Star & Garter Hotel Pty Ltd v City of Kalgoorlie-Boulder - [2023] WASC 149

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   STAR & GARTER HOTEL PTY LTD -v- CITY OF KALGOORLIE-BOULDER [2023] WASC 149
CORAM:   SOLOMON J
HEARD:   3 MAY 2023
DELIVERED          :   12 MAY 2023
PUBLISHED           :   12 MAY 2023
FILE NO/S:   CIV 1920 of 2022
BETWEEN:   STAR & GARTER HOTEL PTY LTD
Applicant
AND
CITY OF KALGOORLIE-BOULDER
Respondent
GOLDFIELD VILLAGES PTY LTD
Other Party

Catchwords:

Administrative law - Judicial review - Writ of certiorari - Where State Administrate Tribunal has affirmed decision - Whether original decision operative - Whether deliberative or reasoning process of SAT supersedes reasons of original decision maker - State Administrative Tribunal Act 2004 (WA) s 19(3) - Whether s 19(3) applies to a third party - Review jurisdiction of State Administrative Tribunal

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015 (WA) cl 3, cl 76
Planning and Development Act 2005 (WA) s 252
Rules of the Supreme Court 1971 (WA) O 56 rr 1(1), 2(a)
State Administrative Tribunal Act 2004 (WA) s 3, s 17, s 18, s 19, s 27, s 29, s 31(1), s 31(3)

Result:

Application for judicial review dismissed.

Category: A

Representation:

Counsel:

Applicant	:	Mr P McQueen
Respondent	:	Mr C Slarke
Other Party	:	Mr P McGowan

Solicitors:

Applicant	:	Lavan
Respondent	:	McLeods
Other Party	:	HWL Ebsworth Lawyers (Perth)

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

Citta Hobart Pty Ltd v David Cawthord [2022] HCA 16
Goldfield Villages Pty Ltd and City of Kalgoorlie Boulder [2023] WASAT 6
Polo Enterprises Australia Pty Ltd v Shire of Broom [2015] WASCA 20
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501
Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re State Administrative Tribunal; Ex parte McCourt (2007) 34 WAR 342
SZBYR v Minister for Immigration [2007] HCA 26; (2007) 81 ALJR 1190
Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104

SOLOMON J:

Application

This matter concerns an application for judicial review of a decision of the City of Kalgoorlie-Boulder (City) on 25 July 2022. The decision was to approve an application by Goldfield Villages Pty Ltd (Goldfield Villages) to grant development approval for a 302‑person workers' accommodation facility at Lot 72 (160) Vivian Street, South Boulder (Approval). It was common cause that the facility is appropriately described as 'workforce accommodation'. The Approval was granted under the Planning and Development Act 2005 (PD Act) pursuant to the applicable planning scheme, the City of Kalgoorlie‑Boulder Local Planning Scheme No 1 (Scheme).
The applicant for judicial review, Star & Garter Hotel Pty Ltd (Star & Garter), is the operator of two hotels in Kalgoorlie, the Star & Garter Hotel and Hannans Hotel. Star & Garter has a commercial interest in the Approval because it considers that the proposed new facility will impact adversely on its trade. It is not disputed that Star & Garter has a sufficient interest in the Approval to bring this application for judicial review.
The evidence adduced for this application was contained in affidavits filed on behalf of the parties without objection. The following affidavits were filed on behalf of Star & Garter:
(a)Affidavit of Alister James Walsh affirmed 9 September 2022;
(b)Affidavit of Bianca Sandri affirmed 9 September 2022;
(c)Affidavit of Isabella Augusta Mosole sworn 9 January 2023; and
(d)Affidavit of Isabella Augusta Mosole sworn 24 February 2023.
The following affidavit was filed on behalf of the Other Party, Goldfield Villages:
(a)Affidavit of Benjamin William Doyle affirmed 18 October 2023.

Planning Framework

The application raises issues in respect of various provisions of the Scheme.
Part II of the Scheme provides that lands shown as scheme reserves on the 'Scheme Map' are lands reserved under the Scheme for the purposes designated on the Scheme Map. One of the listed purposes is 'Airport'. Clause 2.3 of the Scheme provides that where an application for approval is made with respect to land within a reserve, the City must have regard to the purpose of the reserve and confer with the relevant authority.
Part III of the Scheme provides for the classification of areas into 'zones' which are delineated on the Scheme Map. The zones include various industrial zones, one of which is the 'Service/Light Industry Zone'.
The land on which the workforce accommodation is proposed to be developed is located in the Service/Light Industry Zone except for a small portion in the south‑west corner, which is within a scheme reserve, and designated for the purpose of an airport.
Part III of the Scheme includes a 'Zoning Table' which lists individually all the various uses of land and denotes whether each of those uses is permitted or otherwise in each of the zones. Clause 3.2 provides that the Zoning Table 'indicates the permissibility or otherwise of uses in the various zones'. The Zoning Table is headed 'Table 1 ‑ Zoning Table'. Importantly for present purposes, 'workforce accommodation' is not a use listed among the various uses in the Zoning Table. One of the listed uses is 'Residential Building'. That term is defined in Sch 1 to the Scheme.
Clause 3.6 of the Scheme provides that if the proposed use is not listed in the Zoning Table, the City may:
(a)determine that the use is consistent with the objectives and purposes of the particular zone and is therefore permitted;
(b)determine, by absolute majority, that the proposed use may be consistent with the objectives and purposes of the zone and require the procedures set out in cl 6.6 to be complied with before considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives and purposes of the particular zone and is therefore not permitted.
The consideration of the development application and subsequent Approval by the City proceeded on the basis that the proposed use, workforce accommodation, was not listed in the Zoning Table and that cl 3.6 applied.
At around the same time as the City was considering the development application for the workforce accommodation, the City was developing a planning policy to deal expressly with workforce accommodation facilities. On 22 November 2021, the City resolved to prepare a draft workforce accommodation planning policy pursuant to cl 3 of deemed provisions of the Scheme contained in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (Deemed Provisions). A policy was prepared and on 27 June 2022 the City resolved to proceed with it. It is known as LPP 09.

Grounds of judicial review

Star & Garter sought judicial review of the Approval on a number of grounds.
First, Star & Garter contended that on a proper construction of the Scheme, the proposed development came within the definition of Residential Building, alternatively Holiday Accommodation or Serviced Apartments. Each of those uses is prohibited in the Service/Light Industrial Zone. Accordingly, the City was wrong to conclude that the proposed use was not listed in the Zoning Table and that cl 3.6 of the Scheme applied. It followed that the City did not have power to grant the Approval.
Secondly, Star & Garter contended that the Approval was invalid because the City failed to have due regard to certain relevant (in the sense of mandatory) considerations. This ground had two distinct parts. The first mandatory consideration was LPP 09. It was contended that in granting the Approval, the City failed to have due regard to LPP 09 in circumstances where it was required to do so. In particular, Star & Garter pointed to the requirements under LPP 09 for an applicant to demonstrate the need for the workforce accommodation and to provide a social impact assessment. Star & Garter maintained that these matters were required under LPP 09 and the City did not have due regard to Goldfield Villages' failure to meet those requirements.
The second failure to have due regard to a mandatory consideration related to the area at the south‑west corner of the land that was designated by the Scheme as land reserved for the purpose of an airport. As noted above, cl 2.3 of the Scheme required the City to have regard to the purpose of the Scheme and to confer with the relevant authority. Star & Garter contend that the City failed to do so and thereby failed to have due regard to a mandatory consideration in the grant of the Approval.
In support of its application for judicial review, Star & Garter put into evidence much of the decision‑making process that led to the Approval including the reports prepared by the City's staff, a video recording of the City's meeting of 25 July 2022 at which the City resolved to grant the Approval, and a transcript of what was said at that meeting. Star & Garter largely drew its contentions about the deficiencies in the City's decision‑making from that material.

Decision of the State Administrative Tribunal

The application for judicial review was listed for hearing on Monday 27 February 2023. On Friday 24 February 2023, the court received supplementary submissions from Goldfield Villages. Those submissions referred to and provided a copy of a decision of the State Administrative Tribunal (SAT) in respect of the Approval delivered on 13 February 2023. Until receipt of the submissions, the court had not been made aware of the SAT's decision. Goldfield Villages submitted that the SAT's decision rendered the application for judicial review futile and that the application must be dismissed. When the matter came before the court on 27 February 2023 the parties agreed it would be appropriate to adjourn the hearing to give Star & Garter and the City an opportunity to consider the impact of the SAT's decision and the contention advanced by Goldfield Villages. In the circumstances, the parties consented to an adjournment and the timetabling of a further round of submissions. The matter was relisted for 3 May 2023.
In order to appreciate the issues raised by the SAT decision, it is necessary to provide further background in respect of the application for development and its journey through the SAT.

The development application and the SAT review

In October 2021, Goldfield Villages submitted its application for approval for the workforce accommodation to the City. The City first considered the application on 14 March 2022. It did so on the basis that the proposed use was not listed in the Zoning Table and cl 3.6 of the Scheme therefore applied. Under cl 3.6, in order for the application to be approved, it was necessary for the City to resolve that the proposed use was or may be consistent with the objectives and purposes of the Service/Light Industry Zone. The City resolved that the proposed use was not consistent with those objectives and was therefore not permitted.
On 28 March 2022, Goldfield Villages commenced an application for a review of that decision by the SAT under s 252(2) of the PD Act and s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). That application was known as DR 55 of 2022 (DR 55).
On 20 May 2022, Goldfield Villages commenced a further application for a review by the SAT of the City's decision to refuse the development application under s 252(1) of the PD Act and s 17 of the SAT Act. That application was known as DR 84 of 2022 (DR 84).
Section 31 of the SAT Act provides:
(1)At any stage of a proceeding for the review of a reviewable decision, the Tribunal may invite the decision‑maker to reconsider the decision.
(2)Upon being invited by the Tribunal to reconsider the reviewable decision, the decision‑maker may —
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision and substitute its new decision.
(3)If the decision‑maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision.
Under an invitation made by the SAT pursuant to s 31(1) of the SAT Act, on 27 June 2022 the City reconsidered its decision under cl 3.6 with respect to the consistency of the proposed use with the objectives of the relevant zone and resolved in the following terms:
… in accordance with Clause 3.6(b) of Local Planning Scheme No. 1 that the land use 'Workforce Accommodation' may be consistent with the objectives and purposes of the 'Service Light Industry' zone.
On 25 July 2022, under a further invitation pursuant s 31(1) of the SAT Act, the City reconsidered its decision with respect to the application for development approval and resolved to grant the Approval. The Approval was subject to conditions which included a condition that the Approval was only for five years.
In substance, the City varied or set aside and substituted its own decisions the subject of DR 55 and DR 84. Neither DR 55 nor DR 84 were withdrawn. It followed that under s 31(3) of the SAT Act, those proceedings remained on foot but became applications for review of the City's new decisions. Goldfield Villages maintained the application for review of the City's decisions because it was aggrieved by the condition to limit the Approval to five years. I was advised from the bar table, and it was uncontroversial, that in early August 2022 Goldfield Villages was granted leave by the SAT to amend its grounds of review to relate solely to the condition limiting the Approval to five years.
The hearing of DR 55 and DR 84 took place before the SAT in September 2022. As noted, the SAT delivered its decision with reasons on 13 February 2023. The reasons are contained in Goldfield Villages Pty Ltd and City of Kalgoorlie Boulder [2023] WASAT 6.
In setting out the issues for its consideration, the SAT stated the following:
On one view, the only issue before the Tribunal is whether to impose a time limiting condition on the approval (and, if so, for how long).
However, in our view, the following issues properly arise and must be determined:
1.What is the proper characterisation of the proposed landuse?
2.If the landuse is 'workforce accommodation' (and therefore a use not listed under the Scheme) is it 'consistent with the objectives and purposes of the particular zone' pursuant to cl 3.6 of the Scheme?
3.If the landuse 'may be' consistent with the objectives and purposes of the zone, should the approval be time limited having regard to the relevant planning regime including, in particular, Local Planning Policy – Workforce Accommodation (LPP 09)?
4.The following sub-issues arise as to the third issue above:
a)the weight to be given to LPP 09; and
b)whether there are proper planning grounds to depart from the terms of LPP 09.[1]
[1] Goldfield Villages Pty Ltd and City of Kalgoorlie Boulder [2023] WASAT 6 [25] ‑ [26].
In its decision, the SAT traced the history of the application and set out the relevant legislative and planning framework. The SAT decision considered and determined a range of matters that are directly relevant to the challenges advanced to the City's decision‑making leading to the Approval in this judicial review application. I provide below a summary of the Tribunal's reasoning in relation to issues raised in this application.
First, the SAT noted that a part of the land was reserved for the public purpose of an airport. In that context the SAT considered the obligation arising from cl 2.3 of the Scheme to have regard to the purposes of a reserve and to confer with the relevant authority. In that regard, the SAT concluded (noting that the reference to the Respondent is a reference to the City):
The Kalgoorlie-Boulder airport is owned and operated by the respondent. There was no suggestion that the south-west corner of the Land was required for airport purposes or that the grant of development approval would compromise the airport's operations. The respondent raised no concerns in this regard. Neither did the Department of Planning, Lands and Heritage in its submission. Accordingly, we have proceeded on the basis that the Airport reserved land in the south‑west does not pose an impediment to approval and is otherwise irrelevant to our consideration.[2]
[2] Goldfield Villages Pty Ltd and City of Kalgoorlie Boulder [2023] WASAT 6 [29].
It is to be recalled that on this application for judicial review, Star & Garter complained that the City failed to have due regard, or regard at all to the obligation imposed by cl 2.3 of the Scheme. Indeed, it contended that in its consideration of the development application, the City made no reference at all to the airport reserve. Plainly, the SAT's consideration of this issue and its reasoning is materially different from the manner in which the City dealt with this issue in its deliberative process leading to its grant of the Approval.
Secondly, the SAT considered LPP 09 in detail, including its status and its application to the proposed development. This was of particular relevance as LPP 09 provided expressly that planning approval 'will not exceed a period greater than five years'. The SAT noted that Goldfield Village's case focussed on the need for the proposed development.[3] As part of that focus, the SAT received fairly extensive lay and expert evidence relating to 'need'. That was evidence which Goldfield Villages brought afresh before the SAT as it was entitled to do under s 27 of the SAT Act. It was not evidence that was provided to the City as part of the initial application for development and thus comprised matters that were not considered by the City at all. Although the SAT observed that Goldfield Villages did not rely on the evidence to demonstrate need in accordance with the requirement of LPP 09, that was apparently because 'need' was not in issue between the parties to the review application before the SAT. Rather, the evidence of need was directed to a submission that the need was so acute, it rendered inappropriate the condition of a five-year time limitation. The SAT nevertheless reiterated the requirement to demonstrate need under LPP 09. Be that as it may, the evidence before the SAT and the SAT's consideration of that evidence was markedly different from the manner in which the evidence of need and its consideration unfolded in the City's deliberation leading to the Approval.
[3] Goldfield Villages Pty Ltd and City of Kalgoorlie Boulder [2023] WASAT 6 [236].
Again, it will be recalled that on this application for judicial review, Star & Garter complained that the City failed to have due regard to the requirements of LPP 09. It is again plain that the SAT's consideration of the issue of LPP 09 and the SAT's reasoning in that respect was materially different from the manner in which the City dealt with the issue in its deliberative process leading to its grant of the Approval.
Finally, although the grounds of review before the SAT related to the time-limitation condition, the SAT considered that it was also required to consider the proper characterisation of the proposed land use under the Scheme and the Zoning Table. The SAT explained that the issue of use characterisation was inextricably linked with the proper consideration of the time-limitation condition and in any event the SAT had a duty to ensure the City (and thereby the SAT upon review) had the power to grant the Approval. In that context, the SAT cited the High Court decision in Citta Hobart Pty Ltd v David Cawthord, observing that the SAT 'has a duty and concomitant authority to ensure that a complaint referred to it is and remains within its jurisdiction to hear and determine'.[4]
[4] Citta Hobart Pty Ltd v David Cawthord [2022] HCA 16 [17].

To that end, the SAT considered whether the workforce facility was encompassed by any of the various uses listed in the Zoning Table. The SAT also considered at some length whether the proposed development was properly characterised as residential in the broader sense. In the context of that consideration the SAT made the following footnoted observation:
No one suggested the use in this case satisfies the Scheme's definition of a 'residential building' (which is a prohibited use in the Service Light Industry Zone). As with the definition of 'serviced apartments' the definition of a 'residential building' is limited to 'a building' rather than a multitude of structures.[5]
[5] Goldfield Villages Pty Ltd and City of Kalgoorlie Boulder [2023] WASAT 6, fn 64.
The SAT then noted that with limited exception, each of the defined land uses that might be characterised as residential are prohibited by the Zoning Table in the Service/Light Industrial Zone.
It is to be recalled that Star & Garter's challenge on this judicial review application included the issue of whether the proposed development is properly characterised as a Residential Building under the Scheme, or perhaps another expressly listed residential use. Star & Garter contended on this application that the City failed to conclude that the proposed use was, on a proper construction of the Scheme, a residential use prohibited by the Scheme. The reasoning in the SAT decision thus addressed fairly directly the issue which was a subject of the challenge to the City's reasons for the grant of the Approval.
Ultimately, the SAT concluded in its review that the correct and preferable decision in each of DR 55 and DR 84 was the same conclusion reached by the City. Pursuant to s 29(3) of the SAT Act, the SAT therefore affirmed the decisions of the City to grant the Approval with conditions that included the five-year limitation condition.

The consequences of the SAT decision for the judicial review

Goldfield Villages and the City both submitted that the SAT decision has rendered this judicial review application futile. That is because they contended that the City's original decision is no longer the operative decision in respect of the Approval, and even if it remains an operative decision, that is, it continues to have legal force, the challenges to it advanced in this application have been rendered redundant by the SAT decision. In contrast, Star & Garter contended that the City's original decision remains operative and the City's deliberative or reasoning process which led to the Approval remains subject to challenge in this judicial review application.
Ultimately, in my view, the matter turns on a proper understanding of two matters; first, the judicial review process sought in this court, and secondly, the process of review undertaken by the SAT. The former requires an understanding of a remedy of some antiquity arising from the supervisory jurisdiction of the Supreme Court; the latter emerges from an understanding of the relevant provisions of the SAT Act on their proper construction.

Certiorari

The application for certiorari is made under O 56 r 2(a) of the Rules of the Supreme Court 1971 (WA). That rule enables an application to be made for one or more 'writs'. By O 56 r 1(1) the reference to writs includes a writ of certiorari. By its application to this court dated 1 September 2022, that is the form of remedy sought by Star & Garter in respect of the City's decision to grant the Approval.
The basis for granting certiorari was explained by the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd as follows:
The principal basis for making such an order is jurisdictional error, thus enforcing the limits of a decision-maker's functions and powers […] [T]hat supervisory jurisdiction was and is a defining characteristic of the State Supreme Courts.[6]
[6] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 [29].
Defining the bounds of jurisdictional error can sometimes be an exercise attended by some complexity: Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 [101] ‑ [115], [181]; Re State Administrative Tribunal; Ex parte McCourt (2007) 34 WAR 342 [13] ‑ [16]. It should also be observed that the remedy of certiorari may sometimes extend beyond the boundaries of jurisdictional error.[7] It is not necessary to examine those issues. It is not disputed in this matter that the errors asserted by Star & Garter, if made out, are capable of attracting the remedy of certiorari.
[7] See the discussion in Aronson M, Groves M and Weeks G, Judicial Review of Administrative Action and Government Liability, 7^th ed (2022) [1.140 - 1.150], [5.80].
As to the function of certiorari, the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd explained that:
The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights.[8]
[8] Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 264 CLR 1 [28].
It is settled law that the power to grant certiorari is discretionary. That no useful result could ensue from the grant of the remedy is a well-established ground for refusing the grant of certiorari: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400; Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [54] ‑ [57]; SZBYR v Minister for Immigration [2007] HCA 26; (2007) 81 ALJR 1190 [28].
In short, certiorari is a discretionary remedy to quash the legal effect of a decision infected by jurisdictional error. The decision is quashed ordinarily because the reasoning behind it embodies error. Generally speaking, the decision or order of an administrative decision‑maker stands separately from the process of reasoning or deliberation that led to the decision. A common if not ubiquitous feature of judicial review is that it is directed to an evaluation of the deliberative or reasoning process of the decision‑maker to identify error that may impugn the decision. It follows that in undertaking a judicial review of an administrative decision it is necessary to identify the reasons that stand, or the reasoning process that stands, behind the decision itself.
As is evident from the background to the City's original Approval and the SAT's affirmation of that Approval as set out above, the reasoning process that stood behind the conclusion of each of those entities was markedly different. Those differences included aspects of the City's decision‑making process that are the subject of Star & Garter's challenge in this judicial review application. It is therefore necessary to identify which of those decision-making processes is the relevant or operative deliberative or reasoning process that now stands behind the Approval. That issue directs attention to the second matter ‑ the legal effect of the SAT's decision as regards the Approval and the City's original deliberative process. Star & Garter maintains that the relevant or operative reasoning process remains, or at least includes, the City's reasoning process. The City and Goldfield Villages contend that the reasons delivered by the SAT have replaced the City's reasoning process which therefore ceases to be operative, or at least of any legal consequence.
Part 3 div 3 of the SAT Act deals with the SAT's review jurisdiction. Section 17 of the SAT Act confers jurisdiction on the SAT if an enabling Act expressly or necessarily provides a right of review by the SAT. An enabling Act is defined as an Act or subsidiary legalisation under that Act, under which jurisdiction is conferred on the SAT. Part 14 div 2 of the PD Act deals with the review of planning decisions. Section 252 of the PD Act relevantly provides that an applicant may apply to the SAT for a review of a decision of a local government to grant consent under a planning scheme subject to any condition. Application for review can also be made for a decision of a local government under a planning scheme as to the classification of a use under the planning scheme or the permissibility of a use that is not listed under the planning scheme. A right in similar terms is also conferred by cl 76 of the Deemed Provisions.
Section 18 of the SAT Act provides that in exercising its review jurisdiction the SAT must deal with a matter in accordance with the SAT Act and the relevant enabling Act.
Section 19 of the SAT Act deals expressly with the relationship between proceedings in the SAT for the review of a decision and a judicial review proceeding (including certiorari), challenging the same decision. The section provides that the right to have a decision reviewed by the SAT does not exclude any right to challenge the decision by judicial review. However, the section precludes the right to run both forms of challenge. Relevantly, s 19(3)(b) provides that if a SAT proceeding for the review of a reviewable decision has commenced, judicial review proceedings cannot subsequently be commenced in relation to the decision.
Here, the applications to the SAT for review of the City's decisions were commenced in March and May 2022. On a literal and unqualified application of the subsection, it ought not to have been permissible for this judicial review to have been commenced. No such impediment to this application was suggested by any of the parties. In my view, the parties were correct to adopt that course. I agree with the submission advanced by counsel for the City that the subsection does not apply to a third party such as Star & Garter who does not enjoy a right to review the decision in the SAT. Counsel for the City observed that if that were not the case, then a third party would be forever precluded from challenging a decision if a party with the right to seek a review before SAT commenced a review application and then withdrew it.
Moreover, in my view the provision on its proper construction in light of its evident purpose, is intended to confer an election. That is, an applicant is required to make a once-only choice as to whether it wishes to pursue its challenge by way of review in the SAT, or by judicial review. That construction is also supported by the terms of the Explanatory Memorandum that accompanied the passage of the State Administration Tribunal Bill 2003. The Explanatory Memorandum stated that the proposed s 19 provides that if an individual wishes to review an administrative decision, then two 'options' are available; an application for review to the SAT or judicial review proceedings.[9] The Explanatory Memorandum went on to say 'However, an individual must choose one option and cannot utilize both SAT and court proceedings at the same time'.[10] Putting to one side that the words 'at the same time' appear to suggest a narrower constraint than that now imposed by s 19, it is plain that the intent of the provision was to provide a choice and to put the intending applicant to an election. A third party such as Star & Garter has no opportunity for election because such a party has no right of review before the SAT.
[9] Explanatory Memorandum, 5.
[10] Explanatory Memorandum, 5.
It is noteworthy that in Polo Enterprises Australia Pty Ltd v Shire of Broome, Martin CJ (with whom Newnes and Murphy JJA agreed) adopted the notion of election in relation to s 19(3) of the SAT Act, explaining:
[I]n cases in which review on the merits is available in the Tribunal, a party with the right to invoke the Tribunal's jurisdiction must elect whether to proceed in the Tribunal or commence judicial review proceedings in respect of the relevant decision. Once that election has been made, the party is bound by it unless the case comes within one of the provisos in subs (4) or (5) of s 19. That is because s 19(3) provides that proceedings for the review of a reviewable decision in the Tribunal cannot be commenced simultaneously with judicial review proceedings in relation to the same decision, and further provides that if Tribunal proceedings have been commenced for the review of a reviewable decision, judicial review proceedings cannot be subsequently commenced in relation to that decision, and vice versa […]
In summary, in cases in which a decision is reviewable by the Tribunal, a party aggrieved by that decision must elect whether to commence proceedings in the Tribunal for review of that decision, or to commence proceedings for judicial review of that decision. Once that election has been made by the commencement of one or other form of proceedings, the aggrieved party is bound by that election and cannot later commence proceedings of the other character, except in the limited circumstances for which express provision is made by subs (4) and (5).[11]
[11] Polo Enterprises Australia Pty Ltd v Shire of Broom [2015] WASCA 20 [125], [127].
For those reasons, in my view on its proper construction the prohibition contained in s 19(3) applies only to a party possessed of a right of review before the SAT. It did not apply to Star & Garter.
The legal effect of a SAT decision upon review and its attendant reasons, is dealt with by subdivision 3 of pt 3 div 3 of the SAT Act. Section 27 makes plain that the review hearing before the SAT is de novo, it is not confined to matters that were before the initial decision-maker, it may involve consideration of new material, and the reasons of the original decision‑maker do not limit the SAT's conduct of the review. Section 27(2) provides that the purpose of the review is to produce 'the correct and preferable decision at the time of the decision upon review'. In light of those provisions, it is unsurprising that the reasons for a decision of the SAT may often differ, as they did here, to the reasons for decision of the original decision‑maker.
Section 29(3) sets out the powers of the SAT in its review jurisdiction. After hearing the review application, the SAT may do one of the following:
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and —
(i)substitute its own decision; or
(ii)send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
In short, the SAT may affirm the decision, vary the decision, or set the decision aside and substitute its own decision. Section 29(5) provides for the legal effect or status of the SAT's decision. That effect is the same whether the reviewed decision is affirmed, varied or set aside. The subsection provides:
The decision‑maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision‑maker's decision —
(a)is to be regarded as, and given effect as, a decision of the decision‑maker; and
(b)unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
It is noteworthy that the statutory provision does not provide for dismissal of the application for review. A plain dismissal would leave the original decision intact and undisturbed. In contrast, if the SAT comes to the view that the correct and preferred decision is the same decision as that reached by the original decision‑maker, then it must 'affirm' that decision. But the SAT does not thereby affirm the reasoning of the original decision‑maker. In the context of administrative proceedings, the ordinary meaning of 'decision' is a dispositive or operative outcome of the exercise of a power.[12] The definition of 'decision' in s 3 of the SAT Act is inclusive but nevertheless consistent with the ordinary meaning. The decision therefore does not encompass the reasons for the decision. What the SAT affirms is the decision. In this case, that is the Approval itself. The reasoning or deliberative process of the City is distinct from the decision embodied in the Approval.
[12] Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104 [41] ‑ [42].
In that context, s 29(5) makes plain that it is the decision 'as affirmed by the Tribunal' that is given effect by the legislature as the operative decision. That can only mean in my view that the operative reasons in respect of the Approval are the reasons of the SAT, not the original reasoning process of the City. That construction is consistent with and further supported by s 29(6), which confers upon the decision-maker (here, the City) the power to do anything necessary to implement the SAT's decision. That includes a circumstance where the City's decision was affirmed by the Tribunal. Section 29(7) clarifies that even though the SAT's decision is given effect as a decision of the City, it is not again open to review by the SAT. Those provisions reinforce the proposition that the operative decision is not the original decision of the City, but rather the decision of the City as it has been affirmed by the SAT. That means in my view that, although the decision itself has not been varied, the City's reasoning has been superseded by the reasoning of the SAT.
It follows in my view that the reasoning or deliberative process of the City has ceased to have operative effect. No useful purpose can therefore be served by its review and the application for judicial review and certiorari must therefore be dismissed. It would be futile to evaluate the reasoning of the City when that reasoning has been superseded by the SAT's reasoning.
It is necessary to deal with one further contention of Star & Garter. Star & Garter submitted that the reasoning of the SAT in respect of the Approval cannot be operative because the SAT did not have power to deal with the matters the subject of that reasoning. Star & Garter contended that the application for review concerned only the time-limitation condition. It therefore could not concern the other matters set out at [27] above, such as the characterisation of the proposed use on a proper construction of the Scheme. As those matters were beyond the competence of SAT to deal with on the review application, the SAT's reasoning is of no effect. The City's reasoning process thus stands undisturbed and may be subject to scrutiny by judicial review in aid of relief such as a writ of certiorari.
In support of that contention, Star & Garter referred to s 29(9) of the SAT Act which provides:
To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision‑maker.
In my respectful view that contention cannot be accepted for the following reasons.
First, any challenge to the validity of the SAT decision does not fall for consideration, less still determination, in this proceeding. If Star & Garter considers that the SAT decision is open to challenge, it is at liberty to mount that challenge in other proceedings. That occasion does not arise here.
Secondly, it is evident from the procedural history recited above that the review application before the SAT was a review of the City's decision of 25 July 2022 in response to the SAT's invitation pursuant to s 31 of the SAT Act. As noted above, s 31(3) provides:
If the decision‑maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision.

The proceeding for a review was not withdrawn. The application for review was therefore the City's decision of 25 July 2022, which was a decision to approve the proposed development with conditions. Goldfield Village's application for review was in respect of that decision, that is, the Approval. The grounds of review and the documents that explicated the grounds such as a statement of facts and contentions (as is common in the SAT) may have directed attention to the basis of Star & Garter's concerns. But it did not transform the application for review into something other than a review of the City's decision in respect of the Approval. The matters dealt with by the SAT were therefore squarely within the compass of the review application.
Thirdly, s 29(9) on which Star & Garter relies circumscribes the SAT's consideration in respect of a 'matter that is different in essence from the matter that was before the [City]'. There is no reference to the manner in which the applicant for review has framed its complaint before the SAT. The matters considered by the SAT were plainly 'before the City'.
Fourthly, in the course of oral submissions, counsel for Star & Garter accepted that if in undertaking the review, the SAT had come to the view that the City had no power in the first place to grant approval because on a proper construction of the Scheme the proposed use was prohibited, the SAT would have been obliged to set aside the City's decision and substitute a decision to disallow the development. In my respectful view, that concession was correctly made. It follows that the SAT's reasoning was correct. It was obliged to consider the fundamental question of whether the City had power to approve the development at all. And in my view the SAT was correct in its application of the High Court decision in Citta Hobart Pty Ltd v David Cawthorn.
Finally, in my view, the SAT was also correct to observe that the issue raised by Village Goldfields' challenge to the time‑limitation condition was inextricably linked to the broader issues of land use characterisation considered by the SAT.[13] The temporal conditions of the Approval could not be quarantined from broader planning considerations relating to the use constituted by the proposed development.
[13] Goldfield Villages Pty Ltd and City of Kalgoorlie Boulder [2023] WASAT 6 [116].
Accordingly, I do not accept that the SAT strayed beyond its jurisdiction.
For the reasons I have explained, in my view, the reasoning of the SAT is presently the sole operative reasoning in respect of the Approval and Star & Garter's application for judicial review, based as it is on a challenge to the deliberative processes of the City, must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IS
Associate to the Honourable Justice Solomon
12 MAY 2023