Stockdale and Shire Of Mundaring
[2007] WASAT 34
•8 FEBRUARY 2007
STOCKDALE and SHIRE OF MUNDARING [2007] WASAT 34
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 34 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:459/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 7/02/07 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Determination of Tribunal in Stockdale and Shire of Mundaring [2006] WASAT 356 affirmed | ||
| B | |||
| PDF Version |
| Parties: | AILEEN STOCKDALE SHIRE OF MUNDARING |
Catchwords: | Review by President of determination of Tribunal upon a "matter involving a question of law" under Planning and Development Act 2005 (WA), s 244 Whether Tribunal erred in law in deciding to receive a submission from a person who is not a party Tribunal gave no reasons for deciding to receive submission Whether failure to give reasons involves an error of law President affirmed determination as it was reasonably open to Tribunal to receive submission, submitter could have given evidence as resident objector on same issues and applicant was given opportunity to respond to submission Whether Tribunal erred in law in determining that a garage is an "outbuilding" Meaning of "appurtenant to" |
Legislation: | Planning and Development Act 2005 (WA), s 242, s 244, s 244(1), s 244(2), s 244(3), s 252(1) Shire of Mundaring Town Planning Scheme No 3, cl 1.13(4), cl 4.39 State Administrative Tribunal Act 2004 (WA), s 3(1), s 77 Town Planning and Development Act 1928 (WA), s 62 |
Case References: | Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Pitt v Environment Resources and Development Court (1995) 66 SASR 274 Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219 Rennet Pty Ltd and City of Joondalup [2006] WASAT 183 Shire of Augusta-Margaret River v Gray [2005] WASCA 227 Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54 Stockdale and Shire of Mundaring [2006] WASAT 356 Winten Property Group Ltd v North Sydney Council (1999) 130 LGERA 79 Nil |
Orders | 1. The application for review is dismissed.,2. The determination of the Tribunal in Stockdale and Shire of Mundaring [2006] WASAT 356 is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : STOCKDALE and SHIRE OF MUNDARING [2007] WASAT 34 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 8 FEBRUARY 2007 FILE NO/S : DR 459 of 2006 BETWEEN : AILEEN STOCKDALE
- Applicant
AND
SHIRE OF MUNDARING
Respondent
Catchwords:
Review by President of determination of Tribunal upon a "matter involving a question of law" under Planning and Development Act 2005 (WA), s 244 - Whether Tribunal erred in law in deciding to receive a submission from a person who is not a party - Tribunal gave no reasons for deciding to receive submission - Whether failure to give reasons involves an error of law - President affirmed determination as it was reasonably open to Tribunal to receive submission, submitter could have given evidence as resident objector on same issues and applicant was given opportunity to respond to submission - Whether Tribunal erred in law in determining that a garage is an "outbuilding" - Meaning of "appurtenant to"
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Legislation:
Planning and Development Act 2005 (WA), s 242, s 244, s 244(1), s 244(2), s 244(3), s 252(1)
Shire of Mundaring Town Planning Scheme No 3, cl 1.13(4), cl 4.39
State Administrative Tribunal Act 2004 (WA), s 3(1), s 77
Town Planning and Development Act 1928 (WA), s 62
Result:
Application for review dismissed
Determination of Tribunal in Stockdale and Shire of Mundaring [2006] WASAT 356 affirmed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Mr J Hofland
Solicitors:
Applicant : Self-represented
Respondent : Shire of Mundaring
Case(s) referred to in decision(s):
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Pitt v Environment, Resources and Development Court (1995) 66 SASR 274
Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219
Rennet Pty Ltd and City of Joondalup [2006] WASAT 183
Shire of Augusta-Margaret River v Gray [2005] WASCA 227
Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54
Stockdale and Shire of Mundaring [2006] WASAT 356
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Winten Property Group Ltd v North Sydney Council (1999) 130 LGERA 79
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Summary of Tribunal's decision
1 An unsuccessful applicant in planning review proceedings sought a review by the President of the Tribunal's determination of a matter involving a question of law.
2 The Tribunal decided to receive a submission from an adjoining neighbour, but did not give any reasons for this decision.
3 The Tribunal also determined that an existing garage, which was to be retained, was an "outbuilding" for the purposes of the local planning scheme.
4 The President determined that the Tribunal erred in law in failing to give reasons for receiving the submission. A decision about who may participate in proceedings is fundamental to the case and giving reasons for this decision is an incident of the principle that justice must not only be done but must be seen to be done and of proper public administration. However, the President affirmed the determination, because it was reasonably open to the Tribunal to receive the submission, the submitter could have given evidence in relation the same concerns and the applicant was given an opportunity to respond to the submission and availed herself of that opportunity.
5 The President determined that the Tribunal did not err in determining that the existing garage constituted an "outbuilding". The garage is a building appurtenant to and detached from the residential dwelling.
6 The application for review by the President was dismissed and the decision of the Tribunal was affirmed.
Introduction
7 These proceedings involve an application brought by Ms Aileen Stockdale, pursuant to s 244 of the Planning and Development Act 2005 (WA) (PD Act), for a review by the President of the determination of the Tribunal in Stockdale and Shire of Mundaring [2006] WASAT 356 (determination). In its determination, the Tribunal dismissed Ms Stockdale's application for review under s 252(1) of the PD Act of the decision of the Shire of Mundaring (Shire) to refuse development approval for the erection of an outbuilding having an area of 100 square metres and a height of 4.2 metres to be used for the storage of seven vintage cars, a caravan, tyres, parts, a lathe, a drill post and a tune
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- up machine at No 6 Oxley Place, Darlington (site). The site of the proposed development has an area of approximately 2226 square metres and has an elongated triangular shape which narrows at the rear towards the apex. The development application proposes the location of the outbuilding towards the apex, in close or near proximity to existing residences on adjoining properties.
8 In its determination, the Tribunal concluded that the application for review should be dismissed, essentially for the following reasons at [51]:
"In this particular case, there is an absence of dividing fences which, of itself, has provided openness to the landscape and [a] high degree of amenity in a natural environment. The construction of a large 100 square metre outbuilding at a height of 4.2 metres relative to and in close proximity to existing nearby residences, despite extensive replanting, would still be visually intrusive, incongruous in the environmental setting, and at odds with the preservation of the existing amenity."
Application for review by President
9 Section 244(1) of the PD Act provides that the Tribunal constituted by the President may, of its own motion or upon an application made under subsection (3), review a direction, determination or order upon a "matter involving a question of law" that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The determination in question was made by the Tribunal when constituted by Sessional Member Mr L Graham who is not a legally qualified member as defined in s 3(1) of the SAT Act. The application for review of the determination was made by Ms Stockdale in accordance with s 244(3) of the PD Act within one month of the determination.
10 Ms Stockdale has not formulated specific grounds for review. However, based on her submissions, her grounds for review can be formulated as follows:
1) The Tribunal erred in law in deciding to receive a submission in respect of the application from a person who is not a party under s 242 of the PD Act.
2) The Tribunal erred in law in determining that the existing garage on the site is an outbuilding for the purposes of the
- Shire of Mundaring Town Planning Scheme No 3 (TPS 3 or Scheme).
11 I will address each of these grounds in turn.
Ground 1- receipt of submission from non-party
12 Having referred to the fact that various submissions objecting to the proposed development were made and considered by the Shire when it refused the development application, Sessional Member Graham stated at [29] – [30] of the determination as follows:
"The principal submission was lodged by Mr and Mrs Peetoom of No 4 Oxley Place. Their property is next door to the subject land and their detailed objections largely encapsulate the broad views of the other objectors.
On 17 July 2006, Mr Duncan Peetoom lodged an application on behalf of his parents under the provisions of s 242 of the PD Act to present a submission to the Tribunal. The application was accepted at the hearing on 8 September 2006."
13 Section 242 of the PD Act is in the following terms:
"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."
14 The determination does not contain any reasons for Sessional Member Graham's decision to receive Mr and Mrs Peetoom's submission in respect of the application.
15 In Re Carey; ex parte Exclude Holdings Pty Ltd [2006] WASCA 219, Martin CJ, with whom Wheeler JA agreed, held at [78] that a member of the Tribunal had given legally inadequate reasons in relation to his conclusion that the use of premises could not be characterised as "Grouped Dwelling". At [79], the Chief Justice held and observed as follows:
"The bald assertion that a submission is erroneous or 'had not assisted', fails to elucidate the process of reasoning applied, and therefore fails to discharge the statutory obligation imposed upon the Tribunal to provide reasons for its decisions. In the present case it is impossible to know from the reasons published
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- by the Tribunal whether the Tribunal had found that the development was not a 'Grouped Dwelling', and if so why, or whether the Tribunal had taken the view that the submission was irrelevant because of some (undisclosed) view as to the construction and effect of TPS No 20."
16 At [78], Martin CJ held as follows:
"As the Tribunal is obliged to give reasons for its decision, and there is a right of appeal from those reasons, the reasons must elucidate the process of reasoning applied by the Tribunal for at least two reasons:
(a) firstly, so that the unsuccessful party can evaluate the prospects of success on appeal; and
(b) so that the Court can evaluate the process of reasoning if the appeal is brought (see Mount Lawley Pty Ltd v WA Planning Commission (2004) 29 WAR 273, 283: Beale v Government Insurance [Office] of New South Wales (1997) 48 NSWLR 430, 441)."
17 However, Re Carey - and the two cases cited in the quotation - concerned reasons for a final decision, not, as in the present case, what was, in effect, a preliminary determination as to whether to receive a submission from a person who is not a party to the application. The Chief Justice's references to a statutory obligation to give reasons appears to be to s 77 of the SAT Act which is in the following terms:
"(1) The Tribunal is to give its reasons for a final decision.
(2) Reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based."
18 In Winten Property Group Ltd v North Sydney Council (1999) 130 LGERA 79, Lloyd J, in the Land and Environment Court of New South Wales, reviewed at [47] – [52] the leading New South Wales authorities in relation to judicial officers' obligations to give reasons for their decisions and considered in particular whether the duty extended to a non-legally qualified decision-maker in planning review proceedings. His Honour's review of the authorities included the following at [50] – [52]:
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- "In North Sydney Council v Ligon 302 Pty Ltd(1995) 87 LGERA 435, a case involving an appeal on a question of law from a decision of a Judge of this Court made in a planning appeal, Kirby P said (at [442]):
'The only way by which this Court, and the parties, can discern whether a consideration crucial to the case was taken into account is by looking to the reasons of the judge who is subject to appeal to this Court. Whilst those reasons should not be examined in an overly critical or pernickety way, the facility of the appeal is provided by Parliament to ensure that a manifestly lawful decision is made. This Court has held many times that it is an incident of judicial duty to give reasons which extend to expressing findings upon issues which are critical to the point in contention in the case.'
In Westport Marina Developments Pty Ltd v Concord Council(2000) 109 LGERA 451, Pearlman J determined an appeal under s 56A of the Land and Environment Court Act [1979] from a decision of the senior commissioner. Pearlman J accepted the fact that the senior commissioner showed that he had a correct understanding of the question he had to determine in that case, which he described as a threshold question, namely 'the extent of environmental impact and whether or not it is seen as requiring an environmental impact statement'. What the senior commissioner said in his decision is as follows:
'[15] Reverting then to the threshold question, the extent of environmental impact and whether or not it is seen as requiring an environmental impact statement, evidently the Court's conclusion is that this is not the case. Accordingly the related idea that this might be seen as involving designated development, is also rejected by the Court.'
Pearlman J said (at [28]):
'The Senior Commissioner's finding in relation to that question is set out in the next words of the passage I have quoted, that is, 'evidently the Court's conclusion is that this is not the case'. Here, I think, the Senior Commissioner fell into legal error. His conclusion may
- be taken, again adopting a broad approach, as implying that he had formed the requisite opinion. But he was required to give his reasons for the formation of that opinion, and a failure to do so is a legal error (Soulemezis v Dudley (Holdings) Pty Limited (1987)10 NSWLR 247). The duty extends to expressing findings upon an issue which is critical to the case (Mifsud v Campbell (1990) 21 NSWLR 725) and this issue is certainly of that character.'"
19 Having reviewed the authorities, Lloyd J held at [53] as follows:
"The principles to which I have referred above show that the duty of a judge to disclose reasons for a decision is more onerous than that imposed upon a lay commissioner. Nevertheless, if a question is in issue in the case and it is one which is critical or fundamental to the case then, as in the Westport Marina Development case, even a lay commissioner is required to give reasons for his or her conclusion."
20 As was the case in Re Carey, the case of Winten Property Group concerned the failure to give reasons for a final decision, not a decision in relation to a preliminary issue such as an application by a non-party to make a submission in relation to an application. Nevertheless, I consider that it is incumbent on a member of the Tribunal to give reasons in relation to a contested application by a non-party to make submissions in respect of an application. A member does not have a duty to give reasons in relation to every preliminary determination. However, a decision about who may participate in proceedings is fundamental to the case. It is appropriate, both as an incident of the principle that justice must not only be done but must be seen to be done and of proper public administration, that the unsuccessful person, party or parties to an application by a non-party to make submissions, understand why their opposition did not prevail.
21 I therefore consider that Sessional Member Graham erred in law in failing to give reasons for allowing Mr and Mrs Peetoom's application to make submissions in relation to the application. Section 244(2) of the PD Act states that I may affirm the determination or revoke the determination and substitute another determination that the Tribunal could have made. I consider that the determination should be affirmed for three reasons.
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22 First, it was reasonably open to the sessional member to decide to receive the submission. In Rennet Pty Ltd and City of Joondalup [2006] WASAT 183, Deputy President Judge Chaney stated at [5] as follows:
"In order for the Tribunal to grant an application for leave to make submissions [under s 242 of the PD Act], [the non-party] needs to establish two matters. The first is that it has a sufficient interest in the matter the subject of the review, and then the second is that, if so, the Tribunal should exercise its discretion to permit the making of submissions."
23 In Shire of Augusta-Margaret River v Gray [2005] WASCA 227, Pullin JA, with whom Le Miere AJA relevantly agreed, held at [139] as follows:
"In my opinion, the expression 'sufficient interest' in s 62 [of the Town Planning and Development Act 1928 (WA) (TPD Act), which was in the same terms as s 242 of the PD Act] 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 [(1980) 146 CLR 493]. 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 v Environment, Resources and Development Court (1995) 66 SASR 274 at 275] would then be taken into account in deciding whether to permit a person, not a party, to make submissions."
24 In Australian Conservation Foundation Inc v Commonwealth(1980) 146 CLR 493, Gibbs, Stephen and Mason JJ held that, in cases which do not concern constitutional validity, a person who has no special interest in the subject matter of an action over and above that enjoyed by the public generally has no standing to seek an injunction or declaration to prevent the violation of a public right or to enforce the performance of a public duty. Gibbs J held at 530 as follows:
"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the
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- meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor [standing]."
25 Similarly, Mason J held at 547 that:
"Depending on the nature of the relief which he seeks, a plaintiff will in general have [standing] when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests … and perhaps to his social or political interests."
26 Mr and Mrs Peetoom, being adjoining neighbours, clearly have an interest which would give them standing for judicial review under the test stated in Australian Conservation Foundation Inc v Commonwealth and, therefore, "a sufficient interest in the matter" the subject of the review. As the sessional member found, the construction of the proposed outbuilding would detrimentally and directly affect their residential amenity. Similarly, in Steve's Nedlands Park Nominees Pty Ltd and City of Nedlands [2006] WASAT 54 at [75], I decided to receive a written submission by nearby resident objectors under s 62 of the TPD Act noting 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 [TPD Act]".
27 It was also reasonably open to the sessional member to determine that the discretion under s 242 of the PD Act should be exercised so as to receive Mr and Mrs Peetoom's submission. As noted earlier, Pullin JA held in Shire of Augusta-Margaret River v Gray at [139] that factors such as those referred to in Pitt v Environment, Resources and Development Court are to be taken into account in deciding whether to permit a non-party to make a submission. Factors identified in the judgment of Doyle CJ in Pitt v Environment, Resources and Development Court at 275 include:
• "the nature and strength of the interest" of the proposed submitter;
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- • "the contribution which the [proposed submitter] is likely to be able to make to a proper resolution of the issues before the [Tribunal]";
• "whether the interest which the [proposed submitter] represents and the material to be advanced by that person will be adequately dealt with by the parties already before the [Tribunal]"; and
• "the impact upon the proceedings" and the "interests of the parties before [the Tribunal] as of right and the public interest in the prompt and efficient despatch of proceedings".
28 Taking these factors into account, it was certainly reasonably open to the sessional member to exercise discretion in favour of receiving the submission. Mr and Mrs Peetoom have a direct interest in the preservation of their residential amenity. A comparison of the issues raised by the Shire, which are stated at [11] of the determination, with the submission made by Mr and Mrs Peetoom, which is summarised at [31] – [32] of the determination, shows that it was reasonably open to the sessional member to conclude that Mr and Mrs Peetoom would "bring to the proceedings something which [was] not otherwise going to be fully canvassed in the course of the proceedings and would thereby assist the Tribunal to reach the correct and preferable decision": Rennet Pty Ltd and City of Joondalup at [5]. Finally, the receipt of the submission did not extend the proceedings beyond the single day allocated for hearing and did not detrimentally affect the prompt and efficient despatch of the proceedings.
29 The second reason why I consider that the determination of the Tribunal should be affirmed is that, if leave to make a submission had not been granted under s 242 of the PD Act, the Shire could have called Mr and Mrs Peetoom to give evidence in its case in relation to the same concerns as were expressed in their submission. In this regard, it is the Tribunal's practice to allow resident objector witnesses to give evidence in relation to all of their concerns to do with a proposed development, whether those concerns correspond to the issues identified for consideration by the respondent or not.
30 The third reason why I consider that the determination of the Tribunal should be affirmed is that, to the extent that Ms Stockdale contends that the receipt of the submission affected her right to natural
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- justice, it is apparent from [33] of the determination that she was given an opportunity, which she took, to respond in detail to Mr and Mrs Peetoom's submission. It is clear from the sessional member's reasons for decision that he took Ms Stockdale's responses into consideration in his determination of the review.
Ground 2 - Is the existing garage an "outbuilding"?
31 Ms Stockdale contends that the sessional member erred in law in the interpretation of TPS 3 in determining that the existing garage constitutes an "outbuilding" within the meaning of the Scheme. At [47], the sessional member stated as follows:
"In the view of the Tribunal, the broad intent of both TPS 3 and the [Outbuildings Policy] is to place limits on the size of one or more outbuildings and that, in accordance with the Policy, an outbuilding/s will generally not be approved if it exceeds 100 square metres. In that respect, the definition of an outbuilding includes both sheds and garages, and the Tribunal cannot accept the applicant's argument that the existing garage at 42.4 square metres should be excluded from the overall calculations."
32 Clause 4.39 of the Scheme provides, in part, as follows:
"All outbuildings shall be ancillary to the primary use of the land and shall, except with the approval of the Council, comply with the conditions set out hereafter in this clause.
(a) Outbuildings on lots below 5000 [square metres] in area shall not:
(i) have a combined area of greater than 65 square metres; … "
"'outbuilding' means a building appurtenant to and detached from a residential dwelling but does not include a pergola, patio or carport."
34 As noted earlier, the proposed outbuilding would have an area of 100 square metres. If the existing garage, which is proposed to be retained, is an outbuilding for the purposes of cl 4.39 of the Scheme, then
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- the noncompliance with the development control in that clause is compounded.
35 Ms Stockdale submits that the sessional member erred, because the garage is not additional to the primary dwelling, but is an integral part of the primary dwelling, regardless of physical location, and is not ancillary to the primary use of the land, but rather is an essential part of the primary function of a residence.
36 The adjective "appurtenant" is defined in The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 65 as "appertaining or belonging; relating". The verb "appertain" is defined at page 63 as "(sometimes followed by to) to belong as a part, member, possession, attribute, etc.; pertain". The expression "a building appurtenant to … a residential dwelling", therefore, relevantly means a building belonging or relating to a residential dwelling.
37 In the present case, the garage was clearly a building belonging or relating to the residential dwelling and, therefore, an "outbuilding" within the meaning of cl 4.39 of the Scheme. Ms Stockdale's submission that the garage is not an outbuilding because it is not additional to the primary dwelling, but is in fact an integral part of the primary dwelling, is based on an incorrect inference from what she says is the definition of the noun "appurtenances" in the Collins Dictionary, namely "minor or additional features or possessions". The word "appurtenant" in the definition of "outbuilding" in the Scheme is an adjective, not a noun. More fundamentally, however, the inference from the definition referred to by Ms Stockdale is not that "appurtenances" are additional, that is different, but rather the opposite, namely that they are related to, relevantly, the residential dwelling. The noun "appurtenant" is defined in The Macquarie Dictionary at page 65 as "an appurtenance" and "appurtenance" is relevantly defined as "something accessory to another and more important thing; an adjunct". Thus, even as a noun, "appurtenant" refers to something which is an accessory or adjunct to something which is more important. The garage is an accessory or adjunct to the dwelling. The statement that "all outbuildings shall be ancillary to the primary use of the land" in cl 4.39 is consistent with the sessional member's interpretation of "outbuilding". The parking of a motor vehicle used by a resident of a dwelling to drive to and from the site of the dwelling is ancillary to the primary use of the site of the dwelling as a residential dwelling. In this regard, the word "ancillary" in relation to use is a term of art in planning law and refers to land use which is subordinate to another land use: see
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- Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 at 161; Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 216 - 217.
Conclusion
38 Sessional Member Graham erred in law in failing to give reasons for his decision to receive a written submission in respect of the application from non-parties under s 242 of the PD Act. A decision about who may participate in proceedings is fundamental to the case. It is important that the unsuccessful non-party, party or parties understand the Tribunal's reasons for making a decision under s 242.
39 However, I consider that the determination should be affirmed, because it was reasonably open to the sessional member to receive Mr and Mrs Peetoom's submission, Mr and Mrs Peetoom could have given evidence in the Shire's case in relation to the same concerns that were the subject of the submission and Ms Stockdale was given an opportunity to respond to the submission and availed herself of that opportunity.
40 The sessional member did not err in determining that an existing garage constituted an "outbuilding" under the Scheme. The garage is a building appurtenant to and detached from the residential dwelling on the site.
41 It follows that the application for review by the President should be dismissed.
Orders
The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The determination of the Tribunal in Stockdale and Shire of Mundaring [2006] WASAT 356 is affirmed.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
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