The Match Group v Metropolitan South West Joint Development Assessment Panel - [2014] WASCA 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE MATCH GROUP -v- METROPOLITAN SOUTH WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2014] WASCA 50

CORAM: PULLIN JA
NEWNES JA
MURPHY JA

HEARD: 16 OCTOBER 2013

DELIVERED : 7 MARCH 2014

FILE NO/S: CACV 149 of 2012

BETWEEN: THE MATCH GROUP
Appellant
AND
METROPOLITAN SOUTH WEST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUSTICE J A CHANEY (PRESIDENT)

MR J JORDAN (MEMBER)

Citation :THE MATCH GROUP and METRO SOUTH-WEST JOINT DEVELOPMENT ASSESSMENT PANEL [2012] WASAT 226
File No :DR 215 of 2012, DR 216 of 2012, DR 226 of 2012

Catchwords:

Appeal - Application for leave to appeal - Determination of preliminary issue by State Administrative Tribunal

Legislation:

City of Cockburn Town Planning Scheme No 3, cl 6.3.13, sch 1, sch 12
Planning and Development Act 2005 (WA), s 252(1)
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 5(c), reg 18(2)
Rules of the Supreme Court 1971 (WA), O 58 r 11
State Administrative Tribunal Act 2004 (WA), s 27(1), s 29(1), s 29(3), s 29(9), s 91, s 105(1)
Strata Titles Act 1985 (WA)

Result:

Leave to appeal granted and appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr P McQueen
Respondent: Mr C S Bydder

Solicitors:

Appellant: Lavan Legal
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Dunbar v Commissioner of Police [2007] WASAT 90; (2007) 51 SR (WA) 318
LS v Mental Health Review Board [2013] WASCA 128
Middlecoat v Commissioner of Police [2012] WASC 309
The Match Group and Metro South‑West Joint Development Assessment Panel [2012] WASAT 226

PULLIN JA: This is an application for leave to appeal against a decision of the State Administrative Tribunal (SAT).
In 2012, the owners of three pieces of land applied for approval to commence development in respect of the three pieces of land located within the City of Cockburn. There were three separate owners, but they are jointly described as 'The Match Group' (appellant). The three proposed developments were in relation to:
(a)lot 460 Heirisson Way, North Coogee (lot 460);
(b)lot 462 Shoalwater Street, North Coogee (lot 462); and
(c)lot 331 Scout Way, North Coogee (lot 331).
Lot 460 is 2342 sqm in area and involves a proposed development of 38 multiple dwellings in a four storey building. Lot 462 is 2950 sqm in area and involves a proposed development of 67 multiple dwellings in a four storey building. Lot 331 is 2507 sqm in area and involves a proposed development of 34 multiple dwellings to be contained within a four storey building.
Counsel for the appellant advised that, in each case, the proposal was to make the development the subject of a strata scheme as defined by the Strata Titles Act 1985 (WA). The appellant's applications were determined by a development assessment panel pursuant to reg 5(c) of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA). As a result, the applications for development came before the respondent. In May and June 2012, the respondent resolved to approve each of the applications subject to certain conditions. Relevantly, one of the conditions (condition) read:
Arrangements being made to the satisfaction of the Chief Executive Officer for the provision of the pro‑rata subdivider contributions towards those items listed in the City of Cockburn Town Planning Scheme No 3 for Development Contribution Area 13 - Community Infrastructure.
In June 2012, the appellant filed three applications for review by the SAT. In each of the applications for review by the SAT, in the section of the form entitled 'What decision do you want the SAT to make?', the following was inserted:
To overturn (delete) [the] condition … of the approval (subdivision conditions).
When the matter came before the SAT, it became clear that the dispute between the parties was not so much about the condition, but about the amount of contributions the appellant would have to make pursuant to the City of Cockburn Town Planning Scheme No 3 (TPS 3). The SAT, in The Match Group and Metro South‑West Joint Development Assessment Panel [2012] WASAT 226, said this:
In the course of the proceedings before the Tribunal, it emerged that the parties had a fundamentally different view as to the proper basis upon which developer contributions should be assessed for the purposes of the City of Cockburn Town Planning Scheme No 3 (TPS 3). In essence, the issue is as to whether contributions should be levied by reference to the number of lots involved in the development, or by reference to the number of dwellings to be developed. The Tribunal directed that that question be determined as a preliminary issue. More precisely, the parties framed the issue for preliminary determination as follows:
Whether the contributions required to be paid towards the Developer Contribution Plan (DCP) for the Development Contribution Area 13 - Community Infrastructure under the City of Cockburn Town Planning Scheme No 3 can be calculated by reference to the number of additional dwellings the subject of a planning approval or whether that contribution is confined to consideration of the number of new lots [2].
The SAT then considered the relevant statutory provisions in TPS 3. The first was cl 6.3.13 which stated when an owner was liable to pay a cost contribution and which read:
The obligation of owners of land within a Development Contribution Area (DCA) (which is an area shown on the scheme map as a DCA with a number and included in sch 12) to contribute to infrastructure costs within the DCA is found in cl 6.3.13 of TPS 3. That clause (omitting cl 6.3.13.4 which is not relevant for present purposes) reads as follows:
6.3.13.1An owner must make a cost contribution in accordance with the applicable development contribution plan and the provisions of clause 6.3.
6.3.13.2An owner’s liability to pay the owner’s cost contribution to the local government arises on the earlier of -
(a)the Western Australian Planning Commission endorsing its approval on the deposited plan or survey strata plan of the subdivision of the owner’s land within the development contribution area;
(b)the commencement of any development on the owner’s land within the development contribution area;
(c)the approval of any strata plan by the local government or Western Australian Planning Commission on the owner’s land within the development contribution area; or
(d)the approval of a change or extension of use by the local government on the owner’s land within the development contribution area.
The liability arises only once upon the earliest of the above listed events.
6.3.13.3Notwithstanding clause 6.3.13.2, an owner’s liability to pay the owner’s cost contribution does not arise if the owner commences development of the first single house or outbuildings associated with that first single house on an existing lot which has not been subdivided or strata subdivided since the coming into effect of the development contribution plan [5].
The SAT also referred to the provision in TPS 3 which set out the method for calculating contributions. That provision, which was in sch 12 of TPS 3 in relation to development control area 13 (DCA 13), which is the relevant area, read:
The City's Plan for the District identifies the needs that impact on the Development Contribution Plan. The contributions outlined in this plan have been derived based on the need for the facilities generated by the additional development in the Development Contribution Plan. This calculation excludes the demand for a facility that is generated by the current population in existing dwellings.
Contributions shall be calculated on the basis of the number of new lots created. Existing dwellings on a lot or lots to be subdivided or developed will be exempt from the contribution. Land required for public roads, public open space, drainage and other uses not including residential development will not be assessable. Where a lot may have further subdivision potential, for example as a grouped dwelling site, contributions will be sought at the next development approval stage where additional dwellings or lots are created.
Contributions applying to development of aged or dependant persons dwellings or single bedroom dwellings shall be calculated on the number of dwelling units permitted prior to the application of the variations permissible under clause 6.1.3.A3.i of State Planning Policy - Residential Design Codes [8]. (Underlining added)
The SAT then recorded the parties' submissions. The appellant submitted that, by virtue of the underlined sentence, contributions were to be calculated only on the basis of new lots created, rather than new dwellings created. That contention was based on the proposition that the word 'lot', as defined in sch 1 of TPS 3, was to have 'the same meaning as in the Town Planning Act but does not include a strata or survey strata lot'. The appellant contended that the definition applied to the word 'lot' as used in the calculation method section for DCA 13 in sch 12. The parties agreed that the contribution payable was approximately $2,500 per lot. The appellant, therefore, argued that it only had to pay, at most, that amount multiplied by the three lots involved.
The respondent argued that the underlined sentence should be construed as meaning 'contributions shall be calculated on the basis of the number of new lots and/or dwellings created'. The respondent contended that the amount of $2,500 had to be multiplied by the number of new dwellings for each lot. The number of new dwellings is set out above in [3]. The respondent's submissions in support of that contention were recorded by the SAT as follows:
The respondent (supported by the City of Cockburn which was given leave to make written submissions) submits that the underlined sentence, if read literally, renders much of the balance of that part of the DCP otiose or nonsensical. In particular, the respondent contends that if contributions are to be calculated solely on the basis of the number of new lots created, then:
(a)it is unnecessary to specify that existing dwellings are exempt from the contribution, because no contribution is payable in respect of any dwelling;
(b)it is not apt to refer to contributions being sought at the next development approval stage where additional dwellings are created, because no contribution would be payable in respect of those additional dwellings; and
(c)there is no need to make special provision for calculating the contribution payable in respect of the development of aged or dependant person dwellings or single bedroom dwellings because the contribution is not to be calculated by reference to the number of dwellings in any event [13].
The SAT agreed with the submissions made by the respondent. It said:
We agree with the submission made by the respondent (set out in [13] above) as to the consequences of the applicant's construction of the Calculation Method Section. To read the underlined sentence as excluding any capacity to calculate contributions on the basis of new dwellings, as distinct from new lots, would render much of the balance of the paragraph nonsensical. Furthermore, it would render the reference to refusal to approve a development, found in cl 6.3.5 of TPS 3, nonsensical [22].
In conclusion, the SAT stated:
[O]ur answer to the question posed by way of preliminary issue is:
Contributions required to be paid towards the Development Contribution Plan for the Development Contribution Area 13 - Community Infrastructure under the City of Cockburn Town Planning Scheme No 3 can be calculated by reference to the number of additional dwellings the subject of a planning approval [40].
The appellant applied for leave to appeal against the order which encompassed that answer. The sole ground of appeal alleges that the SAT erred in construing the calculation method section set out above at [8]. Leave to appeal is required by s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
After the hearing of the appeal, the parties were directed to make written submissions about whether the SAT had any jurisdiction to determine the preliminary issue and if not, then whether it followed that leave to appeal should be granted, the appeal allowed and the SAT's determination of the preliminary issue set aside, not for the reasons advanced by the appellant, but because the SAT had no jurisdiction to entertain any question about the correct construction of TPS 3.
The appellant in its written submissions:
(a)referred to s 252(1) of the Planning and Development Act 2005 (WA) which provides that where, under a planning scheme, the grant of any approval is in the discretion of a responsible authority, a person has applied for such a grant and the responsible authority has granted it subject to a condition, then the applicant may apply to the SAT for a review of the responsible authority's decision;
(b)referred to r 18(2) of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) which provides that a person who has made a DAP application or an application under r 17 may apply to the SAT for a review of any condition imposed by a DAP as if the determination were a determination of a responsible authority;
(c)referred to s 29(3) of the SAT Act which provides that the SAT may either affirm or vary or set aside the decision that is being reviewed and substitute its own decision, or send the matter back to the decision‑maker for reconsideration and, in any case, may make any order the SAT considers appropriate.
Having referred to those provisions, the appellant submitted that s 29(3) of the SAT Act made it 'entirely open' to the SAT 'to turn its mind to the substance of the condition the subject of the review proceeding'. The appellant submitted that this was 'reinforced by the requirement that review proceedings were to take place by way of hearing de novo', and that 'anything relevant' to the decision of the decision‑maker was 'also relevant to SAT's decision'. The appellant submitted that the condition 'does not express with any certainty … what the subdivider contributions are to be proportional to … [and] what the quantum of the contributions may be or … what arrangements are required to meet the satisfaction of the CEO and that in consequence, the condition was so unreasonable that no reasonable planning authority could have imposed it'. The appellant submitted that 'in order to place itself in a position to understand the parties' arguments and establish for itself whether the condition reasonably and fairly relates to the development it was incumbent upon the SAT to consider, inter alia, what DCA 13 in TPS 3 means'.
The respondent submitted that the condition merely required the CEO to be satisfied as to the appellant's 'proposed arrangements for paying the cost contribution' before the development approved by the respondent began. However, the respondent submitted that the fundamentally different views of the appellant and the respondent about the proper basis on which the cost contribution should be assessed 'called for the construction by the Tribunal of the relevant provisions of TPS 3'.

Disposition

Section 27(1) of the SAT Act provides that the review of a reviewable decision is by way of a hearing de novo. Section 29(1) provides that the SAT has the same functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision. Section 29(9) states that '[t]o avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the [SAT] to deal with a matter that is different in essence from the matter that was before the decision‑maker'. In Dunbar v Commissioner of Police [2007] WASAT 90; (2007) 51 SR (WA) 318; Judge Chaney (as his Honour then was) said:
[N]othing in s 29, or any other provision of the SAT Act, places the Tribunal in the shoes of the decision‑maker for any purpose other than dealing with the decision under review. It is not open to the [SAT] to exercise some other discretion vested in the decision‑maker where a decision in the exercise of that discretion is not the subject of the review [19].
This passage was referred to with approval by Hall J in Middlecoat v Commissioner of Police [2012] WASC 309 [35] and was also referred to by Murphy JA in LS v Mental Health Review Board [2013] WASCA 128 [98].
In this case, the only decision made by the respondent was to approve the appellant's development applications subject to conditions, one of which is the condition referred to above at [4]. The respondent did not make any decision to determine the meaning of the sentence in sch 12 of TPS 3 which read '[c]ontributions shall be calculated on the basis of the number of new lots created' and did not have any discretion to make any declaration about the correct construction of sch 12 of TPS 3.
In consequence, there was no reviewable decision by the respondent about the correct construction of sch 12 in relation to DCA 13. The SAT erred in allowing the parties to agree to the formulation of the preliminary issue and then in determining it. The SAT had no jurisdiction to decide the preliminary issue by reason of s 29(9) of the SAT Act. Section 91 of the SAT Act permits the SAT to make a declaration in certain circumstances, but not where no substantive remedy could be granted: see Dunbar [29].
It may be that the parties raised the preliminary issue after assuming that the condition required the Chief Executive Officer (CEO) to make a decision about the amount of the contributions. The CEO had no decision to make about the amount of the contributions. The only decision the CEO had to make was whether he was satisfied with the 'arrangement' proposed by the appellant about the 'provision' of the contributions for which the appellant was liable pursuant to TPS 3. The CEO was not authorised to determine what the amount of the contributions would be. That was specified in the legislation. Even if the CEO had the task of construing the legislation (which was not the case), the anticipated dispute could not be resolved under the guise of a review of the respondent's decision to impose the condition.
Any issue about the proper construction of TPS 3 could have been determined by proceedings in the Supreme Court (in which the City of

Cockburn would have to have been joined) for a declaration as to the correct construction of TPS 3. Alternatively, proceedings under O 58 r 11 of the Rules of the Supreme Court 1971 (WA) might have been employed.

It is also worth recording, for the sake of completeness, that TPS 3 was amended after the SAT's decision. This amendment, being Amendment No 97, was published in the Government Gazette on 12 February 2013, p 932. It amended the underlined sentence so that it now reads:
Contributions shall be calculated on the basis of a number of new lots and/or dwellings created.
The words inserted are the words shown in bold.
The parties informed the court after the completion of oral submissions that development had not commenced in relation to any of the three lots by the time the amendment came into effect. Thus, when liability for payment of contributions has to be worked out, it will be by reference to the law as it now stands. Thus, the debate between the parties about the correct construction of TPS 3 before it was amended (which the SAT had no power to resolve) is now moot because of Amendment No 97. The appellant contended that it had an accrued 'right' to have the amount of the contribution to be paid determined by reference to the law as it stood at the time the application for review to the SAT was initiated, rather than 'post Amendment No 97'. That submission should be rejected. Liability to make payment only arises upon the earlier of the events listed in cl 6.3.13.2. The relevant event appears to be that specified in cl 6.3.13.2(b), that is, the commencement of development on the owner's land within the development contribution area. No liability had arisen before Amendment No 97 came into effect. The appellant did not have any accrued 'right' to have liability for contributions determined by reference to the pre‑Amendment No 97 law.

As a result, leave to appeal should be granted and the appeal should be allowed for the reasons set out above. The answer to the preliminary issue should be set aside and the order or direction of the SAT that the preliminary issue be determined should also be set aside.
NEWNES JA: I agree with Pullin JA.
MURPHY JA: I agree with Pullin JA.