Saliba and Town Of Bassendean
[2006] WASAT 58
•10 MARCH 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: SALIBA and TOWN OF BASSENDEAN [2006] WASAT 58
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 10 MARCH 2006
FILE NO/S: DR 418 of 2005
BETWEEN: CARMEL CHARLES SALIBA
Applicant
AND
TOWN OF BASSENDEAN
Respondent
Catchwords:
Local government - Filling of land - Sand piles - Whether "development" - Direction to remove fill - Review of the issue of a notice of direction to this effect - Applicant not present at hearing - Whether reasonable excuse for not attending - Internal review by reconstituted Tribunal - Fresh evidence of alleged verbal approval rejected - Review dismissed and original Tribunal decision affirmed - Decision to issue notice affirmed - Costs application refused
Legislation:
State Administrative Tribunal Act 2004 (WA), s 11(8), s 84, s 84(2), s 84(3), s 84(6)
State Administrative Tribunal Rules 2004 (WA), r 20
Town of Bassendean Town Planning Scheme No 3, cl 5.1.1, cl 5.1.4(c)
Town Planning and Development Act 1928 (WA), s 10, s 10(3)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr C Slarke
Solicitors:
Applicant: Self-represented
Respondent: McLeods
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
The applicant (Mr Saliba) owned a property in the Town of Bassendean (the Town) that he caused to be partly filled with sand without the approval of the Town as required by the local town planning scheme.
Because the applicant failed to comply with requests of the Town for rectification of this breach of the town planning scheme, the Town issued a notice requiring Mr Saliba to remove the fill within 65 days of service of the notice.
The applicant applied to the State Administrative Tribunal (the Tribunal) to review the Town's decision to issue the notice. However, he failed to attend the hearing of the matter.
The Tribunal, in the absence of the applicant, heard evidence from the Town as to the nature of the fill on the applicant's property and why it constituted a breach of the town planning scheme. The Tribunal also heard the history of efforts to rectify the breach of the town planning scheme, and the inability of the Town to obtain satisfactory information from the applicant any reasonable consideration of a related planning application made by the applicant.
The Tribunal concluded on the information before it that the Town's decision to issue the notice was justified.
The applicant sought a review of the Tribunal's decision on the grounds that he had a reasonable excuse for non‑attendance at the hearing. The Tribunal accepted that the applicant had a reasonable excuse for not attending the Tribunal. The review was determined on written submissions, with the applicant submitting new evidence relating to an alleged grant of verbal approval by an officer of the Town.
The Tribunal was reconstituted for the purposes of completing the review.
The Tribunal assessed the new evidence submitted by the applicant in conjunction with further evidence from the respondent in reply. The Tribunal accepted the evidence of the Town from both the first hearing and the review.
The Tribunal therefore dismissed the application for review of the earlier decision of the Tribunal delivered on 14 July 2005 and affirmed its earlier decision which in turn affirmed the decision to issue the notice to the applicant.
Introduction
This is a review under s 84 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) of the State Administrative Tribunal's (the Tribunal) decision to dismiss an application for review of the Town of Bassendean's (Town) decision to issue a written notice under s 10 of the Town Planning and Development Act 1928 (WA) (TPD Act). The notice directed the removal of unauthorised landfill material, namely some sand, placed on the applicant's property, viz Lot 222 (No 37) Schofield Street, Eden Hill in the Town of Bassendean (the Town).
Section 84 of the SAT Act provides that the Tribunal may review its decision if a person was absent from a hearing. So far as is material, s 84 provides as follows (emphasis added):
"(1) In this section –
'relevant hearing', in relation to a decision of the Tribunal, means a hearing at which the decision was made or which preceded the making of the decision but does not include a compulsory conference or mediation.
(2) A person in respect of whom the Tribunal makes a decision may apply to the Tribunal for a review of the decision if the person did not appear and was not represented at a relevant hearing.
(3) The application has to be made within the time limits specified by, and otherwise in accordance with, the rules.
(4) The rules may limit the number of applications that can be made under this section in respect of the same matter without the leave of the Tribunal being obtained.
(5) If on hearing the application the Tribunal is satisfied that the applicant had a reasonable excuse for not attending or being represented at the relevant hearing, the Tribunal is to review the decision and may revoke or vary it if the Tribunal considers it appropriate to do so.
(6) For the hearing of the application the Tribunal is to be constituted under section 11 by the members by whom it was constituted when it made the decision, if that is practicable.
(7) A review under this section —
(a)is part of the original proceeding and not a new proceeding; …"
Under r 20 of the State Administrative Tribunal Rules 2004 (WA) the time limit for the purposes of s 84(3) of the SAT Act is specified as follows:
"(a)in the case of a decision other than a final decision, within 2 days of the day on which the decision was made; or
(b)within 7 days of the later of the days referred to in the Act section 105(5)(a) or (b) [which deals with appeals to the Court of Appeal and the Supreme Court],
whichever is the later."
The first review
The applicant originally sought a review of the respondent's decision to issue the notice by application to the Tribunal dated 15 April 2005.
This application for review of the Town's decision was heard on 14 July 2005. The applicant failed to appear at the hearing and was not otherwise represented. The Tribunal proceeded to receive evidence and to otherwise determine the matter in the applicant's absence.
The Member who heard the July decision (Mr DG Brown), after a short adjournment, decided the matter in favour of the Town and proceeded to give oral reasons for his decision.
Mr Brown found that the application for review should be dismissed as he was satisfied that the evidence submitted was sufficient to demonstrate that the Town's issue of the notice to the applicant was properly made under s 10(3) of the TPD Act.
The request for review
On 19 July 2005, the applicant requested, in writing, a review of the Tribunal's decision of 14 July 2005.
The Tribunal's decision under review in these proceedings was a "final decision" and therefore Mr Saliba had seven days to commence his review. It is common ground that he sought a review within the time limit specified and that he otherwise was an applicant contemplated by s 84(2) of the SAT Act.
The application for review was heard by the Tribunal, constituted by Mr Brown, on 25 August 2005. Again, the applicant failed to attend or provide for his representation at that hearing. The Tribunal subsequently made orders as follows:
"1.By 2 September 2005 Mr Saliba must file with the Tribunal and give to [counsel for the respondent] any typed written evidence and submissions on which Mr Saliba relies in relation to:
(a)his excuse for not attending or being represented at the hearing on 14 July 2005; and
(b)the review of the decision made on 14 July 2005.
2.By 9 September 2005, the respondent must file with the Tribunal and give to Mr Saliba any evidence and submissions in reply.
3.The application for review [is] of the decision made on 14 July 2005 and if that application is granted, the review itself shall be determined entirely on the documents.
4.[The question of costs was reserved.]"
Mr Saliba responded to the Tribunal's orders advising that his omission to attend the Tribunal hearing of 14 July 2005 was because of an alleged phone call from the staff of the Tribunal office to say that the hearing date was changed to 19 July 2005.
The applicant further advised that his failure to attend the Tribunal hearing of 25 August 2005 was because he was in Swan District Hospital with heart problems. A medical certificate issued on 23 August 2005 indicates that Mr Saliba was unfit for work at that time.
Mr Brown commenced to consider the application for a review.
In relation to the evidence submitted by the applicant, the Tribunal noted the history of non‑attendance by the applicant at directions hearings and other hearings associated with the matter. The reason for the possible misunderstanding as to the date of the hearing on 14 July 2005 was not able to be clarified other than the evidence suggested that the applicant might have misinterpreted telephoned timetable information relating to scheduled hearings in other, but similar, matters in which he, the applicant, was involved. As to the non‑attendance at the hearing of 25 August 2005, the reason given that the applicant was suffering ill health at the time was accepted by the Tribunal.
The Tribunal, constituted by Mr Brown, was on balance satisfied that the applicant had a reasonable excuse for not attending or being represented at the July hearing.
However, illness has unfortunately prevented Mr Brown from completing his review. Accordingly, it not being "practicable" for him to complete the review, the Tribunal was reconstituted by the present Member, as is contemplated by s 11(8) and s 84(6) of the SAT Act.
Background to the issue of the Notice
It appears that, sometime in 2004, the applicant's property at No 37 Schofield Street ‑ a more formal description of the land appears below ‑ was filled with sand, apparently without the approval required in accordance with the Town of Bassendean Town Planning Scheme No 3 (TPS 3).
As a result of a complaint about this landfill, Mr Saliba was advised by the Town on 14 May 2004 that filling of the land constituted "development" for which approval was required under the provisions of TPS 3. The applicant was further advised that the filling was illegal and should be removed within 28 days, or, alternatively, that the applicant could apply to the Town for planning approval.
On 2 June 2004, the applicant submitted an application for approval of the landfill on 37 Schofield Street to the Town. On 16 June 2004, the applicant was advised that plans submitted with the application were unacceptable. The applicant was further advised of the level of detail required for the Town to properly assess and determine the application and that unless the amended plans were submitted within 14 days the Town would take action to have the fill removed.
No amended plans were submitted and on 11 November 2004, the applicant was served with a notice under s 10(3) of the TPD Act. This notice was later noted to have been undated and was therefore properly dated and re‑served on the applicant on 15 February 2005.
The terms of the Notice
The Notice under review alleges that:
•Mr Saliba was the person who undertook the development which was described as earthworks comprising the placing of a sand pad with dimensions of 15.5 metres by 13 metres on the land.
•The land in question is Lot 222 on Plan 7336 being the whole of the land in Certificate of Title Volume 1650 Folio 931 situated at 37 Schofield Street, Eden Hill.
•The land was within the scheme area of TPS 3.
•The Town was the responsible authority for TPS 3.
•The development had been carried out without there first having been applied for and obtained planning approval, in contravention of cl 5.1.1 of TPS 3.
The Notice further provided that:
•Mr Saliba was required to remove the development within 65 days after service of the Direction.
•Failure to comply with the Direction within the time specified constituted an offence liable to certain penalties.
•If an offence were committed, the Town of Bassendean may remove the development and restore the land as nearly as practicable to its condition immediately before the development started and may recover costs of doing so in a court of competent jurisdiction.
The evidence at the hearing of July 2005
The Town was represented at the July hearing and evidence was submitted to the Tribunal by Mr M Whitbread, a planning officer employed by the Town.
Mr Whitbread's evidence indicated that filling of the site at 37 Schofield Street originally consisted of a number of piles of sand, some of which were up against the neighbouring fence on the southern side of the lot and some on the street verge. Subsequently, the sand had been spread and presented as a sand pad measuring about 15.5 metres by 13 metres varying in height from 400 millimetres on the Schofield Street frontage to 900 millimetres on the Second Avenue (side street) frontage.
Mr Whitbread gave evidence that, in his opinion, the extent of fill constituted development and required planning consent in accordance with cl 5.1.4(c) of TPS 3 because the works involved the filling of land which changed the natural contours of the land by more than 600 millimetres.
Mr Whitbread's witness statement included a copy of the applicant's undated Application for Approval to Commence Development and an accompanying "plan" illustrating proposed fill levels. According to Mr Whitbread, the plan was considered unacceptable by the Town because of its rudimentary nature and lack of clarity as to the applicant's intentions. Further information was sought from the applicant in order for the proposal to be properly assessed but no further information was received from him.
Mr Whitbread indicated that the earth works as they currently stood did not satisfy the requirements of the Town. Details of the former, existing and proposed levels; the possible need for retaining structures; and the impact on neighbouring properties, needed to be provided so that the merits of the development could be assessed by the Town.
Following the failure of the applicant to respond to the Town's request for supplementary information to assess the application, Mr Whitbread advised that the respondent issued the notice set out above.
In the absence of any contrary evidence submitted by the applicant, the Tribunal could be, and was, satisfied that the evidence of the respondent demonstrated that the extent of fill placed on 37 Schofield Street exceeded the height referred to in cl 5.1.4(c) of TPS 3 and therefore constituted a development requiring planning approval by the Town.
The plan purporting to illustrate the proposed landfill submitted by the applicant accompanying his application for planning approval was, and remains, inadequate for the purposes of reasonably assessing the intent and merits of the application. Accordingly, the Tribunal concluded that the Town was acting reasonably in seeking further information from the applicant in order to properly determine the application for planning approval.
As the applicant failed to respond to a reasonable request for supplementary information about the fill proposal, thus denying the opportunity to rectify a contravention of TPS 3, the Tribunal could also find (and did so) that the notice under s 10(3) of the TPD Act was properly issued and served on the applicant on 15 February 2005.
The new evidence supplied by the applicant and the respondent
The applicant provided a statement that, on 2 June 2005, he attended the offices of the Town and spoke to a Mr Reed, Manager of Development Services. The applicant said that Mr Reed accepted his plan to fill the land at Schofield Street; that he, Mr Reed, further said that it looked "ok" and that the applicant was to pay a $100 fee and go ahead with the filling, which he then did. The applicant further stated that at a later meeting (no date was provided) with Mr Reed and the Town Clerk, Mr Reed had apparently changed his mind and he was advised that he had to shift the sand and apply to the Town for approval. The applicant felt aggrieved because he had already paid a permit fee and wished to avoid the high costs associated with removal of the sand.
The respondent provided a signed witness statement of Mr B Reed, Manager Development Services at the Town, dated 9 September 2005. The statement responds to the allegation that he, Mr Reed, had verbally approved the fill application on 2 June 2005 by asserting that the meeting in question actually took place in June 2004 and that rather than indicating that the plan provided by Mr Saliba was "ok", he, Mr Reed, had said to Mr Saliba that a better plan would be required and that if he lodged his application a planning officer would be in touch in due course.
A letter to the effect that the plans submitted by Mr Saliba were unacceptable was sent by the Town on 16 June 2004. Subsequent meetings with the Town's representatives confirmed to Mr Saliba that the plan submitted on 2 June 2004 was unacceptable, that more detailed information was required and that in the meantime no planning permission had been granted.
The respondent otherwise relies on the evidence provided by Mr Whitbread at the hearing before the Tribunal on 14 July 2005.
Discussion of the evidence
Turning to the evidence relating to grounds for review of the Tribunal decision of 14 July 2005, the applicant relies on an assertion that upon showing his landfill plan to the Development Services Manager at the offices of the Town on 2 June 2005, he was given verbal approval by that officer to fill 37 Schofield Street, Eden Hill.
The evidence of the respondent's witness places this event a year earlier on 2 June 2004. The respondent's witness, Mr Reed, denies any inference of a verbal approval and to the contrary states that the applicant was advised of inadequacies of the application plan and this circumstance was borne out and affirmed by the text of a letter on the subject sent by the Town to the applicant, dated 16 June 2004.
The respondent's evidence submitted by Mr Reed is consistent with the sequence of events and the evidence of the Town's communications outlined in the witness statement of Mr Whitbread. In this regard, the Tribunal is satisfied from the evidence tendered that there was no verbal approval given by the Town and that the actions of the Town's officers were reasonable in dealing with the applicant.
In any event, even if there were grounds for a misunderstanding of the verbal communication in June 2004, the subsequent written communication between the Town and the applicant clearly set out the issue and a means of resolution long before the matter was brought to adjudication in the Tribunal.
No other evidence was tendered by the applicant to challenge the evidence submitted by the respondent in the course of the hearing before the Tribunal on 14 July 2005.
Conclusions
The Tribunal as presently constituted is satisfied that the Town has established its case beyond any doubt. Mr Saliba does not challenge the material facts relating to the development or the receipt by him of the notice under review. He does not challenge the need for development approval.
On the question of any alleged approval, for the reasons set out above, the Tribunal prefers the evidence of the Town's officers over that of Mr Saliba.
As a review of the whole of the evidence clearly supports the findings made on 14 July 2005, the application for review of the Tribunal's decision of 14 July 2005 must be dismissed. The result is that the decision of the Tribunal on that date should stand and the decision to issue the notice is affirmed.
The Tribunal accepts that the applicant had a valid reason for not attending the hearing of 25 August 2005 and accordingly is not prepared to award costs in favour of the Town in respect of that occasion. Mr Brown declined to award costs on 14 July 2005. Notwithstanding the applicant's earlier non‑appearances, no case is made out for a departure from the principle that each party should bear their own costs.
Orders
For the reasons given above the Tribunal makes the following Orders:
1.The application for review of the Tribunal's decision in this matter heard and decided on 14 July 2005 is dismissed.
2.The decision of the Tribunal as previously constituted pronounced on 14 July 2005 to dismiss the review is affirmed.
3.The decision to issue the notice to the applicant the subject of the original review is consequently affirmed.
4.No order is made as to costs.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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