| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : SCOLARO and SHIRE OF WAROONA [2014] WASAT 37 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 27 FEBRUARY 2014 DELIVERED : 26 MARCH 2014 FILE NO/S : DR 449 of 2013 BETWEEN : MARIA SCOLARO (AS TRUSTEE FOR THE TONY SCOLARO FAMILY TRUST) Applicant
AND
SHIRE OF WAROONA
Respondent
Catchwords: Practice and procedure - Application to extend time in which to seek review - Town planning - Development application - Deemed refusal Delay of approximately four years and 11 months in seeking review - Extraordinary and inordinate delay - Whether satisfactory explanation for delay - Whether applicant has arguable case for review - Development prohibited since deemed refusal by amendment to local planning scheme - Whether applicant has an accrued right, interest, power or privilege to seek review on basis of law as it stood at time of deemed refusal Legislation: Caravan Parks and Camping Grounds Act 1995 (WA)
Interpretation Act 1984 (WA), s 5, s 37(1), s 37(1)(c)
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2002), cl 3.1.1
Shire of Waroona Town Planning Scheme No 7, cl 1.7.2, cl 3.4.1, cl 8.7.1, cl 8.7.3, cl 9.5, Sch I, Sch III
State Administrative Tribunal Act 2004 (WA), s 29(5)(b)
State Administrative Tribunal Rules 2004 (WA), r 9, r 9(c), r 10 Result: Application for extension of time refused
Summary of Tribunal's decision: Mrs Maria Scolaro sought an extension of time in which she could seek review of the deemed refusal of a development application by the Shire of Waroona. An application for review must be commenced within 28 days of the deemed refusal, although the Tribunal has a discretion to extend this period. The delay in the commencement of the proceeding in this case was almost five years, or approximately 64 times the period for the commencement of the proceeding.
The Tribunal refused to extend time for the commencement of the proceeding. The Tribunal found that an extension of time is supported by the considerations that there is a generally satisfactory explanation for the delay and that there would be no prejudice to the Shire or to any other person if an extension were granted.
However, the Tribunal determined that, in the exercise of discretion, these factors are strongly outweighed in this case by two other considerations. First, the period of delay of almost five years is extraordinary and inordinate and the delay has two significant consequences, namely that allowing such an extension would greatly undermine the utility and purpose of the 28 day period for commencement of proceedings and the applicable local planning scheme was amended in a material respect as it concerns the proposed development during the delay. Secondly, Mrs Scolaro does not have an arguable case for review, because, in consequence of the amendment of the local planning scheme, the proposed development cannot be approved.
In considering whether Mrs Scolaro has an arguable case for review, the Tribunal rejected a submission that she has an accrued right, interest, power or privilege to seek review and to have the review determined on the basis of the local planning scheme as it stood at the time of the deemed refusal. However, the Tribunal also said that, if it was wrong in this respect, it would still have come to the view that an extension of time should not be allowed, because the consequences of the extraordinary and inordinate delay in seeking review would be all the more significant. If Mrs Scolaro had an accrued right, interest, power or privilege to seek review and to have the review determined on the basis of the local planning scheme as it stood at the time of the deemed refusal, then in carrying out the review, the Tribunal would be required to apply a definition which had been repealed some four years earlier, which it would not apply in carrying out a review of the refusal of the same development on other land in the same zone refused by the Shire on or after 30 April 2010, which the Shire would not apply in making an actual decision with respect to the development application (which it could still do) and which the Tribunal would not apply in reviewing such a decision.
Category: B
Representation: Counsel:
Applicant : Mr MC Hotchkin
Respondent : Mr A Roberts
Solicitors:
Applicant : Hotchkin Hanly
Respondent : McLeods
Case(s) referred to in decision(s):
Cardno BSD and Shire of Busselton [2007] WASAT 267; (2007) 57 SR (WA) 199
Curlewis and City of Albany [2011] WASAT 85; (2011) 77 SR (WA) 87
Esber v Commonwealth of Australia (1992) 174 CLR 430
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Hartwig and City of Canning [2008] WASAT 243
Miller and City of Stirling [2007] WASAT 247; (2007) 56 SR (WA) 128
O'Connor and Town of Victoria Park [2005] WASAT 161
Smith and City of Wanneroo [2008] WASAT 182
Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379
REASONS FOR DECISION OF THE TRIBUNAL:
Application for extension of time 1 On 4 December 2013, Mrs Maria Scolaro (as Trustee for the Tony Scolaro Family Trust (Trust)) made an application under r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) for an extension of time in which she could seek review of the deemed refusal of a development application by the Shire of Waroona (Shire or Council) under the Shire of Waroona Town Planning Scheme No 7 (TPS 7 or Scheme) in relation to Lots 19, 20 and 21 Old Coast Road, Lake Clifton (site) (development application). 2 About five years and two months earlier, on 8 October 2008, Doepel Marsh Architects lodged the development application with the Shire on behalf of Mrs Scolaro's late husband (who was then the trustee of the Trust) for approval under TPS 7 for a mixed use development comprising a new commercial centre (service station, two retail tenancies, produce market and new bottle shop and tavern), 10 motel chalet units and 207 park homes on the site. The development application was subsequently amended on five occasions. In its most recent version, the development application seeks approval for 120 park homes (all located on Lot 21) and does not propose any other development on the site. 3 As the Shire failed to make a decision in relation to the development application within 60 days, the development application was deemed to have been refused by the Shire under cl 8.7.1 of TPS 7 on 8 December 2008. Under r 9(c) of the SAT Rules, an application for review of the deemed refusal of the development application had to be made within 28 days of the deemed refusal, that is by 5 January 2009. However, r 10 of the SAT Rules confers a discretion on the Tribunal to extend the time for the commencement of a proceeding, even if the time for the commencement of the proceeding expired before the application for an extension of time was made. 4 The applicant for an extension of time bears the onus of satisfying the Tribunal to exercise its discretion to extend time in the circumstances of the case: Curlewis and City of Albany [2011] WASAT 85; (2011) 77 SR (WA) 87 (Curlewis) at [69]. Each case requires careful consideration and balancing of all relevant circumstances and '[c]are must be taken in referring to other exercises of discretion in other cases, because, necessarily, circumstances will vary from case to case': Curlewis at [69]. 5 The discretion to extend time under r 10 of the SAT Rules is broad and is guided by the following four principal considerations: 1. the length of delay; 2. the reasons for delay, and, in particular, whether there is a satisfactory explanation for the delay; 3. whether there is an arguable case for review; and 4. whether the extension would cause prejudice: O'Connor and Town of Victoria Park [2005] WASAT 161 (O'Connor) at [38] [51] following Esther Investments Pty Ltd v MarkalingaPty Ltd (1989) 2 WAR 196 at 198. 6 However, the range of considerations in relation to whether to extend time is not closed and other considerations may be relevant in the circumstances of a particular case: Curlewis at [69]. In this case, Mrs Scolaro contends that a further relevant consideration in favour of an extension of time being granted is that the Shire could still make an actual determination in relation to the development application under TPS 7 and thereby confer a fresh right to seek review under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) and cl 9.5 of TPS 7: see Cardno BSD and Shire of Busselton [2007] WASAT 267; (2007) 57 SR (WA) 199 (Cardno BSD) at [32]. 7 Mrs Scolaro contends that, having regard to the relevant considerations which guide the exercise of discretion in this case, an extension of time should be granted to her to seek review of the deemed refusal of the development application. In contrast, the Shire contends that, in the exercise of its discretion, the Tribunal should refuse to allow an extension of time in the circumstances of this case. I will address the four principal considerations which guide the exercise of the Tribunal's discretion and the further consideration referred to by Mrs Scolaro before balancing the various considerations in the exercise of discretion.
Length of delay 8 The length of delay in the commencement of the proceeding in this case is approximately four years and 11 months. Mr MC Hotchkin, counsel for Mrs Scolaro, characterises this period of delay as 'significant'. However, in my view, a delay of almost five years in the commencement of this proceeding cannot be described as merely 'significant' or even 'very significant'. Rather, in my view, a delay of close to five years in the context of a commencement period of 28 days can only be described as extraordinary and inordinate. 9 Mr A Roberts, counsel for the Shire, aptly underscored this characterisation in his submissions by pointing out that the delay in this case is approximately 64 times the prescribed 28 day period for the commencement of review proceedings. Furthermore, although, as noted earlier, it is important to exercise care when referring to other cases in which an extension of time has been sought, it is instructive to note the following characterisations of the periods of delay in decisions referred to by Mr Roberts: • a delay of just over five weeks was described as 'borderline' in O'Connor at [41]; • a delay of between 81 and 87 days was described as 'considerable' in Goedhart and Western Australian Planning Commission [2006] WASAT 49 (Goedhart) at [16]; • a delay of 155 days or approximately five months was described as 'clearly significant' in Hartwig and City of Canning [2008] WASAT 243 at [49]; • a delay of over three years was described as 'extraordinary' and 'exceptional' in Smith and City of Wanneroo [2008] WASAT 182 at [4] and at [10]; and • a delay of three years and 10 months was described as 'very significant' in Cardno BSD at [28]. 10 There are two significant consequences of the delay in this case. First, although the Tribunal exercises a broad discretion to allow an extension of time to commence a proceeding under r 10 of the SAT Rules and, in particular, there is no maximum period of delay which can be contemplated for an extension of time, in my view, a delay of almost five years in the context of a 28 day period for the commencement of review proceedings is so extraordinary as, if an extension to commence the proceeding were granted, to greatly undermine the utility and purpose of the 28 day period for the commencement of the proceeding. The purpose of the 28 day period is to ensure that persons who are aggrieved by, relevantly, planning decisions and have a right of review by the Tribunal, should exercise their right to seek review promptly. This is particularly important in relation to planning decisions which often affect not only the applicant and the original decisionmaker, but also other people in the locality of the site. 11 The second significant consequence of the extraordinary and inordinate delay in this case is that during the period of delay in the commencement of the proceeding, TPS 7, which is the applicable local planning scheme for the development application, was amended in a material respect as it concerns the proposed development. The site is zoned special use under TPS 7. Clause 4.3.1 of TPS 7 prohibits the use of land zoned special use except for the purposes listed in Sch III which relevantly include 'caravan park'. Until TPS 7 was amended by Amendment No 12 to the Scheme on 30 April 2010, the definition of 'Caravan Park' in Sch I of TPS 7 (which prescribes the meaning of that term in the Scheme under cl 1.7.2 of TPS 7) included 'park homes' as follows: Caravan Park means an area of land specifically set aside for the parking of caravans andpark homes or for the erection of camps on bays or tent sites allocated for that purpose. (Emphasis added). 12 Amendment No 12 replaced this definition with the definition of 'Caravan Park' in the Caravan Parks and Camping Grounds Act 1995 (WA) which does not include a reference to 'park homes'. 13 It is common ground between the parties that the consequence of the amendment of the definition of 'Caravan Park' in Sch III of TPS 7 on 30 April 2010 is that, if the current definition of 'Caravan Park' applies to the determination of the development application, then the proposed development cannot lawfully be approved under the Scheme. During the period of delay in the commencement of this proceeding, the development for which Mrs Scolaro seeks approval under TPS 7 has changed from a development which was permissible with consent to a development which is prohibited under the Scheme. During the delay in the commencement of the proceeding, the applicable law with respect to the development application changed fundamentally. 14 As discussed in relation to the consideration of whether there is an arguable case for review below, Mr Hotchkin submits that Mrs Scolaro has an accrued right, interest, power or privilege under s 37(1) of the Interpretation Act 1984 (WA) (Interpretation Act) to seek review of the deemed refusal of the development application on the basis of the law as it stood at the time of the deemed refusal on 8 December 2008, that is, at a time when the former definition of 'Caravan Park' applied and when the proposed development was capable of approval under the Scheme. For reasons set out below, I reject this submission and find that Mrs Scolaro does not have an arguable case for review, because the proposed development cannot lawfully be approved under the Scheme as it currently stands. 15 However, if I am wrong and if Mrs Scolaro has an accrued right, interest, power or privilege to seek review and have the review application determined by the Tribunal on the basis of the law as it stood at the time of the deemed refusal of the development application, and therefore if Mrs Scolaro has an arguable case for review, then, unusually, I would still come to the same view in the exercise of discretion under r 10 of the SAT Rules as set out later in these reasons, that time should not be extended to seek review in this case. That is because, if Mrs Scolaro has an accrued right, interest, power or privilege to seek review and to have the review application determined on the basis of the law as it stood at the date of the deemed refusal, then the Tribunal, in carrying out the review, would be required to apply a definition which, by the time it comes to carry out the review, would have been repealed some four years earlier and which it would not apply in carrying out a review of a refusal of an application for the same development on other land in the same zone which was refused by the Shire on or after 30 April 2010. Furthermore, the Tribunal would have to apply a definition in carrying out the review of the deemed refusal of the development application which the Shire would not apply if it were to now determine the development application (which, it is common ground, it could still do under the Scheme) and which the Tribunal would not apply if it were to carry out a review of such a decision of the Shire. 16 Therefore, in my view, if (contrary to my finding below) the applicant has an accrued right, interest, power or privilege to seek review of the deemed refusal of the development application on the basis of the law as it stood at the time of the deemed refusal, the consequences of the extraordinary and inordinate delay in seeking review in this case would be all the more significant, with the result that, taking into account all the considerations discussed in these reasons, I would come to the same view in the exercise of discretion under r 10 of the SAT Rules that the application to extend time in which to seek review should not be allowed.
Reasons for delay 17 Mrs Scolaro relies on the evidence of Mr Derek Westera, a town planner who has acted as the primary planning consultant in relation to the development application since January 2008, to provide an explanation for the delay in the commencement of this proceeding. 18 On 30 October 2008, the Shire's Manager Planning Services wrote to Doepel Marsh Architects, referring to a meeting held with Council's planning staff the previous day regarding the proposed development and advising that 'the scope and intensity of the development are such that concerns exist as to impacts on the local environment of Lake Clifton and the appropriateness of such a residential development in this rural location'. The letter stated that 'Council will need to be satisfied that the development would have no impact on these areas prior to any decision supporting the development'. The letter stated that 'to this end', an environmental impact assessment, a social impact assessment and confirmation about the provision of water to the site 'would be required in association with the development application'. 19 Mr Westera gave evidence that, following the receipt of the letter from the Shire, a decision was made not to seek review of the deemed refusal of the development application, but rather to comply with the Shire's requests and to negotiate with the Shire and the various statutory authorities concerned, principally the Environmental Protection Authority, the Department of Environment and Conservation, the Department of Water and the Commonwealth Department of the Environment, Water, Heritage and the Arts. 20 Over the next almost five years, numerous consultants were engaged for the preparation of reports and consultation with the Shire and the various other authorities concerned. Mr Westera gave evidence that approximately $200,000 has been spent on consultancy fees in relation to the development application. 21 Although the work undertaken by consultants to address the matters raised by the Shire and the other authorities was, at times, intermittent, and although its progress appears to have been affected by changes in personnel at the Shire, Mr Westera's evidence shows that it was generally ongoing throughout the period of delay and was undertaken in order to enable the Council to be in a position to make a decision about the development application. Indeed, even though the development application was no longer capable of approval under TPS 7, the ongoing discussions between Mrs Scolaro's consultants and the Shire's officers about the development application resulted in the development application being advertised for public comment, for a second time, in August 2013 and in Mr Westera providing responses to submissions received during the advertising period in October 2013. 22 It appears that, although the development application is still pending before the Council, the Council has never formally considered whether to grant approval to it. In June 2009, the Shire advised Mr Westera that the development application would be considered at the Shire's Ordinary Council meeting in July 2009. Mr Westera gave evidence that he then provided further information to the Shire and that, in light of the Shire's letter and his response to it, 'I was confident that the Shire had all the necessary information and clarifications to assess the Development Application and that they would make a decision during the Shire's Council Meeting in July 2009'. 23 It is arguable that, given Mr Westera's confidence that the Shire 'had all the necessary information and clarifications to assess the Development Application' in July 2009, the applicant should reasonably have sought review of the deemed refusal of the development application promptly following the Shire's failure to consider whether to approve the development application at its meeting in July 2009. However, on balance, I am satisfied that there is a generally satisfactory explanation for the delay, both before and after that point, because Shire officers continued periodically to engage with Mr Westera and other consultants in relation to the development application in order for the Shire to be in a position to make a decision with respect to it.
Arguable case for review 24 The threshold to establish an arguable case is not onerous: Goedhart at [21] and Cardno BSD at [30]. However, in my view, Mrs Scolaro does not have an arguable case for review, because the proposed development of park homes cannot lawfully be approved on the site under TPS 7. 25 Although Mr Hotchkin concedes that if the Scheme as it currently stands were applied to the proposed development, then the development application must be refused, he submits that, nevertheless, the Tribunal has power to approve the development application on review of its deemed refusal by the Council and that Mrs Scolaro therefore has an arguable case for review in the circumstances of this case. Mr Hotchkin advances three submissions in this regard, of which the second is his principal submission. 26 First, Mr Hotchkin submits that Amendment No 12 'inadvertently prohibited' the proposed development and that, in October 2013, the Shire advised that to correct this inadvertent prohibition, the Council intends to initiate a town planning scheme amendment to include 'Park Homes Park' as a relevantly permissible land use in Sch III of the Scheme. Mr Hotchkin submits that significant weight should be given to this proposed Scheme amendment in the review, because it amends an 'inadvertent and undesired consequence' of the previous amendment, it addresses the development application, it is based on sound town planning principles and, based on the Shire's advice and the lack of apparent obstacles to its approval, the approval of the amendment should be considered to be 'certain and imminent'. 27 However, the evidence does not establish that the prohibition of the proposed development was either 'inadvertent' or 'undesired'. The letter from the Shire's Manager Planning Services to Doepel Marsh Architects dated 30 October 2008 states that, during the meeting the previous day: … it was also pointed out that current Scheme Amendment No 12 is moving to install 'Park Homes' as a separate use to that of 'Caravan Park' and that that would inform Council's final decision on the permissibility on the use on this site. 28 Mr Greg Delahunty, a town planner employed by the Shire, indicated that the Council of the Shire has not yet considered whether to initiate an amendment to TPS 7 to include 'Park Homes Park' as a permissible land use on the site in Sch III of the Scheme. Such an amendment cannot therefore be regarded as 'seriously entertained' and much less as 'certain and imminent'. In any case, even if there were a seriously entertained planning proposal to make the proposed development permissible with consent, and even if it were imminent and certain, there would not be an arguable case for review unless the amendment would be operative prior to the determination of the review proceeding by the Tribunal. Unless that were the case, the development application would have to be refused on review. 29 Secondly, Mr Hotchkin submits that his client has an accrued right, interest, power or privilege under s 37(1) of the Interpretation Act to seek review and to have the development application addressed and determined on its merits under the Scheme as it stood at the time of the deemed refusal. Section 37(1) of the Interpretation Act states, in part, as follows: Where a written law repeals an enactment the repeal does not, unless the contrary intention appears … … (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal; … (f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture, and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made. 30 Under s 5 of the Interpretation Act, a 'written law' includes 'subsidiary legislation' which, in turn, includes a 'local or region planning scheme'. Section 5 of the Interpretation Act also provides that the term 'power' in the Act includes 'any privilege, authority, or discretion'. 31 In support of his submission that Mrs Scolaro has an accrued right, interest, power or privilege to seek review on the basis of the Scheme as it stood at the time of the deemed refusal, Mr Hotchkin relies on the decision of the High Court of Australia in Esber v Commonwealth of Australia (1992) 174 CLR 430 (Esber) and the application of this decision in a planning case by the inaugural President of the Tribunal, Barker J, in Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 (CPP). 32 However, as Mr Roberts submits, I addressed and rejected essentially the same argument as presented by Mr Hotchkin in a substantially similar planning context in Miller and City of Stirling [2007] WASAT 247; (2007) 56 SR (WA) 128 (Miller). In Miller, the Tribunal was called on to determine a preliminary issue in each of two proceedings involving similar circumstances as to whether a proposed aged persons' housing development was capable of approval having regard to housing density requirements. Although the Acceptable Development housing density provision in cl 3.1.1 of the Residential Design Codes of Western Australia (2002) (Codes) permitted the minimum and average site areas of dwellings to be reduced by up to one third for the purposes of an aged or dependent persons' dwelling, the minimum and average site areas proposed in both of the applications under consideration were less than the applicable minimum and average site areas reduced by one third. However, at the time when the development applications were made, the applicable local planning scheme contained the following provision in cl 2.2.8: Development of a lot for aged or dependent persons' dwellings shall be in all respect in accordance with the standards and requirements of the Residential Planning Code R40 or such other RCode designation of higher density within which the lot may be located. 33 Although none of the dwellings proposed in the development applications satisfied the minimum site area specified in the Codes for the R40 code, if the discretion to reduce the minimum and average site areas per dwelling by up to one third were exercised in favour of the proposed developments, then the minimum and average site areas would conform to the housing density requirements for the R40 code. 34 Clause 2.2.8 was deleted from the applicable local planning scheme after the development applications in issue in Miller were deemed to have been refused by the City of Stirling (City), but before the City actually refused each of the development applications and before the applicants in that case commenced proceedings for review of the City's decisions to refuse development approval. 35 At [21] of Miller, I noted that in order to answer the preliminary question as to whether the proposed developments were capable of approval if the minimum and average site areas for the dwellings were less than the minimum and average site areas prescribed by the Codes, it was necessary to at first answer the 'underlining preliminary issue' of whether cl 2.2.8 of the local planning scheme continued to apply in the determination of the proceedings. In order to answer the 'underlining preliminary issue', I was required to address one of the applicant's submissions that 'in terms of s 37(1)(c) of the Interpretation Act, … at the time of the deletion of cl 2.2.8 from [the planning scheme] … [i]t had an accrued right to have the application determined on review on the basis of cl 2.2.8'. In addressing this argument, I said the following at [27] [31] of the decision: 27 Ourwise relies on the President's decision in Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 (CPP). In that decision, the President confirmed an earlier ruling of the Tribunal that a review application lodged under the Town Planning and Development Act 1928 (WA) (TPD Act), before the TPD Act was repealed, should be determined on the basis that s 20(5) of the TPD Act continued to apply to the review proceedings notwithstanding the repeal of the TPD Act. Section 20(5) of the TPD Act stated that the discretion to approve a subdivision application was not relevantly 'fettered' by a provision of a town planning scheme. Section 20(5) of the TPD Act was not re-enacted by the PD Act. Rather, s 138(2) of the PD Act states that, subject to any one of six exceptions set out in s 138(3), the consent authority 'is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme'. 28 The President determined that an applicant for subdivision approval that had commenced an application for review in the Tribunal of the decision of the Western Australian Planning Commission (Commission) to refuse subdivision approval prior to the repeal of the TPD Act had an accrued 'right', within the meaning of s 37(1)(c) of the Interpretation Act, to have the Commission's decision to refuse subdivision approval reviewed. The President concluded, at [78], that the Tribunal was correct in ruling that the review proceedings should be determined by reference to s 20(5) of the TPD Act. The President came to this conclusion for the following reasons at [77]: Thus, while I consider there is a strong case to be made in support of the view that no right, interest, title, power or privilege is thereby created, acquired, established or exercisable prior to the operation of the repealing law in circumstances where an owner of land • has no existing right to subdivide land and may only subdivide if a statutory prohibition on subdivision is removed by a relevant approval authority; • applies for such approval; • is denied approval; • then applies for review of that refusal as part of an administrative review process; and then • before such review is complete finds that the law governing the exercise of the subdivision approval power has been changed by a repealing or amending law, the decision in [Esber v Commonwealth of Australia (1992) 174 CLR 430 (Esber)] stands as high authority in support of the contrary view and I can see no persuasive ground to distinguish Esber from the case before me. It is not for me, as a single judge, to purport effectively to set aside the decision in Esber. As a result, I should follow Esber. 29 At [49]-[51], the President summarised the facts and decision in Esber v Commonwealth of Australia (1992) 174 CLR 430 (Esber) as follows: Esber was a case that, in part, dealt with s 8 of the Acts Interpretation Act 1991 (Cth), which is similar to s 37 of the Interpretation Act. In Esber, Mr Esber, a former member of the defence forces, received weekly payments in excess of $50 as compensation under the relevant Commonwealth compensation legislation as a result of an injury suffered while a member of the Forces. He applied to redeem his weekly payments pursuant to a provision of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) so that he might receive a lump sum in lieu of weekly payments. The application for redemption was rejected by the responsible officer under the 1971 Act. The applicant then applied out of time to the Commonwealth Administrative Appeals Tribunal (AAT) to review that decision, as he was entitled to do. Time to apply was extended. After the application for review was made, but before the hearing by the AAT, the 1971 Act was repealed by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth) (1988 Act). The 1988 Act provided that weekly payments over $50 were not redeemable. However, a provision of the 1988 Act provided that proceedings instituted under the 1971 Act but not completed upon the repeal of that Act may be continued on or after that day, and where the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings. Section 8 of the Acts Interpretation Act 1901 (Cth) relevantly provided that, unless the contrary intention appeared, an Act repealing a former Act would not '(c) affect any right … acquired … under any Act so repealed' or '(e) affect any investigation, legal proceeding or remedy in respect of any such right …'. On the face of it, the majority of the High Court (Brennan J dissenting) held that the 1971 Act applied to the application for review for two reasons: • The provision of a 1988 Act providing for the continuation of proceedings was not a procedural provision but gave the applicant a substantive right to have his application heard and determined under the 1971 Act. As the proceedings had not been completed before the commencement of the 1988 Act, the applicant had the right to have the decision reconsidered and determined under the 1971 Act. • The applicant's right was in any event a right within s 8(c) of the Acts Interpretation Act 1901. The 1988 Act did not affect that right since it expressed no intention to do so. 30 At [52] the President set out a passage from the decision of Mason CJ, Deane, Toohey and Gaurdron JJ in Esber at 440. Part of this passage is as follows: Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment' [footnote omitted]. Nor was it a mere matter of procedure [footnote omitted]; it was a substantive right [footnote omitted]. 31 Ourwise concedes that there is a difference between CPP and Esber, on the one hand, and the circumstances of this case, on the other hand, because it filed its application for review in the Tribunal after cl 2.2.8 was deleted from DPS 2. However, Ourwise submits that at the time of the deletion of cl 2.2.8 it had an accrued 'right' to have the subdivision application determined on review on the basis of the law at the time of the deemed refusal of the application, that is, on the basis of cl 2.2.8. 36 I then determined the 'accrued rights' argument in Miller at [32] as follows: The applicant's accrued right argument is incorrect. Assuming that Ourwise (and Mr Miller) had an accrued right, when cl 2.2.8 was deleted from DPS 2, to have the application determined on review on the basis of the law at the time of the deemed refusal of the application, Ourwise (and Mr Miller) did not seek review of the deemed refusal of the development application, and the present proceedings are for review of the actual refusal of the development application, which took place approximately 14 weeks (and, in the case of Mr Miller, approximately seven weeks) after the deletion of the clause from the Scheme. 37 Mr Hotchkin submits that the decision in Miller is distinguishable for two reasons. First, and most significantly, whereas the applicants in Miller sought review upon the actual refusal of their development applications which postdated the relevant planning scheme amendment, there has been no actual refusal in this case and Mrs Scolaro seeks review of the deemed refusal of the development application. Moreover, Mr Hotchkin submits that: No person can argue persuasively that if they seek review of an actual refusal they had an accrued right at an earlier time when there was a deemed refusal when their right was plainly extinguished by the actual refusal and they took no steps to review the deemed refusal. 38 Secondly, Mr Hotchkin submits that, unlike Miller, the Shire in this case 'supports the development'. 39 However, the decision in Miller is not relevantly distinguishable. The accrued rights argument that was advanced and rejected in Miller was dismissed because the applicants did not seek review of the deemed refusal of their development applications prior to the repeal of cl 2.2.8 of the local planning scheme, even though the development applications were deemed to have been refused prior to the repeal of that provision. In this case, also, the applicant did not seek review of the deemed refusal of the development application prior to the amendment of the definition of 'Caravan Park' by Amendment No 12 to the Scheme. While it is correct that the applicants in Miller ultimately sought review of the actual refusals of their development applications, the accrued rights argument was based on the applicants having had an accrued right because of the deemed refusal of their applications prior to the repeal of the relevant provision. So too in this case, even if Mrs Scolaro's late husband had an accrued right to have the development application determined on review on the basis of the law as it stood at the time of the deemed refusal of the development application, he did not seek review of the deemed refusal prior to the repeal of the relevant provision. Even if leave were now granted under r 10 of the SAT Rules to extend time to commence the proceeding, that would not have the effect that the proceeding would be deemed to have been commenced at the date of the deemed refusal or otherwise prior to Amendment No 12. If leave to extend time were granted, the proceeding would be commenced on the date on which the application was filed, that is, on 4 December 2013, well after the change in the law. 40 Furthermore, Mr Hotchkin's submission that a right to seek review of a deemed refusal would be extinguished by an actual refusal did not form part of the argument or reasoning in Miller. As stated at [2] of Miller, the Tribunal in that case determined that the applicants did not have an accrued right to have the applications determined on review on the basis of the deleted special provision, because '[a]lthough the applicants had a right to seek review of the deemed refusal of their applications at the time when the provision was deleted, they did not exercise that right'. That reasoning applies in the present case as well. 41 In relation to the second distinguishing factor referred to by Mr Hotchkin, there is no evidence that the Shire 'supports the development' in this case, although the Shire's officers engaged in protracted, but sporadic discussions with Mrs Scolaro's consultants in order to progress the development application. In any case, in terms of the applicability of the reasoning in Miller to the present case, this is not a relevant distinguishing factor. 42 In Miller, I went on to express an obiter, but considered, view that 'it may well be the case' that even if the applicants had commenced proceedings for the review of the deemed refusal of the development applications in accordance with r 9 and r 10 of the SAT Rules prior to the repeal of cl 2.2.8 of the local planning scheme, 'they would not have had an accrued right to have the development application[s] determined on review on the basis of the law at the time of the deemed refusal of the application[s]' (at [34]). Having regard to decisions in New South Wales, Victoria, Queensland and Western Australia, including a decision of the Full Court of the Supreme Court of Western Australia, (which were then referred to at [35] [42]), I said at [35] that: It is well established in Australian planning law that a development or subdivision application is to be determined on the basis of the law as it stands at the time of the determination, whether by an original decisionmaker or on review/appeal by a court or a tribunal such as SAT. 43 After referring to the decisions in Western Australia and other jurisdictions, I concluded the discussion in relation to the applicants' accrued rights argument in Miller at [43] [47] as follows: 43 Having regard to the established position in Australian planning law, it may well ultimately be determined that CPP (and Esber) should only be applied in strictly comparable circumstances to the facts of those cases, namely circumstances in which a written law repeals both an enactment that confers a right to seek review/appeal and an enactment that regulates the way in which the application is to be determined, including on review/appeal. In both CPP and Esber, a written law repealed an enactment that conferred a review/appeal right, which is a 'right' within the meaning of s 37(1)(c) of the Interpretation Act, and an enactment that regulated the way in which the application was to be determined, including on review/appeal. 44 The effect of Esber, as applied by the President in CPP, appears to be that where a written law repeals an enactment that confers a right to seek review by the Tribunal, the repeal does not, unless the contrary intention appears, affect the review right. A SAT review proceeding, whether instituted before the repeal of an enactment that confers a review right or after the repeal, but in accordance with r 9 and r 10 of the SAT Rules, is relevantly an 'investigation ... or remedy in respect of any such [review] right', within the meaning of par (f) and the concluding words of s 37(1) of the Interpretation Act. Section 37(1) has the effect that the review proceeding 'may be instituted [or] continued ... as if the repealing written law had not been passed or made'. 45 This appears to be, in effect, what occurred in CPP. The review right that was exercised in CPP was conferred by s 26(1)(a)(i) of the TPD Act. The repealing written law in that case repealed the whole of the TPD Act, including both s 26(1)(a)(i) - the enactment that conferred the review right - and s 20(5) - the enactment that regulated the way in which the application was to be determined, including on review. The effect of s 37(1) of the Interpretation Act was that the repeal of s 26(1)(a)(i) of the TPD Act did not affect the review 'right' or the proceeding in respect of the review right, and the proceeding could be continued as if the repealing law had not been passed. Had the repealing law in CPP not been passed, s 20(5) of the TPD Act would have continued in operation, and the Tribunal was therefore correct in ruling that the proceeding should be determined by reference to it. 46 However, in the present case, the written law did not repeal an enactment that conferred a right to seek review. Rather, it repealed an enactment to which the Council, and the Tribunal on review, was required to have regard while it remained a provision of DPS 2, but not after it was deleted from DPS 2. 47 It may, therefore, ultimately be determined that although CPP qualifies the principle of planning law referred to earlier, the qualification is of limited practical significance in relation to the repeal of provisions of planning instruments. The qualification may be restricted to cases in which a planning instrument, which both confers a review right and also regulates the way in which an application is to be determined, is repealed, and an application for review has been or is subsequently commenced under the repealed provision. Although most planning instruments confer a right to seek review of a decision made under the instrument, most applications for review of the refusal or conditional approval of a development application are made under s 252(1) of the PD Act, not under the right conferred by the planning instrument. Section 252(3) of the PD Act states that the exercise of the right to seek review under s 252(1) of the PD Act extinguishes any right to seek review under a planning scheme. 44 In this respect also, the present case is not distinguishable from Miller. Although in this case, like in Miller, it is not necessary to express a final view, having reviewed the reasoning in Miller at [43] [47] it is, in my view, sound and correct. Thus, even if Mrs Scolaro's late husband had sought review of the deemed refusal of the development application prior to the change in the definition brought about by Amendment No 12, there would not be an accrued right, interest, power or privilege to have the development application determined on the basis of the law as it stood at the time of the deemed refusal. Amendment No 12 did not repeal an enactment that conferred a right to seek review. Rather, it repealed a definition which the Shire (and the Tribunal on review) was required to apply while it remained a provision of the Scheme, but not after it was deleted from the Scheme. 45 The third submission advanced by Mr Hotchkin in support of the contention that the Tribunal has power to approve the development application, notwithstanding Amendment No 12, is that s 29(5)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) has the effect that 'the Scheme at the time of the reviewed decision is … applicable'. Section 29(5)(b) of the SAT Act states as follows: The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision … (b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect. 46 However, this provision does not purport to and does not have the effect that the Scheme at the time of the making of the reviewable decision is applicable in the determination of the review proceeding. Indeed, that would be inconsistent with s 27(2) of the SAT Act which describes the nature of review proceedings and states that: The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. (Emphasis added). 47 The 'correct' decision means, or at least requires, that the decision must be legally correct at the time when it is made by the Tribunal. If, at the time of the decision upon the review, development approval cannot lawfully be granted to an application, then approval of the development application cannot be the correct and preferable decision at the time of the decision upon the review. 48 Furthermore, s 29(5)(b) of the SAT Act is, on its face, a procedural, rather than a substantive provision and states that the Tribunal's decision is deemed to have had effect at the time of the reviewable decision 'unless the enabling Act states otherwise or the Tribunal orders otherwise'. Such a procedural provision makes good sense in review proceedings where the review decision may modify the reviewable decision, for example, by amending operative conditions of planning approval. However, the fact that the Tribunal can order that the decision is to have effect from another date, such as the date of the decision upon the review or even subsequently, also indicates that s 29(5)(b) of the SAT Act does not have the effect that the Scheme at the time of the reviewable decision is applicable where the Scheme has been amended prior to the decision upon the review.
Prejudice 49 The Shire does not contend that an extension of time would result in prejudice to it. I find that there would not be any prejudice to any person if an extension of time were granted in the circumstances of this case.
Council can still determine the development application 50 Mr Hotchkin submits that the fact that the Council could still determine to refuse the development application under cl 8.7.3 of the Scheme, and thereby confer an exercisable right to seek review under s 252(1) of the PD Act and cl 9.5 of the Scheme, 'is a relevant further consideration which supports the granting of a very significant extension of time'. In support of this submission, Mr Hotchkin relies on my finding in Cardno BSD at [32] that, in a case of a delay of three years and 10 months, the fact that the Shire in that case could still determine and refuse the development application, thereby conferring a further exercisable right to seek review, was a consideration supporting the granting of an extension of time. 51 However, while the fact that an original decisionmaker could make an actual decision and refuse a development application, and thereby confer a fresh right to seek review, is usually a factor in favour of an extension of time in the case of an application for review of the deemed refusal of a development application, in the unusual circumstances of this case, it is not. This is because it is common ground in this case that under TPS 7 as it currently stands, the only decision that the Council (and the Tribunal on review) could make with respect to the development application is to refuse it, because the development of park homes cannot be approved on the site. Given that Mrs Scolaro correctly concedes that an application for review of the actual refusal of the development application would have to be refused by the Tribunal, the fact that the development application could still be refused by the Council is academic and does not support an extension of time being granted in the circumstances of this case.
Exercise of discretion 52 I have found that there is a generally satisfactory explanation for the delay and that there would be no prejudice to the Shire or to any other person if an extension of time were granted. These considerations support the granting of an extension of time. 53 However, in the exercise of discretion under r 10 of the SAT Rules, these factors are strongly outweighed in this case by two other considerations that are against an extension of time being granted. First, the period of delay of almost five years is extraordinary and inordinate and the delay has the significant consequences discussed at [10] [13] above, namely that allowing such an extension would greatly undermine the utility and purpose of the 28 day period for the commencement of proceedings and TPS 7 was amended in a material respect as it concerns the proposed development in that the proposed development is now prohibited. Secondly, Mrs Scolaro does not have an arguable case for review, because the development of park homes cannot be approved on the site under the applicable planning scheme. Therefore, in the exercise of discretion, an extension of time in which to seek review of the deemed refusal of the development application should be refused. 54 Furthermore, in the unusual circumstances of this case, if Mrs Scolaro had an accrued right, interest, power or privilege to seek review of the deemed refusal of the development application and to have the review determined on the basis of the Scheme at the time of the deemed refusal, I would still have come to the view that an extension of time should not be allowed, because the consequences of the extraordinary and inordinate delay in seeking review would be all the more significant. This is because, in carrying out the review, the Tribunal would be required to apply a definition which, by the time it comes to carry out the review, had been repealed some four years earlier, which it would not apply in carrying out a review of the refusal of the same development on other land in the same zone, refused by the Shire on or after 30 April 2010, which the Shire would not apply in making an actual decision with respect to the development application (which it could still do) and which the Tribunal would not apply in reviewing such a decision. Order
55 For these reasons, I make the following order: 1. The application under r 10 of the State Administrative Tribunal Rules 2004 (WA) for an extension of time in which to seek review of the deemed refusal of the development application is refused.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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