| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TAH LAND PTY LTD and CITY OF WANNEROO [2013] WASAT 190 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 1 NOVEMBER 2013 DELIVERED : 1 NOVEMBER 2013 PUBLISHED : 22 NOVEMBER 2013 FILE NO/S : DR 362 of 2011 BETWEEN : TAH LAND PTY LTD Applicant
AND
CITY OF WANNEROO
Respondent
WESTERN AUSTRALIAN PLANNING COMMISSION
Submitter
Catchwords: Town planning - Development application - Preliminary issue - Jurisdiction and power - Whether Tribunal is subject to same constraint as respondent under delegation of decisionmaking power by Western Australian Planning Commission to local governments - Practice and procedure - Invitation by Tribunal to original decisionmaker to reconsider its decision under s 31 of State
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Administrative Tribunal Act 2004 (WA) - Whether respondent would be constrained by delegation if it were invited by Tribunal to reconsider its decision when Tribunal is not constrained by delegation Legislation: Metropolitan Region Scheme, cl 3, cl 5, cl 28, cl 29(1), cl 31(2), cl 33, cl 33(1), Pt IV
Planning and Development Act 2005 (WA), s 16, s 236(3), s 236(4), s 242, Pt 14
State Administrative Tribunal Act 2004 (WA), s 9, s 29(1), s 29(2), s 31, s 31(1), s 31(2) Result: Tribunal not subject to same constraint as respondent if development application was still before respondent
Summary of Tribunal's decision: Tah Land Pty Ltd sought review by the Tribunal of the deemed refusal of its development application by the City of Wanneroo under the Metropolitan Regime Scheme. Under the delegation by the Western Australian Planning Commission to local governments of decisionmaking in relation to development applications under the Metropolitan Region Scheme, if the development application was still before the City of Wanneroo, and if Main Roads WA's recommendation in relation to the development application was not acceptable to the City, then the City could not determine the development application and would have to refer it immediately to the Western Australian Planning Commission for determination.
The parties raised a preliminary issue for determination by the Tribunal as to whether the Tribunal is subject to the same constraint as the City. The Western Australian Planning Commission was granted leave to make a submission and contended that the Tribunal is not subject to the same constraint as the City. Tah Land Pty Ltd echoed this contention. However, the City of Wanneroo contended that the Tribunal is subject to the same constraint as the City.
The Tribunal gave an oral immediate decision in which it determined that it is not subject to the same constraint as the City because:
(1) The Tribunal is not subject to or constrained by the delegation;
(2) The Tribunal is not the delegate of the Western Australian Planning Commission and its juridiction and power is conferred not by the delegation but by the Metropolitan Region Scheme;
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(3) The delegation is only concerned with first instance, not review planning decisionmaking;
(4) The Tribunal's jurisdiction and power is the same in reviewing a decision under the Metropolitan Region Scheme whether the original decision was made by the Western Australian Planning Commission or by a local government; and
(5) On the proper interpretation of the delegation, it has no application to the determination of a development application by the Tribunal on review.
The parties also debated whether the City of Wanneroo would itself be subject to the constraint in the delegation if it was invited by the Tribunal to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA). The Tribunal determined, on the basis of textual indications and having regard to the purpose of s 31 when viewed in the context of the Act as a whole, that the City of Wanneroo would not be subject to the constraint of the delegation if it were invited by the Tribunal to reconsider its decision.
Category: B
Representation: Counsel:
Applicant : Mr MC Hotchkin
Respondent : Mr M Gregory
Submitter : Mr CS Bydder
Solicitors:
Applicant : Hotchkin Hanly
Respondent : Castledine Gregory
Submitter : State Solicitor for Western Australia
Case(s) referred to in decision(s):
Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79
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REASONS FOR DECISION OF THE TRIBUNAL:
Preliminary issue 1 Tah Land Pty Ltd (Tah Land) sought development approval under the Metropolitan Region Scheme (MRS) and the City of Wanneroo’s local planning scheme relating to redevelopment of the Kingsway City Shopping Centre which is located at 168 Wanneroo Road, Madeley, in the local government area of the City of Wanneroo (City). One aspect of the development application is a proposal to change access from Kingsway onto Wanneroo Road. Wanneroo Road is a Category 2 Primary Regional Road. 2 The City’s power to grant development approval under the MRS is subject to the terms of a delegation from the Western Australian Planning Commission (Commission) made under s 16 of the Planning and Development Act 2005 (WA) (PD Act) by resolution published in the Government Gazette on 23 December 2011 (delegation). 3 Because the City did not make a decision on Tah Land’s application for development approval within the time allowed respectively by the MRS and the City’s local planning scheme, the application was deemed refused for the purposes of both instruments. As it was entitled to do, Tah Land applied to the Tribunal for review of those deemed refusals. 4 Since the deemed refusals have come before the Tribunal for review, it has emerged that Main Roads Western Australia (Main Roads WA) is opposed to Tah Land’s proposed change of access from Kingsway onto Wanneroo Road. If the application for development approval under the MRS was still before the City, the effect of the delegation would be to prevent the City from granting development approval under the MRS in a manner that is inconsistent with Main Roads WA’s position. Rather, under the delegation, if the City were otherwise inclined to grant development approval in such a manner, it would be required to refer the development application immediately to the Commission for determination. 5 In this context, the parties have raised a preliminary issue for determination by the Tribunal as to whether the Tribunal is subject to the same constraint in dealing with the application for review as the City would be if the application for development approval under the MRS was still before it. (Page 5)
Constraints on the City under the delegation 6 Under cl 5 of the MRS, the Commission is the responsible authority for the purposes of that Scheme. Under cl 28 of the MRS, an application for development approval under the MRS is to be made to the local government of the relevant district, in this case, the City. It is common ground in this proceeding that Tah Land’s development application was not one which was required to be referred by the City to the Commission as a matter of course under cl 29(1) of the MRS. Accordingly, the development application was to be determined by the City in accordance with the power delegated to it by the Commission under s 16 of the PD Act. 7 The delegation: (a) delegated to the City the Commission’s functions in relation to the application for development approval subject to the exceptions and conditions set out in cl 1 to 5 of the delegation; (b) relevantly required the City to refer the development application made by Tah Land to Main Roads WA for comment and recommendation before being determined (cl 3 and Table 1 of the delegation in relation to Category 2 Primary Regional roads); and (c) authorised the City to determine the development application on the available information, even without Main Roads WA's comment or recommendation, if at least 30 days had passed since Main Roads WA had received the application (Schedule 1(a) of the delegation). 8 However, as stated in Schedule 1(b) of the delegation, if Main Roads WA’s recommendation is not acceptable to the City, the City is required to refer the application for development approval, together with Main Roads WA’s recommendation and the recommendations provided by all public authorities consulted, and the reasons why Main Roads WA’s recommendation was not acceptable to the City, immediately to the Commission for determination.
Is the Tribunal constrained by the terms of the delegation? 9 The Commission was granted leave by the Tribunal under s 242 of the PD Act to make a submission 'on jurisdiction'. The Commission submits that the Tribunal is not constrained by the terms of the delegation. (Page 6)
Tah Land concurs with the Commission’s contention. The City acknowledges that the Commission’s contention is arguable, but submits that 'the alternative position', that the Tribunal is subject to the same constraints as the City in dealing with the development application under the delegation, is not only also arguable, but indeed, is the preferable interpretation of the delegation. 10 I agree with the contention of Tah Land and the Commission that the Tribunal is not constrained by the terms of the delegation for the following five reasons, noting that the reasons are somewhat overlapping. 11 First, the delegation is a delegation by the Commission to the City and other local governments, of certain powers and functions of the Commission under the MRS, not a delegation by the Commission to the Tribunal. The Tribunal is not expressly, or by implication, subject to or constrained by the delegation. It is only local governments that are subject to and constrained by the delegation, and the delegation only applies to local governments 'within their respective districts'. 12 Secondly, the Tribunal is not the delegate of the Commission in respect of the determination, in accordance with Pt IV of the MRS, of the development application made by Tah Land under the MRS. The Tribunal’s jurisdiction and power to determine the development application under Pt IV of the MRS arises not under the delegation, but under cl 31(2) and cl 33 of the MRS. Clause 31(2) of the MRS states as follows: An application shall be deemed to have been refused where a decision is not conveyed to the applicant by the local authority or the Commission, as the case required, within 60 days of the receipt of this application - a) by the local authority, if the application can be determined by the local authority; or b) by the Commission, if the application is required by this Scheme to be determined by the Commission, or within such further time as may be agreed in writing between the applicant and the local authority or the Commission, as the case requires, within that period of 60 days. 13 Clause 33 of the MRS states: (1) An applicant for approval to commence development on land zoned under Part III of this Scheme whose application has been refused by the Commission or local authority exercising the power (Page 7)
duly delegated to it by the Commission or approved subject to conditions that are unacceptable to the applicant may, except where the refusal or conditional approval is in accordance with the provisions of a local planning scheme, appeal to the Minister against such refusal or conditional approval. (2) Part 14 of the Planning and Development Act 2005 applies to an appeal under subclause (1). 14 Under s 236(3) and s 236(4) of the PD Act, the right of appeal to the Minister conferred by cl 33(1) of the MRS is taken to be a right to seek review by the Tribunal. 15 If the Tribunal is not the delegate of the Commission in respect of the determination of the development application and if the Tribunal’s power to determine the development application does not arise under the delegation, then the Tribunal cannot be constrained by the terms of the delegation in the same way as the City. 16 Thirdly, the delegation only determines whether the Commission or a local government in its district is to make a first instance planning decision in respect of a development application made under the MRS. The Tribunal has no jurisdiction or power to make a first instance planning decision in respect of a development application made under the MRS. Rather, the Tribunal only has jurisdiction and power under the MRS to make a planning decision on review of a decision of a first instance planning decision. As it has no jurisdiction or power to make a first instance planning decision, the Tribunal is not constrained by the terms of the delegation which regulate only first instance planning decisionmaking under the MRS. 17 Fourthly, under cl 33(1) of the MRS, the Tribunal's jurisdiction and power is to review a decision to refuse a development application or a decision to grant a development application subject to conditions that are unacceptable to an applicant that was made by 'the Commission or local authority exercising the power duly delegated to it by the Commission'. Given that the Tribunal’s jurisdiction and power is the same under the MRS whether the reviewable decision in respect of a development application under the MRS was made by the Commission or by a local authority exercising a delegation by the Commission, it could not have been the intention of the delegation for the Tribunal to be constrained by the terms of the delegation simply because the reviewable decision was made, in this case, by a local authority rather than by the Commission itself. (Page 8)
18 Finally, on the proper interpretation of the delegation, Schedule 1(b) has no application in relation to the determination of a development application by the Tribunal on review. The obligation under cl 3 of the delegation to refer a development application for comment and recommendation to Mains Roads WA arises 'before [the development application] being determined by the local government'. Schedule 1(b) then also contemplates that the local government has not yet determined the development application, because it says that the development application 'shall be referred immediately to the WAPC for determination'. In order for the Tribunal to have jurisdiction to make a determination in relation to a development application on review, the local government must have determined the development application, whether actually by refusal or conditional approval, or by having being deemed to refuse it by cl 31(2) of the MRS. Schedule 1(b) of the delegation has no application in relation to the determination of a development application by the Tribunal on review. 19 In its written submissions, the City expressed the basis of 'the alternative position' to the Commission’s and Tah Land’s contention as follows: (Page 9)
(c) Adopting a strict interpretation of clauses 31(2) and 33 of MRS, and sections 29(1) and (2) of SAT Act, and applying Judge Pritchard’s reasoning, it appears that the Tribunal: (d) These constraints would include those contained in the Delegation. 20 However, in Caltex Australia Petroleum Pty Ltd and Town of Vincent [2010] WASAT 79 (Caltex), Judge Pritchard (as her Honour then was) did not determine the same point as is in issue in this case, as the City acknowledged in its submissions. Caltex was not concerned with whether the Tribunal had power to determine a development application in a certain set of circumstances. It concerned whether the Tribunal had power to grant development approval at all. 21 Judge Pritchard’s words in [29] and [30] of the decision have been taken somewhat out of context. Although the Tribunal’s task in a review proceeding is commonly referred to as 'standing in the shoes' of the original decisionmaker, and although, as her Honour confirmed in Caltex, the Tribunal is required to consider the limits of its authority so that it will not exceed that authority given to it by statute, that does not necessarily mean that in conducting a review proceeding, the Tribunal is subject to the same constraints as the original decisionmaker. 22 The legislation may, on its proper interpretation, not constrain the Tribunal in the same way as the original decisionmaker. Although it is unusual for the Tribunal in review proceedings not to be subject to the same constraints as the original decisionmaker in making the reviewable decision, it is reasonably explicable in this case as the discrepancy arises because the Tribunal is not acting as delegate of the Commission under the delegation, but rather as a review decisionmaker under the MRS. 23 In his oral submissions, Mr M Gregory, who appeared on behalf of the City, also drew in aid s 29(1) of the SAT Act, which states as follows: The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision. 24 However, the purpose of s 29(1) of the SAT Act is beneficial; it is intended to confer, rather than constrain, power. Furthermore, it does not (Page 10)
state that the Tribunal has only the functions and discretions corresponding to those exercisable by the original decisionmaker. Indeed, s 29(2) of the SAT Act states: Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal. 25 The enabling Act, in this case, is cl 33 of the MRS. The Tribunal’s functions and discretions in this case are conferred on it by that provision and, through cl 33(2) of the MRS, by Pt 14 of the PD Act.
Would the City be constrained by the terms of the delegation if it were invited by the Tribunal to reconsider its decision? 26 A subsidiary issue that was debated by the parties in the context of the preliminary issue is whether the City would be constrained by Schedule 1(b) of the delegation if it were invited to reconsider its decision under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 27 Mr MC Hotchkin, who appeared on behalf of Tah Land, submits that the City would not be constrained by the limitation in Schedule 1(b) of the delegation if it were invited to reconsider its decision by the Tribunal, because the resolution does not address a s 31 invitation and because of the powers conferred on an original decisionmaker upon being invited by the Tribunal to reconsider a reviewable decision under s 31(2) of the SAT Act. Mr CS Bydder, who appeared on behalf of the Commission, and Mr Gregory submit that the delegation would constrain the City in making an actual decision in relation to the development application, if it were invited to reconsider its decision under s 31 of the SAT Act, because the City would be placed into its position as delegate of the Commission in making a determination in respect of the development application and because s 31(2) of the SAT Act does not expand or alter the powers of the City under the delegation and the constraints to which its powers are subject in that instrument. 28 In my view, Mr Hotchkin’s submission that the City would not be constrained by Schedule 1(b) of the delegation if it were invited by the Tribunal to reconsider its decision under s 31 of the SAT Act is correct. This conclusion flows from each of the subsections of s 31 of the SAT Act, as well as a purposive interpretation of that provision in the context of the SAT Act read as a whole. (Page 11)
29 Section 31(1) of the SAT Act confers a power on an original decisionmaker that it would not have absent that provision. Absent s 31 of the SAT Act, the original decisionmaker, having made a reviewable decision or having been deemed by legislation to have done so, is functus officio and could not make a further decision in relation to the subject matter. The City’s authority to make a reconsideration decision under s 31 of the SAT Act is s 31(1) of the SAT Act itself, not the delegation from the Commission. Section 31(1) of the SAT Act states: At any stage of a proceeding for the review of a reviewable decision, the Tribunal may invite the decisionmaker to reconsider the decision. 30 The City is therefore not subject to the constraints in the delegation as those constraints do not form part of or limit the power that the City would exercise upon being invited to reconsider its decision under s 31(1) of the SAT Act. 31 Moreover, the powers of the City upon being invited to reconsider its reviewable decision by the Tribunal are not conferred by the delegation, but rather by s 31(2) of the SAT Act. Section 31(2) states as follows: 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. 32 Furthermore, an invitation by the Tribunal to the original decisionmaker to reconsider its decision under s 31(1) of the SAT Act and a decision by the original decisionmaker upon such an invitation forms part of pending review proceedings before the Tribunal. This is implicit in s 31(1) of the SAT Act and is made clear by the terms of s 31(3) of the SAT Act which states: If the decisionmaker 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. 33 The decision upon reconsideration forms part of the review proceeding which is pending before the Tribunal. 34 A purposive interpretation of s 31 of the SAT Act arrives at the same result. Section 31 of the SAT Act is part of the suite of facilitative dispute (Page 12)
resolution processes available to and employed by the Tribunal to resolve disputes without the parties having to incur the time, expense and uncertainty of an adjudicated outcome. The use of s 31 of the SAT Act as part of facilitative dispute resolution, whether as an adjunct, as is often the case, to mediation, or otherwise, is consistent with and promotes the Tribunal’s statutory objectives set out in s 9 of the SAT Act. Those objectives include: 35 As Mr Hotchkin submitted, it would be inconsistent with these objectives for the original decisionmaker, invited to reconsider a reviewable decision as part of a review proceeding under s 31 of the SAT Act, to be subject to constraints in making its decision upon reconsideration to which the Tribunal is not subject. Such an interpretation would discourage the use of s 31 of the SAT Act and facilitative dispute resolution and would result in parties having to incur the time, expense and uncertainty of adjudication by the Tribunal.
Orders 36 For these reasons I make the following orders: (Page 13)
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