Sara Commisso and City Of Gosnells and Anor - [2005] WASAT 61

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: SARA COMMISSO and CITY OF GOSNELLS & ANOR [2005] WASAT 61

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 17 MARCH 2005 (FURTHER WRITTEN SUBMISSIONS 24 MARCH 2005)

DELIVERED : 13 APRIL 2005

FILE NO/S: RD 183 of 2004

BETWEEN: SARA COMMISSO
Applicant
AND
CITY OF GOSNELLS
First Respondent
ALAN BERTRAM GIBBS
Second Respondent
MINISTER FOR PLANNING AND INFRASTRUCTURE
Intervenor

Catchwords:

Jurisdiction Practice and procedure Strike out application Ministerial referral of representations under Town Planning and Development Act 1928 (WA) s 18(2a) to Tribunal for report and recommendations Whether Ministerial referral was beyond power Whether Minister had referred the representations made by representor Whether Minister had referred matters beyond the representations made by representor Relevance Evidence must be logically or rationally probative to be considered by the Tribunal

Legislation:

State Administrative Tribunal Act 2004 (WA) s 7, s 32(1), s 32(2), s 32(7), s 36(1), s 37(3), s 47, s 167

Town Planning and Development Act 1928 (WA) s 18(2), s 18(2a), s 18(2b), s 18(2c)

Result:

Proceedings struck out in part

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     Mr SJ Blyth
Second Respondent       :     In person
Intervenor:     Mr C Bydder

Solicitors:

Applicant:     Self-represented
First Respondent           :     Lewis Blyth & Hooper
Second Respondent       :     Self-represented
Intervenor:     State Solicitor's Office

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

Lakes Action Group Association Incorporated v Shire of Northam [2004] WATPAT 195
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Russo v Kogarah Municipal Council (1999) 105 LGERA 291
The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228

Case(s) also cited:

Enoka v Shire of Northampton (1996) 15 WAR 483
Evans v Shire of Murray [2004] WATPAT 197
Halvorsen v City of Joondalup [2004] WATPAT 216
Joint Property Ownership Pty Ltd v City of Subiaco (1998) 97 LGRA 269

MR D R PARRY (SENIOR MEMBER):

REASONS FOR DECISION

Introduction

Ms Sara Commisso ("the applicant"), the registered proprietor of Lot 37 Lacey Street, Beckenham ("Lot 37"), and Mr Alan Gibbs ("the second respondent"), the registered proprietor of Lot 35 Lacey Street, Beckenham ("Lot 35") and Lot 36 Lacey Street, Beckenham ("Lot 36"), are neighbours who have been embroiled in a series of disputes for approximately 30 years. Their disputes have centred upon various uses to which the second respondent has allegedly put parts of his land. Over the last eight years, these disputes have been given the direct attention of two Ministers of the Crown, the Crown Solicitor's Office, the State Solicitor's Office, the City of Gosnells ("the first respondent"), and a member of the Town Planning Appeal Committee who conducted a lengthy inquiry in 1997. The latest manifestation of the dispute now has the firm attention of this Tribunal.
A tremendous amount of public resources have obviously been incurred in relation to the neighbours' disputes. And yet, the state of disputation remains. Having recorded and lamented this fact, I now turn to the question at hand.

Application

This is an application by the first respondent to strike out proceedings which purport to be a referral by the Minister for Planning and Infrastructure ("the Minister"), in accordance with s 18(2a) of the Town Planning and Development Act 1928 (WA) ("TPD Act"), of representations made to her by the applicant. Although the first respondent's submissions did not identify the statutory basis for the application, it appears that it was made under s 47 of the State Administrative Tribunal Act 2004 (WA) ("the Tribunal Act").
Section 47(2) of the Tribunal Act provides that, where the section applies, the Tribunal may order that the proceedings be dismissed or struck out, and may make any appropriate orders. Section 47(1) provides that the section applies if the Tribunal believes that a proceeding is, among other circumstances, "misconceived" (par (a)). Section 47(3) provides that the Tribunal's powers to act under s 47(2) are exercisable only by a legally qualified member. Section 47(4) provides that the Tribunal may act under s 47(2) on the application of a party or on its own initiative.
The first respondent and the Minister each filed written submissions in advance of the hearing of the strike out application. At the hearing, counsel for the Minister sought and was granted leave for the Minister to intervene in the proceedings under s 37(3) of the Tribunal Act in relation to the strike out application. In accordance with s 36(1) of the Tribunal Act, the Minister is, therefore, a party to the proceedings in relation to the strike out application.
The contest at the hearing was essentially between the first respondent and the Minister. The applicant and the second respondent each appeared in person and were given an opportunity to make submissions. Each declined to do so.
At the conclusion of the hearing, I reserved my decision, and directed each party to file and provide to each other party any further submissions in relation to abuse of process by 24 March 2005. The reason for this direction was that I had referred the parties to the decision of the New South Wales Court of Appeal in Russo v Kogarah Municipal Council (1999) 105 LGERA 291, and sought submissions as to whether the principle applied in that case was relevant to the purported referral of the question of the existence and scope of nonconforming use rights in relation to Lot 36, in circumstances where that question had previously been the subject of a Ministerial inquiry under s 18(2) of the TPD Act. Counsel for the first respondent and for the Minister each provided short and helpful submissions in accordance with the direction. The second respondent filed a document which made the submission that the continuation of these proceedings "is an abuse of process", but which raised factual matters which were largely irrelevant to the first respondent's strike out application, and which sought to make personal accusations against the applicant. An opportunity was afforded to the applicant to reply to the second respondent's submission. On 5 April 2005, the applicant filed a document which raised factual matters which were irrelevant to the strike out application, and which in large part involved personal accusations against the second respondent.
As is apparent from my reasons below, the question of abuse of process does not arise. For this reason, and because the submissions of the second respondent and of the applicant were largely irrelevant to the application at hand, I have not taken into account anything contained in the written submissions received after the hearing. However, the first respondent's further submissions appended a copy of the report of the earlier Ministerial inquiry conducted by Mr J G Jordan of the Town Planning Appeal Committee. This document was referred to in oral submissions. I have set out below parts of this document by way of historical background.

Factual Background

As noted above, the neighbours' disputation has a very long history. It is sufficient, for the present purposes, to begin on 3 December 1996. On that date, the applicant lodged a complaint with a former Minister for Planning against the following:
(1)The decision by the first respondent on 12 March 1973 to acknowledge that there was a nonconforming use right for a motor transport depot on Lot 35;
(2)The decision by the first respondent on 27 July 1984 to acknowledge that there was a nonconforming use right for the parking of two prime mover/semi-trailer combinations and minor maintenance on Lot 36; and
(3)The failure by the first respondent to take action against the second respondent for not removing materials from Lot 36 following a successful prosecution of the second respondent in May 1996 for using that land as a "contractor's yard".
In her letter, the applicant requested the Minister to inquire into these matters under s 18(2) of the TPD Act (as it then stood) and serve orders on the first respondent to the effect that it cause the activities in question on Lot 35 and Lot 36 to cease.
Mr Jordan conducted an extensive inquiry on behalf of the Minister. In particular, he reviewed documents provided by each of the parties and interviewed the applicant, the second respondent and others. On 3 December 1997, Mr Jordan provided a detailed report of his findings and recommendations to the Minister. The report contained the following paragraph (par 10.3.5, p 16) in relation to the applicant's second complaint:
"The Commissos want the nonconforming use of Lot 36 to cease, Mr Gibbs says it has never ceased and so should be allowed to continue. Both cases are based on the recollections of the two parties. The City had evidence that the use was allowed to actually commence in the form of the letter and declaration from the Chilcos and, on its assessment of the situation, decided in 1984 to recognise the nonconforming use. No reason can be found as to why its interpretation of events should be deliberately wrong so, on balance, it is considered that the City made its decision in good faith and there is no reason why it should be directed to make a different decision. The City has continued to acknowledge that the nonconforming use right exists for Lot 36 despite assertions to the contrary by Mrs Commisso. The City has been aware of the activity on Lot 36 over the years, even to the extent of prosecuting the owner for illegal activity, so it is considered that it would have sufficient knowledge of the use of the lot to make a proper decision whether the nonconforming use continues to exist. No substantial reason can be found to direct the City to determine otherwise."
At the conclusion of the inquiry, Mr Jordan recommended that the Minister -
"1.Advise Mrs Commisso and the City of Gosnells that, on the representations made to him, he is not satisfied that the City of Gosnells failed to enforce effectively the observance of its Town Planning Scheme No 1 when it acknowledged a nonconforming use for a 'motor transport depot' on Lot 35 Lacey Street, acknowledged a nonconforming use for 'the parking of not more than two prime mover/semitrailer combinations together with carrying out minor maintenance' on Lot 36 Lacey Street and decided subsequent to October 1996 that the owner had effectively complied with the Magistrate's ruling of May 1996 with respect to the use of Lot 36;
and
2.Point out to the City of Gosnells that it is the responsible authority for the enforcement of the observance of its Town Planning Scheme and that it must therefore ensure that no use of Lots 35 and 36 is allowed to take place which will contravene the provisions of the Scheme or which is beyond the use allowed as part of the recognised non-conforming use of the two lots. If the City fails to act on any breaches of the Scheme then it remains open to the Minister to order the City to do all things necessary to enforce the observance of the Scheme."
On 15 July 1999, a former Minister for Planning, Mr Graham Kierath MLA, issued an order to the first respondent under s 18(2) of the TPD Act (as it then stood) as follows:
"Pursuant to the provisions of Section 18(2) of the Town Planning and Development Act, I Graham Kierath MLA, Minister for Planning, having received a representation that the City has failed to effectively enforce the provisions of its Town Planning Scheme No 1, insofar as concerns the uses permitted to be conducted on Pt Lot 36 Lacey Street, Beckenham ("the land") and, having undertaken an inquiry into the matter, hereby order the City of Gosnells to exercise its powers under Town Planning Scheme No 1 and under the provisions of the Town Planning and Development Act 1928 (as amended) to enforce the observance of its Scheme to ensure that the use of the land is confined to those activities forming the subject of the recognised non-conforming use.
For the purpose of this Order, I have determined that the recognised nonconforming use of the land involves only:-
'the parking of two (2) prime mover/semitrailer combinations together with carrying out of minor maintenance thereto with no earthmoving equipment being stored or used on the land and no miscellaneous equipment being stored on site'."
On 25 February 2004, the applicant wrote to the Minister as follows:
"The Minister For Planning and Infrastructure [Dumus house] [sic] Alannah MacTiernan
I write to you as a matter of urgency as our health is getting worse as time goes by
In 1999 the acting Minister for Planning sent an order to the city of Gosnells
All the file is with Lindsay Baxter contact # 92647663
You will note the city of Gosnells stated they would not appeal this order through their acting solicitor Lewis Blyth and Hopper [sic] Solicitors [all on file]
You will also note that later council got an opinion through using their same Barrister M. L. Barker
ie note questions were asked about lot 35, not so much lot 36 the property in question, I need to discuss this and point out some serious issues on this report
Under section 18.2 I request a new or further enquiry
I please ask if I can have an appointment as soon as possible, as our lives have been a living hell and council has closed the door on us [Commisso's] as one councillor put it…..
I also need to show you another serious, and traumatic thing that the council has done, in the year 2000, council show no consideration at all, I need to go through this with you
My main complaint is in view of the Ministers order in 1999 under section 18.2 council have failed … totally and in a very dreadful manner
I have tried to reason with them, by also giving them information however they tried to use it all against me
I was approached by two councillors who tried to help me as they had serious concerns? we approached the town planner, with about 50 questions
Which we then drew a few important ones in which he did not answer any Councillor informed me that the city of Gosnells HAD NOT BEEN TO LOT 36 FOR TWO YEARS
I will bring all this along with me, I also have visual evidence to show what still continues to happen on lot 36 Lacey st, the property in question
I have also pointed out to council how the situation on lot 36 is affecting our life and health, mainly when the front end loader is used on lot 36 they still don't want to know me [medical records can be made available at any time]
We cannot continue to live like this
Your urgent attention to this letter would be greatly appreciated
Sara Commisso 25/2/04 30 Lacey st
Beckenham 6107" (Reproduced as written. Emphasis in bold added.)
On 12 July 2004, the Minister wrote to the President of the Town Planning Appeal Tribunal as follows:
"Dear Mr McGowan,
SECTION 18(2) OF THE TOWN PLANNING AND DEVELOPMENT ACT COMPLAINT BY MRS S COMMISSO IN RELATION TO LOT 36 LACEY STREET, BECKENHAM IN THE CITY OF GOSNELLS
I have received a request from Mrs Sara Commisso in relation to the above matter.
Please arrange for an investigation and report on the attached complaint which I am referring to the Tribunal in accordance with the provisions of section 18(2a) of the Town Planning and Development Act. In the event that the Tribunal were to recommend an order under the provisions of section 18(2c) of the Act, I would ask that the precise terms of such order be detailed in the Tribunal's recommendation.
In Mrs Commisso's letter dated 25 February 2004 she requested a new or further inquiry into her complaint concerning the activities being undertaken on the above property. In view of the protracted history of this complaint, it would seem appropriate that the Tribunal review the background material previously provided by both the complainant and the City of Gosnells, and I will therefore arrange for the previous documentation to be provided to the Tribunal.
Although each of the previous Ministerial investigations have been predicated on an acceptance of the City's view that the parking of two trucks on the land is encompassed by a nonconforming use right, I would ask that the Tribunal re-visit the question of nonconforming use rights in relation to this activity, which is one of the main points of contention raised by the complainant. The other issue of particular relevance to the inquiry relates to the permissibility and/or authorisation of the other uses such as have been established on the otherwise vacant Lot 36, and the relationship between the activities on Lot 36 and those on the adjoining Lot 35, which I understand is used by the owner Mr A Gibbs as a transport depot in accordance with a nonconforming use right which applies to that property.
I have advised Mrs Commisso that the Tribunal will contact her in due course, and will provide an opportunity to hear further from her and the other parties involved in the dispute."
The Tribunal Act commenced on 1 January 2005 and, by s 7, established the State Administrative Tribunal. On that day, Div 126 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) also commenced, and repealed and amended certain provisions of the TPD Act. In consequence of these provisions, the Town Planning Appeal Tribunal ceased to exist. In accordance with s 167(4)(a) of the Tribunal Act, on 1 January 2005, these proceedings were transferred to, and are to take place before, this Tribunal.
On 3 February 2005, the first respondent applied to the Tribunal for the Ministerial referral to be struck out.

Section 18 of the Town Planning and Development Act

The relevant parts of s 18 of the TPD Act provide as follows:
"(2)A person may make representations to the Minister if the person is aggrieved by the failure of a local government to -
(a)enforce effectively the observance of a town planning scheme in force under this Act, or any of the provisions of the scheme; or
(b)execute any works, which under the scheme or this Act, the local government is required to execute.
(2a)The Minister may determine not to take any action in response to the representations or, if the Minister considers it appropriate to do so, the Minister may refer the representations to the State Administrative Tribunal for its report and recommendations.
(2b)For the purpose of making a report and recommendations on a referral under subsection (2a), Pt V applies, with such modifications as may be necessary, as if the referral were an application for review.
(2c)If after holding an inquiry or receiving a report and recommendations from the State Administrative Tribunal, the Minister is satisfied that the local government has failed -
(a)to enforce effectively the observance of a scheme or a provision of a scheme; or
(b)to execute any works which the local government is required under a scheme or this Act to execute,
the Minister may order the local government to do all things necessary to enforce the observance of the scheme or provision or to execute the works."
These provisions were in substantially the same terms at the date of the Ministerial referral to the Town Planning Appeal Tribunal.

Consideration of the Strike Out Application

The first respondent submitted that the "representations" made by the applicant to the Minister in her letter dated 25 February 2004 were not the "representations" that the Minister referred to the Town Planning Appeal Tribunal in her letter dated 12 July 2004. It submitted that "to all intents and purposes, the complaint of Mrs Commisso is that the City has failed to effectively enforce the provisions of its Scheme insofar as it has allegedly failed to comply with the Order of the Minister". However, the first respondent contended that the Minister did not refer these "representations" to the Tribunal, but rather other matters which were not the subject of the applicant's representations. As Mr Blyth, counsel for the first respondent, put it in his address, "the Minister received representation A, and referred representations B, C and D".

On behalf of the Minister, it was submitted that the essence of the applicant's "representations" was that the second respondent continues to unlawfully use and develop Lot 36 and that the first respondent "had not been to Lot 36 for two years". It was submitted that, by her letter, the Minister referred these "representations" to the Tribunal. It was submitted that the Minister could clarify the "representations" or those aspects of the "representations" in respect of which she required a report and recommendations, and could identify matters pertaining to whether a local government had failed to enforce effectively the observance of its town planning scheme in the referral document. Ultimately, it was submitted that "the Minister's comments do not go beyond the scope of the Applicant's representation".
I reject the first respondent's submission that the Minister did not refer the applicant's "representations" to the Tribunal. In my opinion, the Minister did just that in the first two paragraphs of her letter of 12 July 2004. The Minister said that she had received a request from the applicant in relation to her complaint, attached the complaint to her letter and requested the President of the Town Planning Appeal Tribunal to arrange for "an investigation and report on the attached complaint".
In my opinion, the applicant's letter to the Minister dated 25 February 2004, while in part difficult to follow, constituted "representations" that she was aggrieved by the failure of the first respondent to enforce effectively the observance of its town planning scheme consistently with the former Minister's order dated 15 July 1999. In particular, the complaint in the "representations" was that the second respondent had used a front-end loader on Lot 36 and that the respondent had not enforced effectively the observance of its town planning scheme in accordance with the Ministerial order, because it had failed to prevent the use of the front-end loader. In my opinion, this representation was lawfully made by the applicant to the Minister under s 18(2) of the TPD Act and was lawfully referred by the Minister to the Tribunal for its report and recommendations under s 18(2a) of the TPD Act.
However, I accept the first respondent's submission that the Minister purported to refer matters outside the scope of the applicant's "representations" to the Minister. In particular, in the fourth paragraph of her letter to the President of the Town Planning Appeal Tribunal, the Minister purported to require the Tribunal to "revisit the question of non-conforming use rights" in relation to Lot 36 and to consider "the relationship between the activities on Lot 36 and those on the adjoining Lot 35". In my opinion, these purported aspects of the Ministerial referral were beyond power.
I respectfully adopt the following statement from the decision of the President of the Town Planning Appeal Tribunal in Lakes Action Group Association Incorporated v Shire of Northam [2004] WATPAT 195 at 8 [15]:
"In my view, there is no scope under section 18(2a) for the Minister to invite the Tribunal to consider matters different from and beyond the representations made to her in the first instance. It is the referral of the representations with which the section is concerned, not a broad-based inquiry of the Minister's instigation, rather the instigation is that of the representor. The decision then taken by the Minister is to refer the matter on or deal with it herself, having regard to the choices available under section 18(2a)."
On its proper construction, the term "the representations" when used on two occasions in s 18(2a) of the TPD Act is a reference to the "representations to the Minister" in s 18(2). Under the legislation, the "representations" to the Minister constitute the genesis of the process and also establish the scope of a potential referral to the Tribunal under s 18(2a) and of the Tribunal's report and recommendations following such a referral.
It is apparent from the applicant's "representations" dated 25 February 2004 to the Minister that she accepted the scope of the nonconforming use rights as determined by the former Minister following the inquiry undertaken on his behalf by Mr Jordan. At the beginning of her "representations", the applicant recounted that "in 1999 the acting Minister for Planning sent an order to the city of Gosnells". She stated that "my main complaint is in view of the Ministers order in 1999 under section 18.2 council have failed … totally and in a very dreadful manner". It is apparent, therefore, that the applicant's "representations" to the Minister asserted that she was aggrieved by the failure of the first respondent to comply with the Ministerial order. As noted above, the former Minister expressly determined and recognised, consistently with the Jordan inquiry report, that the non-conforming use rights recognised by the first respondent in 1984 applied to Lot 36.
In the circumstances, the Minister purported to require the Tribunal to make a report and recommendations in relation to a matter which was not only not the subject of the "representations" to her, but which was inconsistent with the representations.
Similarly, in my opinion, the purported referral by the Minister to the Town Planning Appeal Tribunal of questions to do with activities on Lot 35 and to the relationship between activities on Lot 36 and Lot 35 was beyond power. It is plain from the applicant's "representations" that her complaint concerned enforcement in relation to Lot 36. On two occasions in her letter of 25 February 2004, the applicant referred to Lot 36 as "the property in question". She referred to Lot 36 on three other occasions as well. Although she referred in passing to Lot 35 on one occasion, she then immediately stated that it was Lot 36 that was "the property in question". Indeed, the heading to the Minister's referral letter acknowledged that the applicant's complaint was in relation to Lot 36.
Counsel for the Minister noted that, under s 18(2b) of the TPD Act, a referral to the Tribunal is treated as an application for review, and submitted that accordingly, the Tribunal could use its powers under the Tribunal Act and the TPD Act to:
"(a)clarify the applicant's representations;
(b)obtain responses from the First and Second Respondents; and
(c)obtain evidence pertaining to whether the First Respondent has failed to enforce effectively the observance of its town planning scheme in respect of the use and development of the subject land."
I accept that, when a representation has been lawfully referred to the Tribunal under s 18(2a) of the TPD Act, the Tribunal could use its powers under the legislation to do as was submitted. However, where a Ministerial referral, or part of a Ministerial referral, is beyond power, because it purports to refer a matter beyond the scope of the "representations" which were made to the Minister, the Tribunal does not relevantly have jurisdiction under which it could clarify, obtain responses or obtain evidence in relation to the matter which was beyond the "representations" made to the Minister. The Tribunal cannot utilise powers which it can only exercise if it has jurisdiction in relation to a matter in order to create jurisdiction in relation to that matter.
Although I accept that the Minister can clarify the representations which have been made to her and can identify matters relevant to the representations, she cannot expand upon the scope of the representations. In my opinion, that is what the Minister has purported to do in the present case.
As, in my opinion, the "representations" in question concern the alleged failure of the first respondent to enforce its town planning scheme consistently with the order, the scope of the present proceedings could only possibly be concerned with the period following the issue of the Ministerial order. Indeed, in light of the applicant's representations, the proceedings would appear to be fundamentally concerned with the second respondent's use of Lot 36, and particularly the alleged use of a front-end loader, at the time of the making of the representations and at present. In my opinion, therefore, "the background material previously provided by both the complainant and the City of Gosnells" referred to by the Minister in the third paragraph of her letter of 12 July 2004, cannot be logically or rationally probative of any issue before the Tribunal, and is, therefore, irrelevant to the present proceedings.
Although the Tribunal is not bound by the rules of evidence (Tribunal Act s 32(2)(a)), in order to determine proceedings according to "the substantial merits of the case" (Tribunal Act s 32(2)(b)) and the rules of natural justice (Tribunal Act s 32(1)), it is required to act on evidence. As Brennan J held, when President of the Administrative Appeals Tribunal, in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 493, "[t]he majority judgments in [The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228] show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not." On appeal before the Full Court of the Federal Court, Deane J, with whom Evatt J agreed, held that "it is an ordinary requirement of natural justice that a person bound to act judicially "base his decision" upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined": Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 67. Moreover, s 32(7)(a) of the Tribunal Act, which provides that "the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding", makes plain that, in order to be considered by the Tribunal, evidence must be relevant, that is logically or rationally probative of a fact in issue.

Abuse of Process

As noted above, I invited submissions in relation to whether the reagitation of the question of the existence and scope of non-conforming use rights in relation to Lot 36 constituted an abuse of process. As I have determined that the "representations" which were made to the Minister in this case did not include this question, and that accordingly the purported referral of this question to the Tribunal was beyond power, the question of abuse of process does not arise.

Conclusion

Both the Minister and the Tribunal are subject to the strictures of s 18(2) and s 18(2a) of the TPD Act. Under those provisions, the "representations" made by an aggrieved person to the Minister mark not only the genesis of a potential referral to the Tribunal for a report and recommendations, but also dictate the lawful scope of such proceedings. Although the Minister can clarify the representations and identify matters to do with the representations, she cannot expand upon the scope of the representations.
In the present case, in asking the Tribunal to revisit the question of non-conforming use rights in relation to Lot 36, the Minister purported to expand the scope of the representations. As I have found, the applicant's representations were fundamentally concerned with the alleged failure of the first respondent to enforce its town planning scheme consistently with the Ministerial order. The Ministerial order expressly recognised the fact and scope of non-conforming use rights in relation to Lot 36. It is not surprising that the applicant's representations did not question the fact or scope of the non-conforming use rights recognised by the former Minister, given that they had been endorsed in the Jordan inquiry.
Similarly, the Minister purported to expand the representations of the applicant by requiring the Tribunal to consider activities on Lot 35, whereas the representations were explicitly limited to activities on Lot 36, and focused on the use of the frontend loader on that allotment.
I have also determined that the background material which the Minister arranged to be provided to the Tribunal is irrelevant to the present proceedings. It cannot, therefore, be considered by the Tribunal.
The Minister has referred the applicant's representations to the Tribunal. Those representations allege that the first respondent has failed to enforce its town planning scheme consistently with the Ministerial order. These proceedings are restricted to a review of that question and a report and recommendations to the Minister in relation to that question.

Order

The consequence of these reasons is that the part of these proceedings which is based upon the fourth paragraph of the Minister's referral letter should be struck out. An order will be made to this effect. In addition, the Tribunal should not embark on a review of the background material referred to in the second sentence of the third paragraph of the Ministerial reference. It is sufficient that this be noted in these reasons.
I certify that this and the preceding 17 pages comprise the reasons for decision of the State Administrative Tribunal.

____________________________
Mr D R Parry
Senior Member