RPOINT LAND PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2020] WASAT 92

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT (LOCAL PLANNING SCHEMES) REGULATIONS 2015 (WA)
CITATION:   RPOINT LAND PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2020] WASAT 92
MEMBER:   MR S WILLEY, SENIOR MEMBER
HEARD:   12 JUNE 2020
DELIVERED          :   12 JUNE 2020
PUBLISHED           :   12 AUGUST 2020
FILE NO/S:   DR 21 of 2020
BETWEEN:   RPOINT LAND PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
ANKETELL PROPERTY INVESTMENTS PTY LTD
Proposed Intervener

Catchwords:

Practice and procedure - Town planning - Application to amend approved Structure Plan - Application to intervene by third party - Third party owns land within the Structure Plan - Proceedings programmed for reconsideration - Principles relating to the interpretation of planning schemes - Deemed provisions - Nature of a Structure Plan

Legislation:

City of Kwinana Local Planning Scheme No 2
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 8(1)(c), reg 10(4), Sch 2, Pt 4, cl 14, cl 15, cl 16, cl 16(2), cl 16(3), cl 18, cl 18(2)(a), cl 19(1)(a), cl 20(2), cl 22(1), cl 25, cl 27(1), cl 27(2), cl 29(1), cl 29(2)
Planning and Development Act 2005 (WA), s 3(1)(b), Pt 10, Pt 14, s 243, s 257B(2)
State Administrative Tribunal Act 2004 (WA), s 9, s 31, s 36, s 36(1), s 37(3), s 38

Result:

Request to determine application to intervene ahead of reconsideration declined

Summary of Tribunal's decision:

In these proceedings Rpoint Land Pty Ltd (applicant) seeks review of the decision of the Western Australian Planning Commission (respondent) not to approve its proposed amendment to the Anketell North Local Structure Plan (Application). The Application includes land owned by the applicant as well as other land that it does not own. The Application is programmed for reconsideration by the respondent.

Anketell Property Investments Pty Ltd (Proposed Intervener) owns land that is included in the Application and, on that basis, has applied to intervene pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA). Because it is an affected landowner, the Proposed Intervener considers that its application to intervene should be determined ahead of the respondent's reconsideration.

The applicant and the respondent disagree. They each submit that the question of intervention should be dealt with in the ordinary course, which in the context of planning reviews, is generally only once a matter is programmed to a final hearing and the issues between the parties are known. The applicant and the respondent consider that only when the issues in contest are known, the role of the Proposed Intervener, and its capacity to assist the Tribunal in meeting its objectives, can be properly evaluated.

The Tribunal determined that the Proposed Intervener's application to intervene should be determined once the Application is programmed to a final hearing. Despite the Proposed Intervener raising what it says is a 'jurisdictional issue', the Tribunal found that the statutory scheme for the preparation and amendment of structure plans, provided by Pt 4 of Sch 2 to the Planning and Development (Local Planning Scheme) Regulations 2015 (WA), appears to contemplate that a 'person' may prepare or amend a structure plan which includes not only land that they own. That being the case, the Tribunal found that the question of intervention by the Proposed Intervenor did not require immediate determination.

Category: B

Representation:

Counsel:

Applicant	:	M Flint
Respondent	:	I Repper and B Loftus
Proposed Intervener	:	J Skinner

Solicitors:

Applicant	:	Flint Legal
Respondent	:	State Solicitor's Office
Proposed Intervener	:	Thomson Geer

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

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 45 LGRA 245
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Curlewis and City of Albany [2011] WASAT 85
FMG Pilbara Pty Ltd and Minister for Indigenous Affairs [2012] WASAT 31; 79 SR(WA) 177
Glenbrook Nominees Pty Ltd and City of Perth [2009] WASAT 3; (2009) SR (WA) 266
Gnarabup Beach Pty Ltd v Shire of AugustaMargaret River [2004] WASCA 8; 137 LGERA 129
ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; 59 SR (WA) 184
Johnson v Minister for Planning [2018] WASC 334
Mushroom Exchange Pty Ltd and City of Kwinana [2015] WASAT 59
Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71
Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89; (2018) 241 LGERA 1
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
Re The State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; 34 WAR 342
Sanders v City of South Perth [2019] WASC 226
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59; 97 SR (WA) 270
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons for decision were delivered extemporaneously on 12 June 2020. At the time of delivery, I advised the parties that if I decided to publish these reasons, I reserved the right to include more fulsome details as to the relevant background to this matter, the statutory context in which the application is made, the submissions from the respective participants, as well as correcting any issues in relation to grammar, syntax or readability.)

Introduction and background

These reasons relate to a case management decision as to when an application to intervene pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) should be considered by the Tribunal.
The proceedings arise in the context of a proposed amendment to a structure plan prepared pursuant to Pt 4 of Sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (the deemed provisions). The applicant in these proceedings is Rpoint Land Pty Ltd (applicant).
The applicant has prepared a proposed amendment (Amendment No 4) to the Anketell North Local Structure Plan (Application). The Application involves land that is owned by the applicant as well as other land that it does not own.
The application to intervene under s 37(3) of the SAT Act is put forward by Anketell Property Investments Pty Ltd (Proposed Intervener) which owns land within the area covered by the Application.
The Proposed Intervener is also the applicant in relation to its own proposed amendment to the Anketell North Local Structure Plan (Amendment No 5) which is currently before the Tribunal in proceedings DR 71 of 2020. Amendment No 5 only relates to land that is owned by the Proposed Intervener.
Therefore, there are two competing and incompatible proposed amendments to the Anketell North Local Structure Plan (Structure Plan).
In terms of case management and programming, both matters have been the subject of mediation conferences and the Tribunal has made orders, pursuant to s 31 of the SAT Act, inviting the respondent to consider its decision in both proceedings. Both matters will be reconsidered by the Western Australian Planning Commission (the Commission or respondent) on 21 July 2020.
The relevant question for present purposes is when should the Proposed Intervener's application to intervene under s 37(3) of the SAT Act be determined. More precisely, I must evaluate whether the circumstances of this case require the question of intervention to be determined prior to the Commission's reconsideration on 21 July 2020.
Before I turn to the respective submissions on that issue, I will first provide a brief outline of the relevant statutory framework for the preparation and amendment of structure plans. I will then canvas the applicable principles that inform the question of intervention in reviews under the Planning and Development Act 2005 (WA) (PD Act).

Principles of interpretation for planning schemes

By reason of s 257B(2) of the PD Act (and regs 8(1)(c) and 10(4) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)), the deemed provisions form part of the City of Kwinana Local Planning Scheme No 2 (LPS 2).
Even though LPS 2 has statutory effect and the orthodox rules of construction apply, it is relevant, as matter of legislative context, that planning schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament: Sanders v City of South Perth [2019] WASC 226 at [98][99] (Quinlan CJ) .
It is also settled law that planning schemes are to be construed broadly and sensibly, not pedantically: Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 at [84] (Buss P, Murphy and Mitchell JJA) (Australian Unity); Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 at [25] (McLure JA, Steytler P and Pullin JA agreeing) and Johnson v Minister for Planning [2018] WASC 334 at [125] (Smith AJ).
Planning schemes should be 'applied in a practical and commonsense, and not an overly technical way, in a fashion that will best achieve their evident purpose': Paintessa Developments Pty Ltd and Town of East Fremantle [2014] WASAT 81; (2014) 85 SR (WA) 312 at [21].
The need to read and apply planning schemes in a practical fashion having regard to their town planning purpose is not diminished, in my view, by reason that the deemed provisions were drafted by Parliamentary counsel.

Statutory framework for structure plans

The statutory framework for structure plans is established by Pt 4 of the deemed provisions. The relevant statutory framework was comprehensively set out and explained by the Tribunal in Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59; 97 SR (WA) 270 at [6][26]. The effect of the deemed provisions on the preparation of structure plans was also the subject of analysis in Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [40][48].
For present purposes, it is not necessary for me to set out the statutory scheme relating to structure plans in close detail. However, for clarity, I will provide a brief summary.
The deemed provisions define a 'structure plan' to be 'a plan for coordination of future subdivision and zoning of an area of land': cl 14, deemed provisions. The procedure for amending a structure plan is, with any necessary changes, the same as for the making of a structure plan: cl 29(2), deemed provisions.
Clause 15 of the deemed provisions sets out the circumstances in which a structure plan may be prepared. The requirement for a structure plan derives from the local planning scheme, a relevant State planning policy or where the Commission considers a structure plan to be necessary as a matter of orderly and proper planning.
Clause 16 of the deemed provisions deals with both the content of a structure plan as well as the question as to who may prepare a structure plan.
A local government may prepare a structure plan: cl 16(2), deemed provisions. Clause 16(3) of the deemed provisions provides that 'a person may make an application … for a structure plan prepared by the person' if the person is inter alia 'a person who is the owner of any or all of the land in the area to which the plan relate[s]'.
A structure plan prepared by the local government, or a structure plan made by a relevant 'person' and 'accepted' by the local government must be advertised: cl 18, deemed provisions.
The rights of (other) landowners, not being the person who prepared the structure plan, include the right to be informed that a proposed structure plan has been accepted and is to be advertised by the relevant local government: cl 18(2)(a), deemed provisions. Furthermore, there is a right to make submissions on a proposed structure plan during advertising: cl 19(1)(a), deemed provisions.
By reason of cl 20 of the deemed provisions, the local government is required to:
(a)report to the Commission on the proposed structure plan ( or amendment); and
(b)consider any submissions received during the advertising process.
The Commission can only make a decision on a structure plan after receiving the local government's report: cl 22(1), deemed provisions.
A review right to the Tribunal is available to the 'person who prepared a structure plan' in accordance with Pt 14 of the PD Act in relation to a decision by the Commission not to approve the structure plan: cl 25, deemed provisions.
I pause here to observe that the review right arises only for the person who prepared the structure plan. In circumstances where the local government prepared the structure plan, the relevant landowners do not have a right of review in the Tribunal. In circumstances where a 'person' (as an owner of land within the structure plan area) has prepared a structure plan, only that 'person' has a right of review.

Intervention in the context of planning reviews

The general principles relating to intervention in planning reviews before the Tribunal are well known and are settled. I now turn to, briefly, canvas those principles.
I commence by noting that the basis for intervention under s 37(3) of the SAT Act can involve the advancement of private interests. A public interest need not be shown: Re The State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; 34 WAR 342 at [40] (Steytler P, Wheeler and McLure JJA) (McCourt).
In McCourt the Supreme Court noted that s 243 of the PD Act, which has the effect of excluding the power of joinder under s 38 of the SAT Act for planning reviews, was likely to correspond with a desire to not allow interveners to expand the issues in dispute as between the decisionmaker and the applicant. This is because, unlike joined parties, interveners are generally not permitted to expand upon the issues to be decided. The Court observed:
In the context of town planning, where a very wide range of concerns are relevant to any decision, one can readily see why Parliament would limit the scope of the inquiry before the [Tribunal] to the matters at issue between the applicant and the decisionmaker, as it has done through [s 242 and s 243 of the PD Act]: at [41].
In terms of the principles that inform the question of intervention under s 37(3) of the SAT Act, these were set out by Judge Chaney (as he then was) in ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; 59 SR (WA) 184 at [28] (ING). These principles are:
(a)In order to be granted leave, the proposed intervener must demonstrate at least an interest sufficient to gain standing based on the tests arising from Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 45 LGRA 245 (Gibbs J, Stephen J, Mason J and Murphy J) (Australian Conservation Foundation).
(b)Demonstrating a sufficient interest does not, of itself, justify the granting of leave to intervene.
(c)A special interest group will not gain standing to intervene just because its constitutional objects focus on issues relevant to the matter before the Tribunal nor will a private citizen gain standing to intervene merely on the basis of strong personal beliefs.
(d)The interest in question need not be a legal interest (although it often will be).
(e)Demonstrating an interest such as to justify joinder under s 38 of the SAT Act (which provides a power for joinder) is not sufficient.
(f)The proposed intervener will need to demonstrate that intervention is necessary to enable the Tribunal to meet its objectives under both the SAT Act (including minimising costs and avoiding delays) and the PD Act. Relevant factors to consider will include:
(i)the likely contribution of the intervener to the proper disposition of the issues;
(ii)whether the interest to be represented and the material to be advanced will be adequately dealt with by the parties to the proceeding; and
(iii)the overall impact that the grant of intervention will have on the proceeding.
(g)Ordinarily an intervener will only be permitted to support or oppose a decision contended for by a party and will not be permitted to introduce new issues for consideration.
(h)Intervention will generally not be permitted where the third party seeks to raise the same point that is being raised by an existing party.
In Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29 at [11] (Wattleup Road) Judge Parry recited the principles set out in ING and identified what he considered to be the two principal elements in the exercise of discretion under s 37(3) of the SAT Act: at [11], Wattleup Road. The two principal elements are that the proposed intervener:
1)must demonstrate an interest sufficient to meet the test for standing to seek judicial review as set out in Australian Conservation Foundation; and
2)will generally need to demonstrate that intervention is necessary to enable the Tribunal to meet its objectives as well as the objectives of the PD Act.
By reason of the second of these principal elements, the question of whether intervention should be granted under s 37(3) of the SAT Act is, ordinarily, not determined until a matter is programmed to final hearing and the parties have each filed their respective statements of issues, facts and contentions. This is because, only at that point, are the issues in contest between the parties known and therefore the role and likely contribution of any proposed intervener, to the Tribunal achieving its objectives under the SAT Act, may be properly evaluated.
An unusual example of an intervener being granted intervention early in proceedings and also being permitted to also bring its own issues forward for consideration arose in Curlewis and City of Albany [2011] WASAT 85 (Curlewis).
In Curlewis the intervener was the applicant for development approval which had been approved. A third party commenced a Tribunal review of the decision to approve the development (the City of Albany's planning scheme at the time contained third party appeal rights). In those circumstances the Tribunal granted intervention and allowed the intervener (as the applicant for the development in question) to advance its own case as though it was a named party to the proceeding: Curlewis at [118].

Submissions on the question of intervention

The Proposed Intervener's submissions

It is convenient to begin with a broad outline of the Proposed Intervener's submissions. In terms of the issue which I must resolve in these reasons, the Proposed Intervener submits that its application to intervene pursuant to s 37(3) of the SAT Act, can be determined 'at any time'.
The gravamen of the Proposed Intervener's argument is that because it owns land that is within the Structure Plan area defined by the Application, its case for intervention is compelling. Whilst the effect of granting intervention would make the Proposed Intervener a 'party' to the proceeding (perforce of s 36(1) of the SAT Act), such an outcome would not be incongruous or contrary to the Tribunal's objectives under the SAT Act.
Because the Proposed Intervener owns land within the Structure Plan area the subject of the Application, it submits that the question of intervention should be determined prior to the Commission's reconsideration.
Furthermore, the Proposed Intervener raises what it says is a 'jurisdictional issue' in that it submits that the statutory scheme for structure plans, properly understood, does not allow a person to seek to amend a structure plan over land which they do not own. The Proposed Intervener submits that, properly interpreted, cl 29(1) of the deemed provisions should be construed to require a person who initiates an amendment to a structure plan to own all of the land that the amendment relates to.

The Proposed Intervener sets out that 'there is a fundamental and material distinction' between applications to intervene in relation to subdivision and development applications as against structure plans: Proposed Intervener's Submissions at [16]. This is because subdivision and development applications can only be made by, or with the consent of, the relevant landowner and as such there is no prospect of a 'third party appeal'. In this instance, a portion of the land the subject of the Application is owned by the Proposed Intervener.
Because the Proposed Intervener owns land that is included in the Application, Mr Skinner, counsel for the Proposed Intervener, draws parallels to Curlewis where the Tribunal granted intervention to the affected landowner at an early point in the proceedings.
Notwithstanding the jurisdictional issue that it seeks to raise, the Proposed Intervener submits that if a person can seek to amend a structure plan over land which they do not own in the absence of the consent of those landowners, then affected landowners should be able to intervene in any review lodged by the proponent of a structure plan, pursuant to s 37(3) of the SAT Act. It further submits that the circumstances in this case are 'exceptional' such as to justify a departure from the Tribunal's ordinary practice as to when applications to intervene are determined: Proposed Intervener's Submissions at [22].

The Commission's submissions

The Commission does not support the application for intervention being determined at this time. The Commission also submits that if the application for intervention is to be determined ahead of its reconsideration of the Application, it should be declined.
The Commission submits that it is inherent in the statutory framework provided by Pt 4 of the deemed provisions that a structure plan prepared by one person may relate to land that is owned by another person, despite the objection of that person. Furthermore, the 'other person' has no right to seek review of that decision.
This reflects, it is submitted, the nature of a structure plan as a 'plan for the coordination of future subdivision and zoning' in an area. A structure plan necessarily has a strategic, and legislative, character: Gnarabup Beach Pty Ltd v Shire of AugustaMargaret River [2004] WASCA 8; 137 LGERA 129 at [15] (Heenan J) (Gnarabup Beach) which is reflected in cl 27(1) of the deemed provisions. The Commission also refers to Heenan J's observations in Gnarabup Beach at [17] where he stated:
[that the structure planning process] is simply not a decision involving the determination of any rights or obligations of any party, nor the application of discretionary considerations to make a determination in accordance with existing law. Rather, it is part of a deliberative process involving the formulation of policy for eventual decision, by the Commission, for criteria which will need generally to be satisfied when granting subdivisional or development approval of land[.]
The strategic nature of a structure plan is reinforced by cl 27(1) of the deemed provisions which provides that a decisionmaker is to have due regard to, but is not bound by, a structure plan.
The Commission submits that it would be incongruous and contrary to the Tribunal's objectives of encouraging the speedy and cost effective resolution of matters, as set out in s 9 of the SAT Act, for a person who did not prepare a structure plan (or a proposed amendment thereto) to be able to interfere with the possible resolution of a proceeding by way of reconsideration and withdrawal, in circumstances where that person had no underlying entitlement under the statutory scheme to bring the matter before the Tribunal: Commission's submissions at [18].
The Commission submits that a (possible) grant of intervention at this juncture would have the effect of creating new rights for a third party beyond those which it had in relation to the original decision: FMG Pilbara Pty Ltd and Minister for Indigenous Affairs [2012] WASAT 31; 79 SR(WA) 177 at [29][30] (Chaney J) (albeit in the context of joinder pursuant to s 38 of the SAT Act but equally applicable to the question of intervention).
The application to intervene is also premature because it is not yet known what the issues in dispute between the parties are: Mushroom Exchange Pty Ltd and City of Kwinana [2015] WASAT 59 [19][20] (Parry J) (Mushroom Exchange).
The Commission further submits that the fact that another landowner seeks to intervene in a structure plan on review in the Tribunal, does not justify the departure from the Tribunal's usual practice, that an application to intervene is considered too premature to determine until the parties to the proceeding have identified the issues in contest. The fact that the Proposed Intervener is the applicant in DR 71 of 2020 does not alter that position.

The applicant's submissions

The applicant's submissions adopt large portions of the Commission's submissions. The applicant submits that the fact that the Proposed Intervener owns some land that is within the area of land covered by the Application is not a sufficient basis to depart from the Tribunal's usual practice as set out by Parry J in Mushroom Exchange at [19][20].
The applicant further submits that, in terms of the two principal elements set out in Wattleup Road, the fact that the Proposed Intervener owns land within the area covered by the structure plan amendment the subject of the Application can only go to the first element (the question of sufficient interest).
However, the fact that the Proposed Intervener owns land within the Application area does not, of itself, inform the second principal element arising from Wattleup Road (that is, whether its intervention is necessary to enable the Tribunal to meet its objectives under the SAT Act).

Consideration and reasons

The question before me raises a somewhat novel issue in the context of the deemed provisions. I have carefully considered the submissions that have been presented to me both in written and oral argument.
For the following reasons, I decline to programme and determine the Proposed Intervener's application to intervene in DR 21 of 2020 ahead of the Commission's reconsideration of the Application pursuant to s 31 of the SAT Act.
Firstly, while the question of the ownership of land within the area covered by the Application is an issue which does weigh on my mind, that issue arises in the statutory context of Pt 4 of the deemed provisions. In terms of the statutory scheme provided by Pt 4, I consider, at least provisionally, that landowners are permitted to prepare structure plans over land that they do not own, provided that they own some land in the structure plan area. That, to me, is the effect of cl 16(3) of the deemed provisions. In that sense, I disagree with Mr Skinner, counsel or the Proposed Intervener, that the application to intervene is so 'exceptional' that it demands immediate consideration.
A structure plan is different from a subdivision or development application whereby the question of landowner consent issue is more sharply in focus: see for example Glenbrook Nominees Pty Ltd and City of Perth [2009] WASAT 3; (2009) SR (WA) 266 at [50]-[51]; Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71 at 84.
This is because a structure plan is a strategic planning document for the purposes of guiding the future exercise of discretion. A structure plan does not determine, in any final sense, the rights or obligations of any party. A structure plan does not have the force of law. It is a planning instrument to which 'due regard' must be given: cl 27(2), deemed provisions.
I should add here that I do not consider that the Commission's submissions quite captured the context of Heenan J's analysis in Gnarabup Beach. Read in context, Heenan J's comments at [17] were referring to the process by which, in that instance, the Shire of AugustaMargaret River considered, advertised and reported on the proposed structure to the Commission, as the 'decision' that does not finally determine the rights or obligations of any landowners.
However, to my mind, I agree with the Commission that Heenan J's overall analysis of the effect of a structure plan in Gnarabup Beach are apposite. A structure plan is not of the same nature as subdivision or development approval processes which are purely executive functions: Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213; (2018) 54 WAR 89; (2018) 241 LGERA 1 at [76] (Buss P, Murphy JA, Mitchell JA).
As Heenan J observed, a structure plan has a quasilegislative character and is strategic in outlook: Gnarabup Beach at [15]. The final rights and obligations in relation to land, at least in the sense contemplated under Pt 10 of the PD Act, are determined via subdivision and development control processes, not by a structure plan.
While the (existing) Structure Plan may indicate a certain spatial arrangement of land uses, that alone does not cement or secure, in any final sense, an actual right of subdivision or development. Only at the point of subdivision or development approval does a landowner have a right to undertake that subdivision or development. Therefore the fact that the Application has been put forward to amend the Structure Plan and to, if approved, change the spatial arrangement of land uses, that does not, of itself, affix or finalise the rights and obligations of the affected landowners.
Secondly, in terms of achieving the Tribunal's objectives, if the Proposed Intervener's application is considered and, indeed granted, ahead of the Commission's reconsideration of the Application, then that reconsideration becomes somewhat of an academic exercise.
This is because a final hearing on the review will be necessary because the Proposed Intervener will, by that time, be a party to the proceedings and will not consent to the matter being withdrawn by consent. Indeed Mr Skinner, to his credit, did not submit otherwise. I appreciate Mr Skinner's candour in this regard.
It is also relevant that the applicant (Rpoint Land Pty Ltd) has not sought to intervene in DR 71 of 2020. That will mean that it will be inevitable that the Application will proceed to a final hearing. However it is not certain that a final hearing will be required in DR 71 of 2020. In the context where there are two competing and inconsistent structure plans before the Commission, as a matter of orderly and proper planning of achieving the optimum planning outcome for this locality, that seems to me to be a less than ideal outcome.
This is because if the Proposed Intervenor's application to intervene was considered (and granted) before the Commission comes to reconsider the Application, the fact that intervention has already been granted may have the potential to colour how the Commission approaches the question of reconsideration.
Thirdly, in an overall sense, I am also concerned that the applicant has followed the statutory scheme provided by Pt 4 of the deemed provisions. That is, the applicant has prepared the amendment to the Structure Plan (as it is permitted to do), exercised its right to a review and is confronted by a third party seeking to immediately intervene in the process before it is known whether there are, in fact, any planning issues in contest between it and the respondent. I am just not sure that, without more, that is a path the Tribunal should follow just because the Structure Plan includes some land that is not owned by the applicant.
The statutory scheme for the preparation of structure plans provided the Proposed Intervener with the opportunity to make a submission on the Application to the City of Kwinana and to have that submission considered.
It is also the case that if the Proposed Intervener does not consider the Application (if approved) to be adequate for any reason, it can prepare its own structure plan and put up that for consideration which, I note, it has done in DR 71 of 2020.
The statutory scheme, in my view, expressly allows for different landowners to prepare their own structure plans and to put them to the local government, and in turn the Commission, for consideration.
While that appears to be the effect of the statutory framework, I do have reservations that such a statutory scheme could be said to be an 'efficient land use planning system', in the sense of the objectives set out in s 3(1)(b) of the PD Act.
However, I also accept there is some force to the submissions made by Mr Repper, counsel for the Commission, in oral argument that an 'efficiency' is gained by the statutory scheme in that landowner consent from all relevant landowners is not required before a structure plan can progress. I agree with Mr Repper that, if the unanimous consent of all landowners was required as a prerequisite to progressing a structure plan over multiple landholdings, then 'very few structure plans would ever get approved': ts 12:39 pm, 12 June 2020.
Fourthly, I also consider that it would be contrary to the Tribunal's general objective of encouraging the speedy and cost effective resolution of matters to determine the Proposed Intervener's application to intervene ahead of the planned reconsideration under s 31 of the SAT Act.
Mr Skinner outlined in oral argument that should intervention be granted, his client would likely seek to add issues to those that may be in contest between the existing parties. That outcome would promote neither the speedy nor cost-effective resolution to this proceeding. However, if intervention is ultimately granted to the Proposed Intervener, it will be necessary to reconsider whether additional issues should be raised for consideration, so as to enable the Tribunal to reach the 'correct and preferable decision' upon the review: s 27(2), SAT Act.
Fifthly, in terms of the two principal elements for intervention outlined by Parry J in Wattleup Road it seems to be common ground that the Proposed Intervener will be able to satisfy the first of these. That is, it does not appear to be in contest that the Proposed Intervenor can demonstrate a sufficient interest in the sense of establishing standing as set out in Australian Conservation Foundation. However, it is not yet known whether the Proposed Intervener can meet the second principal element. This is because it is too early to tell whether intervention is necessary in order to enable the Tribunal to meet its objectives under s 9 of the SAT Act.
While I appreciate the thrust of the Proposed Intervener's submissions in relation to its interests in the Application, in the context of the Structure Plan, I do not consider that there is a compelling case to consider and determine any question of intervention until the issues between the parties are known, and the role of the Proposed Intervener can be more carefully considered. This is because, as I have outlined at [55]-[61] above, even if approved, a structure plan does not finally determine the development rights or obligations that will attach to the Proposed Intervener's land.
Sixthly, the case of Curlewis is distinguishable on the facts as it involved a third party appeal against a development approval that had been granted to a landowner. The landowner who had the benefit of that approval sought to intervene in the third party appeal. That application to intervene was, not surprisingly, granted without delay.
That is a very different factual context to the current circumstances which involve the preparation of a structure plan. A development application does involve a determination of the rights and obligations that attach to land.
Finally, I do not agree with Mr Skinner that the Proposed Intervener's jurisdictional point, in relation to whether the applicant can prepare an amendment to a structure plan that covers more than just its land, is such that it must immediately be determined. The definition of a structure plan in cl 14 of the deemed provisions provides that it is:
… a plan for coordinating future subdivision and zoning in an area.
Without expressing any concluded view on the point, if Mr Skinner is correct, I rhetorically ask how can a structure plan (and amendments thereto) be dealt with holistically, comprehensively and consistently with the principle of orderly and proper planning if landowners have to prepare or amend a structure plan in a silo or otherwise in isolation? My initial view is that to apply the interpretation of cl 16(3) urged by Mr Skinner would result in LPS 2 not being read and applied in a practical and commonsense manner consistent with its town planning purpose.
It is trite to observe that an amendment to a portion of a structure plan has the capacity to have consequential impacts on other parts or even an entire structure plan. The Proposed Intervener's argument on the effect of cl 16(3) of the deemed provisions seems to me, at first blush, to be contrary to the very concept of a structure plan and the coordinating role it plays in planning decisionmaking as a strategic instrument.
While it is an argument for another day, I am not satisfied that the Proposed Intervener's jurisdictional point is sufficiently meritorious that it compels immediate consideration.
For these reasons, the question of intervention in DR 21 of 2020 will not be addressed ahead of the Commission's reconsideration of the Application.
In concluding, I wish to make it clear that all I have done in these reasons is decline to consider the application to intervene at this time. In making that decision, I say nothing about the merits of the Proposed Intervener's application to intervene.
I therefore find that the question of intervention does not need to be resolved ahead of the Commission's reconsideration of the Application (and the structure plan under consideration in DR 71 of 2020) on 21 July 2020.
For these reasons, I will not be making any further orders at this time in relation to the Proposed Intervener's application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR S WILLEY, SENIOR MEMBER
12 AUGUST 2020