Thio and Western Australian Planning Commission
[2009] WASAT 88
•7 MAY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: THIO and WESTERN AUSTRALIAN PLANNING COMMISSION [2009] WASAT 88
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 7 MAY 2009
FILE NO/S: DR 14 of 2009
BETWEEN: GIM HO THIO
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Review by judicial member of determination of Tribunal upon a matter involving a question of law - Town planning - Two lot survey strata subdivision - Tribunal refused survey strata subdivision application - Whether Tribunal erred in law by failing to give reasons in accordance with s 77 of the State Administrative Tribunal Act 2004 (WA) - Whether Tribunal erred in law in consideration of adverse planning precedent - Whether Tribunal failed to afford procedural fairness by raising and relying on precautionary principle in determination without giving parties opportunity to be heard in relation to it
Legislation:
Planning and Development Act 2005 (WA), s 244
Shire of Waroona Town Planning Scheme No 7, cl 4.14.2(c)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 9(c), s 32(1), s 77, s 77(1), s 77(2), s 105, s 117(3)(b)
Result:
Application for review of Tribunal's determination allowed and determination set aside
Matter referred back to Tribunal for re-determination
Category: A
Representation:
Counsel:
Applicant: In person
Respondent: Ms S Keeley
Solicitors:
Applicant: Self-represented
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Cornhill and Western Australian Planning Commission [2009] WASAT 9
Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101
Kioa v West (1985) 159 CLR 550
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501
Thio and Western Australian Planning Commission [2008] WASAT 265
WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260
Williams and Western Australian Planning Commission [2005] WASAT 10
Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79
REASONS FOR DECISION:
Summary of Tribunal's (judicial member's) decision
Mr Gim Ho Thio, who was unsuccessful in seeking review by the Tribunal of the refusal of a two lot survey strata subdivision, sought to challenge the decision before a judicial member on the basis that it was affected by errors of law.
The President determined that the Tribunal erred in law in three material respects.
First, the Tribunal failed to give legally adequate reasons for its decision as required by s 77 of the State Administrative Tribunal Act 2004 (WA). While great care must be taken to read the expression of reasons in the context of the decision as a whole, and having regard to the background and qualifications of the author, in this case the Tribunal made bald findings which did not enable an evaluation of the process of reasoning. The Tribunal also failed to address key arguments advanced by Mr Thio.
Second, the Tribunal denied procedural fairness to Mr Thio by raising and relying upon the precautionary principle without having given him an opportunity to consider and respond to it.
Third, the Tribunal erred in its consideration of adverse planning precedent. In particular, the Tribunal failed to consider whether there was more than a mere chance or possibility that there may be later undistinguishable applications.
The President, therefore, set aside the Tribunal's decision and remitted the matter back to the Tribunal for redetermination.
Application for review by judicial member
Mr Gim Ho Thio has applied under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for a review by a judicial member of the determination made by the Tribunal on 13 November 2008 in proceedings DR 194 of 2008 - see Thio and Western Australian Planning Commission [2008] WASAT 265 (reasons). In its determination, the Tribunal refused to grant Mr Thio's application for the survey strata subdivision of Lot 4 Newnham Road, Lake Clifton (site), into two lots of 2.0 hectares and 3.85 hectares.
The site is zoned 'Rural' under the Shire of Waroona Town Planning Scheme No 7 (TPS 7 or Scheme). The site has direct frontage to Lake Clifton, and currently contains two houses. The proposed 2 hectare lot would contain one of these houses in its current location and the proposed 3.85 hectare lot would contain the second house in a relocated position previously approved by the Shire of Waroona (Shire).
Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Brian Hunt, who is not a legally qualified member.
Tribunal's reasons for determination
The Tribunal's reasons commenced with an introduction to Mr Thio's application for review of the decision of the Western Australian Planning Commission (Commission) to refuse survey strata subdivision approval, a description of the proposed survey strata subdivision application, and the site and locality, and a summary of the planning framework. The Tribunal then said, at [25], that the following issues arose for determination in the review:
(a)the extent to which the various planning instruments are valid to this application;
(b)the relevance of the existence of two houses on the land and the recent approval from the Shire of Waroona for one of those houses to be repositioned;
(c)whether precedent is relevant in determining this application; and
(d)if the proposed subdivision were approved, what conditions should be applied?
The Tribunal then proceeded to discuss the first three of these issues before expressing a brief conclusion.
The Tribunal considered 'the extent to which the various planning instruments are valid to this application' at [26] - [34] of the reasons. At [26] [27], the Tribunal referred to the evidence of Mr Ken Lance, a senior project planner with the Department for Planning and Infrastructure. At [28] [29], the Tribunal referred to Mr Thio's arguments that lot sizes referred to in various planning instruments are 'to some extent contradictory' and that the references as to lot sizes 'are for the guidance of decisionmakers rather than prescriptive'. At [30], the Tribunal rejected the latter contention, expressing the view that 'the planning instruments are stronger than guidelines, and are founded on valid environmental considerations'.
The remaining paragraphs in this section of the reasons, namely [31] [34], were as follows:
The [EPA Guidance Statement No 28] addresses development in a broad area around Lake Clifton, and as is explained in [EPA Bulletin 864], accepted the submission of the [Commission] that it needed to provide some flexibility in lot size determination.
Subsequent planning, in particular the Lake Clifton/Herron Structure Plan (LCHSP), has refined that fringing land into Rural Living (2 hectare minimum, 5 hectare average) and Rural Small Holdings (5 hectare minimum and average).
The Tribunal is of a view that the sequence over time explains the lot size qualification in the various planning instruments, and that the subject land is clearly in an area where the nominated minimum in the [Coastal and Lakelands Planning Strategy (Dawesville ‑ Binningup)], [Draft Shire of Waroona Local Planning Strategy] and LCHSP is 5 hectares.
The Tribunal does consider that the various planning instruments are valid to this application.
The Tribunal did not explain what it meant by 'valid'. Presumably, it meant 'applicable'.
The Tribunal addressed 'the relevance of the existence of two houses on the land, and the recent approval from the [Shire] for one of those houses to be repositioned' at [35] [43] of the reasons. At [35] [37], the Tribunal referred to the approval by the Shire of the relocation of the second dwelling on the site. At [38], the Tribunal noted that Mr Lance disagreed with the Shire's reporting officer's position that the second dwelling on the site 'may be deemed to have nonconforming use rights', but said that it was 'not required to consider this matter'.
At [39], the Tribunal noted that the Commission relied on cl 4.14.2(c) of TPS 7. Clause 4.14.2(c) of TPS 7 states that in all rural zones:
Approval to develop an additional dwelling or dwellings shall not be grounds for obtaining separate titles of ownership of the two dwellings and any future subdivision application will be treated on its own merits by Council and the Commission.
Also at [39], the Tribunal noted Mr Thio's contention that cl 4.14.2(c) of TPS 7 did not apply in the circumstances of the case because:
•the 'additional dwelling' had to be for primary rural (farming) activities, whereas the second dwelling on the site was not for that purpose;
•the clause only applied in relation to dwellings approved under TPS 7, whereas the second dwelling on the site predated that instrument; and
•the buildings on the site enjoyed non‑conforming use rights.
The remaining paragraphs in this section of the reasons, namely [40] [43], were as follows:
The Tribunal considers that the principle outlined in clause 4.14.2(c) of TPS 7 is appropriate to be considered. However, as the applicant stated in his evidence, the matter of any subdivision application must 'be treated on its own merits by Council and the Commission'.
The other relevance of the two houses is that they exist (or are approved to exist) and therefore the reality of the development is in place.
The respondent acknowledges this aspect of the application; however, contends that the issue of precedent now becomes relevant.
The Tribunal agrees with the applicant that the approval for two houses on the subject land is a relevant planning consideration but not of itself, grounds for an approval.
The Tribunal addressed 'whether precedent is relevant in determining this application' at [44] [50] of the reasons. At [44] [46], the Tribunal referred to the Commission's contention that approval of the proposed survey strata subdivision would involve an undesirable precedent, given that there were 'at least 14 similar lots [which could] also be so developed and the cumulative effects could be detrimental to Lake Clifton and its environs'. At [47], the Tribunal noted Mr Thio's argument that the issue of precedent was 'exaggerated', as only 10 nearby lots were in excess of 4 hectares and none contained more than one approved dwelling.
The remaining paragraphs in this section of the reasons, namely [48] [50], were as follows:
The Tribunal agrees with the applicant that precedent is not of itself a valid reason for the refusal of an application and that each matter needs to be treated on its merits and regard given to the particular circumstances of the site.
The Tribunal does, however, consider that the circumstances in this application, namely, the cumulative effects on Lake Clifton make the matter of precedent valid.
The Tribunal further considers that the precautionary principle expressed in WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 is also relevant in this matter and, as noted at [44], the precautionary principle permits the taking of preventative measures without having to wait until the reality or seriousness of the threat becomes fully known.
The Tribunal's reasons then contained a 'Conclusion' at [51] [54] as follows:
The Tribunal considers that the intent of the various planning instruments, founded as they are in the environmental protection considerations of Lake Clifton, need to be supported in this instance.
The presence of two houses and, in effect, an established development does not provide adequate reason to approve the application and risk the intent of the planning structure in the area.
Consideration of conditions of approval is not relevant as the review is not supported.
Based on the preceding considerations, it is the conclusion of the Tribunal that the application for review is dismissed. The respondent's position is affirmed.
Grounds for review
Mr Thio formulated the following three grounds for review of the Tribunal's determination:
(a)The Tribunal's judgment was flawed as it had disregarded the response of the Department of Environment and Conservation (DEC), whose support for our proposal implied a fundamental disagreement with the Expert Witness Statement [of Mr Lance] on all key issues.
(b)The Tribunal had relied extensively on a seriously compromised Expert Witness Statement [of Mr Lance] which had also ignored this crucial piece of evidence. Almost all the expert's arguments on the key issues had been reflected in the judgment.
(c)The Tribunal failed to give legally adequate reasons for its decision on all key issues under s 77 of the [SAT Act].
In addition, Mr Thio, in effect, raised the following two additional grounds for review in the course of his submissions:
(d)The Tribunal denied Mr Thio procedural fairness by raising and relying on the precautionary principle without having given an opportunity to the parties to address that issue.
(e)The Tribunal erred in law in its determination of adverse planning precedent, because it failed to have regard to established criteria to determine whether precedent was relevant.
I will now consider grounds (a) and (b) together and the three other grounds separately.
Grounds (a) and (b) - failure to consider the response from the Department of Environment and Conservation
These grounds do not involve any question of law. As Justice Barker held in Williams and Western Australian Planning Commission [2005] WASAT 10 at [17]:
Questions such as the adequacy of the evidence, the relative significance or weight to be given to the evidence, and appropriate findings to be made based on the evidence, are questions of fact, which were entirely within the province of the Senior [Sessional] Member to determine for himself, and do not ground any error of law [citations omitted].
The Tribunal noted, at [10] and [12], that the Department of Environment and Conservation (DEC) had no objection to the survey strata subdivision. The relative significance or weight to be given to the DEC's response was a matter for the Tribunal. Furthermore, while Mr Thio characterised the DEC response as a 'crucial piece of evidence', it was not expert evidence before the Tribunal, but rather simply the position of the DEC, which was part of the background material. It is hardly surprising that the Tribunal did not place weight on this piece of background information.
Mr Thio's grounds (a) and (b) are not established.
Ground (c) - failure to give legally adequate reasons
Section 77(1) of the SAT Act requires the Tribunal to give reasons for a final decision. Section 77(2) of the SAT Act requires that reasons for a final decision:
have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.
In Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 at [78] (Re Carey), Martin CJ held, in relation to the Tribunal's obligation to give reasons for a final decision under s 77 of the SAT Act, as follows:
As the Tribunal is obliged to give reasons for its decision, and there is a right of appeal from those reasons, the reasons must elucidate the process of reasoning applied by the Tribunal for at least two reasons:
(a)firstly, so that the unsuccessful party can evaluate the prospects of success on appeal; and
(b)so that the Court can evaluate the process of reasoning if the appeal is brought [citations omitted].
Having reviewed the leading New South Wales authorities in relation to judicial officers' obligations to give reasons for their decisions, Lloyd J, in the Land and Environment Court of New South Wales, held in Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at [53] as follows:
The principles to which I have referred above show that the duty of a judge to disclose reasons for a decision is more onerous than that imposed upon a lay commissioner. Nevertheless, if a question is in issue in the case and it is one which is critical or fundamental to the case, then, as in [Westport Marina Developments Pty Ltd v Concord Council (2000) 109 LGERA 451], even a lay commissioner is required to give reasons for his or her conclusion.
Irrespective of any common law duty to give legally adequate reasons, the SAT Act imposes the same statutory obligation to give reasons for a final decision whether the Tribunal is constituted by or so as to include a legally qualified member or not. The reasons must include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based. The reasons must elucidate the process of reasoning applied by the Tribunal to achieve the purposes discussed by the Chief Justice in Re Carey. This is fundamental and critical to public confidence in the administration of justice and proper public administration.
This is not to say, however, that on review by a judicial member under s 244 of the PD Act or on appeal to the Supreme Court under s 105 of the SAT Act, the review or appeal decision-maker should not be conscious of the background and qualifications of the author of the decision which is the subject of review or appeal. The SAT Act provides for the appointment of non‑legally qualified Tribunal members with 'extensive or special knowledge of, or experience with any class of matter involved in the exercise of the Tribunal's jurisdiction': SAT Act, s 117(3)(b). One of the main objectives of the Tribunal is 'to make appropriate use of the knowledge and experience of Tribunal members': SAT Act, s 9(c).
People who are not lawyers do not usually express themselves in the same way as lawyers do. Yet it is precisely because non-legally qualified members have relevant non-legal knowledge or experience that they are appointed to the Tribunal and play a vital role in the fulfilment of the Tribunal's objectives. On review or appeal from a non-legally qualified member's decision, great care must be taken to read the expression of reasons in the context of the decision as a whole and having regard to the background and qualifications of the author.
However, in this case, it is plain from the Tribunal's reasons for determination summarised above that it failed to give legally adequate reasons in accordance with s 77 of the SAT Act in relation to each of the three issues it purported to address. The Tribunal, therefore, erred in law in a material respect.
In relation to 'the extent to which the various planning instruments are valid to this application', the Tribunal did not address a key argument advanced by Mr Thio, namely that the various planning documents were not applicable, because they 'were directed at subdivisions linked to developments, as these caused pollution', whereas the proposed survey strata subdivision would not lead to further development and environmental impacts.
In relation to 'the relevance of the existence of two houses on the land', the Tribunal failed to address Mr Thio's arguments summarised at [39] of the reasons. Indeed, although Mr Thio argued that cl 4.14.2(c) of TPS 7 was not applicable, in part, because the buildings enjoyed non‑conforming use rights, the Tribunal said at [38] that it was not required to consider this matter.
Moreover, the Tribunal simply expressed bald findings that cl 4.14.2(c) of TPS 7 'is appropriate to be considered' ([40]) and the established development of two houses 'does not provide adequate reason to approve the application and risk the intent of the planning structure in the area' ([52]). The Tribunal failed to provide any reasoning for these bald findings. As the issue of whether the two houses provided an adequate and cogent reason to depart from the strict application of the minimum or average 5 hectare standard was a material question of fact or merit, the Tribunal was required to give reasons for its findings and, in this regard, to address Mr Thio's principal arguments.
Although the Tribunal gave a reason for its finding that precedent was a relevant consideration, namely 'the cumulative effects on Lake Clifton' ([49]), this reason was legally inadequate. The Tribunal's statement was cryptic to the point that I am unable to evaluate its process of reasoning. Furthermore, the Tribunal failed to address Mr Thio's argument, to which the Tribunal referred at [47], that none of the other similarly sized properties in the locality had more than one approved dwelling.
It follows that ground (c) is established.
Ground (d) - denial of procedural fairness
Section 32(1) of the SAT Act states that the Tribunal 'is bound by the rules of natural justice' except to the extent that the SAT Act or, relevantly, the PD Act, authorises a departure from those rules. Neither the SAT Act nor the PD Act authorised a departure from the Tribunal's obligation to afford procedural fairness to Mr Thio.
In Kioa v West (1985) 159 CLR 550, Mason J held at 584 that:
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn LC understood that this was the law when he spoke of the obligation to 'fairly listen to both sides' being 'a duty lying upon everyone who decides anything': Board of Education v Rice [[1911] AC 179 at 182].
It is a fundamental tenet of natural justice or procedural fairness that a party to Tribunal proceedings must be given an opportunity to consider and address an issue upon which the Tribunal relies in the determination of proceedings. This is the essence of the 'hearing rule' which, together with the 'bias rule', are the twin pillars of natural justice.
It appears that the Commission did not raise the precautionary principle in the proceedings. It also appears that the Tribunal did not raise this principle during the hearing. Rather, in the course of its decision at [50], the Tribunal referred to and relied upon this principle by reference to the Tribunal's decision in WA Developments Pty Ltd and Western Australian Planning Commission [2008] WASAT 260 which was published on 5 November 2008, well after the hearing in this case and about a week before the Tribunal made the determination which is the subject of the application before me. The Tribunal did not provide Mr Thio or the Commission with an opportunity to address the precautionary principle before it made the determination.
The Tribunal denied procedural fairness to Mr Thio by raising and relying upon the precautionary principle without having given him an opportunity to consider and respond to it. Denial of procedural fairness is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
It follows that ground (d) is established.
Ground (e) - consideration of adverse planning precedent
In Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 (Nicholls), the Tribunal adopted the following criteria stated by Lloyd J in Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101 as to the circumstances in which precedent is a relevant consideration in a planning assessment:
(1)that the proposed development or subdivision is not in itself unobjectionable; and
(2)that there is more than a mere chance or possibility that there may be later undistinguishable applications.
These criteria have been applied consistently by the Tribunal since Nicholls. They were endorsed by Justice Barker in Cornhill and Western Australian Planning Commission [2009] WASAT 9 at [57] ‑ [65].
The Tribunal in this case did not refer to Nicholls or the criteria adopted in that decision. Nevertheless, it could be concluded that the Tribunal found, in effect, that the proposed survey strata subdivision is 'not unobjectionable' in that it proposes lots less than 5 hectares, which is the nominated minimum or average area in three strategic documents referred to in the reasons.
However, it does not appear from the reasons that the Tribunal considered, or at least properly considered, the second criterion for determining whether adverse planning precedent is relevant, namely whether there is more than a mere chance or possibility that there may be later undistinguishable applications. While, on the evidence, there were a number of lots of a similar size to the site in the locality, it appears that none of those lots contained two dwellings. The circumstances of the other properties were, therefore, distinguishable from that of the site.
On the evidence before the Tribunal, adverse planning precedent could not have been a relevant matter for consideration. The Tribunal erred in law in determining that precedent was relevant and, indeed, that it warranted refusal of the proposed survey strata subdivision.
It follows that ground (e) is established.
Conclusion
The Tribunal erred in law in material respects. The errors directly affected the Tribunal's determination.
Consequently, the application for review should be allowed and the determination of the Tribunal to refuse survey strata subdivision approval should be set aside. Proceedings DR 194 of 2008 should be remitted to the Tribunal differently constituted for redetermination.
That is, in my view a preferable course than my endeavouring to make a decision on the substantive merits of the matter. The respondent has, appropriately, addressed the issues arising in the application under s 244 of the PD Act in its written submissions to me. I do not have the benefit of having heard from the witnesses at the hearing and of submissions from the parties, or at least the respondent, on the merits of the proposal fairness requires that the matter be reheard. The manner in which that rehearing may be conducted is a matter that can be dealt with by the parties and the Tribunal at a directions hearing.
Orders
I make the following orders:
1.The application for review is allowed and the determination of the Tribunal made in proceedings DR 194 of 2008 on 13 November 2008 to refuse survey strata subdivision approval of Lot 4 Newnham Road, Lake Clifton into two lots of 2 hectares and 3.85 hectares, is set aside.
2.Proceedings DR 194 of 2008 is remitted to the Tribunal differently constituted for re-determination.
3.Proceedings DR 194 of 2008 is listed for a directions hearing at 10.30 am on 22 May 2009 in order to programme the matter for final hearing.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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