Shire of Augusta-Margaret River v Gray

[2005] WASCA 227

SHIRE OF AUGUSTA­MARGARET RIVER -v- GRAY & ANOR [2005] WASCA 227

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 227
Court:	THE COURT OF APPEAL (WA)
Case No:	SJA:1026/2004	Heard:	9 JUNE 2005
Coram:	MCLURE JA PULLIN JA LE MIERE AJA	Delivered:	28/11/05
No of pages:	50	Judgment Part:	1 of 1
Result:	In SJA 1026 of 2004, appeal dismissed In CIV 1438 of 2004, order nisi for writ of certiorari made absolute
Category:	A
PDF Version

Parties:	SHIRE OF AUGUSTA­MARGARET RIVER ROY ALFRED GRAY WESTERN AUSTRALIAN PLANNING COMMISSION TOWN PLANNING APPEAL TRIBUNAL
Catchwords:	Town planning and development Competency of appeal under s 67 of Town Planning and Development Act (Planning Act) Meaning of "proceeding" Whether Town Planning Appeal Tribunal erred in dismissing Shire's application to be made a party, alternatively, to make submissions in an appeal under the Planning Act Power to order joinder of Shire Whether State Administrative Tribunal has power to re-hear Shire's applications and if so, the law that applies Construction of s 167 of State Administrative Tribunal Act.
Legislation:	Interpretation Act 1984 (WA), s 37 State Administrative Tribunal Act 2004 (WA), s 36, s 37, s 38, s 167 State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) State Administrative Tribunal Regulations 2004 (WA) State Administrative Tribunal Rules 2004 (WA) Town Planning and Development Act 1928 (WA), s 2, s 5AA, s 20(1), s 24(1), s 26(1), s 51, s 61(1), s 62, s 63, s 67
Case References:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 76 ALJR 1502 Australian Conservation Foundation Inc v The Commonwealth of Australia (1980) 146 CLR 493 Australian Tape Manufacturers Association Ltd v Commonwealth (1990) 94 ALR 641 Beverage Holdings Pty Ltd v Greater Pacific Investments Pty Ltd (1990) 3 ACSR 743 Blake v Norris (1990) 20 NSWLR 300 Braeside Bearing Pty Ltd v Brignell [1996] 1 VR 17 Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Didasko Technologies Pty Ltd v Comtel Services Pty Ltd & Anor [2005] WASCA 54 Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161 Esber v Commonwealth of Australia (1992) 174 CLR 430 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Harding & Read v Shire of Chittering & Ors [2003] WATPAT 147 Harding and Read v Shire of Chittering & Ors [2003] WATPAT 147 Harris v Caladine (1991) 172 CLR 84 Melsom v Deputy President Forrest (1996) 42 ALD 261 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) SASR 67 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 Pitt v Environment Resources and Development Court (1995) 66 SASR 274 Pitt v Environment Resources Development Court (1995) 66 SASR 274 R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 Re Marks and Secretary, Department of Defence (1987) 11 ALD 456 Re Melbourne and Secretary, Department of Social Security (1988) 14 ALD 415 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Reynolds v Panten (1993) 23 WAR 215 Reynolds v Panten (1999) 23 WAR 215 Riley v The State of Western Australia [2005] WASCA 190 Robinson v Western Australian Museum (1977) 138 CLR 283 Williams v Minister for Environment and Heritage (2003) 74 ALD 124 Australian Real Estate Investment Ltd v Western Australian Planning Commission [2003] WATPAT 121 Craig v South Australia (1995) 184 CLR 163 Hicks v City of Melville (1994) 11 SR (WA) 280 Kioa v West (1985) 159 CLR 550 Varney v Parole Board of Western Australia (2000) 23 WAR 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SHIRE OF AUGUSTA­MARGARET RIVER -v- GRAY & ANOR [2005] WASCA 227 CORAM : MCLURE JA

PULLIN JA
LE MIERE AJA

HEARD : 9 JUNE 2005 DELIVERED : 28 NOVEMBER 2005 FILE NO/S : SJA 1026 of 2004 MATTER : The Town Planning and Development Act 1928

AND

Appeal No 37 of 2004 between ROY ALBERT GRAY (Appellant) and the WESTERN AUSTRALIAN PLANNING COMMISSION (Respondent) and the SHIRE OF AUGUSTA­MARGARET RIVER (Application for joinder and leave to make submission)

BETWEEN : SHIRE OF AUGUSTA­MARGARET RIVER

Appellant

AND

ROY ALFRED GRAY
First Respondent

WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent

FILE NO/S : CIV 1438 of 2004

(Page 2)

MATTER : Applications for Writs of Certiorari and Writs of Mandamus against the TOWN PLANNING APPEAL TRIBUNAL

BETWEEN : SHIRE OF AUGUSTA-MARGARET RIVER

Applicant

AND

TOWN PLANNING APPEAL TRIBUNAL
First Respondent

ROY ALFRED GRAY
Second Respondent

WESTERN AUSTRALIAN PLANNING COMMISSION
Third Respondent

ON APPEAL FROM:

Jurisdiction : TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA

Coram : MCGOWAN P

Citation : GRAY v WAPC [2004] WATPAT 42

File No : WATPAT 37 of 2004

Catchwords:

Town planning and development - Competency of appeal under s 67 of Town Planning and Development Act (Planning Act) - Meaning of "proceeding" - Whether Town Planning Appeal Tribunalerred in dismissing Shire's application to be made a party, alternatively, to make submissions in an appeal under the Planning Act - Power to order joinder of Shire - Whether State Administrative Tribunal has power to re-hear Shire's applications and if so, the law that applies - Construction of s 167 of State Administrative Tribunal Act.

(Page 3)

Legislation:

Interpretation Act 1984 (WA), s 37

State Administrative Tribunal Act 2004 (WA), s 36, s 37, s 38, s 167
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal Regulations 2004 (WA)
State Administrative Tribunal Rules 2004 (WA)
Town Planning and Development Act 1928 (WA), s 2, s 5AA, s 20(1), s 24(1), s 26(1), s 51, s 61(1), s 62, s 63, s 67

Result:

In SJA 1026 of 2004, appeal dismissed

In CIV 1438 of 2004, order nisi for writ of certiorari made absolute

Category: A

Representation:

SJA 1026 of 2004

Counsel:

Appellant : Ms P E Cahill
First Respondent : No appearance
Second Respondent : Mr G T W Tannin SC & Mr S M Murphy

Solicitors:

Appellant : Sandra Boulter
First Respondent : No appearance
Second Respondent : State Solicitor's Office

(Page 4)

CIV 1438 of 2004

Counsel:

Applicant : Ms P E Cahill
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : Mr G T W Tannin SC & Mr S M Murphy

Solicitors:

Applicant : Sandra Boulter
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : State Solicitor's Office

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

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 76 ALJR 1502
Australian Conservation Foundation Inc v The Commonwealth of Australia (1980) 146 CLR 493
Australian Tape Manufacturers Association Ltd v Commonwealth (1990) 94 ALR 641
Beverage Holdings Pty Ltd v Greater Pacific Investments Pty Ltd (1990) 3 ACSR 743
Blake v Norris (1990) 20 NSWLR 300
Braeside Bearing Pty Ltd v Brignell [1996] 1 VR 17
Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Didasko Technologies Pty Ltd v Comtel Services Pty Ltd & Anor [2005] WASCA 54
Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161
Esber v Commonwealth of Australia (1992) 174 CLR 430
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Harding and Read v Shire of Chittering & Ors [2003] WATPAT 147


(Page 5)

Harris v Caladine (1991) 172 CLR 84
Melsom v Deputy President Forrest (1996) 42 ALD 261
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) SASR 67
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Pitt v Environment Resources and Development Court (1995) 66 SASR 274
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
Re Marks and Secretary, Department of Defence (1987) 11 ALD 456
Re Melbourne and Secretary, Department of Social Security (1988) 14 ALD 415
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Reynolds v Panten (1999) 23 WAR 215
Riley v The State of Western Australia [2005] WASCA 190
Robinson v Western Australian Museum (1977) 138 CLR 283
Williams v Minister for Environment and Heritage (2003) 74 ALD 124

Case(s) also cited:

Australian Real Estate Investment Ltd v Western Australian Planning Commission [2003] WATPAT 121
Craig v South Australia (1995) 184 CLR 163
Hicks v City of Melville (1994) 11 SR (WA) 280
Kioa v West (1985) 159 CLR 550
Varney v Parole Board of Western Australia (2000) 23 WAR 187


(Page 6)

1 MCLURE JA: This is the return of an order nisi for writs of certiorari and mandamus in relation to decisions of the Town Planning Appeal Tribunal ("Planning Tribunal") refusing applications made by the Shire of Augusta-Margaret River ("Shire") to be joined as a party to an appeal to which the second and third respondents are parties ("the subdivision appeal") and alternatively for leave to make submissions in that appeal. The Shire also seeks to appeal the decisions.

Background

2 On 5 August 2002 Mr Roy Gray (the first respondent in the appeal and the second respondent in the judicial review application) applied to the Western Australian Planning Commission ("Commission") (the second respondent in the appeal and the third respondent in the judicial review application), under s 20(1)(a) of the Town Planning and Development Act 1928 (WA) ("Planning Act"), for approval to subdivide land owned by him in Margaret River. Mr Gray had previously applied (unsuccessfully) to the Shire to alter the zoning of his property from Rural to Special Rural.

3 Under s 24(1) of the Planning Act, the Commission referred Mr Gray's subdivision application to the Shire as the relevant local government authority. The Shire informed the Commission in writing that it objected to the subdivision application, giving detailed reasons.

4 The Commission refused Mr Gray's subdivision application. In a letter dated 23 December 2003 to the Shire the Commission advised:

"REASONS:

1 The [Commission] is not prepared to support the proposed subdivision of the land into 'Rural Residential' and 'Conservation' lots until adequate land use, land management and development controls are introduced through the appropriate rezoning of the subject land.

ADVICE TO APPLICANT & SHIRE OF AUGUSTA-MARGARET RIVER:

The [Commission] is of the view that Council [of the Shire], through its current scheme review, should rezone the land and introduce the necessary planning controls to facilitate the future subdivision, development and management of the subject land as envisaged by the latest subdivision proposal."

(Page 7)

5 On 16 February 2004 Mr Gray lodged a notice of appeal with the Planning Tribunal from the Commission's refusal of his subdivision application. Mr Gray had a right of appeal under s 26(1)(a)(i) and Pt V of the Planning Act.

6 At a directions hearing before the President of the Planning Tribunal on 10 March 2004, the Shire applied to be joined as a party to the subdivision appeal and, in the alternative, to make submissions to the Planning Tribunal under s 62 of the Planning Act which provides:

"The Tribunal may receive or hear submissions from a person who is not a party to an appeal in respect of the appeal if the Tribunal is of the opinion that that person has a sufficient interest in the appeal."

7 On 15 March 2004 the President of the Planning Tribunal refused the Shire's applications to be made a party or to make submissions.

8 On 7 April 2004 before any hearing of the substantive matters in the subdivision appeal, this Court granted an order nisi for a writ of certiorari. It also ordered that the order nisi operate as a stay of the subdivision appeal until the hearing of the order nisi or further order of the Court.

9 After the order nisi was made, but before the matter was heard by this Court, significant legislative changes occurred which have resulted in, among other things, the abolition of the Planning Tribunal. A right of review by the State Administrative Tribunal ("SAT") has replaced the right of appeal to the Planning Tribunal.

10 The grounds of challenge to the decisions in the judicial review application and the appeal are the same. As clarified during the course of the hearing, they are that the Tribunal erred in law:

(1) in applying the wrong test in refusing to order joinder or alternatively submissions;

(2) by taking into account irrelevant considerations;

(3) in that the material before the Planning Tribunal compelled joinder of the Shire.

11 Other matters also arise for determination. They include:

(Page 8)

(a) the law that applies to the determination of the matters in this Court and the law that would apply if the Shire is successful;

(b) whether this Court can or should substitute its decision for that of the Planning Tribunal;

(c) whether the appeal is competent.

12 In the determination of the judicial review application and the appeal, it is necessary to have regard to the pre and post SAT amendments.

The Legislative Framework

13 On 1 January 2005 the State Administrative Tribunal Act 2004 (WA) ("the SAT Act") and relevant provisions of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) ("the SAT Conferral Act") came into effect.

14 Part 2 Div 126 (ss 1191 - 1228) of the SAT Conferral Act repealed some, and amended other, provisions of the Planning Act. Relevant changes include:

• the abolition of the Planning Tribunal (s 1202 of the SAT Conferral Act);

• previous rights to appeal to the Planning Tribunal became rights to apply for review to SAT (including, for example, s 26(1)(a) of the Planning Act as amended by s 1199 of the SAT Conferral Act);

• the right to appeal to the Supreme Court on questions of law from the Planning Tribunal was repealed and the generally applicable power to appeal by leave from SAT decisions on questions of law to the Supreme Court became applicable (former s 67 of the Planning Act repealed by s 1215 of the SAT Conferral Act and s 105 of the SAT Act).

15 Further, a provision of the Planning Act relied on by the Shire for its joinder application was repealed and the SAT power to join third parties was expressly excluded (by ss 1192(1) and 1213 of the SAT Conferral Act respectively).
(Page 9)

16 I start with the provisions of the Planning Act as they applied before 1 January 2005 ("former provisions"). There was no express power in the former provisions of the Planning Act for the joinder of additional parties in an appeal to the Planning Tribunal. However, the Planning Tribunal concluded it had such a power, relying on the definition of "party" in s 2 and on s 51(1)(e) and (f). "Party" was defined as follows:

"'Party', in relation to an appeal, means -

(a) the appellant;

(b) the person who made the decision or direction appealed against; and

(c) any person joined as a party to the appeal by the Tribunal."

17 Section 51 dealt with the procedure of the Planning Tribunal and relevantly provided:

"(1) In the performance of its functions the Tribunal, however constituted -

(a) - (d) …

(e) is to deal with each appeal with as little formality and technicality, and determine each appeal with as much speed, as the requirements of this Act, the regulations and the rules and a proper consideration of the matter before it permit; and

(f) subject to this Act, the regulations and the rules, may deal with appeals, and receive submissions and representations in relation to any appeal before it, as it thinks fit."

18 With one reservation, the parties accepted that the Tribunal had the (implied) power to join additional parties in an appeal. However, the respondent contended that the Planning Tribunal did not have power to join persons to whom the Commission was obliged to refer matters under s 24(1) of the Planning Act.

19 Material changes were made by the SAT legislation. The definition of "party" in the Planning Act was repealed by s 1192(1) of the SAT Conferral Act. Under s 37 of the current (ie, post-SAT) provisions of the

(Page 10)

Planning Act, "party" has the meaning given to that term in s 36 of the SAT Act. Section 36(1) of the SAT Act provides:

"(1) A person is a party to a proceeding before the Tribunal if the person is -

(a) the applicant;

(b) a person joined under section 38 as a party to the proceeding;

(c) a person intervening in the proceeding; or

(d) specified by this Act or the enabling Act to be a party to the proceeding."

20 If the proceeding is in SAT's review jurisdiction, the decision-maker is also a party (s 36(4)).

21 Under s 37(3) of the SAT Act, SAT has a discretion to give leave at any time for a person to intervene in a proceeding on conditions, if any, that SAT thinks fit. Section 38 deals with joinder as a party and provides:

"(1) [SAT] may order that a person be joined as a party to a proceeding if [SAT] considers that -

(a) the person ought to be bound by, or have the benefit of, a decision of [SAT] in the proceeding;

(b) the person's interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.


(2) [SAT] may make an order under subsection (1) on the application of any person or on its own initiative."

22 However, s 63 of the current provisions of the Planning Act excludes the application of s 38 of the SAT Act. It provides:

"63 Section 38 of the State Administrative Tribunal Act 2004 does not apply in a proceeding for a review in accordance with this Part."

(Page 11)

23 The reference to "this Part" is to Part V of the Planning Act which now deals with applications for review.

Transitional Matters

24 Section 167 of the SAT Act deals with transitional matters. It raises challenging construction issues. The section was amended in the course of its passage through Parliament so the second reading speech and explanatory notes are of little assistance. Section 167(1) provides:

"Regulations or rules may prescribe any matter that is necessary or convenient to be prescribed in relation to issues arising when a written law confers on the Tribunal jurisdiction to deal with a matter (a 'devolved matter') that -

(a) is of a kind that is substantially similar to a kind of matter that could, before that jurisdiction was conferred, be dealt with by another tribunal, court, body, or person (the 'former adjudicator'); and

(b) after that jurisdiction is conferred on the Tribunal, no longer comes within the jurisdiction of the former adjudicator except under this section."

25 At the time of writing, no relevant rules or regulations have been made. The State Administrative Tribunal Regulations 2004 (WA) and the State Administrative Tribunal Rules 2004 (WA) are silent on the topic. Subsection (1) of s 167 defines a devolved matter. In essence, it arises where (1) a written law confers on SAT jurisdiction to deal with a matter and (2) the matter is of a kind that is substantially similar to a kind of matter that could, before conferral of that jurisdiction on SAT, be dealt with by another decision-maker (defined as "the former adjudicator").

26 It is not in dispute that the subdivision appeal is a devolved matter. The transfer of that matter to SAT would cover all pending applications in the subdivision appeal, including pending applications which result from Planning Tribunal decisions being set aside or quashed (before or after the transfer date). The Shire contended that its application for joinder and its application for leave to make submissions in the subdivision appeal were themselves devolved matters. In my view, that conclusion is not supported by the language of s 167(1). The definition of a devolved matter is in terms of "jurisdiction" in relation to a matter. Jurisdiction is the authority a body has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction, a body has such express or

(Page 12)

implied powers as are conferred on it: Harris v Caladine (1991) 172 CLR 84 at 136 per Toohey J. A decision by the Planning Tribunal to order joinder of a party to an appeal or to permit a person to make submissions in an appeal is the exercise of the Planning Tribunal's powers which are incidental to the exercise of its jurisdiction with respect to appeals. To adopt the statutory language in subs (4)(e) of s 167, the Shire's applications were "in respect of" a devolved matter. If that were not so, the joinder application would not be a devolved matter because that jurisdiction has not been conferred on, or transferred to, SAT.

27 Section 167(4) is relevant in the determination of:

(a) the law that applies to the disposition of the review and the appeal; and

(b) whether, if the decisions are quashed, the applications can be determined afresh by SAT and, if so, do the former or current provisions of the Planning Act apply?

28 It provides:

"(4) On the day on which jurisdiction is conferred on the Tribunal (the 'transfer day') -

(a) any devolved matter the hearing, consideration or determination of which has been sought or initiated in any way but not commenced before the former adjudicator is transferred to, and takes place before, the Tribunal;

(b) unless otherwise provided in the regulations, if the former adjudicator does not continue to exist any devolved matter that has been partly or fully heard before, but not determined by, the former adjudicator is transferred to, and continues before, the Tribunal;

(c) if the former adjudicator continues to exist, any devolved matter that has been partly or fully heard before, but not determined by, the former adjudicator is to continue to be dealt with and determined by the former adjudicator unless it is transferred to the Tribunal under subsection (5) in which case it continues before the Tribunal;

(Page 13)

(d) any devolved matter that has been determined by the former adjudicator but -

(i) would have been appealable had the law in force immediately before the transfer day continued to apply; or

(ii) was the subject of an appeal that was not determined before the transfer day,


is to continue to be dealt with as if the law in force immediately before the transfer day had continued to apply; and

(e) anything ordered, decided, or otherwise done by a former adjudicator in respect of a devolved matter before the transfer day becomes of the same effect as if, and enforceable as if, it were ordered, decided, or done by the Tribunal under the provisions authorising the Tribunal to order, decide, or do corresponding things after the transfer day."

29 Subsection (4)(a) applies to the subdivision appeal. On any view, that has been transferred to SAT. Further, it cannot have been intended that subs (4)(e) applies to decisions of the Planning Tribunal that have been quashed or set aside on appeal

30 Subsections (5), (6) and (7) of s 167 apply when the former adjudicator continues to exist and are not relevant for present purposes. The Shire relied on subs (8) and (9) which provide:

"(8) The law in force before the transfer day continues to apply to enable a former adjudicator to continue to deal with and determine a matter under subsection (4)(c) and to enable an appeal to be made, or continued, and dealt with according to subsection (4)(d) or (7) and implemented.

(9) In subsections (4)(d), (7) and (8) -


'appeal' includes a review and a case stated to a court."

(Page 14)

31 The effect of subs (8) and (9) is that the law in force before the transfer day continues to apply to devolved matters to which subs (4)(c), (4)(d) or (7) apply. It has no broader application.

32 Subsection (13) of s 167 is also relevant. It provides:

"(13) Where a matter is transferred to the Tribunal under subsection (4)(b) or (5) -

(a) the practice and procedure, and any hearing or other fees, applicable to the matter when it was being dealt with by the former adjudicator continue to apply to the matter when it is being dealt with by the Tribunal; and

(b) the Tribunal has the powers that the former adjudicator had in dealing with the matter,


if and to the extent that the regulations or rules so provide."

33 As previously noted, no regulations or rules have been made.

34 We were not referred to any other relevant transitional provisions. Thus, the SAT legislation is silent on the law that applies in the determination of the appeal and the judicial review proceedings. In those circumstances, s 37 of the Interpretation Act 1984 (WA) applies. Section 37(1)(c) and (f) of the Interpretation Act materially provide:

"(1) 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 … 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,

(Page 15)

and any such … 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."

35 It was not contended that the Shire's rights to have its applications considered and determined according to law and to challenge the refusal by way of appeal or review were procedural not substantive. Thus, in the determination of the matters before this Court, the former provisions of the Planning Act apply.

36 The parties also made submissions on what this Court could and should do if the Shire succeeded in its review application relating to the Planning Tribunal's joinder decision. The Shire contended that if the Planning Tribunal decision is quashed, this Court should order SAT to join the Shire to the subdivision appeal (notwithstanding SAT is not a party and prima facie lacks the power to do so). The difficulty with this contention is that generally, the most a court can do when it finds a ground of review established is to nullify the impugned decision. However, on the very rare occasion when the facts leave the decision-maker with no legally available alternatives, the Court still has to remit the matter, although it may order the decision-maker to reach a specific result: Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 76 ALJR 1502 at [43]; Aronson Dyer & Groves Judicial Review of Administrative Action, 3rd ed (2004), p 157 - 158.

37 The respondent contended that even if the Planning Tribunal erred, prerogative relief should be refused because the current law applies and that prevents joinder. Both parties' submissions are based on the premise that SAT cannot order joinder of the Shire. If that is correct, it would also affect the appeal. Assuming the appeal is competent and this Court has the power to vary the Planning Tribunal's decision, the Court would have to apply the law as it stands as at the date of the hearing of the appeal, it not being an appeal stricto sensu: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203. That law includes the relevant transitional provisions.

38 Thus, the issue is whether, having regard to the abolition of the former adjudicator, SAT can and must apply the law as it stood before the transfer day, notwithstanding it would be beyond its power under the new statutory regime. There is no fundamental impediment to such a course; it is simply a question of whether that is what the legislature intended: Esber v Commonwealth of Australia (1992) 174 CLR 430. In that case, a

(Page 16)

newly created statutory decision-maker was established to administer an amended Commonwealth employees' compensation scheme. Prior to the commencement of the new arrangements, the appellant had been unsuccessful in an application to the former decision-maker for the redemption of weekly payments and had appealed to the Administrative Appeals Tribunal ("AAT"). The new scheme contained no provision for redemption. The High Court held that on the proper construction of the amended compensation legislation, s 8 of the Acts Interpretation Act 1901 (Cth) (the equivalent of s 37 of the Interpretation Act (WA)) applied and the appellant had a substantive right to have the decision reconsidered and determined by the AAT in accordance with the former law. If this Court had the power, either in the appeal or in the review application, to substitute its decision on the merits for that of the Planning Tribunal, the facts would be in line with Esber. The question now is whether SAT has the power.

39 I have already concluded that, if the decisions are set aside or quashed, the joinder and submission applications are part of the subdivision appeal transferred to SAT under s 167(4)(a). Accordingly, SAT has the power (and duty) to determine those applications. Whether or not SAT must apply the law in force before the transfer is also a question of construction. It is arguable that subs (8), (9) and (13) are intended to cover the field so that, by implication, the law in force before the transfer to SAT does not apply where a transfer is effected under subs (4)(a) of s 167. That appears to be the intention in relation to the devolved matter. However, the section is silent in relation to pending applications in a devolved matter.

40 There is a presumption against the alteration or abolition of accrued rights, privileges or entitlements and clear language is required to overcome that presumption: Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161. The failure of s 167 to expressly deal with pending applications, together with the existence of s 37 of the Interpretation Act, leads me to the conclusion that the legislature intended s 37 to apply. That can only be achieved in all relevant circumstances if SAT has the same powers as those of the former adjudicator under the law in force before the transfer day. As the applications were made and determined under the previous law and their legality determined by this Court by reference to that law, the Shire has an accrued right. If one or more of the decisions are quashed, the matter can be remitted to, and heard and determined by, SAT applying the law in force before the transfer day.

41 I turn now to the competency of the appeal.

(Page 17)

Competency of the Appeal

42 The respondent contended that the Shire does not have a right of appeal under s 67 of the former provisions of the Planning Act. Section 67 materially provided:

"(1) Subject to subsection (2), a person aggrieved by a direction, determination, or order of the Tribunal in proceedings to which the person was a party may appeal to the Supreme Court against the direction, determination, or order.

(2) No appeal lies against a direction, determination, or order of the Tribunal except on a question of law."

43 According to the respondent, only a party to an appeal to the Planning Tribunal has a right of appeal to the Supreme Court.

44 The Shire submitted that "proceedings" in subs (1) is wider than an appeal and that the applications for joinder and leave to make submissions were proceedings to which the Shire was a party. "Proceeding" is not defined in the Planning Act. The Court was not referred to any authority on its meaning. That question was comprehensively considered by Steytler J in Reynolds v Panten (1999) 23 WAR 215 at 225 - 227. Referring to Smart J's reasons in Blake v Norris (1990) 20 NSWLR 300, Steytler J said at p 226:

"His Honour also mentioned that in Stroud's Judicial Dictionary (5th ed) … some 55 instances are given of the use of the word 'proceeding' or 'proceedings' in legislation, rules of court or documents having legal significance. In each case, as might be expected, the meaning depended upon the context in which the word was used. Smart J went on to say (at 306):

'The Oxford Companion To Law (1980) by Professor Walker states (at pp 1002 - 1003) that "proceedings" is sometimes used as including, or meanings, an action or prosecution, and sometimes as meaning a step in an action. The word "proceeding" is capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use. They tend to highlight the number of meanings which the word can bear.

(Page 18)

Any assistance as to its meaning has to be derived from the statutory context and the objects of the legislation in question.'

That must, in my opinion, plainly be so.

The last of the cases to which I was referred in this respect is that of Pasdale Pty Ltd v Concrete Constructions (1985) 131 ALR 268. In that case Finn J had to consider the phrase 'proceeding in a court against the company' in s 440D(1) of the Corporations Law. His Honour there said (at 270):


'It is the case that the word "proceeding" can, as a matter of express definition or of proper construction in a given setting, both include or exclude the initiation in a court of a step in an application or action. …'

It is apparent from these and other like cases decided in different contexts that the meaning of words such as 'proceedings' … will, as might be expected, ordinarily be coloured by the context in which the word is found."

45 Section 67 was in Div 4 of Pt V of the former provisions of the Planning Act. Part V was headed "Appeals". Division 4 of Pt V was headed "Proceedings of Tribunal". Matters could come to the Tribunal by way of appeal or by reference (s 47(1)). Further, in limited circumstances, the Tribunal could review a direction, determination or order upon a matter involving a question of law (s 66). There being a number of ways a matter could come before the Tribunal, there is no justification for confining the word "proceedings" in s 67 to an appeal. The former definition of "party" in subs (2) (set out above) does not have that effect.

46 In context, in particular the wide variety of decisions (a direction, determination or order) in proceedings that can be the subject of an appeal, the term "proceeding" in s 67 refers to the action or matter, in this case the appeal, not a step in the action. Further, the term refers to the means or vehicle by which the subject matter for determination is brought before the Planning Tribunal for determination, not the subject matter itself: see Braeside Bearing Pty Ltd v Brignell [1996] 1 VR 17.

47 The joinder and submissions applications were made in pending (appeal) proceedings. That is, the Shire used the subdivision appeal as the means or vehicle for seeking the order for joinder alternatively submissions. The Shire was not a party to that appeal. We were not

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referred to, and I am unaware of, any other means or vehicle by which the Shire could originate proceedings (to which it would be a party) for the relief sought. Accordingly, as the Shire was not a party, it had no right of appeal under s 67 and the appeal is incompetent.

The Facts

48 The Commission referred Mr Gray's subdivision application to the Shire for its comments under s 24 of the Planning Act. The subdivision proposal was for the creation of 20 rural residential lots.

49 The Council of the Shire resolved to object to the subdivision application and to provide its reasons for objecting. It did so in a letter dated 26 February 2004 to the Commission. It stated 11 grounds of objection. In summary, the Shire asserted that the subdivision proposal was inconsistent with (1) the land use classification in the Leeuwin Naturaliste Statement of Planning Policy No 7 ("the Leeuwin Naturaliste Policy") because it would have significant detrimental impacts on remnant vegetation on the land; (2) the land use statements in, and the general policy of, the Leeuwin Naturaliste Policy; (3) Statement of Planning Policy No 11 (because the land was potentially capable of productive rural activity); and, finally, with the objectives of the Shire's Town Planning Scheme No 11 ("TPS 11").

50 The broad flavour of the opposition can be gleaned from reasons 9, 10 and 11 as follows:

"9 The Council believes that rural residential subdivision should only occur where areas of landscape quality cannot be comprised [sic], where productive agricultural land will be conserved and where areas of natural remnant vegetation are protected to the fullest possible extent in the interest of rural character, landscape amenity and as a backdrop to agricultural activity.

10 The type of development proposed for this location merely serves to perpetuate the sprawl of rural residential development across an area, which should be conserved for all of the beneficial community and amenity values that it presently possesses.

11 All the while there is some encouragement offered to landowners [to] subdivide into special rural holdings there will be a demand for additional subdivision. The

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impact of extensive areas allocated to this [sic] purposes have already been witnessed adjacent to Margaret River at the expense of the more desirable rural character which is appreciated by those who are resident within the area and which tourists come and seek to enjoy. Further proliferation of this form of development is recognised as being inconsistent with the more desirable planning objectives of retaining the rural character amenity and quality of the area."

51 The Leeuwin Naturaliste Policy and Statement of Planning Policy No 11 are policies made by the Commission under s 5AA of the Planning Act.

52 The Commission's delegate, the South West Regional Planning Committee ("Committee"), considered the subdivision application on 19 December 2003. It had before it a lengthy report by a Commission officer that addressed in detail, and refuted, the Shire's grounds of opposition. The report concluded that the subdivision proposal was consistent with, inter alia, the Leeuwin Naturaliste Policy, Statement of Planning Policy No11 and TPS 11 and ought to be supported. However, the Committee resolved to refuse the application on the grounds given in the Commission's letter of 23 December 2003.

53 The Shire contends (and deposes thereto) that its absence from the subdivision appeal would mean there would be no evidence or submissions in support of its position that the proposed subdivision was inconsistent with the Leeuwin Naturaliste Policy, State Planning Policy No 11 and TPS 11.

54 Mr Gray's notice of appeal to the Planning Tribunal sets out his grounds of appeal. They include claims, inter alia, that the subdivision proposal is consistent with the Leeuwin Naturaliste Policy and TPS 11.

55 The Commission filed a responsive statement in the Planning Tribunal. It repeats its ground for refusing the subdivision application, namely that to support the subdivision proposal without appropriate zoning and land management controls is inconsistent with other planning policies. That is, the Commission does not contest Mr Gray's claims that his proposal is consistent with the Leeuwin Naturaliste Policy and TPS 11. Further, the Commission does not intend to call a witness from the Shire to put its evidence and case.

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56 If joined as a party, the Shire would support the Commission's refusal of the subdivision application but not its reasons for doing so. The Shire wants the opportunity to persuade the Planning Tribunal to uphold the decision on the ground that the subdivision application is inconsistent with the planning instruments referred to in its submissions to the Commission. In effect, the Shire would adopt the position of a cross-appellant. Its concern is heightened by its view that the Commission cannot refuse a subdivision application on zoning grounds.

The Tribunal's Reasons and the Grounds of Challenge

57 The President gave written reasons for decision. He concluded that the Planning Tribunal had power to join an additional party to an appeal. He applied the test for joinder adopted by the Planning Tribunal in Harding and Read v Shire of Chittering & Ors [2003] WATPAT 147 as follows:

"… if the tribunal thinks fit in order for it to adequately deal with the proper disposition of the appeal, then a party may be joined for that purpose.

The proposition is that there may be circumstances in which merely to receive submissions without more does not adequately give the Tribunal all that is required to effect the proper disposition of an appeal."

58 The President rejected a submission that the test of joinder is whether a party has a sufficient interest. He did so because that is the statutory test for enlivening the discretion in s 62 relating to submissions. He concluded that "it will only be in exceptional or extraordinary circumstances that a person is permitted to be joined as a party to an appeal" and that the power should be exercised sparingly.

59 The Shire contended the President applied the wrong test, relying on the decision of the South Australian Full Court in Pitt v Environment Resources and Development Court (1995) 66 SASR 274. In that case a hospital had applied to the Environment Resources Development Court from the refusal of planning approval. The Court had express unfettered statutory power to order joinder of parties to an appeal. The appellants applied to be joined as parties to the hospital's appeal. They were unsuccessful at first instance, the Judge concluding that an order for joinder should only be made in special or exceptional circumstances. On appeal, the Full Court held that the Judge had applied the wrong test and ought to have permitted joinder.

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60 Doyle CJ said (at 276) that the test which an applicant for joinder must pass necessarily embraces both the establishment of a sufficient interest and the establishment of factors that make it appropriate for an order for joinder in the particular case. He identified the important factors (at 275) as the nature and strength of the interest of the applicant for joinder in the decision under appeal, the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the Court, whether the interest which the applicant for joinder represents in the material to be advanced by that person will be adequately dealt with by the parties already before the Court, the impact upon the proceedings of the joinder and the interests of the parties before it as of right and the public interest in the prompt and efficient despatch of proceedings.

61 In reaching his conclusion on joinder, the President of the Planning Tribunal took into account the fact that, if joined, the "Shire would effectively be running a de facto appeal" and that:

"The role of the Shire in the approval of an application for subdivision is necessarily subservient to the role of the [Commission]. It seems to me odd, if not wrong, in principle to reverse the positions."

62 The Shire contends that both matters are irrelevant considerations that invalidate the decision.

63 Finally, the Shire contended that, applying the correct test to the facts (including the Shire's stated desire to adduce evidence and make submissions in relation to the planning instruments), compelled the conclusion that the Shire ought to be joined as a party to the subdivision appeal. Although not formulated in traditional administrative law terms, I infer this is a challenge based on Wednesbury unreasonableness (based on the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) or the closely related ground of "irrationality or illogicality" explained in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 ("S20"). In this context it is relevant to note that the President was not satisfied that the Planning Tribunal would be denied relevant evidence or submissions on the application and interpretation of the planning instruments if the Shire's applications were unsuccessful (see [25] and [48]).

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64 I turn now to the Shire's alternative application to make submissions under s 62. The President noted that the role of the Shire was to participate in the statutory planning process both before and after any determination made by the Commission or the Planning Tribunal on appeal and that the Shire had an interest in the outcome of the appeal because it would result in subdivisional activities necessarily involving the Shire. The President continued:

"44 That, however, is merely the consequence of the decision. The notion of sufficient interest necessarily connotes in the determination of that question whether there might be some prejudice to such a party if such a party were not permitted to participate in some way in the process.

45 Can it therefore be said that the Shire's interests are in any way prejudiced by it not being able to make a submission under section 62?"

65 The President then repeated his view that he was not persuaded the Planning Tribunal would be denied relevant evidence if the Shire was not involved. He continued:

"49 The only remaining issue is whether there are further submissions or arguments to be advanced by the Shire which are in some way different from the [Commission] and which if not granted would be in some way prejudicial to the Shire.

50 The Shire's position on the statutory approval process is as I have described. Its concern about the outcome does not lead to the result that it has within the context of section 62 a sufficient interest for it to make a submission. It has already made its submissions, that is to the [Commission]. The fact that the [Commission] has acted in the way that it does does not lead to the result that there is a further right of review to be pursued by the Shire. Again it seems to me that to permit the Shire to play a role is to subvert the process in which the primacy of the role played by the [Commission] is not denied."

66 The Shire contends the President erred by, in effect, concluding that an interest in the outcome of the subdivision appeal is insufficient to enliven the discretion in s 62 and that he again took into account the irrelevant considerations to which he had regard in the joinder decision.
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67 I start with the Commission's submission that the Planning Tribunal had no power to join the Shire.

Whether the Planning Tribunal had the Power to Join the Shire

68 As already noted, there was no express power in the Planning Act for the Planning Tribunal to join an additional party to an appeal. The power was implied.

69 Mr Gray applied for subdivision approval under s 20 of the Planning Act. The Commission is given the power to determine s 20 applications.

70 The respondent relies on s 24 of the Planning Act as narrowing the implied power to exclude authorities consulted under that section ("referral authorities"). Section 24 materially provides:

"(1) When, in the opinion of the Commission, the plan of subdivision may affect the powers or functions of any local government or public body other than the Commission, or any Government department, the Commission shall forward the plan or a copy thereof to such local government, public body, or Government department, as the case may be, for objections or recommendations.

(2) Any such local government, public body, or Government department receiving such plan or copy thereof shall, within 42 days, forward it to the Commission with -


(a) a memorandum in writing containing any objections to, or recommendations in respect of, the whole or part of that plan; and

(b) in the case of a local government receiving a plan or copy relating to land within the area to which an assessed scheme applies, advice of any relevant environmental condition to which the assessed scheme is subject.


(3) After receiving a plan or copy and accompanying memorandum and any advice of a relevant environmental condition forwarded to it under subsection (2) and considering any objections or recommendations contained in the memorandum and any such advice the Commission shall approve or refuse to approve the plan

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or require the applicant for approval to comply with such conditions as the Commission thinks fit to impose before approving the plan."

71 It is clear from the terms of s 24 that the Commission is obliged to consider referral authority responses when exercising its discretion under s 20 of the Act. In administrative law terms, they are relevant considerations to which the Commission must give "proper, genuine and realistic consideration": Williams v Minister for Environment and Heritage (2003) 74 ALD 124.

72 Section 26(1)(a) confers a right of appeal from a decision of the Commission under s 20 of the Planning Act. Only an applicant for approval is given a right of appeal. An appeal to the Planning Tribunal under s 26 and Pt V of the Planning Act was an appeal de novo. That means the matter is heard afresh by the Planning Tribunal and a decision is given on the material presented at the appeal and without the need to demonstrate that the Commission erred. That is, the Planning Tribunal carries out a merits review of the Commission decision.

73 In the performance of its appellate function the Planning Tribunal was not bound by the rules of evidence, could inform itself on any matter as it thought fit, was empowered to encourage parties to reach agreement on some or all of the issues in the appeal and was required to deal with each appeal as speedily as possible (s 51(1)(b), (c), (d) and (e) respectively).

74 Subject to two qualifications, it is clear from s 51(1)(d) that the parties had control over the identification of the issues for determination in the appeal and thus the hearing was primarily adversarial in nature. The first qualification stems from s 61(1) which required the Planning Tribunal to have due regard to any approved statement of planning policy under s 5AA of the Planning Act. In my view, s 61(1) required the Planning Tribunal to give its consideration to planning policies notwithstanding any concession or admission of the parties to the appeal. Whether or not that obligation is complied with by the Planning Tribunal satisfying itself that relevant concessions are properly made was not argued before us. (See the approach taken by the AAT in Re Marks and Secretary, Department of Defence (1987) 11 ALD 456 at 459 and Re Melbourne and Secretary, Department of Social Security (1988) 14 ALD 415.) The second qualification stems from s 24. As the Commission is obliged to consider the responses from referral authorities in reaching its decision under appeal and the appeal is a hearing de novo, I

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infer that the responses of referral authorities under s 24 are also relevant considerations in the appeal and that the Commission would need to put the s 24 responses before the Planning Tribunal.

75 That is the statutory context in which the issue of power arises. The question is did the legislature intend the Planning Tribunal to have the power to join a referral authority as a party to an appeal. There are indications that it did not. Firstly, it is precisely because referral authorities' powers or functions will (or are likely to) be materially affected by the decision that the Commission is required to obtain and consider their position before determining the subdivision application. Secondly, in that context, the omission to give them any express right to appeal or to be joined in the appeal is significant; the implication being that they are not intended to have party status in the appeal so as to enable them to advocate their position. Thirdly, it is unlikely the legislature intended that the statutory authorities and other governmental agencies whom the Commission is obliged to consult should, as a matter of policy, have the opportunity to have party status to challenge the merits of the decision of the statutory decision-maker, being the Commission. It would be surprising if the legislature intended the Planning Tribunal to resolve intra-governmental disputes, particularly when joinder has the almost inevitable result of increasing the costs and length of an appeal (see Melsom v Deputy President Forrest (1996) 42 ALD 261). In my view, these are compelling reasons for concluding, as I do, that the Planning Tribunal did not have the power to join the Shire as a party to the appeal.

76 If that conclusion is incorrect and the Planning Tribunal did have the power to join a referral authority as a party, I am not persuaded the President erred in the exercise of the discretion. In my view, the Pitt test does not apply because of the different statutory context, in particular s 62 and s 24. It is to be expected that the test of joinder would be different, and more onerous, than the requirement for a "sufficient interest" that enlivens the discretion in s 62. The appropriate test of joinder is that contained in the rules of court which relevantly require that the person's presence be necessary to enable the Court effectually and completely to determine all questions arising (see O 18 r 6(2)(b) of the Rules of the Supreme Court). As to the application of that test, see Australian Tape Manufacturers Association Ltd v Commonwealth (1990) 94 ALR 641 at 644 - 645. That is in substance the Chittering test relied on by the President. Further, if there is such a power, the relevant considerations flowing from the terms and effect of s 24 detailed earlier would have the practical result that a referral authority would be joined only in

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exceptional circumstances. I am not persuaded the President applied the wrong test.

77 As to the irrelevant considerations ground, the Shire does not challenge the accuracy of the President's characterisations (of a de facto appeal and subservience) but only their relevance. If, contrary to my view, the Planning Tribunal had a discretion, those factors derive from the statutory context and are relevant in the determination of the joinder application.

78 Wednesbury unreasonableness is made out if it is shown that no reasonable person could have reached the decision under challenge, a test aimed at ensuring the Court does not exceed its supervisory role by reviewing a decision on its merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 - 42. It follows from the correct test, the relevant considerations and the unchallenged conclusion of the President that he was not satisfied the Planning Tribunal would be denied relevant evidence or submissions that the Shire must fail in its assertion that the only reasonable outcome is joinder. Further, the decision is not irrational or illogical as those concepts are explained in S20.

Submissions Under Section 62

79 The parties accepted that s 62 of the Planning Act conferred power on the Planning Tribunal to allow a referral authority to make submissions. I will therefore proceed on the basis, as did the President, that the Planning Tribunal had a discretion.

80 On my reading of the reasons, the President does not assert that an interest in the outcome is always insufficient to enliven the discretion under s 62. I understand him to say no more than the Shire's interests that enliven its entitlement to be consulted and heard by the Commission under s 24 would, in the circumstances of this case, be insufficient to justify the grant of leave to make the same submissions to the Planning Tribunal. Having regard to the fact that the Commission and the Planning Tribunal were required to take the Shire's objections into account, that must be right unless the Shire had an additional basis of interest apart from its powers and functions. It is in that context I understand the President to be referring to the identification of some prejudice to the Shire. There is no suggestion the Shire has any interest beyond its powers and functions referred to in s 24.

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81 The President does not characterise the application to make submissions as a de facto appeal. However, he does refer to the primacy of the Commission's role and that to permit submissions is to subvert the process. That observation is consistent with the statutory context. For the reasons given in relation to joinder, it is a relevant consideration arising from the terms and effect of s 24. However, that is not to say the Planning Tribunal could not seek or receive additional input from the Shire if it was necessary to enable the Tribunal to fulfil its statutory duty. The President was not so persuaded. I am not satisfied that the President erred in the exercise of the discretion in s 62 of the Planning Act.

Conclusion

82 I am not persuaded that the President made an error of law so as to enliven this Court's power to grant prerogative relief or to succeed in the appeal which is incompetent in any event. Accordingly, I would discharge the order nisi and dismiss the appeal.

83 PULLIN JA: This was the combined hearing of an appeal and prerogative writ proceedings concerning the decision of the Town Planning Appeal Tribunal dismissing an application by the Shire of Augusta-Margaret River for an order joining it as a party to the appeal which had been instituted by Mr Gray against the decision of the second respondent ("WAPC"). The Tribunal also dismissed the application by the Shire for the right to make submissions in the Gray appeal.

The jurisdiction of the State Administrative Tribunal ("SAT")

84 Before I consider the facts, I should record at this point that I agree with McLure JA's conclusion that if the appeal is competent, and one or more of the decisions are quashed, and if the case is remitted to SAT, then it would have jurisdiction to determine the applications applying the law in force before the transfer day. I would add, however, that the appeal was subject to the provisions of the now repealed O 65 r 10 which read:

"1. … the appeal shall be in the nature of a rehearing, and the Judge hearing the appeal may confirm, quash or vary the decision of the tribunal against which the appeal is made or remit the matter to the tribunal for rehearing, with or without directions."

85 Thus if the Court holds that the appeal is competent it is not bound to remit, but may itself decide the applications rather than send them to SAT for that purpose.



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Conclusion on competency of the appeal and the hearing of the appeal

86 I have reached a different conclusion from McLure JA about the competency of the appeal. In my opinion, the appeal is competent for the reasons I give below. I would allow the appeal and vary the orders of the Tribunal by ordering that the Shire be joined as a party to the Gray appeal.

Facts

87 McLure JA has set out some of the facts. They include the dates of the application by Mr Gray to the second respondent (WAPC) for subdivisional approval, the fact that WAPC referred the application to the Shire, the fact that the Shire objected to the subdivision and that WAPC refused Mr Gray's subdivision application. Her Honour has also recorded the reasons given by WAPC for the refusal, the fact that Mr Gray appealed against that decision, the fact that at a directions hearing in the Gray appeal the Shire applied to be joined as a party to the Gray appeal or, in the alternative, to make submissions and that the Tribunal dismissed the Shire's application. Her Honour also records the date of the grant of the order nisi which operates as a stay of the Gray appeal until the hearing of the order nisi or further order of the Court.

88 I should also observe that Miller J, who made the order nisi, also ordered that the appeal by the Shire should be heard before the Full Court at the same time as the return of the order nisi. No issue was raised about the jurisdiction of the Court of Appeal to hear the appeals. I also note that the first respondent chose not to make any submissions to this Court.

89 It is necessary for the purpose of my reasons to set out further facts which appear from the papers. The detail of Mr Gray's application for subdivisional approval is set out in a report to a committee of WAPC which was considering the application. It was an application to subdivide the subject land, namely part of Sussex Location 482, Burnside and Caves Road, Margaret River into 19 rural residential lots of between one to 3.1 hectares, one rural small holding lot for conservation (32 hectares) and the balance of the rural land for general agriculture (80 hectares).

90 As required by law, the application was referred to Western Power, the Department of Health and Main Roads WA. Those departments raised no objection to the subdivision. The application was also referred to the Department of Conservation and Land Management ("CALM") which raised no objection "subject to the preparation of a flora survey and the imposition of a mechanism for conservation of … remnant vegetation".

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91 The application for subdivision was also referred to the Shire. It objected. The decision of the Shire was reached at an ordinary meeting of the council of the Shire on 29 October 2003. The content of the resolution was set out in a letter dated 26 February 2004 from Ms Sandra Boulter, the Director of Sustainable Planning for the Shire. I will set out some parts of the letter. I have slightly amended the content to define terms which in the letter are not defined. It reads:

"… Council advise the WAPC that … Council wishes to reiterate its objections to the subdivision in the strongest possible terms for the following reasons:

1. The proposal is inconsistent with the land use classification applied to the subject land in the Leeuwin-Naturaliste Ridge Statement of Planning Policy (LNRSPP) … The proposed subdivision and the resultant development will have significant detrimental impacts on the remnant vegetation of the land and thus to the Regional Environmental Corridor status of the land in the LNRSPP.

…

4. In the Landscape Classes Map of the LNRSPP that land is designated Travel Route Corridor within Natural Landscape Significance and Rural Landscape Significance. P52 of the policy states 'these Regional Environmental Corridors contains significant stands of remnant vegetation that are important for biological diversity of flora and fauna, as landscape back drops to agricultural areas and for conservation and cultural values.' The proposed subdivision will have significant direct impacts upon the areas of remnant vegetation on the land especially when consideration is given to the impact of fire breaks and introduced human activity together with the importation of domestic animals.

…

9. The Council believes that rural residential subdivision should only occur where areas of landscape quality cannot be comprised, where productive agricultural land will be conserved and where areas of natural remnant vegetation are protected to the fullest possible extent in

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the interest of rural character, landscape amenity and as a backdrop to agricultural activity.

10. The type of development proposed for this location merely serves to perpetuate the sprawl of rural residential development …"

92 There were other reasons advanced by the Council in its letter, including adverse effect on amenity.

93 The committee of the WAPC considered the application for subdivision on 19 December 2003. Placed before the committee was a report prepared by Mr Frank Scibilia, an officer or agent of the WAPC. The report noted the Shire's opposition to the proposed subdivision, noted that the Shire considered the proposal would have a detrimental impact on remnant vegetation and perpetuate the sprawl of rural residential development, noted that Western Power, the Water Corporation, the Department of Health and Main Roads WA raised no objection, noted CALM's attitude (referred to above), set out relevant parts of the LNRSPP and then discussed the issues. Under the heading "Council's argument" Mr Scibilia set out each argument raised by the counsel and dealt with it.

94 In relation to the Shire's submission that the proposal would have significant direct impact upon areas of remnant vegetation by reason of activities such as fire-breaks, introduction of human activity and the importation of domestic animals, Mr Scibilia's report read:

"The control of domestic animals and land uses which may be detrimental to the remnant vegetation can be addressed by Council through a town planning scheme amendment and Local Laws. Notwithstanding, these issues could also be addressed through the impost of covenants."

95 The reference to covenants appears to be a reference to an earlier observation that CALM "supports and would enter into conservation covenant agreements for Lot 20 (large rural smallholding lot for conservation) and Lots 3 and 4 as they form part of the Regional Environmental Corridor." As to the Shire's argument that the proposed development perpetuated the sprawl of rural residential development, the officer's comment was that the proposal "does not represent rural-residential sprawl as it was envisaged under the LRS since the early 1990s". As to the argument of the Shire that it was inconsistent with amenity of the area, the officer simply disagreed. In effect, the officer's report rejected all of the Shire's reasons for opposing the subdivision.
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96 The officer recommended approval subject to conditions. One condition was that no vegetation should be cleared within a lot. However, this proposed prohibition would have permitted clearing for the purpose of compliance with the requirements of the Bushfires Act, clearing for compliance with approved fire management plans, clearing for construction of vehicular access ways, clearing of approved building envelopes and clearing for compliance with approved "vegetation management plans". Grazing of animals was recommended as being prohibited "other than is necessary for fuel reduction purposes for fire-fighting prevention purposes" in a manner approved by the Shire and CALM. The recommended conditions also made it clear that transformer and high voltage switch gear sites, underground power and drainage might be installed on the land.

97 Notwithstanding Mr Scibilia's recommendation of approval, the WAPC made a decision refusing the subdivision application "until adequate land use land management and development controls are introduced through the appropriate rezoning of the subject land". It did not adopt any of the Shire's reasons for opposing the subdivision.

98 Mr Gray then instituted his appeal, and on 10 March 2004 at a directions hearing, counsel for Mr Gray, for the WAPC and for the Shire appeared before the President. At that hearing, counsel for the Shire made an oral application to be joined as a second respondent to the appeal or alternatively to make submissions. This application was supported by an affidavit of Ms Boulter sworn 9 March 2004 which exhibited the minutes of the council meeting of the Shire dated 29 October 2003, and the letter dated 26 February 2004 which was sent to the WAPC and to which I have referred and quoted from. The affidavit also exhibited Mr Scibilia's report, which report had been provided to Ms Boulter by an officer of the WAPC.

99 Ms Boulter's affidavit continued:

"13. Consistent with the sole ground of refusal and the advice note appearing in the Commission's decision letter, the 'Grounds of Response' in the Commission's Statement by Respondent filed in this appeal, effectively raise a single ground in opposition to the appeal, namely the absence of appropriate zoning, land management and development controls in the Scheme.

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14. On the basis of the Commission's Grounds of Response in its Statement by Respondent, I believe that the Commission will limit its defence of the appeal to a single issue, being the absence of appropriate zoning, land management and development controls in the Scheme.

15. If joined as a second respondent to this appeal, the shire would wish to raise all of the issues identified in Council's resolution of 29 October 2004 and my letter to the Commission dated 26 February 2004 (attached as Annexure 2).

16. If the Shire is not joined, I believe none of those issues will be raised at the hearing of the appeal and that as a consequence, the Tribunal will not consider the full range of orderly and proper planning issues considered by the Shire to be relevant to the Tribunal's consideration of the proposed subdivision. It is for the purpose of raising and providing evidence in relation to those issues that the Shire seeks to be joined as a second respondent to this appeal."

100 The affidavit also deposed to the fact that an officer of the WAPC had advised her on 4 March 2004 that the WAPC had been advised by the Crown Solicitor's Office not to call any representative of the Shire as a witness on the appeal because the Shire's reason for recommending refusal of the subdivision was different from that of the WAPC, and that the WAPC had accepted that advice.

101 The transcript of the hearing before the President of the Tribunal reveals that counsel for the WAPC did not object to the joinder of the Shire, but that Mr Gray did so. During the course of the submissions the following interchange took place between the President and Mr Roberts, counsel for the Shire:

"PRESIDENT: Let me just understand this, so that for the moment the Commission doesn't propose to call any officer of the local authority as a witness in its case. The local authority in particular wants more emphasis upon the Leeuwin Naturaliste Ridge Statement of Planning Policy. I know there are other statements but that's the key.

MR ROBERTS: That's the key.

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PRESIDENT: And obviously you want to impress it upon the tribunal.

MR ROBERTS: Yes.

PRESIDENT: And you're saying it's not just a case of making a submission or developing an argument by reference to a policy which will already be before the tribunal. You want to formally lead evidence beyond the policy.

MR ROBERTS: That's correct, Mr President. Yes.

PRESIDENT: What sort of evidence?

MR ROBERTS: Well, if one actually goes to the various issues - - perhaps the easiest way to deal with it, Mr President, is go to annexure 2 which is the Shire's - -

PRESIDENT: Yes; I've got that.

MR ROBERTS: - - letter to the Commission. There it attempts to set out in some detail various aspects of the Leeuwin Naturalist Ridge Policy with which it has concern and if one goes through the issues sequentially, paragraph 1 the Shire puts its position that:


'The proposal is inconsistent with the land use classification applied to the subject land in the policy. The proposed subdivision and the resultant development will have significant detrimental impacts on the remnant vegetation on the land.'

Now, just pausing there, to actually persuade the tribunal that there is that impact on the remnant vegetation and therefore has relevance under the policy, the tribunal will have to have before it some evidence as to the impact on remnant vegetation.

PRESIDENT: So let me just understand this. So you're saying that that isn't likely to emerge from the way in which the Commission proposes to conduct its case.

MR ROBERTS: No. As the Shire apprehends the Commission's case, it's not proposing to mount any argument in relation to the Leeuwin Naturaliste Ridge Police [sic] at all.

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Therefore, absent evidence or submissions from the Commission on that front - -

PRESIDENT: Well, it may well be, having regard to the statement by respondent, that it believes that it's front-line position is the complete answer.

MR ROBERTS: It may well do. I'm not sure the Shire has - - shares that confidence. Nonetheless in the Shire's view that is not the full range of issues relevant to the disposition of the appeal and it's really to articulate that full range of issues that the shire wishes to be joined to the appeal and if that doesn't happen that simply won't occur, in the Shire's submission."

(I have added italics for emphasis).

102 Following those submissions, counsel for the WAPC confirmed that they did not wish to call the Shire as a witness and that they intended only to call two planners. A little later the following interchange took place between the President and Ms Pearce, counsel for the WAPC:

"PRESIDENT: … one of the other things that slightly concerns me is that it seems to be entirely a policy-driven decision rather than a merits-based decision.

MS PEARCE: That may be the case, sir.

PRESIDENT: And if that's the case then it seems to be an argument in support of Mr Roberts' application.

MS PEARCE: Well, we don't oppose the joinder of the shire in this matter.

PRESIDENT: But the subtext is that the Shire will then be doing the work that the Commission might otherwise have done.

MS PEARCE: Well, that may be the case but those are my instructions, sir."

103 This was then followed by submissions by counsel for Mr Gray opposing the application for joinder and the application to make submissions.
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The Tribunal's reasons for decision

104 The Tribunal dealt first with the application for joinder. The Tribunal concluded that by reason of its decision in Harding and Read v Shire of Chittering & Ors [2003] WATPAT 147 the Tribunal had power to join a party to an appeal which had already been instituted. The Tribunal repeated the test which was articulated by the Tribunal in the Harding and Read case, namely:

"if the Tribunal thinks fit in order for it to adequately deal with the proper disposition of the appeal, then a party may be joined for that purpose.

The proposition is that there may be circumstances in which merely to receive submissions without more does not adequately give the Tribunal all that is required to effect the proper disposition of an appeal."

105 The Tribunal concluded, therefore, that it had power to effect joinder and then moved on to consider whether it should exercise its discretion in favour of joinder of the Shire. The Tribunal noted that the Shire had expressed its views to the WAPC, noted that there was no right of appeal available to the Shire in relation to any determination made by the WAPC and suggested that the "present application for joinder in some respects adopts the guise of a de facto appeal by the Shire from the refusal to grant subdivisional approval". Having said that, the Tribunal then said:

"To categorise the outcome as involving fundamentally different views may well overstate the position on the basis that both the Shire and the respondent are opposed to the present application. To that extent their views coincide."

106 Reference was then made to Ms Boulter's affidavit and noted that the Shire wished to make submissions and wished to adduce factual material as a basis for the submissions. The Tribunal noted that the Shire was opposed because of the potential significant detrimental impact on remnant vegetation and referred to the LNRSPP.

107 The Tribunal concluded that it was satisfied that the appeal could be properly disposed of without the need for the Shire to be joined and in the course of reaching that conclusion stated:

"It should also be observed as I have indicated above that to some extent what might be seen to be an application for joinder

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would, if successful, produce an outcome where the Shire would effectively be running a de facto appeal from the Respondent's determination."

108 The Tribunal also said that "joinder of a party who seeks to advance an argument which in some respects was at variance with the express basis upon which the application for subdivision approval had been refused" would be the result, and that this would be an "odd outcome". In deciding what should guide the Tribunal in reaching its decision, the Tribunal concluded that it was not necessary that a party seeking joinder should have a "sufficient interest", but that it would "only be in exceptional or extraordinary circumstances that a person is permitted to be joined as a party to an appeal" and then concluded:

"36. Be that as it may it seems to me that the role of the Shire in the approval of an application for subdivision is necessarily subservient to the role of the Respondent. It seems to me odd, if not wrong, in principle to reverse the positions.

37. In those circumstances I am not persuaded that there are circumstances which would lead to the result that the Shire could or would be joined as a party to this appeal. I am satisfied that the appeal can be properly disposed of without the need for the Shire to be joined."

109 The Tribunal then moved on to consider whether leave should be granted under s 62 of the Town Planning & Development Act to make a submission in relation to the subject of the appeal. The Tribunal considered whether the Shire's interests were "in any way prejudiced by it not being able to make a submission under section 62", considered there was insufficient material to demonstrate that the Tribunal would be denied actual evidence relevant to its determination if the Shire was not joined and concluded at [50] and [51]:

"50. The Shire's position on the statutory approval process is as I have described. Its concern about the outcome does not lead to the result that it has within the context of section 62 a sufficient interest for it to make a submission. It has already made its submission, that is to the Respondent. The fact that the Respondent has acted in the way that it does does not lead to the result that there is a further right of review to be pursued by the

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Shire. Again it seems to me that to permit the Shire to play a role is to subvert the process in which the primacy of the role played by the Respondent is not denied.

51. For those reasons the application is dismissed."

110 The Shire wishes to appeal to this Court against that order of dismissal.

Does the Shire have a right of appeal to this Court?

111 Section 67(1) and (2) of the Town Planning & Development Act read:

"(1) Subject to subsection (2), a person aggrieved by a direction, determination, or order of the Tribunal in proceedings to which the person was a party may appeal to the Supreme Court against the direction, determination or order.

(2) No appeal lies against a direction, determination or order of the Tribunal except on a question of law."

112 The Shire submits that it is entitled to appeal by reason of this provision, and the WAPC submits that it does not have a right of appeal. The WAPC argues that "appeal rights from … impugned decisions were … expressly confined to parties". The WAPC points to the fact that the Shire is not a party to the Gray appeal in the Tribunal. The WAPC therefore submits that the appeal is incompetent.

113 The WAPC's submission would be fatal to the Shire's claim that it had an appeal to this Court if s 67(1) had been drafted to read:

""A party to an appeal aggrieved by a direction, determination or order of the Tribunal in an appeal may appeal to the Supreme Court against the direction, determination or order,"

but it is not drafted in that way.

114 The word "party" appears in s 67(1) but not in a way which means "party to an appeal". The expression used is "proceedings to which the person was a party".

115 Section 2(1) of the Town Planning & Development Act 1928 (WA) ("Act") defines "party", but there are two qualifications which are relevant. The qualifications appear in italics in the definition which reads:

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"In this Act, unless the context otherwise requires …

'party, in relation to an appeal, means -

(a) the appellant;

(b) a person who made the decision or direction appealed against; and

(c) any person joined as a party to the appeal by the Tribunal'."

(I have added italics to identify two phrases of importance which I discuss below).

116 Section 2(1) also defines an "appeal" as meaning "an appeal made to the Tribunal under Pt V" but this is also subject to the qualification about context.

117 The word "proceedings" which appears in s 67(1) is not defined and nor is the expression "a person aggrieved".

118 In my opinion, it is significant that s 67 has been drafted to provide that "a person aggrieved", rather than a "party to an appeal", may appeal to the Supreme Court, and it is significant also that the section refers to a person aggrieved by a "direction, determination or order" in "proceedings to which the person was a party", rather than a "direction, determination or order" in an "appeal". In my opinion, the application by the Shire for a joinder order, or an order permitting it to make submissions, were proceedings separate from the appeal itself. Certainly the proceedings relate to the appeal but that is not in any way determinative; s 67 does not require that the "proceedings" relate to an "appeal" (as defined).

119 As Steytler J said in Reynolds v Panten (1999) 23 WAR 215 at 226, the meaning of the word "proceedings" depends upon the context in which the word is used and his Honour noted that the ordinary meaning (as defined in the "Shorter Oxford English Dictionary") includes both a "step in a(n) (existing) cause", "the instituting or carrying on of an action at law" or "a legal … process".

120 Parliament has been careful, in its drafting of s 67(1), not to give the right of appeal only to "parties" as defined in s 2(1). It identifies the person with the right of appeal as "a person aggrieved by a direction, determination or order" in "proceedings to which the person was a party". The word "party" is used in the context of a "party" to "proceedings" and

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thus, in my opinion, the words I highlighted by italics in s 2(1) above operate to exclude the restricted definition of "party", ie the context means that the definition of "party" in s 2(1) is not applicable.

121 In my opinion, the careful language of s 67(1) means that the Shire, which is aggrieved by the order of the Tribunal dismissing the Shire's application, has a right of appeal. The hearing which took place before the President resulted in "proceedings" to which the Shire "was a party".

122 I therefore conclude that the appeal is competent.

123 That requires me to go on to consider the merits of the appeal.

Merits of appeal

124 The Shire contends that the Tribunal erred in law in the way it directed itself as to the law which governs the exercise of the discretion in relation to the joinder application and the submissions application, and that the Tribunal erred in the exercise of its discretion in each case.

The law governing the exercise of the discretion on each application

The joinder application

125 As mentioned above, the Tribunal decided (and it is not in dispute) that it had power to join a party to an appeal. It explained in Harding and Read v Shire of Chittering (supra) why this was so.

126 The discretion appears to be entirely unconfined, but like all statutorily conferred discretions, some restraint is likely to be found from the scope and purpose of the legislation. See R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45; Beverage Holdings Pty Ltd v Greater Pacific Investments Pty Ltd (1990) 3 ACSR 743 and Didasko Technologies Pty Ltd v Comtel Services Pty Ltd & Anor [2005] WASCA 54.

127 The discretion to join parties here is unconfined by any express provision. In Pitt v Environment Resources and Development Court (1995) 66 SASR 274 the Full Court of the South Australian Supreme Court had occasion to consider the ERD Court's power to join a party. The discretion there was also not confined by any express provision. Section 17(1) of the relevant legislation simply read "The Court may, by order, join a person as a party to any proceedings …".

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128 Duggan J, in Pitt's case, with whom Niland J agreed, disapproved of the trial Judge's view that "special and unusual" circumstances had to be shown or that there had to be a "special" case before joinder would be ordered. Duggan J also concluded that the trial Judge erred in taking into account the fact that the applicant for joinder had not been given any right of appeal. As his Honour said, this would apply to every applicant for joinder. Duggan J concluded that an application for joinder must have a "genuine interest in the appeal" and that it was relevant that the ERD Court would derive "some benefit from the continuing involvement of the appellants …" (282). Duggan J also said that if it was considered that the discretion was too widely drawn, then it was for Parliament to narrow it.

129 Doyle CJ wrote a separate judgment to similar effect. He said (at 275):

"The power to make an order for joinder under s 17 involves making a judgment in the light of the facts of the case before the ERD Court. Important factors in any such case will be the nature and strength of the interest of the applicant for joinder in the decision under appeal, the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the ERD Court and whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the ERD Court. It will also be appropriate for the ERD Court to consider the impact upon the proceedings of the joinder. The Court can and should consider the interests of the parties before it as of right and the public interest in the prompt and efficient despatch of proceedings. In addition, of course, there will in each case be other factors particular to the case. … An order for joinder in favour of the appellants necessarily has an effect on the proceedings before the ERD Court. The interests represented in the proceedings are no longer confined to the applicant for planning approval and the planning authority. But that is the inevitable consequence of any order for joinder."

130 His Honour also observed at 276:

"In my opinion the impact of an order for joinder upon the proceedings is not a reason for taking a narrow view of the circumstances in which an order for joinder can be made. The test which an applicant for joinder must pass necessarily

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embraces both the establishment of a sufficient interest and the establishment of factors which make it appropriate to make an order for joinder in the particular case. On this approach, the making of an order for joinder does not mean that a legislative scheme conferring no third party rights for appeal has been converted into a scheme in which such rights are available. The true position is that a third party still cannot institute an appeal, and can be joined only if in the particular circumstances of the case there are factors making it appropriate to do so. Joinder will never be made as of course. "

and further that:

"I consider that his Honour did take an unduly restrictive approach to the scope of the power which he had. In my opinion his statement that the right to participate must 'be limited to special circumstances', and what he said in explanation of that approach, indicates too narrow an approach to the power. In my opinion his Honour appears to have placed too much emphasis upon the fact that the City of Adelaide Development Control Act did not provide for rights of appeal for third parties or for rights of joinder. It appears to me that his Honour envisaged joinder only in exceptional cases. For the reasons which I have indicated that is not the correct approach. As I have already explained, it would be equally wrong to make an order for joinder simply on the basis of an interest which would give standing for judicial review or an interest which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v commonwealth (1980) 146 CLR 493."

131 In my opinion those observations apply here to the exercise of the power to order joinder of a party under the Act. Pitt's case has been applied in Onesteel Manufacturing Pty Ltd v Environment Protection Authority (2005) SASR 67. In Onesteel an "Action Group" had no more than a "special interest". In seeking to be joined, the Action Group could not demonstrate that it was in a position to call evidence or make a contribution over and above the contribution of the respondent authority. The facts provide a stark contrast with the situation in this case.

The Tribunal misdirected itself in relation to the joinder discretion

132 In my opinion the Tribunal misdirected itself in relation to the law. While the Tribunal said that it considered that the "test" for joinder was a

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"broad test" [31], it then said "it will only be in exceptional or extraordinary circumstances that a person is permitted to be joined as a party to an appeal" [33]. This is the same restraint which the ERD Judge imposed on himself in Pitt's case, and which was held to be an impermissible restriction. In my opinion the Tribunal therefore erred in law.

133 The Tribunal also considered that the exceptional circumstances restriction should be applied because the right to make submissions under s 62 had been introduced into the Act. In my opinion, the introduction of s 62, which authorised the Tribunal to allow a person to make submissions, is no reason for concluding that joinder of a party could only occur in "exceptional or extraordinary circumstances".

134 In addition, in the exercise of its discretion, the Tribunal concluded that, because the role of the Shire was "subservient" to the role of the WAPC, it would be wrong to "reverse the position". I do not understand why the Tribunal made that statement and I consider the Tribunal erred in reaching that conclusion. Both the Shire and the WAPC believed that the subdivisional approval should be refused. Both parties therefore opposed the appeal by Mr Gray. The Shire and the WAPC would not be opposed to each other. The Shire, if joined, would advance reasons for opposing Mr Gray's appeal additional to that advanced by the WAPC. The fact that the Shire would advance different reasons would not make the WAPC "subservient" in any way.

135 Further, I consider that the Tribunal erred in its conclusion when it said that "the appeal can be properly disposed of without the need for the Shire to be joined" [37]. The Tribunal erred because although the LNRSPP would be referred to in the Gray appeal even without the Shire being involved, it is only if the Shire is involved that there will be any evidence at all about the effect of the development on remnant vegetation. The Tribunal erred in law in ignoring the submission that the Shire wished to lead evidence (received without objection via a statement by counsel for the Shire).

136 I therefore consider that the appeal should be allowed. The decision of the Tribunal dismissing the application for joinder should be quashed.

Application to make submissions

137 The application was made under s 62 of the Act which read:

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"The Tribunal may receive or hear submissions from a person who is not a party to an appeal in respect of the appeal if the Tribunal is of the opinion that the person has a sufficient interest in the appeal."

138 The Tribunal did not explore the meaning of "sufficient interest". The phrase has been used in cases dealing with the standing necessary for instituting proceedings by way of judicial review. See for example, Robinson v Western Australian Museum (1977) 138 CLR 283 per Mason J. In more recent times, the phrase "special interest" has gained currency as shorthand to describe the level of connection needed to give individuals or groups locus standi to bring proceedings (see for example Australian Conservation Foundation Inc v The Commonwealth of Australia (1980) 146 CLR 493; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126. The phrases "special interest" and "sufficient interest" are sometimes interchanged as a shorthand expression. See for example the Australian Conservation Foundation case (supra) at 528.

139 In my opinion, the expression "sufficient interest" in s 62 means that the Tribunal must be satisfied that the applicant had an interest which would give standing for judicial review and which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v Commonwealth (supra). That must be shown before the Tribunal's discretion is enlivened under s 62. That is not to say that if the jurisdiction is enlivened that the Tribunal is then obliged to exercise the discretion in favour of the applicant. Factors such as those referred to in Pitt's case would then be taken into account in deciding whether to permit a person, not a party, to make submissions.

140 In my opinion, the Shire had an interest in arguing that the LRNSPP policy was applied. This gave it an interest above that of the general public. Thus the discretion was enlivened. That alone would not have been enough to persuade the Tribunal to join it as a party, because if that is all that had to be shown, then all referral authorities would be entitled to be joined in an appeal and that would be a most undesirable outcome.

141 However, there was more in this case. It is clear that the Shire's views and the evidence in support were not going to be advanced at all in this case if the WAPC were the only party.

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142 The Tribunal at [47] gave as a reason for refusing to grant leave under s 62 that the outcome would be "the same". I take this to mean that if the WAPC or the Shire persuaded the Tribunal to their view the Gray appeal would be dismissed. In [46] the Tribunal said that both were opposing the application for subdivision and that the views of the WAPC and the Shire "differ in the degree of intensity or vary to some extent in the degree of reliance upon relevant planning instruments". This misstates the true position. The Shire wishes to argue its reasons for refusing the subdivision and to lead evidence. The WAPC has said it would not advance the reasons relied on by the Shire. That is not a variation "to some extent". The Shire's submissions would not be put at all and there would be an absence of relevant evidence if the Shire was not given leave.

143 The WAPC is not interested in the issue about remnant vegetation. Without the involvement of the Shire, the Tribunal will be uninformed on that subject.

144 I therefore consider that the Tribunal's decision refusing to make an order under s 62 was also an error.

Should this Court remit the applications for hearing before SAT or decide the case itself?

145 As I have decided above, the case could be remitted for rehearing before SAT. Alternatively, it could be dealt with by this Court for the reasons mentioned above. In my opinion, it would be a waste of time, money and judicial resources to return the matter for rehearing before SAT. All information necessary to determine the matter is before this Court and in my opinion it should deal with it.

What order should be made?

146 Clearly, the Shire has decided that the protection of remnant vegetation is of considerable importance. It relies on the LRNSPP which, according to the Shire, is "important for biological diversity of flora and fauna". The Shire considered that the development proposed by Mr Gray would lead to further fragmentation and damage to the remnant vegetation on the subject property.

147 The Shire is concerned that the WAPC's reason for opposing the appeal by Mr Gray has no merit because of the decision of this Court in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522. If that is

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so, and if the Shire is not involved, the appeal may end very quickly, with only a passing reference to the LRNSPP.

148 In my opinion, this is a case where the Shire has a considerable interest to see that a policy it contends to be relevant is considered and considered in the context of relevant evidence. As I have already found, the Tribunal will be uninformed if the Shire is not joined. There is likely to be some impact on the length of the proceedings if the Shire is joined, but that is the likely consequence of the fact that necessary evidence will be placed before the Tribunal which would have been absent if the Shire had not been joined. It is an impact which will always occur if joinder is ordered.

149 For all those reasons, I would quash the Tribunal's order and in lieu order that the Shire be joined as second respondent to the Gray appeal.

150 There was also justification, in my opinion, for the grant of leave under s 62 to permit the Shire to make submissions. However, because I would make an order for joinder, it is not necessary to make such an order. The order for joinder will permit the Shire to participate as a party, to lead evidence and to make submissions.

The LRNSPP and Biodiversity

151 It is not necessary for me to say anything about the content of the LRNSPP and it is not necessary for me to decide whether the subdivision will have any adverse impact on remnant vegetation of any conservation value. That will be a matter for SAT on the hearing of the appeal. However, I do observe that it is easy to find information which might explain why the LRNSPP seeks to preserve remnant vegetation. The information suggests that the policy is no more than a reflection of international, national, State and scientific concern about the need to preserve biodiversity. In referring to the information below, I am not informing myself out of court on a question vital to the case; as to which see Riley v The State of Western Australia [2005] WASCA 190, [70] -[72]. Whether the information is the foundation for the policy on remnant vegetation, or even whether there is any need to investigate the foundation for the policy, will be matters for the consideration of the parties in the Gray appeal before SAT.

152 Throughout the world many bird and animal species are in decline or facing extinction. Plant diversity is also declining with a large number of species threatened with extinction. Conservation International has dentified 34 biodiversity hotspots in the world. The south-western corner

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of Western Australia is one of them. In a press release dated 3 October 2003, the Federal Minister for the Environment and Heritage announced 15 national biodiversity hotspots identified by the Threatened Species Scientific Committee which advises the Minister. The Minister noted that Conservation International had identified the south-west corner of Western Australia as an international biodiversity hotspot. The Busselton-Augusta area is one of the 15 national hotspots. The Australian Government's Department of Environment and Heritage, on its website on biodiversity hotspots, says about this area that:

"The heathlands and shrublands of the coastal plain support hundreds of different plants per square kilometre - many of them endemic and endangered - and a wide range of native invertebrates. In the south, forests and woodlands with high rainfall are habitat for another highly diverse range of plants and animals.

Overgrazing pressure, changed fire regimes and habitat fragmentation have the potential to affect these landscapes and threaten the viability of species …"

153 The Department of Environment and Heritage defines a biodiversity hotspot as an area rich in plant and animal species and which is under immediate threat from impacts such as land clearing, development pressures, salinity, weeds and feral animals.

154 The problem in the South-Western Botanical Province is well-known. Extensive land clearing and development and consequent salinity has caused extreme loss of habitat and loss or threat of loss of species. Ninety percent of native vegetation has been cleared in some regions. ("Biological Consequences of Ecosystem Fragmentation: A Review", Saunders D A, Hobbs R J, Margules C R, 5 Conservation Biology No 1, March 1991, p 18). This is resulting in salinisation and desertification.

155 It might be that the extent of clearing and damage to habitat in the Busselton-Augusta area overall has not been as extensive as that in the wheat belt but it is clear that, in the former area, similar destruction is taking place because of rapid growth and development. This is an area of high population growth. Where there has been substantial clearing, remnant vegetation is often all there is by way of surviving habitat for some species. Conservation of regional biotas in many areas depends

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entirely on the retention and management of remnant vegetation: "Saunders" et al ibid.

156 Consistent with the international and national concern for the preservation of habitat and biodiversity, there is State legislation to encourage conservation of biodiversity. For example, the State government has legislated to allow landowners to enter into conservation covenants with a view to protection of habitat. See the Soil and Land Conservation Act 1945. Funds and grants are made by the State and Federal governments to allow areas of remnant vegetation to be fenced off.

157 Whether the area under consideration here contains valuable remnant vegetation is a question SAT will have to consider on the appeal.

Certiorari proceedings

158 These proceedings were only instituted to cover the situation if it be held that there is no right of appeal. Having concluded that there was a right of appeal, it is not necessary for me to say more about the certiorari proceedings, although, in my opinion, if the appeal were incompetent, the order nisi for a writ of certiorari should be made absolute for the reasons I have given concerning the joinder application. The result would then be that the decision of the Tribunal to dismiss the application by the Shire to be joined as a party or to make submissions would be quashed. The Shire's application would therefore remain undetermined and may be dealt with by SAT.

Conclusion

159 I would allow the appeal, quash the decision of the Tribunal and order that the Shire be joined as second respondent to the appeal pending before SAT.

160 LE MIERE AJA: The Shire of Augusta-Margaret River appeals from and seeks a writ of certiorari to quash the decision of the Town Planning Appeal Tribunal dismissing an application by the Shire for an order joining it as a party to the appeal that had been instituted by Mr Gray against the decision of the Western Australian Planning Commission (the subdivision appeal). The Tribunal also dismissed the application by the Shire for the right to make submissions in the subdivision appeal.

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The appeal

161 I have had the advantage of reading in draft the reasons for decision of McLure and Pullin JJA. For the reasons stated by her Honour, I agree with McLure JA that the Shire was not a party, it had no right of appeal under s 67 of the former provisions of the Town Planning and Development Act 1928 (WA) and the appeal is incompetent.

Certiorari proceedings

162 I agree with Pullin JA that the Tribunal correctly decided that it had power to join the Shire as a party to the subdivision appeal but that the Tribunal erred in law in the exercise of its discretion whether to join the Shire as a party. For the reasons stated by Pullin JA the Tribunal erred in law when it directed itself that it will only be in exceptional or extraordinary circumstances that a person is permitted to be joined as a party to an appeal. The Tribunal also erred in law in holding that the effect of joining the Shire as a party would be to reverse the roles of the Commission and the Shire in the approval of an application for subdivision. The Shire has established that the Tribunal made jurisdictional errors of law.

163 Section 62 of the Town Planning and Development Act permits the Tribunal to receive or hear submissions from a person who is not a party to an appeal if the Tribunal is of the opinion that the person has a "sufficient interest in the matter". I agree with Pullin JA that the Tribunal erred in the exercise of its discretion whether to make an order under s 62.

Power of SAT to order joinder on remittal

164 The respondent Commission contended that even if the Tribunal erred, prerogative relief should be refused because if the matter was heard again by SAT, then SAT would be obliged to apply the current law and that prevents joinder. For the reasons stated by her Honour, I agree with McLure JA that if the decisions of the Tribunal to refuse joinder and an order under s 62, or either of them, are quashed and the matter is heard and determined by SAT, then SAT is to apply the law in force before the transfer day, that is the day on which jurisdiction was conferred on SAT.

Conclusion

165 I would make the order nisi for a writ of certiorari absolute, that is the decision of the Tribunal to dismiss the applications made by the Shire to be joined as a party to the subdivision appeal and alternatively for leave to make a submission to the Tribunal under s 62 of the Town Planning

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and Development Act 1928 should be quashed. I would dismiss the appeal as incompetent.