TERRA SPEI PTY LTD and SHIRE OF KALAMUNDA
[2015] WASAT 103
•16 SEPTEMBER 2015
TERRA SPEI PTY LTD and SHIRE OF KALAMUNDA [2015] WASAT 103
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 103 | |
| 16/09/2015 | |||
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:266/2015 | 31 AUGUST 2015 | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 31/08/15 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time in which to seek review dismissed | ||
| B | |||
| PDF Version |
| Parties: | TERRA SPEI PTY LTD JM DOWSING PTY LTD SHIRE OF KALAMUNDA |
Catchwords: | Practice and procedure Application for leave to extend time in which to seek review of decision to grant conditional development approval in order to challenge two conditions of development approval Development approval for warehouse, office and storage of inert (building demolition) materials Conditions state that 'No storage or carrying out of industrial activities is permitted in open yard areas visible from the streets' and 'The material storage bins being enclosed on three sides, constructed to a height of 3.0m and incorporating use of dust suppression sprinklers ...' Storage of inert materials commenced on site Shire commenced prosecution of applicants for breach of conditions Whether satisfactory explanation for delay Whether arguable case for review Whether extension would cause prejudice Whether it is in the public interest for matters involving the interpretation and application of planning laws to be determined by SAT as a specialist planning tribunal rather than by the Magistrates Court |
Legislation: | Planning and Development Act 2005 (WA), s 214, s 218, s 251, s 252, s 255 State Administrative Tribunal Act 2004 (WA), s 9, s 20(1), s 27(2), s 29(5)(b) State Administrative Tribunal Rules 2004 (WA), r 9, r 10 |
Case References: | Curlewis and City of Albany [2011] WASAT 85; (2011) 77 SR (WA) 87 Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 Kennedy Holdings WA Pty Ltd and JCO Investments Pty Ltd and City of Subiaco [2015] WASAT 82 Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 56 O'Connor and Town of Victoria Park [2005] WASAT 161 |
Orders | On the application heard before Deputy President, Judge Parry on 31 August 2015, it is ordered that:,1. The applictaion for an extension of time under r 10 of the State Administrative Tribunal Rules 2004 (WA) in which to commence an application for review of the decision of the respondent to grant conditional development approval on 26 May 2014 is dismissed. |
Summary | The applicants sought an extension of time in which to seek review of the respondent Shire's decision to grant them conditional development approval for a warehouse, office and storage of inert (building demolition) materials. The applicants wish to challenge two of the conditions which state that 'No storage or carrying out of industrial activities is permitted in open yard areas visible from the streets' and 'The material storage bins being enclosed on three sides, constructed to a height of 3.0m and incorporating use of dust suppression sprinklers ...'.,The applicants commenced the development and the Shire subsequently commenced a prosecution against them for breach of the two conditions in the Magistrates Court. The applicants then sought an extension of time in which to seek review in order to challenge the conditions before the Tribunal. The application for review was 408 or 410 days out of time.,The Tribunal dismissed the application for an extension of time. The Tribunal came to this conclusion in the exercise of its discretion, balancing various considerations.,There are four principal considerations that guide the exercise of discretion, namely the length of delay, the reasons for delay, whether there is an arguable case for review, and whether the extension would cause prejudice. The Tribunal found that there is a very significant delay in the circumstances of this case. In relation to the initial period of almost a year from the granting of the development approval until the commencement of the prosecution, the Tribunal found that there is no satisfactory explanation for the delay. The Tribunal found that there is no arguable case for review of the conditions, given the planning framework and the nature of the conditions. The Tribunal found that there would be some, although limited prejudice to the Shire if time were extended and that there would certainly be prejudice to the applicants if time were not extended.,Finally, the Tribunal acknowledged the strength of the policy argument presented by the applicants as part of a fifth consideration, that there is a public interest in matters concerning the interpretation and application of planning laws being determined by SAT, as it is a specialist planning tribunal, rather than by the Magistrates Court. However, although the Tribunal has in annual reports made recommendations to government for it to be conferred with civil enforcement and declaratory jurisdiction in relation to planning laws, it does not have such general jurisdiction. The Tribunal determined that the fifth consideration does not warrant the granting of an extension of time in the exercise of discretion, when also having regard to the other considerations. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TERRA SPEI PTY LTD and SHIRE OF KALAMUNDA [2015] WASAT 103 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 31 AUGUST 2015 DELIVERED : 31 AUGUST 2015 PUBLISHED : 16 SEPTEMBER 2015 FILE NO/S : DR 266 of 2015 BETWEEN : TERRA SPEI PTY LTD
- JM DOWSING PTY LTD
Applicants
AND
SHIRE OF KALAMUNDA
Respondent
Catchwords:
Practice and procedure Application for leave to extend time in which to seek review of decision to grant conditional development approval in order to challenge two conditions of development approval Development approval for warehouse, office and storage of inert (building demolition) materials Conditions state that 'No storage or carrying out of industrial activities is permitted in open yard areas visible from the streets' and 'The material storage bins being enclosed on three sides, constructed to a height of 3.0m and incorporating use of dust suppression sprinklers ...' Storage of inert materials commenced on site Shire commenced prosecution of applicants for breach of conditions Whether satisfactory explanation for delay Whether arguable case for review Whether extension would cause prejudice Whether it is in the public interest for matters involving the interpretation and application of planning laws to be determined by SAT as a specialist planning tribunal rather than by the Magistrates Court
Legislation:
Planning and Development Act 2005 (WA), s 214, s 218, s 251, s 252, s 255
State Administrative Tribunal Act 2004 (WA), s 9, s 20(1), s 27(2), s 29(5)(b)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Result:
Application for extension of time in which to seek review dismissed
Summary of Tribunal's decision:
The applicants sought an extension of time in which to seek review of the respondent Shire's decision to grant them conditional development approval for a warehouse, office and storage of inert (building demolition) materials. The applicants wish to challenge two of the conditions which state that 'No storage or carrying out of industrial activities is permitted in open yard areas visible from the streets' and 'The material storage bins being enclosed on three sides, constructed to a height of 3.0m and incorporating use of dust suppression sprinklers ...'.
The applicants commenced the development and the Shire subsequently commenced a prosecution against them for breach of the two conditions in the Magistrates Court. The applicants then sought an extension of time in which to seek review in order to challenge the conditions before the Tribunal. The application for review was 408 or 410 days out of time.
The Tribunal dismissed the application for an extension of time. The Tribunal came to this conclusion in the exercise of its discretion, balancing various considerations.
There are four principal considerations that guide the exercise of discretion, namely the length of delay, the reasons for delay, whether there is an arguable case for review, and whether the extension would cause prejudice. The Tribunal found that there is a very significant delay in the circumstances of this case. In relation to the initial period of almost a year from the granting of the development approval until the commencement of the prosecution, the Tribunal found that there is no satisfactory explanation for the delay. The Tribunal found that there is no arguable case for review of the conditions, given the planning framework and the nature of the conditions. The Tribunal found that there would be some, although limited prejudice to the Shire if time were extended and that there would certainly be prejudice to the applicants if time were not extended.
Finally, the Tribunal acknowledged the strength of the policy argument presented by the applicants as part of a fifth consideration, that there is a public interest in matters concerning the interpretation and application of planning laws being determined by SAT, as it is a specialist planning tribunal, rather than by the Magistrates Court. However, although the Tribunal has in annual reports made recommendations to government for it to be conferred with civil enforcement and declaratory jurisdiction in relation to planning laws, it does not have such general jurisdiction. The Tribunal determined that the fifth consideration does not warrant the granting of an extension of time in the exercise of discretion, when also having regard to the other considerations.
Category: B
Representation:
Counsel:
Applicants : Mr CH Wallace
Respondent : Mr CA Slarke
Solicitors:
Applicants : Lavan Legal
Respondent : McLeods
Case(s) referred to in decision(s):
Curlewis and City of Albany [2011] WASAT 85; (2011) 77 SR (WA) 87
Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98
Kennedy Holdings WA Pty Ltd and JCO Investments Pty Ltd and City of Subiaco [2015] WASAT 82
Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 56
O'Connor and Town of Victoria Park [2005] WASAT 161
Introduction
1 Terra Spei Pty Ltd and JM Dowsing Pty Ltd (applicants) have made an application to the Tribunal pursuant to r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) for an extension of time in which to seek review by the Tribunal of the decision of the Shire of Kalamunda (Shire or Council) to grant conditional development approval to the applicants on 26 May 2014 for a development described as 'office/warehouse and storage yard' on the development application form and as 'warehouse, office and storage of inert materials' in the development approval (development approval).
2 Under r 9 of the SAT Rules, an application for review of the Council's decision to grant conditional development approval had to be commenced within 28 days of the day on which the Shire gave notice of the decision under s 20(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), that is, by about 23 June 2014. The application for an extension of time under r 10 of the SAT Rules was made on 6 August 2015. The application for review is therefore sought to be made either 408 or 410 days out of time (nothing turns on whether it is the former or the later).
3 By a development application dated 6 February 2014 and apparently received by the Shire on 19 February 2014, CDM Commercial Design Management applied to the Shire on behalf of the applicants for the development approval in relation to the property at 251, 257 and 259 Berkshire Road, Forrestfield (site).
4 On 26 June 2013, DC Recycling had applied to the Shire for development approval for a development described on the development application form as 'storage of inert materials' on the site. However that development application was ultimately never considered or determined by the Council.
5 In April 2014, the Shire's Manager of Development Services, Mr Andrew FowlerTutt, had an email exchange with the applicants' consultant, Mr Andrew Mack, in which Mr FowlerTutt acknowledged the applicants' preference that the proposed development be 'split into two applications' and said that he, Mr FowlerTutt, had 'no issue with this approach'.
6 However, when the development application lodged in February 2014 was considered in the report of the Director Development Services for the purposes of the Development and Infrastructure Services Committee meeting held on 12 May 2014, the development application, that is to say, all aspects of the development application, were considered together. The officer's recommendation was for a conditional approval of the development application. The Development and Infrastructure Services Committee accepted the officer's recommendation, in broadly the same terms as that recommendation in terms of conditional approval. Similarly, when the recommendation of the Committee was considered by the full Council of the Shire on 26 May 2014, it considered the development application lodged in February 2014 as a whole and granted conditional development approval to it.
7 In particular, relevantly to the matters of concern to the applicants, the development approval includes conditions 2 and 15 which state as follows:
2. No storage or carrying out of industrial activities is permitted in open yard areas visible from the streets.
…
15. The material storage bins being enclosed on three sides, constructed to a height of 3.0m and incorporating the use of dust suppression sprinklers as outlined in the Dust Management Plan (August 2013). The storage bins will be maintained by the landowner to the Shire's satisfaction.
8 The applicants contend that it was always their intention through their consultants, Talis Environmental Consultants, to carry out the development approval on a staged basis, in which 'stage one' would be the use of part of the land for the purposes of storage of construction and demolition waste and 'stage two' would be the construction of a warehouse and ancillary offices. The applicants have implemented what they have described as 'stage one' by carrying out the necessary precommencement site works and instructing their consultants to prepare the required management plans for that part of the approved development. That part of the approved development has been commenced on the site.
9 On 4 June 2015, the applicants received a prosecution notice from the Shire, ultimately alleging that the applicants are in breach of conditions 2 and 15 of the development approval. In consequence of the commencement of the prosecution and, in particular, the crystallisation of the Shire's position in the prosecution in a statement of material facts on 24 July 2015, the applicants lodged this application in the Tribunal on 6 August 2015.
10 The applicants contend that the Tribunal is the appropriate forum for the determination of questions of interpretation and application of disputed conditions of development approval, and the appropriate forum in which for there to be a merit review of conditions 2 and 15 of the development approval.
11 The Shire opposes the application to extend time for the commencement of the review proceeding.
Legal framework and principles
12 Rule 10 of the SAT Rules states as follows:
(1) The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.
(2) Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time.
13 As the Tribunal held in Curlewis and City of Albany [2011] WASAT 85; (2011) 77 SR (WA) 87 (Curlewis), at [69], the applicant for an extension of time bears the onus to satisfy the Tribunal that the discretion conferred by r 10 of the SAT Rules should be exercised to extend time in the circumstances of the case.
14 The discretion is broad and unconfined. However, as recognised in decisions of the Tribunal commencing with O'Connor and Town of Victoria Park [2005] WASAT 161 at [38] [51], there are four principal considerations that guide the exercise of the Tribunal's broad discretion. These are:
1) the length of delay;
2) the reasons for delay and in particular whether there is a satisfactory explanation for the delay;
3) whether there is an arguable case for review; and
4) whether the extension would cause prejudice.
15 However the range of considerations in relation to whether to extend time is not closed, as also recognised in cases such as Curlewis at [69]. In particular, in this case, the applicants have raised a fifth consideration in support of their position that the Tribunal should exercise its discretion to grant an extension of time. I will address that fifth consideration after addressing the four principal considerations.
The length of delay
16 As noted earlier, the length of delay in this case is 408 or 410 days. The applicants concede that this period of delay is 'significant'. However, they submit that the Tribunal should take into account the reasons for the delay and in particular, that the applicants only became aware that there was a problem in relation to their lack of compliance with conditions 2 and 15 when they were served with the prosecution notice and indeed, really only when they received the statement of material facts, because it is as that point the applicants contend they became aware of how the Shire interprets conditions 2 and 15.
17 The Shire, on the other hand, characterises the period of delay as 'extraordinary'.
18 In my view, the period of delay should properly be characterised as very significant, although ultimately in my view, that characterisation is hardly determinative of the matter given that the length of delay is but one of the four principal considerations and in this case one of five considerations I am required to balance in the exercise of discretion.
Reasons for delay
19 As noted earlier, the applicants contend that they only became aware of how the Shire would interpret conditions 2 and 15 when they received the prosecution and indeed, only really when they received the statement of material facts. It was only at that time, the applicants contend, that they understood that the Shire did not see the development approval as they did, as a staged approval, but rather as a single development approval requiring compliance with conditions 2 and 15 even before the applicants had constructed the warehouse and office, provided that the applicants have taken up the approval and commenced an aspect of the development, in particular the storage of inert materials on the site.
20 The applicants contend that the respondent's interpretation of the development approval is flawed, because it effectively invalidates the approval and is likely to significantly impact on the applicants' ability to use their land. The applicants submit that had they been aware of this interpretation at the time the approval was granted, they would have sought review of the conditional approval and, in particular, challenge conditions 2 and 15 before the Tribunal, within time. Indeed the applicants' submission goes so far as to contend that the effective period of delay only commenced when they received the prosecution notice on 4 June 2015 or even when they received the statement of material facts on 24 July 2015.
21 In my view, the applicants' contention that they only became aware of the Shire's interpretation of conditions 2 and 15 in the context of the prosecution in June 2015, and as particularised in the statement of material facts in late July 2015, does not provide a satisfactory explanation for the delay, or at least does not provide a satisfactory explanation for the period of delay of almost 12 months until the commencement of the prosecution. It was for the applicants to seek review if they or either of them considered the conditions to be ambiguous or unworkable, not to await a potential prosecution by the Shire to be prompted into doing so.
22 Furthermore, the Council's interpretation of the conditions which concerns the applicants and which apparently underlies the Shire's prosecution of the applicants may well be incorrect. That is a matter that the applicants may contest in the context of the prosecution.
23 Further, if this were a satisfactory explanation for the delay, then it would render the considerable length of delay prior to the commencement of the prosecution meaningless, not only in this case, but in any other case in which a local government or other responsible authority commences a prosecution some period after the granting of a development approval and the taking up of that approval by an applicant.
24 Furthermore and significantly, in my view, it would have been plain and obvious to the applicants when they received the development approval that there was a problem with conditions 2 and 15, at least insofar as they contend that they proposed to carry out the development on a staged basis. Given that the applicants submit that they always intended to carry out the development on a staged basis, it should have been obvious that condition 2 would pose problems if the development commenced with the storage of inert materials on the site but before the construction of the warehouse and office building. Although the applicants contend that they intended and have in fact erected fences and that they proposed and are required to carry out landscaping, the evidence before the Tribunal in this application for leave to extend time indicates that there is considerable storage of materials on the site that would be plainly visible from Berkshire Road.
25 Similarly, in relation to condition 15 which requires the material storage bins to be enclosed on three sides and constructed to a height of three metres incorporating dust suppression sprinklers as outlined in the Dust Management Plan (August 2013) and requires the storage bins to be maintained by the land owner to the Shire's satisfaction. In relation to that condition, the applicant called evidence from Mr Mack, an environmental engineer, who said that:
During consideration of the development application by the Respondent, I became aware that the matter of storage bins was raised by the Respondent in relation to the proposal approximately one month before the planning approval was granted.
26 Mr Mack also says that an email exchange between Talis Consultants and the Shire officers prior to the granting of the development application:
… demonstrates that it was not the original intention of the Applicant to construct these bins and that in the event they were required that could be considered at a later stage (ie during construction of the warehouse/offices).
27 If that was the case, then, as with condition 2, it would have been and should have been obvious when the development application was granted subject to condition 15, that condition 15 required compliance and if the applicants proposed to carry out the development in stages that it required modification, whether by way of an application under the relevant planning scheme or modification of the condition which would have been available, or by way of an application for review to the Tribunal seeking review of the conditional development approval.
28 Mr Mack also gave evidence that he and the applicants agreed that the development application would proceed on the basis of a staged approval and that there was no requirement to challenge condition 15, because of Mr Mack's interpretation of condition 15 when read with advice note (e) stated on the instrument of the approval of the development which states as follows:
The applicant is advised that the final proposed locations of the material storage bins are to be shown on the site plan provided as part of the certified building licence application.
29 Mr Mack gave evidence that he interpreted condition 15 together with advice note (e) as meaning that the storage bins would only be required, essentially as a matter of law, when building approval was granted for the warehouse. Mr Mack said in evidence 'I advised the Applicants that condition 15 and advice note (e) should be read in tandem'. Mr Mack is not a lawyer and of course cannot give legal advice. Had he been a lawyer he would have known that an advice note has no statutory status or standing under the Planning and Development Act 2005 (WA) (PD Act). It does not form part of a condition which does have statutory standing and status to regulate an approved development: see Empire Securities Pty Ltd & Ors and Western Australian Planning Commission [2005] WASAT 98 at [78]. If in fact Mr Mack purported to give legal advice which was incorrect to the applicants, that does not, in my view, provide a reasonable explanation for the delay, given that Mr Mack was not a lawyer.
30 The applicants also submit that, immediately after the prosecution proceedings were issued, they engaged solicitors to understand and clarify the nature of their concerns in relation to the prosecution notice. It was only at that point that it became clear that there was an issue in relation to interpretation of conditions 2 and 15 and that a review before the Tribunal would be required. However, while it is clear that the applicants have acted expeditiously or relatively expeditiously to clarify the legal position after the commencement of the prosecution and this application was brought relatively expeditiously after legal advice was sought, that does not provide a satisfactory explanation for the period of almost one year after the development approval was granted and before the prosecution was commenced.
31 The applicants submit also that it was accepted by the Shire's own solicitor that a review of conditions 2 and 15 was the only way in which to ensure compliance with those conditions.
32 In my view, firstly, the Tribunal's jurisdiction cannot be invoked by consent, nor can any period of delay be remedied by consent, although the position of the respondent to an application such as this is relevant in the exercise of discretion. However, more fundamentally, as Mr Slarke submits for the Shire, the Shire's lawyer's observation in relation to the prosecution does not in fact found an argument that the Shire ever considered that this proceeding should be brought out of time or that an extension of time is appropriate. The lawyer's observation in correspondence was that 'obviously if the condition was not acceptable to the Applicant then the appropriate mechanism for seeking a review was a SAT application' (emphasis added). Materially, the lawyer's observation was put in the past tense. It did not express the view of the Shire that the extension sought in this case would be appropriate.
33 A further argument put forward by Mr Wallace in relation to whether there is a satisfactory explanation for the delay and related to earlier arguments is that the applicants understood that the development was assessed by the Shire and granted by it approval on the basis of the stages that the applicants in fact intended to carry out. However, it is clear from the minutes of the Development and Infrastructure Services Committee of the Shire that it addressed the development application as a whole and it is clear from the minutes of the Council meeting of the Shire that it granted development approval to the application as a whole. Moreover, the Council minutes of 26 May 2014 record that it received a deputation on behalf of the applicants by Ms Jacinta Dowsing in which Ms Dowsing is recorded in the minutes as supporting the resolution of the Development and Infrastructure Services Committee to be ratified by the Council at that meeting. It is clear from the report to the Committee and from the Committee's minutes that it determined the application and granted conditional approval on the basis of an integrated single development comprising the elements of office, warehouse and material storage at the site. Whatever the applicants' subjective intention in terms of how they wished to implement the development, they received a single development approval and were bound, subject to modification under the planning scheme or review before the Tribunal, to comply with those conditions of approval if they elected to take up the approval.
34 Finally, in relation to whether there is an adequate explanation or a satisfactory explanation for the delay, the applicants rely on the publication by the Tribunal of its decision in Kennedy Holdings WA Pty Ltd and JCO Investments Pty Ltd and City of Subiaco [2015] WASAT 82 (Kennedy Holdings) on 30 July 2015. The applicants submissions contend that that decision confirmed 'that the Tribunal has the power, and is willing to use that power to grant the reviewed decision with effect from the date of the original decision, the effect of which was to invalidate prosecution proceedings brought by the City of Subiaco'. That decision did not 'invalidate' the prosecution proceeding, given that the period the subject of the prosecution commenced prior to the Council decision and therefore the date on which the Tribunal's substitute decision was deemed to take effect. More fundamentally, that decision was made by reference to s 29(5)(b) of the SAT Act which states:
The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision
…
unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.
36 Finally, the circumstances of the decision in Kennedy Holdings are quite different from this proceeding, given that although in Kennedy Holdings the City of Subiaco did commence a prosecution against the applicant for development approval, it did so after the commencement of review proceedings in the Tribunal, which proceedings were commenced within time, although the period during which the prosecution alleged breach of the relevant planning scheme commenced before the Tribunal proceedings were initiated. In my view, that is quite a difference circumstance from the present and in my view, the Tribunal's publication of its reasons on 30 July 2015 does not provide a satisfactory explanation for the commencement of this proceeding out of time.
37 Given that the applicant bears the onus of satisfying the Tribunal that it is appropriate to extend time, in my view, none of the arguments put forward by the applicants provide a satisfactory explanation for the almost 12 months of delay between the granting of development approval and the commencement of the prosecution.
Whether there is an arguable case for review
38 The applicants submit that there is an arguable case for review in relation to condition 2 given that condition 2, which precludes storage or carrying out industrial activities in open yard areas visible from the streets, in effect, precludes the development that the applicants propose to carry out. The applicants acknowledge that they have carried out development as contemplated in the development application involving material storage to a height of four metres and note that that level of storage is contemplated not only by the development approval, but also by a dust management plan, by a works approval granted by the Department of Environment Regulation and by a licence granted by that authority. The applicants submit that in order to comply with condition 2 in the context of a staged approval as interpreted by the applicants, they brought in temporary fencing to a height of 1.8 metres covered in shade cloth around the rear material storage yard. They intend to maintain that fencing until the warehouse and office building is constructed. The applicants also note that at the time the development application was made, there was vegetation on surrounding lots, some of which has been cleared since then. The applicants submit that the Shire's interpretation of the condition, in effect, is tantamount to a refusal and therefore that justifies an application for review on the basis that there is therefore an arguable case for review to remove or at least reword the condition to allow implementation of the approval in a staged basis.
39 The applicants' submissions in relation to whether there is an arguable case for review in terms of condition 2 largely proceed on the assumption, which is incorrect, that the development considered by the Council and approved by it in May 2014 was a staged approval. It is clear that the development application that was submitted to the Council in February 2014 and determined by it in May 2014 was not a staged approval.
40 Furthermore, in my view, there is not an arguable case for review in relation to condition 2, notwithstanding that the test as to whether there is an arguable case for review of a planning condition is not particularly onerous, given that the condition is contemplated and indeed called for by the planning framework that regulates development and use of the site. In particular, as the Shire submits, the storage of large outdoor stock piles of construction and demolition waste is visually unattractive, as the evidence of the current storage demonstrates. Note 13 of the Forrestfield/High Wycombe Industrial Area Local Structure Plan Map (Structure Plan Map) which applies to the area of the site provides:
In addition to the requirements of the Scheme, any applicable planning policy and design guidelines, service areas, bin and storage areas and services such as air conditioners and other machinery are to be screened such that they are not visible from the street.
(Emphasis added)
41 Furthermore, note 25 of the Structure Plan Map provides:
For additional development criteria and requirements applicable in the Structure Plan area, refer to the Forrestfield/High Wycombe Industrial Area Design Guidelines.
42 Those Design Guidelines explain among other things that:
The Shire of Kalamunda is firm in its resolve to oversee the development of a high standard, attractive, functional and sustainable industrial area, which will attract a range of businesses eager to locate within the area, offering ease of access to both customers and suppliers.
43 As the Shire submits, the Design Guidelines make explicit provision for external service and storage areas in s 3.7 in provisions which include:
• No open storage of goods, unserviceable vehicles or machinery shall be carried out within the front setback area (forward of the building line).
• All open storage areasshall be screenedfrom the street and adjoining properties by landscaping, fencing and/or other means acceptable to the Shire of Kalamunda. Any screen fencing should use materials and colours that complement the main building design and, where possible, made to integrate with the building structure[.]
- (Emphasis added)
45 In relation to condition 15, which requires the bin storage to be constructed, the applicants submit that which is the case - they did not propose the bin storage as part of the development application as originally lodged and only engaged in discussion with the Shire's officers in relation to that topic once it was raised by the Shire's officers. The bin storage was not shown in the development application plans lodged with the Shire in February 2014 and although indicative designs were discussed, the development application plans do not appear to have ever have been amended to incorporate the bin storage locations or a detailed design. The applicants submit that having regard to that and having regard to the fact that the works approval and the licence issued by the Department of Environment Regulation does not require such bins to be constructed that there is an arguable case for review in relation to whether bins should be constructed.
46 Furthermore, the applicants submit that there is an arguable case for review in relation to the height of the bins given that the condition states that the height should be three metres, whereas the applicants contend that there is no policy basis for that particular height.
47 The applicants rely on the evidence of Mr Mack. In this regard he said that in his experience, such structures, that is to say storage bins required by condition 15, are 'unusual for a facility of that nature' that is the nature approved by the development approval.
48 However, as the Shire submits, condition 15 has 'obvious planning merit' as the storage of the materials has the potential to generate dust, is visually unattractive and potentially could be a source of noise when materials are delivered. These are matters that are acknowledged in the applicants' development application documentation and in the discussion with Shire officers, although the applicants contend that they have mitigated those matters to an acceptable level.
49 The Structure Plan for the area provides:
The Structure Plan seeks to respond to the Shire's intent to oversee the development of a high standard, attractive, functional and sustainable industrial area, which will attract a range of businesses eager to locate within the area, offering ease of access to both customers and suppliers.
50 The objectives for the Structure Plan include:
• To ensure that industrial development does not adversely impact on the amenity and safety of adjoining land uses.
51 The Design Guidelines provisions that I referred to earlier are also directed to ensuring a high standard of development on the site and in the locality and condition 15, on its face, is reasonably responsive to the planning framework in that respect.
52 Importantly, although Mr Mack considers condition 15 to be unusual, the applicants, which bear the onus in this application, have not presented any planning evidence that the condition is in anyway unusual or overly onerous, nor that the three metre height (as opposed to any other height) is unusual, onerous or inappropriate.
53 Given that the application proposes four metre high storage, on its face, a three metre high bin is hardly inappropriate or onerous.
54 For these reasons, in my view, the applicants have not demonstrated an arguable case for review in relation to condition 15 or in relation to condition 2.
Prejudice to the respondent
55 The applicants contend that there is no prejudice to the respondent, being a public authority, if leave to extend time were granted. The Shire disagrees and submits that as it has commenced the prosecution, it will be prejudiced because the SAT proceeding would potentially remove the basis of the prosecution and the respondent has incurred legal fees, filing fees and administration costs associated with the prosecution which would be thrown away. Countering this submission, Mr Wallace submits that even if there was some possible prejudice to the Shire, there is greater prejudice to the applicants in having to face the prosecution. He also emphasises that one of the defendants in the prosecution is a corporation which can lead to a fivefold increase in the penalty, both for the actual commission of the offence and a daily penalty.
56 Furthermore, Mr Wallace submits that the prosecution itself is a 'heavy handed response' to a planning breach, if one has been committed, and that a far better method of resolving the breach of planning law would have been a direction under s 214 of the PD Act which the applicants could seek review of before the Tribunal, or simply a phone call to the applicants to let them know of the breach. Mr Wallace emphasises that the first the applicants heard of the alleged breaches which are the subject of the prosecution was in June 2015, even though the period during which the breaches are said to have occurred commenced in February 2015.
57 I accept that there would be some prejudice to the Shire if leave to extend time were granted given that the prosecution was commenced. I also accept that there would be a potentially considerable prejudice to the applicants if leave to extend time were not granted given the significant penalties that might be the subject of the criminal prosecution. I also acknowledge the strength of the applicants argument, relevant also to the further and fifth consideration I will come to shortly, about whether the Tribunal or the Magistrates Court in a criminal prosecution is the appropriate forum for the resolution of issues such as those of interpretation and application of the planning approval.
58 However, ultimately in terms of whether there is prejudice to the respondent, I find that there would be some prejudice to the respondent in an extension of time to commence this proceeding given the resources that have been incurred by the respondent in the prosecution.
Further consideration
59 The applicants raised a further, fifth consideration for the Tribunal in the exercise of its discretion. As I have mentioned, the considerations are not closed and are not restricted to the four principal considerations.
60 Essentially, the applicants fifth matter for consideration is that there is a public interest in clarifying the meaning of enabling provisions and that there is a public interest in matters concerning the interpretation and application of planning laws being determined by a specialist planning tribunal rather than by the Magistrates Court. The applicants submit that this is recognised to an extent in the Tribunal's decision in Kennedy Holdings to which I have referred. The applicants also submit that it is preferable to obviate the need for enforcement action to be taken in the context of a review proceeding seeking to achieve the 'correct and preferable' outcome as identified in the SAT Act (s 27(2)) and in the objectives of the Tribunal (s 9 of the SAT Act).
61 There is certainly strength in the applicants' contention on a policy basis that a specialist planning tribunal which has experience in the interpretation and application of planning laws in the context of planning review proceedings (under s 251 and s 252 of the PD Act) and proceedings for the review of directions given by responsible authorities to restrain and remedy unlawful development (under s 255 of the PD Act), and in development assessment and in its intricacies (under s 252 of the PD Act), to also have jurisdiction in relation to the interpretation and application of planning laws generally. However, the Tribunal does not have that jurisdiction, or at least it does not have that express jurisdiction. The Tribunal has, in annual reports going back over many years (most recently: 20132014 Annual Report pages 1718) made recommendation to government for it to be conferred with civil enforcement and declaratory jurisdiction of the nature that no doubt would assist the applicants in this case. However, that recommendation has not been taken up.
62 The fifth consideration, in my view, does not warrant, when also having regard to all of the other considerations to which I have referred, in the exercise and in the balance of discretion, the granting of an extension of time in the circumstances of this case. The Shire as the prosecutor had a discretion as to whether to commence the prosecution and it exercised that discretion as it was entitled to do under s 218 of the PD Act. The development approval was granted now some 15 months ago and was clear on its face in the terms on which it was granted. The applicants elected to take up the development approval and have now been prosecuted.
63 Finally, in relation to the fifth consideration, while there is a public interest in clarifying the meaning of enabling legislation and that has been a matter for consideration in an application to extend time in Match Projects Pty Ltd and Arccon (WA) Pty Ltd [2009] WASAT 56 at [53], there is no particular provision of the enabling legislation or other relevant law that requires interpretation in this case. Rather, the applicants contend that conditions 2 and 15 should be varied on review to reflect their subjective understanding of the development and their intention as to how they wish to carry out the development. While of course that would be of benefit to the applicants in the potential to have those conditions varied with effect from May 2014 and therefore to potentially thwart the prosecution, there is no public interest in this case in the interpretation of any particular provision of the planning or other law that would justify the extension of time sought.
Exercise of discretion
64 I am therefore required to balance each of the findings and considerations that I have articulated. I have found that there is a very significant delay in the circumstances of this case. Certainly in the initial period of almost of a year from the granting of the development approval until the commencement of the prosecution, I have found that there is no satisfactory explanation for the delay in the circumstances of the case. I have found that there is no arguable case of review, notwithstanding that that is not a particularly high onus, given the planning framework which the Shire has highlighted and the nature of the two conditions that are sought to be challenged. I have found that there would be some, although limited, prejudice to the respondent if time were extended. I have also found in the context of that consideration that there would certainly be prejudice to the applicants if time were not extended. Finally, I acknowledge the strength of the policy argument presented by the applicants that this Tribunal, as a specialist planning tribunal, is best suited to interpret and apply planning laws. However, I also acknowledge that the Parliament has not conferred such general jurisdiction upon the Tribunal.
65 In all the circumstances and balancing each of those considerations and bearing in mind that it is a broad discretion that the Tribunal must exercise, I consider that the application for an extension of time should be dismissed. Although there would be potentially significant prejudice to the applicants if leave to extend time were not granted given the significant penalties that might be imposed in the prosecution, and although there is strength in the policy argument presented by the applicants that the Tribunal is best suited to interpret and apply planning laws, these considerations are outweighed in the circumstances of this case by the period of delay being very significant, there being no satisfactory explanation for the delay during the initial period of almost one year from the granting of development approval until the commencement of the prosecution, there being no arguable case for review and there being some, although limited, prejudice to the respondent if an extension of time were granted.
Order
66 The order that I will make today is that:
1. The application for an extension of time under r 10 of the State Administrative Tribunal Rules 2004 (WA) in which to commence an application for review of the decision of the respondent to grant conditional development approval on 26 May 2014 is dismissed.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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