Tah Land Pty Ltd and Western Australian Planning Commission
[2008] WASAT 18
•31 JANUARY 2008
TAH LAND PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 18
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 18 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:291/2007 | 24 JANUARY 2008 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 30/01/08 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | TAH LAND PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Planning and development Structure plan Application for adaption Whether decision made not to adopt structure plan Whether reviewable decision Preliminary issue Whether officer delegated to make decision to refuse Whether words used amount to a reviewable decision |
Legislation: | City of Wanneroo District Planning Scheme No 2, cl 9.6, cl 9.12.3, cl 9.1.2.3, cl 6.3(a) Interpretation Act 1984 (WA), s 51 Planning and Development Act 2005 (WA), s 16 |
Case References: | Australian Postal Corporation v Oudyn [2003] FCA 318 Comcare v Sassella [2001] FCA 1514 GPT Re Ltd v Wollongong City Council & Anor (2006) 151 LGERA 116 MacDonald v Australian Postal Corporation [2003] AATA 388 Semunigus v Minister for Immigration and Multicultural Affairs (1999) FCA 422 Singh v Minister for Immigration Local Government and Ethnic Affairs (1989) 90 ALR 397 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TAH LAND PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 18 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 24 JANUARY 2008 DELIVERED : 31 JANUARY 2008 FILE NO/S : DR 291 of 2007 BETWEEN : TAH LAND PTY LTD
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Planning and development Structure plan Application for adaption Whether decision made not to adopt structure plan Whether reviewable decision Preliminary issue Whether officer delegated to make decision to refuse Whether words used amount to a reviewable decision
Legislation:
City of Wanneroo District Planning Scheme No 2, cl 9.6, cl 9.12.3, cl 9.1.2.3, cl 6.3(a)
(Page 2)
Interpretation Act 1984 (WA), s 51
Planning and Development Act 2005 (WA), s 16
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr M Hotchkin
Respondent : Mr M Tjhung
Solicitors:
Applicant : Hotchkin Hanly
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Australian Postal Corporation v Oudyn [2003] FCA 318
Comcare v Sassella [2001] FCA 1514
GPT Re Ltd v Wollongong City Council & Anor (2006) 151 LGERA 116
MacDonald v Australian Postal Corporation [2003] AATA 388
Semunigus v Minister for Immigration and Multicultural Affairs (1999) FCA 422
Singh v Minister for Immigration Local Government and Ethnic Affairs (1989) 90 ALR 397
(Page 3)
Summary of Tribunal's decision
1 Tah Land Pty Ltd applied for approval of a structure plan in relation to a shopping centre in Wanneroo Road, Maddeley. The City of Wanneroo approved the structure plan subject to certain conditions, and forwarded the plan to the Western Australian Planning Commission for adoption. At a meeting in July 2007 between representatives of the applicant and of the Commission, an officer of the Commission made comments which wrongly identified the role which the Commission had in relation to its review of the structure plan. The words were taken by the applicant's representatives to suggest that the Commission would not adopt the plan as required by the relevant planning scheme. They instituted an appeal to the Tribunal.
2 The Commission argued, as a preliminary issue, that it had made no decision in relation to the structure plan that was capable of review by the State Administrative Tribunal. Therefore, it argued that the Tribunal had no jurisdiction to entertain the application. That point was argued as a preliminary issue.
3 The Tribunal considered the words used at the meeting, and the context in which they were used, and concluded that the statement by the officer did not amount to a decision capable of review under the relevant planning scheme. Accordingly, the application was dismissed.
The Issue
4 The respondent has raised a preliminary issue in these proceedings. That issue is whether it has made a decision capable of review by this Tribunal. It contends that it has not, and thus there is no jurisdiction for the Tribunal to consider the merits of the application.
Background
5 The application relates to a structure plan for the Maddeley District Centre ("the structure plan") which deals with planning four lots; 158, 161, 165, 168, 888 and 1168 Wanneroo Road, Maddeley.
6 On 21 August 2006, the applicant made an application to the City of Wanneroo for approval of the structure plan pursuant to the City's District Planning Scheme No 2 (DPS 2). On 15 May 2007, the City resolved that the structure plan, subject to certain modifications, was satisfactory.
(Page 4)
7 Prior to the City's resolution, the City had referred the structure plan to the Western Australian Planning Commission (WAPC) for comment. According to Ms Sandra McLeish, the Acting Director Metropolitan Planning, the structure plan had been assigned to Mr David Carter, an officer of the Commission, who had obtained comments from various sections within the WAPC. Ms McLeish had signed a letter on 7 May 2007 to the City setting out the Commission's comments. That letter is not produced in the papers before me.
8 Following Council's resolution to approve the structure plan subject to conditions, the City wrote to the WAPC on 25 May 2007 asking the Commission to consider whether to adopt the structure plan.
9 The action of the City was in accordance with the requirements of DPS 2. DPS 2 requires that a structure plan be in place before development approval can be granted in relation to the applicant's land. It requires that council give adequate publicity to the plan before considering it. In relation to adoption of a proposed structure plan, cl 9.6 provides:
10 "9.6.1 The Council shall consider all submissions received and within sixty (60) days of the date or the latest date specified in the notice given under Clause 9.5 shall do one or other of the following:
(a) refuse to adopt the Structure Plan;
(b) resolve that the Structure Plan is satisfactory with or without modifications which the Council may make or require the proponent to make and submit three copies to the Commission for adoption and certification in the form illustrated in Schedule 8; AMD 26 GG 10/9/04
11 The Council shall forward to the Commission:
(i) [A] schedule of submissions in respect of the structure plan and Council’s decisions or comments in relation to the submissions as appropriate; AMD 26 GG 10/9/04
(ii) Council recommendation to the Commission to adopt, modify or refuse to adopt the Structure Plan; and
(Page 5)
- (iii) Any other information the Council considers may be relevant to the Commission in consideration of the Structure Plan."
- 9.6.2 Where the Council in its opinion is not able to make a decision within the terms of either paragraph (a) or paragraph (b) of the preceding subclause within the sixty (60) day period by reason of the need to obtain more facts or information, the sixty (60) day period referred to in the preceding subclause may be extended for a maximum of a further sixty (60) days, and the sixty (60) day period for a deemed refusal under subclause 9.6.4 shall not begin to run until the second sixty (60) day period has expired or the Council has declared itself to be satisfied that it has sufficient information to make a determination, whichever occurs first.
This extension of time is only available with the written consent of the proponent.
9.6.3 Consideration of the Structure Plan by the Western Australian Planning Commission
(a) The Commission may adopt the Structure Plan with or without requiring any modifications or it may refuse to adopt the Structure Plan and should convey its decision to the Council within sixty (60) days of the date on which it receives the Structure Plan for adoption under paragraph 9.6.1(b).
(b) If the Commission adopts the Structure Plan it should certify three (3) copies of the Structure Plan in the manner illustrated in Schedule 8 and return the three certified copies to the Council within fourteen (14) days of the date of the Commission’s resolution. If the Council has not already certified the three copies, then the Council shall certify the three copies and return one copy to the Commission. AMD 26 GG 10/9/04
- (c) If the Commission requires modifications to the Structure Plan the proponent shall make the modifications in consultation with the Council or the Council may make the modifications required by the Commission and resubmit the Structure Plan for consideration under Clause 9.4. AMD 26 GG 10/9/04
(d) If the Commission refuses to adopt the Structure Plan and an appeal by the proponent is upheld, the proponent shall make any modifications that may be necessary for the Structure Plan to comply with the appeal determination and the Commission shall adopt and certify the Structure Plan pursuant to paragraphs (a) and (b) of this subclause.
(e) If either the time limits in (a) and (b) is inadequate to allow the Commission to perform its functions in the case of any Structure Plan referred to it, the times shall be extended by such period as the Commission reasonably requires in order to perform its function under this subclause.
- 9.6.4 If within the sixty (60) day period referred to in subclause 9.6.1 or the extended period referred to in subclause 9.6.2, the Council has not made a decision within the terms of either paragraph (a) or paragraph (b) of subclause 9.6.1, then at the option of the proponent approval of the Structure Plan may be deemed refused for the purpose of giving a right of appeal.
9.6.5 As soon as practicable after receiving the Structure Plan documents referred to in paragraph 9.6.3(b) the Council should adopt, sign and seal the Structure Plan in the form illustrated in Schedule 8 and return one copy to the Commission. The Council at its discretion may adopt, sign and seal the Structure Plan in the form illustrated in Schedule 8, prior to forwarding the Structure Plan to the Commission for its consideration under subclause 9.6.3. AMD 26 GG 10/9/04
12 …"
(Page 7)
13 Clause 9.12 of DPS 2 deals with appeals to this Tribunal. Clause 9.12.3 provides:
"If the Council or the Commission makes a determination or decision or imposes a requirement in respect of a Structure Plan or a Detailed Area Plan in the exercise of a power contained in this Part and the proponent and/or any landowner/s within the area of the Structure Plan or the Detailed Area Plan is dissatisfied with such determination or decision, the proponent and/or landowners may appeal to the State Administrative Tribunal against the decision, determination or requirement in accordance with Part V of the Act. AMD 52 GG 16/6/06"
14 The structure plan being referred to the Commission pursuant to cl 9.6.1 on 25 May 2007, the 60-day period for the Commission to deal with it and convey its decision to the City would have, allowing a few days after posting for receipt by the WAPC, expired sometime around 27 July 2007. It can be noted, however, that, while cl 9.6.4 provides for a deemed refusal where the City does not deal with the structure plan in the time required, no equivalent provision exists in relation to the Commissioner's dealing with it.
15 On 26 July 2007, a meeting was held at the Commission's offices. The meeting was attended by Mr Raymond Tan, a principal of the applicant, Mr Tony Shrapnel, a planner engaged by the applicant who had prepared the structure plan and another person whose role was not made clear during the hearing. The WAPC representatives at the meeting were Ms McLeish, the Acting Director of Metropolitan Planning, and Mr Mike Allen, Ms McLeish's immediate superior. Ms McLeish arrived about 20 minutes late for the meeting, having been detained at an earlier meeting. According to Mr Tan, the meeting commenced with Mr Shrapnel explaining to Mr Allen the circumstances in which the structure plan came to be with the WAPC, and asking Mr Allen to confirm that the WAPC would deal with he structure plan on its merits. Mr Allen told Mr Shrapnel that the WAPC would do so. Shortly thereafter, Ms McLeish joined the meeting. Mr Shrapnel repeated to Ms McLeish what had been said to Mr Allen to that point. He asked Ms McLeish whether there were any questions she had about the structure plan. She raised concerns over issues of traffic, the fact that the retail floor area exceeded the cap set out in the Metropolitan Centres Policy, the hierarchy of the centre within the context of that policy and matters concerning the residential component of the proposal.
(Page 8)
16 According to Mr Tan, after discussion of those issues, he said to Ms McLeish words to the effect:
"I am concerned that there are only a few days left within the 60 days for the WAPC to make a decision. Are you going to deal with it? If you need time, would you please let me know how much time you need to deal with it on its merits. If I consider it reasonable I will probably agree to it."
17 Ms McLeish replied by telling Mr Tan that she was going overseas for a month. According to Mr Tan, Ms McLeish said words to the effect:
"When I get back, I will have to find another officer to deal with it, because I do not think that I have enough expertise to deal with it myself. In fact, I am not sure that we have a competent officer to deal with it anyway."
18 Ms Mc Leish accepted that, at least in respect of the retail component aspects of the structure plan, she may have said words to that effect. She said that she would not have made those comments regarding expertise in relation to other aspects of the structure plan. I accept that Ms McLeish did say words to that effect, and in doing so was referring to expertise in relation to the retail aspects of the structure plan.
19 There followed some discussion concerning the possibility that Mr Tan would appeal to the Tribunal if a decision took too long. Ms McLeish agreed that there was discussion about an appeal but did not accept Mr Tan's account of the words used. Mr Tan drew the inference from what was said that the WAPC did not want to commit to any time period to deal with the matter on its merits. Ms McLeish, in her oral evidence, made it clear that the inference drawn by Mr Tan was accurate. She explained that, because of staff shortages, she was unable to say with any confidence how long the assessment might take, and thus was being careful not to commit to any particular time period.
20 According to Mr Tan, after several further minutes of discussion, Ms McLeish said words to the effect:
"Look, all of these issues are issues you have to address with the City, not us. The Structure Plan has no status with the WAPC. You must address all of these issues with the City of Wanneroo and then the Structure Plan has to be referred to us under DPS 2. At the moment, it has only been sent to us by the City to keep us informed about the matter. WAPC will comment back to Council on the Structure
(Page 9)
- Plan and any appeal would be against the Council, not the Commission. As such, you have no appeal rights against the Commission."
21 Mr Tan said that Mr Allen did not express any disagreement with that statement, and Ms McLeish said nothing further later in the meeting which would suggest any change in that stance.
22 Ms McLeish accepted in her oral evidence that she may have said words to the effect suggested by Mr Tan. She said that she does not now know whether, at the meeting of 26 July 2007, she had read, or was aware of, the letter from the City dated 25 May 2007, referring the structure plan to the WAPC for adoption. In her initial oral evidence, she did not appear to draw any distinction between the two stages of the WAPC's involvement in the matter, namely the initial comment stage which was completed by the Commission's letter of 5 May 2007, and the later stage of consideration for adoption under the provisions of DPS 2. She said in evidence that, as at July 2007, she was acting in one position, but covering another position whilst it remained unfilled. She said that that month the Commission had received a thousand applications for subdivision and it was a particularly busy time. It is likely, given her workload, and the fact she arrived late for the meeting, she was not thoroughly prepared for the discussion. She readily accepted that she had not read the file prior to attending the meeting. Had she done so, she would have seen not only the 25 May 2007 letter from the City but also a letter from the applicant's solicitors to the Commission dated 8 June 2007 which discussed the terms of the City's resolution leading to referral of the structure plan to the WAPC, and which made absolutely clear the stage of the process that the structure plan had reached. It is apparent that Ms McLeish erroneously considered that the Commission was simply considering the structure plan for the purpose of providing comments to the City at the time of the meeting on 26 July 2007. I find that Ms McLeish did say words to the effect asserted by Mr Tan.
23 Following the meeting, Mr Tan, concerned about what had been said at the meeting, consulted his solicitors. On 9 August 2007, the applicant's solicitors wrote to Mr Allen by facsimile. The letter referred to the meeting on 26 July 2007 and said:
"I am instructed that one of the points made at the meeting was that Ms McLeish did not consider the Structure Plan had status as such, nor that there would be any right of appeal.
(Page 10)
- I am instructed that the Structure Plan was forwarded to the WAPC under cover of a letter from the City of Wanneroo dated 25 May 2007, in which it requested that you consider whether to adopt the Structure Plan. The City’s solicitor confirmed with my office that the referral was pursuant to Clause 9.6 of the Scheme.
Under Clause 9.6 of the Scheme, you are required to make a decision or determination within 60 days unless you request an extension of time, and you should notify my client of your decision or determination within that period. Clause 9.12 of the Scheme confers upon our client a right of appeal against any such decision or determination.
In our client’s view, the response by Ms McLeish at the meeting on 26 July 2007 was an express confirmation of a decision or determination by the WAPC that it would not approve the draft Structure Plan or make any other decision in respect of it within the 60 day period.
Further, Ms MeLeish had decided not to seek an extension of time in order to consider the draft Structure Plan further. In our view, each of those decisions constituted decisions in the exercise of a power under Clause 9.6 of the Scheme subject to review by the State Administrative Tribunal.
As such, our client has a limited time within which to bring an appeal, expiring before the end of this month. Our client is prepared to consent to a request for an extension of time in order to consider the draft Structure Plan on its merits, provided that the time proposed is reasonable. That will obviate any need to institute an appeal. Accordingly, we are instructed to request that you reconsider your earlier decisions and that, within 7 days, you request a reasonable extension of time within which to consider the matter on its merits. Our client would give any such request favourable consideration.
If we do not hear from you within 7 days, we regrettably will have no alternative but to institute an appeal to the State Administrative Tribunal in order to protect our client’s appeal rights. We look forward to your urgent reply."
24 No response to that letter was received within the seven days stipulated and on 23 August 2007, these proceedings were initiated. The reviewable decision identified by the application was said to be made on
(Page 11)
- 26 July 2007 and is the "decision" described in Hotchkin Hanly's letter of 9 August 2007.
25 The application was served on the WAPC on the day it was filed.
26 By letter dated 27 August 2007, the WAPC responded to the applicant's letter of 9 August 2007. The letter made reference to the provisions of DPS 2 which provided for an extension of time for such period as the Commission reasonably requires for consideration of the structure plan, and advised that it was estimated that the structure plan would be considered by the Commission's statutory planning committee in mid-September 2007. The letter proceeded:
"The reference in your letter to verbal opinions provided by department officers that it may not be possible to determine this structure plan within the 60 day time period is not to be taken as a decision by the Commission to refuse to adopt the structure plan."
27 The proceedings in the Tribunal were adjourned on two occasions in September and October 2007 to enable the WAPC to consider the structure plan. In November 2007, the proceedings were referred to mediation in December because the Commission had still not formed a final view. Mediation failed to resolve the matter, but in the course of it, the issue now before me for determination was raised by the Commission. The structure plan was brought before the Statutory Planning Committee of the WAPC on 6 November 2007. The committee noted that the shopping floor space exceeded the area identified in the Metropolitan Centres Policy and the City of Wanneroo's centres strategy, and resolved:
"To defer consideration of the City of Wanneroo structure plan No 59 - Kingsway City - to enable further consideration of the following matters:
i) the potential implications of the proposed expansion on other centres, including the Wanneroo town centre and Warwick Grove.
ii) the potential reconfiguration of the proposal to achieve a more effective integration of land uses and a more legible internal movement network.
(Page 12)
- iii) the potential to establish mechanisms within the structure plan that would ensure the delivery of a comprehensive range of land uses, including residential and civic and in an integrated manner."
28 Ms McLeish said in evidence that the WAPC's assessment was still not complete, and she was unable to say with precision when she expected that process to be finalised.
The respondent's position
29 The respondent argued that nothing said by Ms McLeish at the meeting on 26 July 2007 amounted to a "determination or decision or ... requirement" for the purposes of cl 9.12.3 of DPS 2, so that no basis for appeal to this Tribunal exists. They support that contention on several bases. The first is the contention that Ms McLeish did not have the authority to refuse approval of the structure plan, so that nothing she said could amount to a refusal of the WAPC. Second, they contend that in the context of the meeting, Ms McLeish's words, properly construed, do not amount to a determination, decision, or requirement such as to give rise to a right of review under cl 9.12.3 of DPS 2.
Delegation
30 As already observed, Ms McLeish held the position of Acting Director Metropolitan Planning Program. On 28 November 2006, the WAPC resolved pursuant to the provisions of s 16 of the Planning and Development Act 2005 (WA) to delegate certain powers and functions to various persons and bodies. Functions delegated to, among others, the Director Metropolitan Planning Program, included, at cl 5.15 of Schedule 5 of the instrument of delegation, "power to provide comment on and grant approval to plans known generally as outline development plans, structure plans and similar plans and to planning policies and similar documents or amendments thereto requiring the approval or endorsement of the WAPC pursuant to the provisions of a local planning scheme."
31 It is common ground that Ms McLeish, pursuant to that delegation (which was published in the Government Gazette of 9 February 2007) had power to adopt the structure plan on behalf of the WAPC pursuant to cl 9.6.3(a) of DPS 2. The respondent contends that that authority was, however, limited to providing comment and granting approval to the structure plan, but did not extend to refusing it. The respondent relies upon evidence from Ms McLeish that the respondent's practice is that where an officer considers that a structure plan of this nature should
(Page 13)
- not be adopted, the structure plan is referred to the Statutory Planning Committee or the WAPC itself for determination. It is only where an officer considers that the structure plan should be adopted that the delegated authority is exercised. The respondent also relies on the practice that formal decisions of the WAPC, whether made under delegation or otherwise, are invariably reduced to writing the form of a decision letter which is then signed and sent to an applicant. As I understand the respondent's submission, it is that, in the absence of that formal written notification, the respondent does not consider a decision capable of review to have been made.
32 Clause 9.6.3(a) of the DPS 2 empowers the Commission to "adopt a structure plan with or without requiring any modifications or ... refuse to adopt a structure plan". The respondent relies upon the absence, in the instrument of delegation, of any reference to "refusing to adopt", or "refusing to approve", a structure plan for the contention that no such power has been delegated. In making that submission, that the respondent gave no consideration to the provisions of s 51 of the Interpretation Act 1984 (WA). That section provides:
"(1) Where a written law confers power upon a person to issue, grant, give or renew any licence, registration, lease, right, authority, approval, permit or exemption, the person so empowered shall have a discretion either to issue, grant, give or renew or to refuse to issue, grant, give or renew such licence, registration, lease, right, authority, approval, permit or exemption."
33 Written law for the purposes of the Interpretation Act1984 (WA) includes all subsidiary legislation for the time being in force. Subsidiary legislation is defined to mean "any proclamation, regulation, rule, local law, by-law, order, notice, rule of court, town planning scheme, resolution, or other instrument, made under any written law and having legislative effect."
34 The delegation published on 9 February 2007 is a notice of a resolution published pursuant to the provisions of s 16 of the PD Act. It has legislative effect. It follows that, by virtue of the provisions of s 51, the power to grant approval of structure plans includes a power to refuse to grant approval. It follows that Ms McLeish did have the delegated authority at the meeting of 26 July 2007 to refuse to adopt the structure plan.
(Page 14)
35 Even apart from s 51 of the Interpretation Act, there is much force in the submission of the applicant that, as a matter of general administrative law, the delegation of a power to grant approval or consent necessarily and invariably includes the delegation of a power to decide not to do so - see Singh v Minister for Immigration Local Government and Ethnic Affairs(1989) 90 ALR 397; GPT Re Ltd v Wollongong City Council & Anor (2006)151 LGERA 116. In view of my conclusion as the application of s 51, it is not necessarily for me to deal further with that proposition.
36 Given the conclusion that Ms McLeish had the delegated authority to refuse the application, the issue for determination becomes whether, in fact, she did so at the meeting of 26 July 2007.
Did Ms McLeish's words constitute a decision?
37 In Semunigus v Minister for Immigration and Multicultural Affairs (1999) FCA 422, Finn J was called upon to determine whether the Refugee Review Tribunal had given a decision such that it had become functus officio. In that context, Finn J said at [18] - [20]:
"It is not in any event profitable to attempt to define in any exhaustive way when it properly is to be said that a decision is made. Context can have a real bearing on the question as this case illustrates.
[19] For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion from being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
[20] What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than that written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular form, or communication or it to another; it may be performing a consequential or collateral act that presupposes the decision having been made, etc."
(Page 15)
38 Mr Hotchkin relied upon a number of authorities such as Comcare v Sassella [2001] FCA 1514; Australian Postal Corporation v Oudyn [2003] FCA 318 and MacDonald v Australian Postal Corporation [2003] AATA 388 as supporting the proposition that a refusal to deal with an application constitutes a decision for the purposes of administrative review. Those decisions need to be read in the context of the particular legislation under consideration in each case, and in particular s 53(3) of the Administrative Appeals Tribunal Act 1975 (Cth) which defined "decision" as including "refusing to make an order or determination". They are however consistent with the approach taken in Semunigus.
39 In my view, the expression "decision or determination" in cl 9.12.3 of DPS 2 is a reference to a decision of the nature described by Finn J in Semunigus. Although Finn J was considering whether the RRT was functus officio, the sensible construction of cl 9.12.3 is that it contemplates review of decisions which give finality to the function being performed by the original decision-maker, rather than decisions leading to a final consideration.
40 It is clear that, in the context of the discussions at the meeting on 26 July 2007, Ms McLeish had not reached any final conclusion as to the merits of the structure plan. The "decision" which the WAPC was ultimately required to make under cl 9.6.3 of DPS 2 was whether to adopt the structure plan with or without modifications, or to refuse to adopt it. The substance of Ms McLeish's words was to indicate, no doubt by reason of her erroneous appreciation of the WAPC's role, that the outcome of further review of the merits of the application by WAPC's officers would not be adoption of or refusal to adopt the structure plan, but rather the provision of comment back to the city.
41 The respondent argues that the construction put upon Ms McLeish's words by the applicant is inconsistent with the context of the discussion at the meeting. They observe that Mr Allen had indicated, prior to Ms McLeish's arrival, that the WAPC would consider the structure plan on its merits. It also relies upon that part of the discussion concerning when the structure plan would be considered, and the need to find a suitable officer to deal with it. The respondent's argument is that, taking the discussion as a whole, it was apparent that the WAPC proposed to continue to look at the merits of the application after the meeting.
42 I accept that the WAPC representatives made no suggestion that they would not be continuing to consider the structure plan following the meeting and assessing it on its merits, even though Ms McLeish was confused as to the
(Page 16)
- ultimate function of the WAPC following that assessment.
43 The discussion took place in the context of Mr Tan's question as to when a decision would be made, and his pressing Ms McLeish to commit to a time frame. Ms McLeish made her erroneous comment in the context of a discussion about the possibility of an appeal. It is not suggested by the applicant that her comments suggested that she, or the WAPC, had reached any view of the merits of the structure plan.
44 The applicant argues that, properly construed, the words used by Ms McLeish indicated a decision and determination that the WAPC would not deal with the structure plan in the way required by DPS 2. It may be debateable, looking objectively at the events as they occurred, whether it can be said that Ms McLeish had "reached a conclusion on a matter as a result of a mental process having been engaged in". No doubt from her perspective, she had not. Mr Tan could be forgiven for interpreting her words as though she had. It cannot be said, however, that her comment at the meeting was a final conclusion which was incapable of revision at her option before the decision was regarded as final. It was undoubtedly clear to all at the conclusion of the meeting that WAPC officers would continue to look at the merits of structure plan. The meeting was designed to facilitate that process. It was, as a fact, not for the purpose of achieving a final decision at the meeting, nor is there any suggestion that any of the participants understand its purpose differently. As Finn J observed, "Context can have a real bearing on the question" of whether a "decision" has been made. In my view, in the context in which Ms McLeish spoke, her words did not amount to a decision for the purposes of cl 9.12.3 of DPS 2.
45 I should add, for the sake of completeness, that the fact that the WAPC has procedures which involve consideration of structure plans where refusal is proposed by someone other than a delegated officer, and has procedures for formal notification of its decisions, does not lead to the conclusion that a decision orally conveyed cannot be the basis of an application for review to the Tribunal. Counsel for the respondent was not able to identify any statutory or regulatory requirement for written notification of decisions. There was nothing in DPS 2 which requires a decision or determination to be in any particular form before a right of review arises. Those processes may be a relevant factor in assessing the context in which oral statements might be construed, but they are not a precondition to the making of a decision.
(Page 17)
Precedent
46 Concern was expressed by the respondent in submissions that, if statements made during the course of meetings between WAPC representatives and applicants are capable of amounting to reviewable decisions, the efficiency of the planning system in Western Australia might be detrimentally affected. The respondent observed that meetings of that nature prior to or during the course of consideration of applications to the WAPC are commonplace and are designed to enhance the efficient consideration of applications by the WAPC.
47 I accept that it is undesirable that there should be applications to this Tribunal in relation to observations or comments made by WAPC officers in the course of such meetings. It would be most undesirable if any adverse observation made by an officer could be brought to the Tribunal for review, before that officer and the WAPC had given full and proper consideration to the application before it. That could occur, however, where what is said in a meeting can be properly categorised as a decision subject of a right of review. There were undoubtedly a number of concerns raised by Ms McLeish during the meeting of 26 July 2007 as to the merits of the application. It is clear that there was discussion as to the structure plan's inconsistency with the metropolitan centres policy, and various other issues which were matters of concern. The applicant does not suggest, and the Tribunal would not countenance any suggestion, that observations of that nature designed to clarify and discuss matters of concern, might amount to decisions or determinations capable of review. If, however, the matter went further to the point where an officer, with appropriate delegation, gave an oral indication that he or she had decided to refuse an application, or approve it subject to particular conditions, it may be that the officer's statements might be subject to review as being a decision or determination. That is not, however, the case in this instance.
Failure to adopt within 60-day period
48 As an alternative argument, the applicant contends that the evidence establishes that the WAPC had decided that it would not adopt the structure plan within 60 days, and that that is a decision capable of review.
49 Clause 9.6.3(a) of DPS 2 provides that the WAPC "should convey its decision to the council within 60 days". There is no deemed refusal provision. Clause 9.6.3(e) provides that the times for the Commission's activities "shall be extended by such period as the Commission reasonably requires in order to perform its function". It might be observed that, contrary to the implication in the applicant's solicitor's letter of 26 July 2007, there is no requirement
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- under DPS 2 for the applicant to agree to an extension of time.
50 The effect of the applicant's submission would be to confer a right of review on an applicant in any case where the Commission decided it required additional time to perform its function. The position of the applicant is that, as soon as the right of review arose, it would be open to the Tribunal to review the entire merits of the application, notwithstanding that the decision under review was simply a decision to require more time to consider those merits. That consequence would flow from the application of s 29(1) of the State Administrative Tribunal Act 2004 (WA). The effect of the applicant's submission, were it to be upheld, would be to create, in effect, a deemed refusal provision in DPS 2 in relation to the WAPC's consideration of a structure plan. It is clear that, by providing for a deemed refusal in relation to the City's consideration, but providing no equivalent provision in relation to the Commission's consideration, the scheme expressly seeks to avoid the consequence which would flow if the applicant's submission were upheld.
51 Even if a "decision" not to deal with the structure plan within 60 days can be identified, it is not, in my view, a "determination or decision in respect of a structure plan" as contemplated in cl 9.12.3.
WAPC's letter of 27 August 2007
52 In the further alternative, the applicant contends that the respondent's letter of 27 August 2008 contained a reviewable decision. In that letter, the Commission referred to the provisions of cl 9.6.3 of DPS 2 and said:
"Given the resource difficulty that DPI's statutory planning division is experiencing at this point in time, it is estimated that the structure plan will be considered by the Commission's statutory planning committee in mid-late September 2007."
53 I do not accept that submission, for the reasons discussed in relation to the first alternative argument. The formation of an opinion by the Commissioner as to the amount of time that is adequate to allow it to perform its functions is not a decision capable of review pursuant to cl 9.12.3 of DPS 2. It may be that a failure by the Commission to properly perform its statutory function could be the subject of an application for prerogative relief in the Supreme Court. I accept that that remedy, given its complexity and the time involved in obtaining relief, is of little practical value to an applicant frustrated by the Commissioner's tardiness. The frustration of an applicant in circumstances where the Commissioner's approval processes take an unreasonably long time can be well understood,
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- but cannot provide a basis for an assumption of jurisdiction by the Tribunal.
Conclusion
54 In the circumstances, I find that there was no reviewable decision made at the meeting on 26 July 2007 or in the letter of 27 August 2008 and the Tribunal has no jurisdiction to deal with the application for review. The application will be dismissed.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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