Temwood Holdings Pty Ltd v Western Australian Planning Commission
[2002] WASCA 61
•26 MARCH 2002
TEMWOOD HOLDINGS PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2002] WASCA 61
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 61 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:121/2001 | 7 MARCH 2002 | |
| Coram: | WALLWORK J SCOTT J | 26/03/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Matter remitted to Town Planning Appeal Tribunal | ||
| B | |||
| PDF Version |
| Parties: | TEMWOOD HOLDINGS PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town Planning Approval of subdivision subject to conditions Appeal to Full Court One important condition held invalid Whether matter should be remitted to Town Planning Appeal Tribunal for further consideration |
Legislation: | Metropolitan Region Town Planning Scheme Act, 1959 Supreme Court Act, s 58 Supreme Court Rules, O 63 r 9 Town Planning and Development Act 1928, s 20, s 44 |
Case References: | Falc Pty Ltd & Anor v Western Australian Planning Commission (1991) 5 WAR 522 Love v Western Australian Planning Commission [1999] WAPAT 4 Manthorpe v Quartern Pty Ltd & The District Council of Lower Eyre Peninsula, unreported; SCt of SA; BC 8900157 Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1997) 71 ALJR 814 Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 Construction Forestry Mining & Energy Union v Full Bench Australian Industrial Relations Commission, unreported; FCt of Aust; NG 257 of 1998; BC9807720; 24 December 1998 De L v Director General, Department of Community Services (NSW) (1997) 136 ALR 201 Edelsten v Ward (No 2) (1989) 63 ALJR 346 Federal Commissioner of Taxation v Myer Emporium Ltd [No 1] (1986) 160 CLR 220 Grassby v The Queen (1989) 168 CLR 1 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Jennings Construction Ltd v Burgundy Royale Investments Pty [No 1] (1986) 69 ALR 265 Lloyd v Robinson (1962) 107 CLR 142 Manfal Pty Ltd v Trade Practices Commission (1990) 65 ALJR 256 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- SCOTT J
- Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town Planning - Approval of subdivision subject to conditions - Appeal to Full Court - One important condition held invalid - Whether matter should be remitted to Town Planning Appeal Tribunal for further consideration
Legislation:
Metropolitan Region Town Planning Scheme Act, 1959
Supreme Court Act, s 58
Supreme Court Rules, O 63 r 9
Town Planning and Development Act 1928, s 20, s 44
(Page 2)
Result:
Matter remitted to Town Planning Appeal Tribunal
Category: B
Representation:
Counsel:
Appellant : Mr J C Giles
Respondent : Ms N Johnson QC & Mr F Sunderland
Solicitors:
Appellant : Solomon Brothers
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Falc Pty Ltd & Anor v Western Australian Planning Commission (1991) 5 WAR 522
Love v Western Australian Planning Commission [1999] WAPAT 4
Manthorpe v Quartern Pty Ltd & The District Council of Lower Eyre Peninsula, unreported; SCt of SA; BC 8900157
Metwally v University of Wollongong (No 2) (1985) 60 ALR 68
Case(s) also cited:
Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1997) 71 ALJR 814
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
Construction Forestry Mining & Energy Union v Full Bench Australian Industrial Relations Commission, unreported; FCt of Aust; NG 257 of 1998; BC9807720; 24 December 1998
De L v Director General, Department of Community Services (NSW) (1997) 136 ALR 201
Edelsten v Ward (No 2) (1989) 63 ALJR 346
(Page 3)
Federal Commissioner of Taxation v Myer Emporium Ltd [No 1] (1986) 160 CLR 220
Grassby v The Queen (1989) 168 CLR 1
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Jennings Construction Ltd v Burgundy Royale Investments Pty [No 1] (1986) 69 ALR 265
Lloyd v Robinson (1962) 107 CLR 142
Manfal Pty Ltd v Trade Practices Commission (1990) 65 ALJR 256
(Page 4)
1 JUDGMENT OF THE COURT: On 1 February 2002 the Full Court comprising Wallwork, Scott JJ and Olsson AUJ published reasons to the effect that this appeal should be allowed and that the decision of the Tribunal should be set aside and an order allowing the consolidated appeals substituted for it.
2 Following that decision the respondent submitted that in the light of the invalidity of the relevant condition it is appropriate that the Court order that the matter be remitted to the Town Planning Appeal Tribunal for consideration of consequential conditions which ought to be imposed on the subdivision applications the subject of the consolidated appeals.
3 It was submitted for the respondent that where the outcome of an appeal such as this is that a condition which had been imposed on a subdivision application has been declared to be unreasonably imposed or invalid, consideration must then be given to whether other conditions should be imposed to ensure that the approval of subdivision provides for orderly and proper planning. It was submitted that this was consistent with the approach of the Tribunal in Love v Western Australian Planning Commission [1999] WAPAT 4 at [104 - 105] in which case a condition requiring the ceding of land the subject of a reserve "free of cost" was deleted. The Tribunal in that case required the Commission to formulate new conditions providing for public access, fire control easements and other conditions which would aid the management of the reserved land in private hands.
4 It was further submitted that as the Town Planning Appeal Tribunal is a specialist Tribunal with well established expertise and involvement in town planning, it is that Tribunal rather than this Court which should embark on the task of determining the conditions upon which approval for subdivision should be granted in this case - Falc Pty Ltd & Anor v Western Australian Planning Commission (1991) 5 WAR 522 at 530.3 per Nicholson J, 540.5 per Ipp J. Reference was made to Manthorpe v Quartern Pty Ltd & The District Council of Lower Eyre Peninsula, unreported; SCt of SA; BC 8900157 where the relevant planning Tribunal was held to have erred in law in quashing a subdivision approval given by a local authority. The Court held that it should require the Tribunal to reconsider the approval.
5 It was argued that in this case it is now uncertain when or even if, the relevant land might be transferred to the Crown. Accordingly, provision should be made, for example, for conditions granting rights of public
(Page 5)
- access and access for the purposes of maintenance and the management of the public facilities located on the foreshore reserve.
6 The basis of the respondent's argument was that there is no right to subdivide without proper approval under the legislation. That approval maybe granted subject to conditions. The purpose of the conditions is to provide for proper and orderly planning.
7 Reference was made to s 20 of the Town Planning and Development Act 1928 for the proposition that Parliament has conferred a right in the Commission to impose conditions on any subdivision. It was submitted that it therefore follows that if a condition or conditions imposed are found to be invalid or inappropriate, the right to subdivide cannot be said to be still in existence so as to enable a subdivision to proceed without more. If there is an invalidity in a condition imposed, the right to subdivide cannot continue in the absence of that condition.
8 It was further submitted that when a planning authority is determining what conditions are appropriate in the public interest before approving a subdivision proposal, it should not be required to impose all possible conditions to cover the situation in the event that one or more of the conditions are disallowed.
9 It was submitted that this Court has the power to remit to the Tribunal or to impose conditions itself. However, it was argued that where an appeal is from a specialist Tribunal it was appropriate that in the event of a successful appeal, the Tribunal should impose the appropriate conditions.
10 It was noted that s 44 of the Town Planning and Development Act 1928 provides for the jurisdiction of the Appeal Tribunal. That section allows the Appeal Tribunal to allow an appeal with or without conditions, affix further conditions, or dismiss the appeal either in whole or in part. It was submitted that on any appeal from a specialist tribunal which simply deals with a point of law, there is a power to remit.
11 In answer to the respondent's submissions it was conceded that this Court could send the matter back to the Tribunal pursuant to s 58 of the Supreme Court Act. However, it was contended that O 63 r 9 of the Supreme Court Rules precluded the respondent from asking that the matter to be remitted for further conditions to be considered because the respondent had never contended that the original decision should be varied. Further, that if the respondent had wanted to contend that in the event of the relevant condition being found to be invalid, the matter
(Page 6)
- should be sent back to the Tribunal for consideration of further conditions, it should have given a notice pursuant to O 63 r 9. Reliance was placed on the contents of O 63 r 9. It was contended that there would only have to have been a single contention in the notice. It was submitted that a respondent to an appeal must nominate any alternative order it wants in the event that the appeal is successful.
12 It was further submitted that in this case it had never been suggested that an alternative condition should be imposed until after the reasons for decision of the Court had been published. Also it had not been suggested before the Tribunal that an alternative order would be sought. It was submitted that before the Tribunal the only order available was either that the appeal be allowed and the condition set aside or that the appeal be dismissed. Nothing else had been suggested. It had not been argued that if the relevant condition had not been imposed some other condition would have been imposed instead of it. That matter had not been raised before the Tribunal nor had it been suggested that approval would not have been granted but for this condition. Further, it had not been raised in the respondent's notice to the Town Planning Appeal Tribunal advising that it desired to contest the original appeal. It was submitted there had been no evidence at first instance concerning alternative conditions. It was not now appropriate for the appellant to face fresh evidence or an argument concerning what inference could be drawn from the limited evidence available in relation to an argument which was not previously argued.
13 Reliance was placed upon the reasons in Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 at 71 where Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, either deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
14 It was submitted that it had not been explained by the respondent even at this stage why the present argument had not been raised at the first instance. That in any event if the State was concerned with the situation, it could buy the foreshore reserve from the appellant and pay compensation or consideration for it.
(Page 7)
15 In answer to those propositions it was submitted that in order for a subdivision to proceed issues such as public access need to be addressed. The public interest needed to be preserved. It was further submitted that there had been evidence before the Tribunal, the single Judge and the Full Court, which had indicated that the failure to impose the relevant condition was considered to be an oversight. The condition had originally been consented to but had not been enforced. It had then been overlooked. When it was subsequently sought to be enforced, the appeal to the Tribunal was taken. It was submitted that the evidence before the Court was that it was a significant condition and that that was apparent from the contents of the appeal book, particularly from pages 104 to 106. It was submitted that the contention that this Court's power to do justice between the parties and in the public interest was fettered by whether or not a party had put in a notice of contention was an untenable proposition.
16 In the Court's opinion, the respondent's contentions should be upheld and the matter should be remitted to the Town Planning Appeal Tribunal for the consideration of any consequential conditions which ought to be imposed now that the appeals have been allowed. Section 20 of the Town Planning and Development Act authorises the Commission to give its approval to plans of subdivision "subject to conditions which shall be carried out before the approval becomes effective." Where an important condition such as the one the subject of this appeal has effectively been quashed, it may be that it is necessary that another condition or conditions be put in its place. That is a matter which this Court does not have the expertise to decide. The matter should therefore be remitted to the specialist tribunal.
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