planning approval once given. It may be accepted that in the absence of such legislative authority, a purported revocation or variation is invalid; R v Berri District Council; Ex parte H L Clark (Berri) Pty Ltd (1984) 36 SASR 404; Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254; 73 LGERA 258.
In my view, the statements of legal principle declared by Miller J and RobertsSmith J ought to be seen as consistent with those in Berri.[27]
[27] The decision in Remove All Rubbish merely follows and confirms that of Berri: Remove All Rubbish Co Pty Ltd (1991) 73 LGERA 258, 261.
In Berri, development approval was provided for a shopping centre subject to a condition that substantial commencement occur within 12 months. The applicant later sought an extension of that period of time, which was granted. Objectors then sought judicial review of that decision claiming that it amounted to the variation of the previous approval for which there was no power.
The decision turns on the relevant statutory regime in which an implied power of amendment was found but in so finding, Cox J (with whom King CJ and Legoe J agreed) held that the general principle that there is no power to revoke or amend in the absence of a statutory power to do so only applies where the decision to grant development approval has both been made and communicated. At pages 416-417, Cox J said:
If the council has merely resolved to grant its consent but the necessary notification has not yet been given to the owner, the formal act required by subs. (5) [that is, the giving of consent in writing for the erection of a building] will not have occurred and it will be open to the council to rescind its earlier decision. Ex Parte Renouf; Shanahan v Strathfield Municipal Council. However, once the council has notified the owner of its consent in writing, it has fulfilled its statutory function. It may afterwards regret its decision, it may possibly by following its rescission procedures formally disavow what it has done, but it cannot effectively claim that it did not give the owner the consent in writing that s. 41 requires. It has sometimes been suggested that a consent of this kind may afterwards be revoked or varied, even if notified to the owner, as long as the owner has not begun to carry out the works in question or has not otherwise incurred expenditure. … A test of proven detriment would, in my view, be far from ideal. … At any rate, the preponderance of authority, as it seems to me, favours the view that there is no general power to revoke or vary a typical planning consent, once it has been notified to the owner, whether he would thereby suffer a detriment or not, and this appears to accord with the way in which the statutory device is framed in such cases. …[28]
[28] Citations omitted.
Aznavour was decided (as were AAA Egg and Project Development) prior to the promulgation of the deemed provisions.
But it seems to me that cl 70(1) and (2) merely creates a regime consistent with the principles set out in Berri and apparently adopted in Aznavour; that is, until notification is given to the applicant a decision has no effect and may be rescinded and remade.
That is, in my view, the correct legal position in Western Australia is that, barring mala fides, a council decision made under cl 68(2) or cl 77(4) of the deemed provisions may be revoked or varied at any time prior to the receipt of notice of the decision by the applicant.
In so saying I am conscious that the above paragraph uses the language of 'receipt' whereas cl 70(2) uses the language of 'given' – '… on the day on which the notice of determination is given to the applicant'.[29]
[29] Emphasis added.
The purpose behind the requirement for notice to be given is the protection of the rights of the applicant; statutory rights of review and the time within which substantial commencement must occur will begin to run from the date on which notice is given. In that context 'given' cannot mean when notice is sent. It must mean when it is received.
That is because, as was noted by the High Court in Lebnan,[30] the granting of an approval involves a communication of the fact of the approval between two minds and no meeting of minds can occur until receipt.[31]
[30] Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350, 359.
[31] See also Hillgrove v Town of Claremont (1996) 15 SR (WA) 265, 271.
Thus far the focus of these reasons has been on the question whether the NSW (and SA) authorities apply in WA despite (or because of) the relevant provisions of the deemed provisions.
The applicant's case is that they do not because of cl 70(2) and I disagree for the reasons set out above.
It is then necessary to consider whether there is anything in s 26 and s 31 of the SAT Act that demand a different result.
The applicant insists that those sections demand a different result because they refer to the remaking of a decision and make no reference to the giving of notice of such a decision.
In response, the respondent submits that a reconsideration under s 31 of the SAT Act is not actually made under s 31. Rather, the respondent says s 31 merely gives the decisionmaker power to reconsider the decision under review but the reconsideration decision itself is made pursuant to cl 68(2) or cl 77(4) as the case may be.[32]
[32] Respondent's Submissions, paras 1920.
With respect, I disagree. Section 31(1) of the SAT Act provides the Tribunal with the power to invite the decisionmaker to reconsider the decision. Section 31(2) then empowers the decisionmaker to:
(a)affirm the decision, or
(b)vary the decision; or
(c)set aside the decision and substitute its new decision.
Section 31(2) is therefore in very similar terms to both cl 68(2) and cl 77(4) of the deemed provisions. It seems to me any reconsidered decision is made under the subsection rather than the relevant clause of the deemed provisions.
As such, there is no express equivalent to cl 70(2) which requires notification and no specific provision to say when the decision takes effect.
However, in my view that does not have the effect for which the applicant contends.
The reason for that is found in the decision of Lebnan to which reference has already been made. The relevant passage is as follows:
The very notion of giving approval or consent involves a communication between two minds, and an approval or consent cannot be complete and efficacious until it has been communicated to the person intended to act on it. The natural meaning of the words "the date of the approval" in s. 315, and "the date of the consent", in cl. 38(2), is the date on which the approval or consent is communicated, but if the expressions are ambiguous, and capable of referring also to the date on which the council resolves to approve or consent, the ambiguity should in my opinion be resolved in favour of the former meaning; the fact that an approval or consent lapses if work is not substantially commenced within twelve months after its date supports that view.[33]
[33] Lebnan, 359.

It seems to me plain from the above passage that the core proposition – that effective approval requires communication – is not informed by, and is certainly not dependent upon, a statutory provision which imposes on obligation to notify.
The final sentence in the quoted passage makes that explicit but in any event the proposition appears to me to stand on its own two feet – a decisionmaker cannot be said to have granted approval to carry out an act that is otherwise unlawful unless and until the applicant has been told that the approval is granted.
In my view the proposition is no less powerful in the context of a reconsideration. True it is that the right of review and the duty of substantial commencement do not arise, but the applicant must make decisions following the reconsidered decision about the future conduct of the review proceeding, including whether or not to proceed with it or to withdraw.
That requires confirmation as to the nature of the decision and certainty as to its content. Anything less precludes the applicant from taking advice, considering its options and making a decision how to proceed.
Which brings me to the final issue that requires determination of whether the awareness had by the applicant of the respondent's decision of 2 February 2022 was sufficient in this case to amount to the necessary 'meeting of minds'; that is, whether there has been sufficient notice, albeit informal, to justify the Lebnan test.
At some stage between the meeting date of 2 February 2022 and 9 February 2022 when the applicant's solicitors wrote to the Tribunal seeking a directions hearing, the applicant must have become aware of the decision and the Notice of Motion.
However, the Agreed Statement of Facts is entirely silent on the issue as to how that knowledge was obtained.
In the hearing it was agreed by the parties that although the applicant may have become aware of the decision through a local newspaper, the first communication about the decision from the respondent was when the Notice of Motion was provided to the applicant's solicitors by those of the respondent on 9 February 2022.
As noted above, the New South Wales authorities appear to allow a degree of flexibility in the manner in which notice is given.
That is, the New South Wales cases appear to allow the determination to take effect despite the prescribed form of notice not being given. They do, however, require that to be effective the notice must be sufficiently 'formal'.[34]
[34] Most recently, Sentinel at [55] - [63].
In that regard, the decision of Panagopoulos,[35] which the Tribunal in Hillgrove(above) referred to, goes further than the predominant line of NSW authority as to what constitutes sufficient notice.
[35] Panagopoulos v Willoughby City Council (1992) 78 LGERA 270.
That decision concerned an application for amendment of a previous approval and Bignold J found that the relevant statutory regime differed to that concerning applications for development approval simpliciter.
As noted above, the NSW Supreme Court in Sentinel held that watching a council meeting live in person or by livestream was not sufficient to 'take the decision beyond the recall of the Council'.[36]
[36] Sentinel at [63].
That is consistent with decisions such as Shanahan that require communication of the decision by the council to the applicant 'to have some formal character'.[37]
[37] Shanahan, 744.
In my view, the crux of those decisions is that there is no 'meeting of minds' unless someone authorised to do so tells the applicant of the council's decision.
Equally, there can be no 'meeting of minds' as to the decision made if the decision is communicated at the same time as knowledge of a proposed notice of revocation.
In my view communication of a decision must be made by someone authorised to do so and unequivocally communicate that the decision was made. The simultaneous communication of a notice of motion to rescind places the status of the decision in doubt and cannot, therefore, fulfill the required function.
Accordingly, I am not satisfied that the respondent has completed its reconsideration of the decision under review pursuant to s 31 of the SAT Act and it therefore seems to me that s 26 has no effect.
Put another way, in the absence of notice of the 2 February 2022 decision, s 26(e) is still in play in that the Tribunal's invitation of 9 November 2021 to the respondent to reconsider its decision remains unfulfilled.
Therefore, I do not propose to make the declaration sought by the applicant and the respondent is free to consider the Notice of Motion to revoke at its meeting on 28 February 2022.
Before concluding it is necessary to say something about the practical effects of this decision.
Counsel for the applicant submitted that to find that a reconsideration decision under s 31 remained ineffective until it was communicated to the applicant would cause practical difficulties.
Specifically, it was said (and it is so) that the Tribunal routinely invites the decisionmaker to reconsider the decision under review on or before a date known to be one on which the relevant council will meet.
It was then said that if the decision is not effective until it is communicated then the failure to communicate the decision until after that date will mean that the Tribunal's invitation has expired and, therefore, the reconsidered decision will not be the decision under review pursuant to s 31(3).
While there seems to be some considerable strength to that submission it does not, in my view, militate against the finding that a decision under s 31 will not be effective until communicated.
Rather, it simply means that to be effective, any decision made by the respondent on 28 February 2022 will need to be promptly communicated by someone with authority to do so.[38]
[38] These reasons were delivered in draft to the parties following which I heard them as to the orders which should be made. The parties were agreed that the date for reconsideration should be extended to the day immediately prior to the next listed directions hearing, thus avoiding the need for very prompt notice averted to in this paragraph. Order 3 reflects that outcome.
It also means that future Tribunal orders which invite reconsideration should provide a suitable period (say, 10 days) after the known council meeting to allow communication of the reconsidered decision to occur.
For the above reasons the Tribunal orders:
1.The application for declaration is dismissed.
2.The interim injunction granted by the Tribunal on 11 February 2022 restraining the respondent from acting upon the notice of motion regarding its reconsideration decision of 2 February 2022 is discharged and is of no further effect.
3.Order 2 of the Tribunal's orders made 9 November 2021 is varied by deleting the date 28 February 2022 and replacing it with the date 10 March 2022.

ATTACHMENT A

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE J Jackson, DEPUTY PRESIDENT
28 FEBRUARY 2022