Steve's Nedlands Park Nominees Pty Ltd and City Of Nedlands
[2006] WASAT 54
•3 MARCH 2006
STEVE'S NEDLANDS PARK NOMINEES PTY LTD and CITY OF NEDLANDS [2006] WASAT 54
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 54 | |
| STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) | |||
| Case No: | DR:635/2005 | 28 FEBRUARY 2006 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 3/03/06 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application for intervention refused. Applicants for intervention granted leave to make submissions. | ||
| A | |||
| PDF Version |
| Parties: | STEVE'S NEDLANDS PARK NOMINEES PTY LTD CITY OF NEDLANDS Self-Represented |
Catchwords: | Town planning Parties in agreement following mediation as to appropriate disposition of proceedings Whether resident objectors should be granted leave to intervene in review proceedings under s 37(3) State Administrative Tribunal Act 2004(WA) Whether resident objectors should have leave to make submissions under s 62 Town Planning and Development Act 1928(WA) |
Legislation: | City of Nedlands Town Planning Scheme 2 City of Nedlands draft Town Planning Scheme 3 Consumer Affairs Act 1971 (WA), s 37(2) Residential Design Codes,cl 4.2.1A1 State Administrative Tribunal Act 2004(WA), s 3(1), s 5, s 29(3)(c)(ii), s 36(1), s 36(1)(b), s 36(1)(c), s 37, s 37(1), s 37(2), s 37(3), s 38, s 38(1), s 38(1)(b), s 38(1)(c), s 54, s 54(8), Town Planning and Development Act 1928(WA), s 62, s 63 |
Case References: | Krasenstein and Western Australian Planning Commission [2005] WASAT 201, (2005) 40 SR(WA) 55 Randall and Town of Vincent [2005] WASAT 129 Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 16 Nil |
Orders | The application for intervention by Caroline Claire Woodhouse and Colin Norman Muller pursuant to s37(3) of the State Administrative Tribunal Act 2004 (WA) is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) CITATION : STEVE'S NEDLANDS PARK NOMINEES PTY LTD and CITY OF NEDLANDS [2006] WASAT 54 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 28 FEBRUARY 2006 DELIVERED : 3 MARCH 2006 FILE NO/S : DR 635 of 2005 BETWEEN : STEVE'S NEDLANDS PARK NOMINEES PTY LTD
- Applicant
AND
CITY OF NEDLANDS
Respondent
Catchwords:
Town planning - Parties in agreement following mediation as to appropriate disposition of proceedings - Whether resident objectors should be granted leave to intervene in review proceedings under s 37(3) State Administrative Tribunal Act 2004(WA) - Whether resident objectors should have leave to make submissions under s 62 Town Planning and Development Act 1928(WA)
Legislation:
City of Nedlands Town Planning Scheme 2
City of Nedlands draft Town Planning Scheme 3
(Page 2)
Consumer Affairs Act 1971(WA), s 37(2)
Residential Design Codes,cl 4.2.1A1
State Administrative Tribunal Act 2004(WA), s 3(1), s 5, s 29(3)(c)(ii), s 36(1), s 36(1)(b), s 36(1)(c), s 37, s 37(1), s 37(2), s 37(3), s 38, s 38(1), s 38(1)(b), s 38(1)(c), s 54, s 54(8),
Town Planning and Development Act 1928(WA), s 62, s 63
Result:
Application for intervention refused. Applicants for intervention granted leave to make submissions.
Category: A
Representation:
Counsel:
Applicant : Mr MJ Hardy
Respondent : Mr DW McLeod
Applicants for intervention : Self-represented
Solicitors:
Applicant : Hardy Bowen
Respondent : McLeods
Applicants for intervention : Self-represented
Case(s) referred to in decision(s):
Krasenstein and Western Australian Planning Commission [2005] WASAT 201, (2005) 40 SR(WA) 55
Randall and Town of Vincent [2005] WASAT 129
Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 16
(Page 3)
Case(s) also cited:
Nil
(Page 4)
Summary of Tribunal's decision
1 Steve's Nedlands Park Nominees Pty Ltd applied to the State Administrative Tribunal for review of a condition of development imposed by the City of Nedlands on a conditional development approval for a mixed use development of land historically known as the Steve's Hotel site, at the corner of Broadway and The Avenue, Nedlands. The condition in question imposed car parking requirements considered by the applicant to be unduly onerous.
2 At an early stage of the proceedings Mr Muller and Mrs Woodhouse applied to the Tribunal for leave to intervene in the proceedings, pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA). They each resided in the locality and were opposed to the proposed redevelopment of the site in the manner proposed.
3 At that stage of the proceedings, the application had not been listed for final hearing or otherwise been referred to mediation or compulsory conference, forms of alternative decision-making often adopted by the Tribunal.
4 On 16 January 2006, a Senior Member of the Tribunal rejected the application for intervention, referred the proceedings to mediation and made an order which permitted the proposed intervenors to renew their application for intervention depending on the outcome of mediation.
5 Following mediation and further dealings between the applicant and the City of Nedlands, the Council resolved on or about 14 February 2006 to adopt a modified proposal for redevelopment of the Steve's Hotel site, and to seek a determination of the Tribunal approving the modified form of redevelopment.
6 Mr Muller and Mrs Woodhouse then renewed their application to the Tribunal for leave to intervene.
7 The Tribunal considered that ordinarily a person will only be granted leave to intervene in a proceeding – and so become a party to the proceeding - where they can demonstrate a capacity to represent a broader public interest that would not otherwise be represented in the proceedings and there is a need for that interest to be represented. The Tribunal emphasised that an intervenor becomes a "party" to the proceedings and,
(Page 5)
- for that reason, amongst others, there is a need for the Tribunal to exercise the power to permit intervention with care.
8 In its discretion the Tribunal refused Mr Muller's and Mrs Woodhouse's application for intervention, but allowed them the opportunity to make submissions to the Tribunal on the proposed determination of the applicant and City of Nedlands for the redevelopment of the Steve's Hotel site.
Issue
9 By application lodged with the Tribunal on 22 November 2005, the applicant, Steve's Nedlands Park Nominees Pty Ltd, applied for review of the decision of the respondent, City of Nedlands, to impose condition 38 on an approval issued by the City on 25 November 2005 for a mixed use development at number 71 (lot 24) Broadway and number 36 (lot 10) The Avenue, Nedlands. This land is well known to many ratepayers of the City of Nedlands and other citizens of the State as the historic site of the Nedlands Park Hotel – or "Steves" as it was known to generations of young West Australians.
10 The development – or redevelopment - of the Steve's Hotel site has generated a degree of controversy in the City of Nedlands. When the review application was lodged in the Tribunal Mrs Woodhouse and Mr Muller sought to intervene in the proceedings. The Tribunal has the power under s 37(3) of the State Administrative Tribunal Act 2004 (WA) to grant leave "at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit."
11 The proposed intervenors said they wished to intervene in order to give evidence themselves and to present evidence from a traffic engineer, to the effect that the development would generate a need for a greater number of car parking spaces than calculated by the City. They wished to argue that the number of additional car spaces required by the condition under review should be increased beyond the number sought by the City. The City agreed that it would call Mrs Woodhouse, Mr Muller and the traffic engineer to give evidence in the case.
12 The proposed intervenors application for leave to intervene was heard by Senior Member Parry on 16 January 2006. He dismissed the application on that day and gave oral reasons for decision which were later published: Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 16.
(Page 6)
13 When the Senior Member of the Tribunal dismissed the application for leave to intervene, he also referred the proceedings to mediation. The process of mediation is an important process within the Tribunal and is expressly provided for by s 54 of the State Administrative Tribunal Act 2004. Section 54(8) expressly provides that "if the mediator is a Tribunal member and a settlement appears to be reached at the mediation, the mediator may reduce the terms of settlement to writing and make any orders necessary to give effect to the settlement".
14 However, at the time the Senior Member refused leave for Mrs Woodhouse and Mr Muller to intervene and referred the proceedings to mediation, the Senior Member expressly noted, at [43] of the written reasons:
"Finally, I note that the proceedings have been referred to mediation this morning. While that fact has not been referred to by the representatives of the parties, the Tribunal should note that if as a result of the mediation the parties to the proceedings, namely the applicant for development approval and the City, were to agree that the review should be determined by consent, and, therefore, there is no proper or effective contradictor, it might well be that the applicants for intervention could renew their application. I should also note that given that the application for intervention has been made, it would not be appropriate for the Tribunal to determine the proceedings by consent as a result of mediation without the interveners being given an opportunity to review the agreed position of the parties, should it come to that, and to consider their position."
15 Accordingly, on 16 January 2006 the Tribunal not only refused the application for intervention and referred the proceedings to mediation but also adjourned the proceedings to a directions hearing on 17 February 2006 and ordered that:
"In the event that the parties reach agreement in relation to the outcome of the proceedings the respondent must notify Mrs Woodhouse and Mr Muller of the terms of the agreement and the time and date of the directions hearing at which consent orders will be sought."
16 Subsequently, following mediation and further consideration of the applicant's development proposal by the parties, the City of Nedlands advised the proposed intervenors the appellant and respondent had agreed
(Page 7)
- that the review proceedings should be determined by consent. In separate affidavits by Mr Muller and Mrs Woodhouse made 16 February 2006, and in an affidavit of Daniel Christopher Arndt made 23 February 2006 in response to those affidavits, the terms of the proposed consent determination agreed on by the appellant and the respondent is set out. Whether or not the full and precise terms of the proposed determination of the parties is before the Tribunal is not clear. A letter from the proposed intervenors to the President of the Tribunal dated 1 March 2006, suggests they are not. This issue is discussed further later in these reasons.
17 The proposed intervenors in the light of the proposed determination by consent then renewed their application for leave to intervene in the proceedings, as they remained opposed to the proposed determination apparently agreed on between the parties to the proceedings.
18 The renewed application for leave to intervene was heard by the Tribunal on 28 February 2006 when the parties and the proposed intervenors made oral submissions in addition to written submissions earlier filed.
19 The proposed intervenors, through Mr Muller, who spoke for both of them, advised the Tribunal that if they were given leave to intervene, they would wish to give evidence, call expert evidence and, in light of the evidence before the Tribunal, propose that the Tribunal should send the matter back to the City of Nedlands for reconsideration in accordance with the directions of the Tribunal, pursuant to s 29(3)(c)(ii) of the State Administrative Tribunal Act. He said the proposed intervenors would want the "appropriate new decision of the City of Nedlands" to be in accordance with "Option A" proposed by Taylor Burrell in its report on "development options" earlier commissioned by the City of Nedlands.
20 The proposed intervenors provided a concise list of issues that they would seek to ventilate if leave to intervene were granted, which fall under the following broad categories:
(a) The proposed determination does not satisfy the requirements of the City's Town Planning Scheme 2 (TPS 2) in respect of parking standards, conservation requirements, set back requirements in respect of a heritage building, visual aspects, effect on amenity of surrounding area, nature and intensity of development and plot ratio and other site coverage and development standard issues.
- (b) Specifically, whether the City has the power to agree to provide car parking on Charles Court Reserve, by reason of the fact that the land falls within the lands affected by the Bruce Trust Deed.
(c) That the grounds for review of condition 38 in the proceedings before the Tribunal "have been widened by the terms of the settlement to include the whole of the development application". The proposed intervenors say that the initial condition 38, the subject of the review proceedings, was tantamount to a refusal of the primary application and thereby should permit the proposed intervenors to raise planning issues in respect of the whole of the proposed development, not just the question of parking to which condition 38 was apparently directed.
22 At the hearing before the Tribunal, the possibility that counsel for the applicant, Mr Hardy, might have a conflict of interest in relation to the proceedings by reason of some interest or involvement in the Bruce Trust lands, was mentioned by Mr Hardy, without Mr Hardy taking any final position in the matter. He advised the Tribunal he was awaiting advice from senior counsel as to whether or not he had an interest that required him to withdraw from representation of the applicant. In these circumstances the Tribunal did not invite Mr Hardy to make any further oral submissions in relation to the matter. The Tribunal however was content to consider the written submissions earlier lodged on behalf of the applicant, seemingly before the question of the possible conflict of interest on Mr Hardy's part arose.
23 As noted, the City filed the affidavit of Mr Arndt, the Director of Development Services at the City, in relation to the proposed determination apparently settled upon by the City and the applicant. In his affidavit, Mr Arndt deals with the questions of planning merit raised
(Page 9)
- by Mr Muller and Mrs Woodhouse in their affidavits and written submissions. At the hearing before the Tribunal, the President invited Mr McLeod, counsel for the City, to make further oral submissions concerning matters as they had developed and to respond to particular issues by the President.
24 Following the making of oral submissions on 28 February 2006 the Tribunal reserved its decision. These reasons constitute the decision and reasons for it on the renewed application to intervene.
25 The issue is whether Mr Muller and Mrs Woodhouse should be granted leave to intervene in the proceedings in these circumstances.
Facts
26 Many of the relevant facts have already been set out above. Following mediation of the application in the Tribunal, the applicant and the City have apparently agreed that the matter could be resolved by a determination in a certain form, which they propose should become the subject of a Tribunal order. The Tribunal was advised at the hearing on 28 February 2006 that the proposed intervenors were given the opportunity to participate to some extent in the Council for consideration of the proposed determination.
27 On 14 February 2006 amended plans submitted by the applicant to the City were apparently the subject of a resolution of the Council by which:
28 The amended plans were accepted as the plans of the redevelopment, the subject of the application;
29 Conditions were to be endorsed upon any orders issued by the Tribunal in respect to development.
30 In the balance of this part of the reasons the Tribunal will refer to particular planning issues raised by the proposed intervenors and how the City, through Mr Arndt, says they are dealt with in the proposed determination of the matter following mediation.
31 Parking: The proposed intervenors explain that the settlement between the parties was reached on the evening of 14 February 2006. They say the plan and information vary from previous plans in respect of :
(Page 10)
- • The original hotel building is converted into four residential units; two on the ground floor removing all bar and restaurant and commercial uses and two instead of four on the first floor.
• There will no longer be access to the historic building on the site.
• The number of strata units in Building D is reduced by one to seven by deletion of the north-western unit fronting The Avenue.
• McHenry Lane is realigned westwards.
• Building D on The Avenue has been increased in size.
• The size of the commercial uses has increased.
• The view corridor to the hotel has been reduced.
• The appellant is to construct a minimum of 22 car parking bays within the Charles Court Reserve, along side the existing bank of parking at the western end of the southern side of the existing Broadway car park and extending to The Esplanade.
• The appellant will construct a minimum 20 on-street car parking bays within the road reserves abutting the subject property.
• Car parking requirements are increased.
• 274 parking bays are required on-site compared with 247 under the original development application, an increase of 27 bays.
• A total of 155 car parking bays are provided on-site.
• There are 119 car bays short of requirements of TPS 2, excluding off-site parking and there was a short fall of 101 bays under the original development application.
• There are 49 car bays short of the requirements of TPS 2 if off-site parking and reciprocal uses are allowed.
(Page 11)
- • Cool room, store and wine cellars to be increased by a total of 88 metres squared and the bar area is decreased.
32 The proposed intervenors also say that the parking shortfall has been dealt with by proposing to allocate 20 on-street parking bays, some to be newly created and a further two new parking bays to be created on Charles Court Reserve. They do not believe crediting this off-site parking to the development parking, requirements complies with TPS 2. If the off-site parking is credited and reciprocal use is appropriate, there remains a 49 car bays shortfall.
33 The City, through Mr Arndt, say that the parking shortfall figures referred to by the proposed intervenors "are accurate so far as they go", but fail to take into consideration the following two points, which would reduce the shortfall under the City's TPS 2 to ten bays.
1) The proposed intervenors do not take account of the fact that the alfresco dining area in the Civic Square is deleted, reducing the alfresco dining area by 84 metres square and consequently reducing the car parking requirements by 32 bays.
2) Seven parking bays can be provided in the forecourt area between the original hotel building and Broadway. However, the provision of those seven bays would result in the loss of landscaping in the forecourt area, and therefore the Council presently would prefer to ascertain whether the parking is adequate without those seven bays, reserving the right to require those seven bays if there is a parking problem in the area when the development is completed and occupied.
34 Mr Arndt says that taking those matters into consideration, the way he has calculated the 10 parking bay shortfall is as follows:
1) There is a significant public parking element associated with the proposed development which is appropriate to recognise in the parking calculations.
2) The total parking requirement calculated under TPS 2 for the revised development proposal, including the 84 metres square of alfresco dining area in the Civic Square is 274 bays.
3) 155 bays can be provided on-site without including the possible seven bays referred to below.
(Page 12)
- 4) The Residential Design Codes cl 4.2.1 A1 allows for reciprocal parking between commercial and residential uses and applying the formula 28 bays can be accepted for reciprocal parking.
5) 20 new bays could be provided on the streets surrounding the development site and adjacent to it and the applicant would be required to bear the cost of providing those bays, though they would be available for general public use.
6) 22 new bays could be provided in the Reserve, alongside the existing bank of car parking at the western end of the southern side of the Broadway extension. The applicant would be required to pay for the cost of constructing those bays, but they would be available for public use consistent with the Reserve.
7) The applicant can provide seven on-site bays in the forecourt area, but pending reassessment of the situation when the development is carried out and occupied, the City would prefer to retain landscaping in the forecourt. In the circumstances, allowance for the seven bays should be recognised in the parking calculations. That would bring the total number of bays provided to 232.
8) By deleting 84 metres square of alfresco dining area from the proposed Civic Square, the 274 bay parking requirement under TPS 2 is reduced to 242 bays.
35 Mr Arndt says that, on this basis, 242 bays are required and 232 bays are provided or allowed for in total, leaving a shortfall of ten bays under TPS 2.
36 Mr Arndt also says that under the presently accepted parking standards laid out in TPS 2 are considered onerous. If the parking requirement were to be calculated under the City's proposed new Town Planning Scheme Number 3 (TPS 3), only 197 bays would be required for the development as the requirement would be 77 bays less than the calculation under TPS 2, if the same allowances are made as explained in the earlier paragraph, there would be surplus of 67 bays.
37 Mr Arndt advises that TPS 3 has been formally adopted by Council and is presently awaiting Ministerial approval to advertise for public submissions. The parking provisions in TPS 3 were based on an examination of parking provisions in comparable recently prepared town
(Page 13)
- planning schemes for the Districts of Subiaco, Fremantle, Cambridge and Perth. City of Nedlands TPS 2 is more strict than any of those schemes.
38 Taxi rank: The proposed intervenors draw attention to the loss of a taxi rank in Broadway under the proposed determination. The City through Mr Arndt says that a taxi rank was previously justified by the heavy public usage of the old Steve's Hotel. Public demand for taxis in the area will be greatly reduced under the proposed development and will not be sufficient to justify a taxi rank. The taxi rank was there to serve the hotel and with the removal of the hotel the need for the taxi rank disappears.
39 Street parking and footpaths in road reserve: On this issue, Mr Arndt says the verge area at its narrowest would be five metres wide. In his opinion there is enough room for 2.5 metre wide on-street parking and at least a 2 metres wide footpath, something the intervenors doubt.
40 No longer public access to hotel building: Mr Arndt acknowledges the complaint of the proposed intervenors that under the proposed determination there would not be public access to the old hotel building. However, he says the City cannot compel the use of the building for public access, and the revised development has a lesser parking shortfall after all allowances have been made for reciprocal parking, on-street parking, on the Reserve parking and possible parking in the landscaped forecourt.
41 Mr Arndt also says that the commercial areas including the bottle shop/deli, the cafe and the bar area are more feasible in the revised development, and more readily satisfy the Council's requirement that the commercial uses in the development provide a substantial service to the public.
42 Realignment of McHenry Lane: The realignment of McHenry Lane involves a movement southward. The Council through Mr Arndt say that this involves only approximately 8 metres. It says the realignment results in a larger and more viable commercial area and is not likely to cause any significant detriment to amenity, something which the intervenors doubt.
43 Mr Arndt says the Council considered each of the issues referred to at the Council briefing on 7 February and the Council meeting of 14 February.
(Page 14)
44 Mr Arndt says that he does not consider that any other issue previously considered by Council or raised in submissions are raised in a different light by the proposal as set out in the proposed determination.
45 Whether proposed determination complies with TPS 2: As noted earlier, the proposed intervenors say that in a number of respects, the proposed determination fails to comply with TPS 2. Mr Arndt says that all of the issues raised in paragraph 17 of Mrs Woodhouse's affidavit of 16 February are satisfied, save for parking, which he has dealt with in his affidavit, as explained above. Dealing with other matters raised in paragraph 17 of Mrs Woodhouse's affidavit, Mr Arndt says:
1) The hotel building will be retained and restored in accordance with a Conservation Plan approved by the Heritage Council.
2) New development will be set back from the building, including the verandah in accordance with an approved Conservation Plan.
3) Set back to the hotel will be in accordance with an approved Conservation Plan.
4) An open uninterrupted square will be included as required.
46 On behalf of the Council, Mr McLeod submitted that the partial use of land falling into the Bruce Trust and called Charles Court Reserve, is not unlawful as alleged by the proposed intervenors. A portion of that Reserve is currently set aside for car parking. This facilitates the public recreational use to which that trust land is dedicated. Mr McLeod says that the essence of the Council's submission in this regard is that the further use of that land in a way that will facilitate public parking by persons wishing to use the public facilities available within the proposed development, and other foreshore areas, is an appropriate incidental use that subserves the primary recreational use of the Charles Court Reserve referred to in the Bruce Trust Deed.
Consideration of contentions
47 The proposed intervenors, as noted earlier, raise a number of issues as to why they should be granted leave to intervene in the proceedings.
48 Reversing the issues as previously set out, the first issue they raise is the question of condition 38, the subject of the current proceedings, being "tantamount" to a refusal of the proposed development. In putting this proposition forward, I understand the proposed intervenors to be
(Page 15)
- suggesting that if condition 38 can be viewed as tantamount to a refusal of the whole development – as Senior Member Parry suggested it could in his earlier reasons for decision for refusing leave to intervene – then the Tribunal should accept that the merits of the whole of the proposed development – and not just the question of parking – need to be considered by the Tribunal and the "widening" of the proceedings in this way should be seen as a reason to facilitate the intervention of the proposed intervenors in the proceedings.
49 While it is clear that in such cases as Randall and Town of Vincent [2005] WASAT 129 the Tribunal did not treat the review proceedings as restricted to the merits of a particular condition, but as raising the merits of the whole development application – because of the nature of the condition in question – I do not consider that condition 38 has that effect in this case.
50 While it might be said that by imposing condition 38 in its initial terms it would be extremely difficult for the applicant to carry out the precise development it proposed - if it were obliged to find the requisite number of car parking bays on the site - the review application plainly was about the parking needs and the proposal of the applicant always was that fewer car parking bays were required than what the Council had proposed in condition 38.
51 In Randall the condition that the Council imposed was designed to limit the number of persons who could use a licensed facility, and so to change the substantive nature of the proposed development it was properly viewed as constituting a constructive refusal of the primary development proposal. As I say, the same cannot be said of the proposed condition 38 in the context of these proceedings.
52 So far as the other planning grounds put forward by the proposed intervenors as to why the view should be adopted that the currently proposed determination does not comply with TPS 2, it seems to me from a preliminary examination of those issues, that there is no proscriptive provision in TPS 2 which has the effect that the development as currently proposed is, or would be, fundamentally unlawful. In other words, it is possible in the exercise of discretion, if properly exercised, to approve the proposed development in the manner set out in the proposed determination.
53 As to the use of the Charles Court Reserve for parking purposes, whether or not a portion of land dedicated for public use, whether by trust
(Page 16)
- or otherwise, is being appropriately utilised is a question of law and probably planning merit. On the face of it, however, as Mr McLeod submits, the use of a portion of a public reserve for car parking purposes to facilitate, amongst other things, the public use of the reserve – or indeed the public use of nearby facilities available to the public – would appear to be a use incidental to the primary use and not objectionable.
54 The question arises then, in these general circumstances, whether the proposed intervenors should be given leave to intervene in the proceedings to agitate the issues they have raised and in the manner they have suggested.
55 In this regard, the first point to note is that the intervenors, if they are granted leave to intervene, become parties to the proceedings. Section 36(1) of the State Administrative Tribunal Act expressly provides that a person is a party to a proceeding before the Tribunal if the person is:
"(c) A person intervening in the proceeding".
56 This result seems to follow even if the Tribunal grants leave under s 37(3) for a person to intervene in a proceeding "on conditions" that the Tribunal thinks fit. In other words, it would not seem open for the Tribunal to impose a condition under s 37(3) that the intervenor shall not be a party to the proceeding, as such a condition would, directly contradict s 36(1)(c) of the Act.
57 It follows that a person who is an intervenor has the full range of rights that a party to a proceeding has, including the right to fully participate in the proceedings, to call evidence, to examine and cross-examine witnesses in an adversarial context, and to exercise the party's rights to appeal to the Supreme Court in respect of any decision made.
58 Because an intervenor becomes a party to the proceedings armed with these rights and entitlements, it follows that the power of the Tribunal to grant leave at any time for a person to intervene in a proceeding – even on conditions – is to be exercised with care and only where a person has an adequate reason for intervening.
59 In this regard, it should be noticed that s 37(1) entitles the Attorney General, "on behalf of the State", to intervene in a proceeding in the Tribunal at any time and that s 37(2) entitles the Commissioner for Consumer Affairs to intervene, again, "on behalf of the State", at any time in the administration of the Consumer Affairs Act 1971 (WA) (s 37(2)).
(Page 17)
- The Parliament plainly intends that these public officials should have the right to intervene as a matter or right in a proceeding wherever the interest of the State requires representation. One can readily understand why that should be so.
60 It is in this particular context that the Tribunal has also been given the power under s 37(3) to grant leave at any time for a person to intervene in proceedings, if the Tribunal thinks fit.
61 It must also be understood that persons who wish to be heard or to become parties in proceedings in the Tribunal have other means available to them to apply for party status. Under s 38(1) of the State Administrative Tribunal Act, the Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that –
a) the person ought to be bound by or have the benefit of, a decision of the Tribunal 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.
62 In ordinary circumstances, the power of the Tribunal to join a person as a "party" directly in this way (which is also recognised by s 36(1)(b)) enables a person with a private interest and possibly also, in some cases, a person who wishes to represent a wider public interest, to be joined as a party to proceedings.
63 Ordinarily then, a person in the position of the proposed intervenors who wishes to become a party to the proceedings, would apply under s 38.
64 The reason why the proposed intervenors seek leave to intervene, and not to be joined as a party, is because s 63 of the Town Planning and Development Act1928 (WA) expressly excludes the Tribunal's powers under the State Administrative Tribunal Act to join them as parties. Section 63 provides:
"Section 38 of the State Administrative Tribunal Act 2004 does not apply in a proceeding for a review in accordance with this Part."
65 However, in s 62 of the Town Planning and Development Act Parliament has sought to respond to the desire of persons who are not parties to a proceeding to be heard in relation to issues to be dealt with in
(Page 18)
- a review proceeding under that Act. It enables submissions to be made by persons who are not parties. Section 62 expressly provides:
"The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter."
67 In properly interpreting and understanding the powers of the Tribunal under the State Administrative Tribunal Act to permit intervention in proceedings under s 37(3), I think it follows that regard must be paid to the clear Parliamentary intention that ordinarily persons in the position of the proposed intervenors cannot expect to be joined as "parties" to a review proceeding under the Town Planning and Development Act. However, they may be heard in these types of proceedings by way of "submissions" in relation to the application if the Tribunal decides they have a sufficient interest. The status however of a submission-maker does not give the interested person the right to give evidence, call witnesses, examine or cross-examine witnesses, or appeal against the Tribunal's decision.
68 While it may be doubted in these circumstances that Parliament intended that persons in the position of the proposed intervenors can ever be given leave to intervene under s 37(3) of the State Administrative Tribunal Act - - where the effect of doing so is to make them a party under s 36(1)(c) - it should be observed that the express words of s 63 of the Town Planning and Development Act are only to provide that "s 38" does not apply to a proceeding for a review. It says nothing expressly about s 37(3).
69 However, s 37(3) should not be seen as an alternative means for persons who do not qualify to be joined as a party to a proceeding under s 38, to become a party to a proceeding under the Town Planning and Development Act 1928.
70 In my view, while s 37(3) gives the Tribunal a broad discretion in deciding whether to allow intervention, having regard to matters I have
(Page 19)
- mentioned, there is good reason to consider that will it ordinarily only do so where a person can demonstrate a capacity to represent a broader public interest or a recognised authority for doing so, that would not otherwise be represented in the proceedings, and there is a need for that interest to be represented in the proceedings.
71 I note that in Krasenstein and Western Australian Planning Commission [2005] WASAT 201, (2005) 40 SR(WA) 55, the Tribunal held at [24] and [25], in a similar way, that the "intervention under the SAT Act is principally concerned with the advancement of the public interest, as opposed to private interest."
72 In the present circumstances, I do not consider that the proposed intervenors should be given leave to intervene in the proceedings. Their interests are essentially private in nature, even though they wish to argue matters in the public interest. They live in the immediate locality and may properly be characterised as "resident objectors". But for s 63 of the Town Planning and Development Act they may have had a case to be joined as parties pursuant to s 38(1)(b) or (c) of the State Administrative Tribunal Act. To the extent that they purport to represent the public interest, I do not consider that they are able to demonstrate a particular capacity, or authority, to represent a broader public interest. The interest of the residents of the City of Nedlands is already represented in the proceedings by the responsible local government, namely the City of Nedlands, which is constituted of properly elected Council members. Nor do I consider there is any need for the particular interest that the proposed intervenors desire to represent, to be represented in proceedings such as these. The Tribunal can adequately resolve the proceedings without effectively joining the proposed intervenors as parties.
73 In essence, the proposed intervenors seek to intervene as residents of the City of Nedlands who oppose the City's proposed resolution of the proceedings. Their interest is not the type of interest that should result in the Tribunal exercising the discretion it has under s 37(3) in their favour.
74 As a result, I would refuse the application of the proposed intervenors for leave to intervene in the proceedings.
75 However, if Mr Muller and Mrs Woodhouse wish to avail themself of the right to make submissions in relation to the proposed determination to be considered by the Tribunal, then I would be prepared to receive their written submissions pursuant to s 62 of the Town Planning and Development Act. Depending on the future course of the proceedings I
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- may also be prepared to hear from them orally. I consider that, by reason of their interest in the proceedings as nearby residents they have a sufficient interest for the purposes of s 62 of the Town Planning and Development Act.
Future course of proceeding
76 As to the future course of these proceedings, it remains for the Tribunal to hear from the applicant and the City of Nedlands as to the details of the proposed determination. As noted earlier, the full and precise terms of the proposed determination are yet to be placed before the Tribunal.
77 While the parties are encouraged by the State Administrative Tribunal Act to engage in mediation and, as noted earlier, the member of the Tribunal who conducts a mediation may reduce the terms of settlement to writing and make any orders to give effect to a settlement, this does not mean that the Tribunal is bound to adopt the consent settlement proposed by the parties in every case. In this case, while mediation may have contributed to the willingness of the parties presently to resolve the proceedings by agreement, it remains for the Tribunal to be fully informed about the proposed resolution.
78 In the circumstances of these proceedings, where the Tribunal is also prepared to receive the written submissions by Mr Muller and Mrs Woodhouse as to the proposed resolution, it will be necessary for the Tribunal to hear further from the applicant and the City, and possibly to receive some further evidence – for example from Mr Arndt on behalf of the City - concerning the proposed determination.
79 To facilitate this manner of proceeding, the Tribunal will proceed to list the proceeding for a final hearing. To this end, a directions hearing will be held on 23 March 2006 at 9.30am for the purpose of setting the hearing date and making directions concerning the nature of the hearing and the steps to be undertaken by the parties before that hearing.
Order
1. Application of Mr Muller and Mrs Woodhouse for leave to intervene is refused.
2. The Tribunal will receive written submissions from Mr Muller and Mrs Woodhouse in relation to the determination of the proceedings proposed by the parties
- and may also, in its discretion, hear from them orally at the hearing.
- 3. Matter is set down for a directions hearing before the President on 23 March 2006 at 9.30am with a view to listing the proceedings for a final hearing.
- I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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