VAN DER FELTZ and CITY OF VINCENT - [2017] WASAT 133

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: VAN DER FELTZ and CITY OF VINCENT [2017] WASAT 133

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 10 OCTOBER 2017

FILE NO/S: DR 221 of 2017

BETWEEN: RIC VAN DER FELTZ
SONJA VAN DER FELTZ
Applicants
AND
CITY OF VINCENT
Respondent

Catchwords:

Application to extend time Review of determination of a member who is not legally qualified Length of delay - No satisfactory explanation for delay - None of the proposed grounds are arguable - Balancing of factors

Legislation:

Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(u)(v)
Planning and Development Act 2005 (WA), s 244
State Administrative Tribunal Act 2004 (WA), s 3(1), s 27, s 27(2), s 30, s 39(1)(d), s 39(2)
State Administrative Tribunal Rules 2004 (WA), r 10, r 39A(c), r 63(2)
Town Planning and Development Act 1928 (WA), s 66

Result:

Application to extend time denied and application for review dismissed

Summary of Tribunal's decision:

The applicants applied for an order of the Tribunal to extend the period within which they were entitled to make an application under s 244 of the Planning and Development Act 2005 (WA) (PD Act) to seek a review of determinations and orders when the Tribunal was constituted without a legally qualified member.
Having considered the matter on the documents and the submissions by the parties, the Tribunal found that:
a) The length of the delay in commencing these proceedings was considerable.
b) The applicants did not provide a satisfactory explanation for the delay.
c) None of the proposed grounds of review were arguable.
d) The respondent conceded there was no prejudice to the respondent if the extension of time was granted.
In balancing the above four principal matters for consideration and in the exercise of the Tribunal's discretion under r 10 of the State Administrative Tribunal Rules 2004 (WA), the Tribunal declined to grant the applicants an extension of the period within which they could seek a review pursuant to s 244(3) of the PD Act and dismissed the proceedings.

Category: B

Representation:

Counsel:

Applicants: N/A
Respondent: N/A

Solicitors:

Applicants: N/A
Respondent: N/A

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

Blissett and Western Australian Planning Commission [2012] WASAT 54
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
O'Connor and Town of Victoria Park [2005] WASAT 161
Zampatti v Western Australian Planning Commission [2010] WASCA 149

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

By application filed on 4 July 2017, Mr Ric van der Feltz and Mrs Sonja van der Feltz (applicants) have applied for an order of the Tribunal to extend the period within which they were entitled to make an application under s 244 of the Planning and Development Act 2005 (WA) (PD Act).
An extension of time is opposed by the City of Vincent (respondent).
If an extension of time is granted, the applicants are seeking a review of determinations and orders in proceedings DR 349 of 2016 when the Tribunal was constituted without a legally qualified member.
The determinations and orders of the Tribunal regarding which the applicants seek review are as follows:
a)orders or determinations made at a directions hearing on 7 February 2017 (directions hearing) by Member Patric de Villiers; and
b)the substantive determination of the applicants' review application by Member Patric de Villiers on 2 March 2017 (substantive determination).
Member Patric de Villiers is not a 'legally qualified member' as that term is defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The parties have both filed written submissions regarding whether an extension of time should be granted to the applicants.

Proceedings DR 349 of 2016

Proceedings DR 349 of 2016 involved an application for development approval for a carport in the front setback area of the existing dwelling and a crossover at 131 Coogee Street, Mount Hawthorn.
The applicants have 22 grounds of review. Ground 1 relates to the directions hearing. Ground 17 relates to the directions hearing and the substantive determination. The remaining grounds relate to the substantive determination by the Tribunal.

Directions hearing

The transcript of the directions hearing reveals that the directions hearing was convened on 7 February 2017, one week prior to the scheduled hearing on 14 February 2017, as the applicants were raising a number of objections which can be summarised as follows:
1)An objection to Ms Butterworth, acting not as an expert town planner but as an advocate, and being paid for representing the respondent in circumstances where, the applicants submitted, it was not permitted under s 39(2) of the SAT Act;
2)An objection to the expert report of arborist, Mr Brad Bowden provided on 3 February 2017 which was later than the programming orders allowed; and
3)Objections to certain parts of the expert town planning report of Mr Tom Hockley.
The Tribunal determined that the third objection or issue was a matter for the substantive hearing. In relation to the second objection regarding the late provision of Mr Bowden's report, the Tribunal took the view that, whilst late, this report was not a surprise as it had been referred to in the planner's report. The Tribunal offered the applicants a short delay of the listing of the substantive hearing of between one to four weeks so that the applicants may respond to that evidence should they wish to do so. The applicants chose to press on with the hearing on 14 February 2017 and not avail themselves of the opportunity to have further time to respond to the evidence of Mr Bowden: see T:14; 07.02.17.
In relation to the first objection, the Tribunal informed the applicants that Member de Villiers was not a legally qualified member and, as the order the applicants were seeking involved a legal interpretation of the effect of s 39(2) of the SAT Act regarding payment of a representative, he was not prepared to provide such a determination. The Tribunal offered the applicants the opportunity to adjourn the hearing and to raise this legal issue as a preliminary issue before a legally qualified member. Mr van der Feltz stated:
No, no, thank you. I I want the hearing on the 14th, I can't wait any longer. And I don't want to have any preliminary issues. I hope you can make decisions on my my objections today. And if you cannot, then I will I will I will do we will just start with hearing.
(T:12; 07.02.17)
The Tribunal then determined that, even though it was not prepared to make a legal ruling on the meaning and effect of s 39(2) of the SAT Act, that it took the view that Ms Butterworth satisfied the criteria in s 39(1)(d) of the SAT Act. The Tribunal made the following orders:
1.The Tribunal finds that Ms Amanda Butterworth falls within the provision of s 39(1)(d) of the State Administrative Tribunal Act 2004 (WA) and is authorised to represent the respondent in this proceeding.
2.Pursuant to s 32(3) of the State Administrative Tribunal Act 2004 (WA) the Tribunal is prepared to accept into evidence the report forming an attachment to the witness statement of Mr Brad Bowden filed on 3 February 2017.

Substantive determination

In its oral reasons provided at the substantive determination, after providing an introduction, detailing the proposed development, the applicable planning framework, the evidence, and making findings in relation to the issues which arose in the proceedings, the Tribunal concluded as follows:
Conclusion; any decision on whether to exercise discretion in the matter under review involves weighing the impact of the proposed carport against all the relevant provisions of the residential design codes. Due regard for the relevant provisions of clause 67 of the regulations and consideration of applicable council policy. In this regard, the tribunal finds that the proposed carport would not reduce the impact of access points on the streetscape or minimise crossovers to the primary street.
Importantly, this is the context that access is both available from the right of way and has already been taken. In addition, the tribunal finds that the carport would intrude on sightlines along the street and partially obstruct views of the dwelling from the street and with the removal of the tired awning over the window of the front room involves a removal of a design element which makes some contribution to the streetscape. While the tribunal finds that the variations of 600 millimetres to the width of the crossover is not, in principle, unacceptable, it finds that the construction of the crossover is likely, in the longer term, to have an adverse impact [on] the health of the existing street tree.
In this context, in the exercise of discretion to approve the proposed development would have the result of both adversely impacting on a reasonably coherent streetscape and would undermine the potential for the respondent to effectively implement the properly constituted planning framework. In conclusion, on balance, and in light of all the evidence before it, the tribunal does not consider that the mobility issue raised by the applicant be elevated to a determinate factor in this review, and for the reasons set out above, the carport does not warrant approval.
(T:1516; 02.03.17)
The Tribunal then made the following final orders in proceedings DR 349 of 2016:
1.The application for review is dismissed and the decision of the respondent to refuse the application is affirmed.
2.Under the provisions of s 74 and s 79 of the State Administrative Tribunal Act 2004 [(WA)] the parties are to be given a transcript of the oral reasons delivered on 2 March 2017.
Prior to the commencement of the oral reasons, the Tribunal noted that the applicants were now seeking for Member Patric de Villiers to transfer the proceedings to a legally qualified member and that, once the reasons and decision were provided, that the applicants had an avenue for review on questions of law. After detailing the final orders, the Tribunal then went on to inform the applicants in detail in relation to their review option as follows:
Now, Mr Van Der Feltz, you clearly raised the issue of concern of a potential legal error … [T]he State Administrative Tribunal Act doesn't provide that power, but that power for a potential review on a legal matter is contained in the Planning and Development Act of 2005 at clause 244. Basically, that states that in a determination by a single member who is not legally qualified you can make an appeal. The provisions for making that appeal are set out in subclause (3), and there are two important issues there.
The first one is that the appeal needs to be made within a month of the decision. My understanding is the usual time for turnaround on the transcript should be 10 days. So you will have the transcript for some weeks before the opportunity for seeking a review is closed off. And secondly, obviously, as set out in subclause (3), in making that application you need to establish that, in your view, that there is a question of law on which the determination is based which, in your view, was incorrect[.]
(T:1617; 02.03.17)

Legal principles

Section 244(1) of the PD Act provides that the Tribunal, constituted by a judicial member may, of its own motion or upon an application made under subsection (3), review a direction, determination or order 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 SAT Act.
Pursuant to s 244(3) and 244(5)(b) of the PD Act an application for a review may be made, in accordance with the regulations and rules made under the SAT Act, by a party within one month after the direction, determination or order is given to the party.
Rule 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) provides that the Tribunal may extend any time fixed under the SAT Act, an enabling Act or these rules for the commencement of a proceeding.
In O'Connor and Town of Victoria Park [2005] WASAT 161 at [39][40] President Barker, as he then was, held that the four factors identified by Kennedy J in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 are the principal matters for consideration by the Tribunal in the exercise of its discretion whether to extend the period within which an application for review may be made in the Tribunal under s 66 of the Town Planning and Development Act 1928 (WA) (which was equivalent to s 244 of the PD Act). Those principal four matters are:
a)the length of the delay;
b)the reasons for the delay;
c)whether there is an arguable case; and
d)the extent of any prejudice to the respondent.
As the respondent is not raising any issues of prejudice, absent the parties raising any other matters for consideration, there are only three principal matters to be considered by the Tribunal: length of the delay, reasons for the delay and whether there is an arguable case.
Relevant to the Tribunal's consideration as to whether there is an arguable case, the Tribunal must consider the extent of the right of review found in s 244 of the PD Act in the context of the grounds of review submitted by the applicants in these proceedings.
In Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 (Zampatti) per Pullin JA (Buss JA agreeing), the Court of Appeal, following consideration of a number of authorities, held as follows concerning the right of review under s 244 of the PD Act:
a)The word 'review' is a word of wide meaning and its meaning depends on the context in which it occurs. The hearing de novo 'review' as provided under s 27 of the SAT Act is not the same 'review' provided for under s 244 of the PD Act;
b)A review under s 244 of the PD Act is only permitted if the matter involves a question of law, however, it is not necessary to show an error of law. The question of law must have been in issue between the parties, as opposed to only the law having been identified and findings made on the facts;
c)A matter will involve a question of law if the Tribunal must, expressly or impliedly, resolve that question of law in reaching its decision;
d)If the issues involved in the case under review were only issues of fact, then there will be no question of law involved and there will be no right of review;
e)It is a prerequisite of jurisdiction that the question of law identified must be really, and not colourably, involved; and
f)If it can be shown that there has been a matter involving a question of law, then the whole decision and not merely the question of law is open to review.
(Zampatti at [26]-[28])
In considering the decision of the Court of Appeal in Zampatti, the Tribunal held in Blissett and Western Australian Planning Commission [2012] WASAT 54 at [14]-[15] that:
As the Court of Appeal determined in Zampatti v Western Australian Planning Commission [2010] WASCA 149; (2010) 176 LGERA 150 at [26] [27] (Pullin JA) and [106] [109] (Kenneth Martin J), the use of the phrase 'matter involving a question of law' in s 244(1) of the PD Act confers a broader statutory right of review than an appeal which is limited to a 'question of law'. Thus, their Honours held, if there is a matter involving a question of law, then the whole of the primary decision not merely the question of law is open to review. However, unlike other applications for review made to the Tribunal, an application for review by a judicial member under s 244 of the PD Act is not a review by way of a fresh hearing (hearing de novo) or full merits review of the primary decision. Rather, it is a review of a direction, determination or order by way of rehearing upon a matter involving a question of law.
The terms of s 59 of the SAT Act do not expand or affect the scope of the jurisdiction under s 244 of the PD Act, as the review by a judicial member of a direction, determination or order of the Tribunal must be 'upon a matter involving a question of law', whereas s 59 of the SAT Act applies when a question of law arises in a proceeding for decision by the Tribunal. Section 244 of the PD Act does not confer jurisdiction upon the Tribunal constituted by a judicial member to entertain a challenge to a finding of fact made by the Tribunal in an earlier determination.

Length of the delay

Section 244 of the PD Act provides that a review may be made within one month of the direction, determination or order being given to a party. The length of the delay in these proceedings beyond the permitted one month timeframe is some 16 weeks from the directions hearing on 7 February 2017 and some 12 weeks from the substantive determination on 2 March 2017.
I find that the length of the delay in commencing these proceedings is considerable and is a factor that, whilst not determinative, weighs against the grant of an extension of time.

Reasons for the delay

By way of explanation for the delay in applying for a review and instead choosing to lodge a fresh application for development approval with the respondent, Mr van der Feltz stated in the initial application on 4 July 2017 seeking an extension that:
I had every intention to appeal in time but considering the input I received and the support from COV Officers I presumed that it would be better and more efficient to apply to the City under the new Policy.
The City did not bring up a possible abuse of process at the hearing or otherwise but the Honourable Senior Member Spillane brought this to our attention at the Directions Hearing on 23 June 2017 in DR 194/2017. At the Directions Hearing on 30 June 2017 we resolved this by lodging an out of time Appeal on the original Application DR 349/16.
The time between the decision on 2 March 2017 and now is less than 4 months, making it less than 3 months out of time.
The delay was not at all intentional but merely the result of a bona fide mistake (by both parties).
In the applicants' submissions filed on 15 August 2017, the applicants stated further that:
We made no informed choice but an honest mistake … The City's protracted processing of our second application is a main cause for the required extension of time.
The applicants' explanation for the delay only refers to the pursuit of another avenue of seeking approval in relation to the substantive determination and no explanation is provided concerning the delay in seeking a review of the orders arising out of the directions hearing.
At the substantive determination on 2 March 2017, the Tribunal informed the applicants as to their right for a review and the one month time limit for making that application under s 244 of the PD Act.
I do not accept the applicants' submissions that there was simply a mistake by the applicants in not making an application under s 244 of the PD Act, and instead filing a second application for development approval with the respondent. I find that this was a deliberate course of action or strategy taken by the applicants as they were of the view that there was a policy change that warranted approval of a second application by the respondent. I find that the applicants intentionally chose not to seek a review at that time and only sought such a review when it became apparent, from their perspective, that a review may have been a better strategy.
Therefore, I find that the applicants have not provided a satisfactory explanation for the delay and that this finding weighs against the grant of an extension of time.

Whether the grounds of review disclose an arguable case

The applicants' grounds of review as attached to the application filed with the Tribunal on 4 July 2017 are as follows:
Grounds:
1.Allowing Mrs. Butterworth of Allerding and Associates to represent the City. [Decision at Directions Hearing 7/2/2017 p.1-9, 12, 20-21]
2.The Member and the Respondent's Representative Mrs. Butterworth and Witness Tom Hockley both of Allerding and Associates stated that my mobility issues cannot be taken into consideration under the new rules Policy No. 7.1.1 Built Form.
3.Not properly considering 'access by people with disability'.
4.Not considering the consequences from the refusal to allow the carport on the northern side.
5.Not finding that it is beyond reason that the possible wellbeing of the termite invested tree is more important than my actual wellbeing, the actual well-being of our house and the actual wellbeing of the streetscape.
6.Whether the City can refuse approval based on the perceived wellbeing of the verge tree.
7.Not considering that Parks Services can only advise on the future size of the tree and advisability of it being retained not demand a 1 metre clearance.
8.A/NZ Standards recommends a minimum 3 metre width of the road boundary (entry width) but there is no requirement for it to be paved or fully paved.
9.That the carport and crossover comply with SPC 8/SADC 8.
10.Definition of sight lines along the street. [City's Policy No. 7.1.1 Built Form section P 5.7.1.] and the interpretation of the concept streetscape.
11.Not considering the commitment and conclusions from the City.
12.Not finding that the Respondent / Decision Maker failed to comply with SAT Act 2004 s 30.
13.The while this was a hearing 'do novo' the previous planning rules should be considered since the delays in resolving this matter were not of the Applicant's doing but entirely caused by the Respondent.
14.Offices of the City of Vincent stated and confirmed that should they support the internal parking space the crossover would certainly be approved.
15.The City could not withdraw its approval for the crossover.
16.Not preventing the witnesses Brad Bowden and Tom Hockley from acting as an advocate for the Respondent.
17.Allowing the Respondent's witnesses to attend and be heard at the hearing and given more weight despite previous agreement between the parties that the witnesses would not be required to attend.
18.Considering access issues and suggesting modifications to our property while disregarding my need to park undercover/off street and have access to my car which is the essence of the application.
19.Agreeing with witness T. Hockley that under the new rules the carport on the block to the north would not be approvable.
20.Introducing items not mentioned by the Respondent.
21.Not considering that the Arboricultural report is speculative, does not answer all questions asked and is biased[.]
22.Other grounds the Judicial Member adds.

Grounds 1 and 17 relate to matters determined at the directions hearing which affected the conduct of the hearing on 14 February 2017. There cannot be a fresh hearing as a consequence of a review under s 244 of the PD Act. Any review could, in practical terms, only relate to the substantive hearing that took place not the earlier directions hearing. The applicants were offered the opportunity to have their legal dispute concerning s 39 of the SAT Act determined as a preliminary issue by a legally qualified member. The applicants refused this opportunity as they wanted to continue with the scheduled hearing on 14 February 2017.
In any event, ground 1 concerns the determination made by the Tribunal at the directions hearing that Ms Butterworth was a person having particular knowledge and experience relevant to the matter and therefore able to represent the respondent under s 39(1)(d) of the SAT Act. This is a determination involving a question of law, however ground 1 discloses no arguable case that Ms Butterworth was not able to represent the respondent under s 39(1)(d) of the SAT Act, or indeed also pursuant to r 63(2) of the SAT Rules.
In so far as Ground 2 refers to submissions made by the respondent or opinions of an expert witness that does not constitute a direction, determination or order of the Tribunal and is, therefore, not amenable to review under s 244 of the PD Act. There is no arguable case that the Tribunal failed to have due regard to mobility issues under Built Form Policy No. 7.1.1 as that issue does not arise for consideration under that policy. In any event, the Tribunal did have regard to mobility issues in the substantive determination. Consequently, ground 2 does not disclose an arguable case.
Ground 3 appears to relate to the requirement found in cl 67(u)(v) of the deemed provisions of local planning schemes found in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) to have due regard to the availability and adequacy of the development of access by people with a disability. This issue was expressly identified and considered by the Tribunal at the substantive hearing. The applicants cannot challenge findings of fact in a review under s 244 of the PD Act. Consequently, ground 3 does not disclose an arguable case.
Ground 4 relates to an allegation that the Tribunal did not consider the consequences following a refusal to approve the carport. Consequences which may flow from a refusal of a development application is not a matter that involves a question of law that the Tribunal, expressly or impliedly, must resolve in reaching its decision. Consequently, ground 4 does not disclose an arguable case.
Ground 5 relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Ground 5 does not involve a question of law. Consequently, ground 5 does not disclose an arguable case.
Ground 6 relates to whether the respondent is able to reach a determination based on certain information. Ground 6 does not involve a direction, determination or order of the Tribunal and is, therefore, not amenable to review under s 244 of the PD Act. In the applicants' written submissions dated 15 August 2017, the applicants effectively amend the allegation in ground 6 to now raise whether the Tribunal can refuse the application based on 'the perceived wellbeing of the verge tree'. Ground 6, as now stated by the applicants, relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination which the Tribunal did in relation to the impact on the verge tree. The applicants cannot challenge that finding of fact upon a review under s 244 of the PD Act. Ground 6 does not involve a question of law. Consequently, ground 6 does not disclose an arguable case.
Grounds 7 and 8 both relate to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Grounds 7 and 8 do not involve questions of law. Consequently, neither grounds 7 nor 8 disclose an arguable case.
Ground 9 relates to an aspect of the respondent's Residential Design Elements Policy which was revoked by the respondent on 21 January 2017. As the policy had been revoked, in following the requirement in s 27(2) of the SAT Act to produce the correct and preferable decision at the time of the review, the Tribunal refused to consider that policy in determining the proceedings. This is a determination involving a question of law. However, ground 9 discloses no arguable case as this is the correct and wellestablished approach in review proceedings.
Ground 10 relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Ground 10 does not involve a question of law. Consequently, ground 10 does not disclose an arguable case.
Ground 11 relates to two allegations. Firstly, that the Tribunal failed to consider a statement in a report to the Council of the respondent on 18 October 2017 and secondly, that the respondent raised issues at hearing that were additional to those identified by the respondent in refusing the application. In relation to the first allegation, this is not a matter that involves a question of law that the Tribunal, expressly or impliedly, must resolve in reaching its decision. In relation to the second allegation, in the context of a de novo hearing and the nature of review proceedings under s 27 of the SAT Act, the respondent is not bound by the reasons for refusal in any subsequent review. Consequently, ground 11 does not disclose an arguable case.
Ground 12 relates to s 30 of the SAT Act which imposes an obligation on the respondent to use its best endeavours to assist the Tribunal to make its decision on review. Ground 12 does not constitute a direction, determination or order of the Tribunal and is, therefore, not amenable to review under s 244 of the PD Act. Consequently, ground 12 does not disclose an arguable case.
Ground 13 raises the same issue considered in ground 9. Consequently, ground 13 does not disclose an arguable case.
Ground 14 relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Ground 14 does not involve a question of law. Consequently, ground 14 does not disclose an arguable case.
The facts which relate to ground 15 were noted by the Tribunal in the substantive determination as part of the background to the proceedings. The Tribunal was not required, nor did it make any determination in relation to that matter. Ground 15 does not involve a question of law. Consequently, ground 15 does not disclose an arguable case.
Ground 16 relates to r 39A(c) of the SAT Rules which imposes a duty on an expert witness not to advocate for the party that has engaged them. Ground 16 also relates to the weight to be attached to particular expert evidence. Ground 16 does not involve a direction, determination or order of the Tribunal and is, therefore, not amenable to review under s 244 of the PD Act. Consequently, ground 16 does not disclose an arguable case.
Ground 17 relates to the directions hearing exchange between the applicants and the Tribunal concerning a misunderstanding on the part of the applicants that they had agreed for the matter to be determined on the documents and/or that witnesses were not required to attend a hearing to be crossexamined: see T:1517; 07.02.17. Ground 17 also relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Ground 17 does not involve a question of law. Consequently, ground 17 does not disclose an arguable case.
Ground 18 relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Ground 18 does not involve a question of law. Consequently, ground 18 does not disclose an arguable case.
Ground 19 relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Further, ground 19 does not involve a direction, determination or order of the Tribunal and is, therefore, not amenable to review under s 244 of the PD Act. Ground 19 does not involve a question of law. Consequently, ground 19 does not disclose an arguable case.
Ground 20 relates to an allegation that the Tribunal 'introduced items not mentioned by the Respondent'. Pursuant to s 27 of the SAT Act which prescribes the nature of review proceedings in the Tribunal, in a hearing de novo the Tribunal determines the proceedings afresh and the purpose of the review is to produce the correct and preferable decision at the time of the decision upon review. Implicit to the nature of the review proceedings and the role of the Tribunal standing in the shoes of the original decisionmaker is that the Tribunal is not confined to only the issues raised by the parties. The Tribunal may consider relevant issues which emerge from the evidence adduced at hearing and the applicable planning framework. Ground 20 does not involve a direction, determination or order of the Tribunal and is, therefore, not amenable to review under s 244 of the PD Act. Ground 20 does not involve a question of law. Consequently, ground 20 does not disclose an arguable case.
Ground 21 relates to the weighing up of evidence and reaching factual findings by the Tribunal in the substantive determination. Ground 21 does not involve a question of law. Consequently, ground 21 does not disclose an arguable case.
Ground 22 does not identify any direction, determination or order of the Tribunal and invites the Tribunal to review the proceedings generally and identify a ground of review. This invitation is issued in circumstances where the applicants have 21 other grounds of review, none of which disclose an arguable case. Ground 22 is not a ground that is amenable to review under s 244 of the PD Act. Consequently, ground 22 does not disclose an arguable case.

Conclusion

In relation to the application to extend time, I have found that:
a)The length of the delay in commencing these proceedings is considerable.
b)The applicants have not provided a satisfactory explanation for the delay.
c)None of the proposed grounds of review are arguable.
d)The respondent concedes there is no prejudice to the respondent if the extension of time is granted.
Accordingly, in balancing those four principal matters for consideration and in the exercise of my discretion under r 10 of the SAT Rules, I decline to grant the applicants an extension of the period within which they could seek a review pursuant to s 244(3) of the PD Act.

Orders

Therefore, I order as follows:
1.The application to extend time under r 10 of the State Administrative Tribunal Rules 2004 (WA) is denied and proceedings DR 221 of 2017 are dismissed.

I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT