VILLAGE STYLE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
[2021] WASAT 131
•28 SEPTEMBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: VILLAGE STYLE PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2021] WASAT 131
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 2 SEPTEMBER 2021
DELIVERED : 2 SEPTEMBER 2021
PUBLISHED : 28 SEPTEMBER 2021
FILE NO/S: DR 1 of 2021
BETWEEN: VILLAGE STYLE PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
OAKOVER VINEYARDS PTY LTD
Proposed Intervener
Catchwords:
Practice and procedure - Town planning - Participation by third party - Intervention - Whether third party has sufficient interest - Whether intervention is necessary to enable the Tribunal to meet its objectives - Viticulture - Land use conflict - Change in planning framework - Change in respondent
Legislation:
City of Swan Local Planning Scheme No 17
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 4(1)
State Administrative Tribunal Act 2004 (WA), s 37(3), s 38
Swan Valley Planning Act 2020 (WA), s 9, s 47, s 48
Swan Valley Planning Scheme No 1
Result:
Leave to intervene granted on conditional basis
Category: B
Representation:
Counsel:
| Applicant | : | Mr Houweling |
| Respondent | : | Mr Repper & Ms Gilchrist |
| Proposed Intervener | : | Mr McQueen & Mr McGlue |
Solicitors:
| Applicant | : | Cornerstone Legal |
| Respondent | : | State Solicitor's Office |
| Proposed Intervener | : | Lavan |
Case(s) referred to in decision(s):
Australian Conservation Foundation Inc v Commonwealth of Australia (1980) HCA 53 146 CLR 493
ING Development Australia Pty Ltd v Western Australian Planning Commission [2008] WASAT 104
Wattleup Road Development Company Pty Ltd v Western Australian Planning Commission [2014] WASAT 29
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard on 2 September 2021. An oral decision was delivered at the conclusion of the hearing. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to correct matters of grammar and infelicity of expression).
Introduction
The proposed development the subject of this proceeding is located at Lot 1 Dale Road and Lot 4 Yukich Close, Middle Swan (subject land).
The proposed development is put forward by Village Style Pty Ltd (applicant) and is described in the application for review as a proposed residential aged care facility and community purpose (proposed development).
These reasons deal with an application by Oakover Vineyards Pty Ltd (proposed intervener) to intervene in the proceeding pursuant to s 37(3) of the State Administrative Act 2004 (WA) (SAT Act).
The responsible authority and applicable planning scheme
The proposed development was lodged under the then City of Swan Local Planning Scheme No 17 (LPS 17).
The Swan Valley Planning Scheme No 1 (SVPS) commenced on 6 August 2021. The SVPS now applies to the subject land. By reason of s 48 of the Swan Valley Planning Act 2020 (WA) (SVP Act), the SVPS applies to the proposed development. LPS 17 no longer applies to the subject land: s 9, SVP Act.
It does not appear to be contentious, and indeed I think it must be the case, that the respondent for this matter is now the Western Australian Planning Commission (WAPC). That is the plain effect of s 48 of the SVP Act. That conclusion is reinforced by s 4(1) of the Planning and Development Act 2005 (WA) (PD Act) which makes the WAPC the 'responsible authority' for the SVPS. Furthermore, it is also the case that development assessment panels have no functions in the context of the SVPS: s 47 SVP Act.
Background
The subject land is zoned 'Priority Agriculture' under the SVPS. Leaving aside the question of how the proposed development should be characterised under the SVPS, the plans of the proposed development depict at least four separate buildings described as 'aged care high care', 'aged care low care', 'clubhouse' and 'men's shed community purpose'.
I stress that I am not, at this time, dealing with the question of the characterisation of that land use under the SVPS.
The proposed development was refused by the then respondent, the Joint Development Assessment Panel (JDAP), under the then Metropolitan Region Scheme (MRS) and LPS 17. However, as I have explained, the WAPC is now the respondent for the application for review.
The subject land is located across from or adjacent to land that is owned by the Yukich family and which is used for viticultural and related commercial purposes.
The proposed intervener appears for three related family companies owned by the Yukich family. As I have explained, the proposed intervener applied, pursuant to s 37(3), of the SAT Act, to intervene in the proceeding. It requests leave to be granted to intervene unconditionally or, in the alternative, subject to conditions.
In its submissions, the proposed intervener referred to the objectives of the Priority Agriculture zone, which references the need to protect priority agricultural land in the Swan Valley, including existing vineyards.
Relevant principles applying to applications to intervene
I now turn to the principles which inform the question of intervention in planning reviews. The relevant principles are well known and settled.
These principles, were set out by Judge Chaney, as he then was, in ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184 (ING) at [28].
The principles are:
a)in order to be granted leave, the proposed intervener must demonstrate, at least, an interest sufficient to gain standing based on the tests arising from the Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493 (Australian Conservation Foundation);
b)demonstrating a sufficient interest does not, of itself, justify the granting of leave to intervene;
c)a special interest group will not gain standing to intervene just because of its constitutional objects which may focus on issues relevant to the matter before the Tribunal, nor will a private citizen be granted leave to intervene merely on the basis of strong personal beliefs;
d)the interesting question need not be legal interest, although it often will be;
e)demonstrating an interest which is sufficient so as to justify joinder under s 38 of the SAT Act is not sufficient;
f)the proposed intervener will need to establish that intervention is necessary to enable the Tribunal to meet its objectives under both the SAT Act (including minimising costs and avoiding delays) and, in this instance, the PD Act. Relevant factors to consider will include:
i)the likely contribution of the intervener for the proper disposition of the issues;
ii)whether the interest to be represented and the material to be advanced will be adequately dealt with by the parties to the proceeding; and
iii)the overall impact that the grant of intervention will have on the proceeding;
g)ordinarily, an intervener will only be permitted to support or oppose a decision contended for by a party and will not be permitted to introduce new issues for consideration; and
h)intervention will, in general terms, not be permitted where the third party seeks to raise the same point that is being raised by an existing party.
In Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29 (Wattleup Road) at [11] Judge Parry recited the principles set out in ING and identified the two principal elements in the exercise of discretion under s 37(3) of the SAT Act.
The two principal elements are:
1)the proposed intervener must demonstrate an interest sufficient to meet the test of standing to seek judicial review, as set out in the Australian Conservation Foundation decision; and
2)the proposed intervener will, generally, need to demonstrate that intervention is necessary to enable the Tribunal to meet its objectives as well as the objectives of the PD Act.
The parties' submissions
Proposed intervener's submissions
In short, the respondent does not oppose intervention, the applicant does. However, I note, the applicant did not file any written submissions prior to the hearing to explain the basis of its objection. However, Mr Houweling, counsel for the applicant, made short oral submissions, which I have considered. The respondent made no submissions on the question of intervention.
The first principal test that arises from Wattleup Road is whether the proposed intervener has a sufficient interest. I am satisfied that the proposed intervener has a sufficient interest such as to meet the tests for standing set out in Australian Conservation Foundation.
That is, because the proposed intervener owns several neighbouring properties and thus will, I consider, have the potential to be affected, possibly adversely, at least at some level, by the proposed development.
Given that the proposed development involves an aspect of accommodation, the interaction or relationship of such a use with an existing vineyard operation is such as to satisfy me that the proposed intervener has a sufficient interest in the proceeding. Indeed, it would appear that the question of sufficient interest is not really in contest.
The second principal test from Wattleup Road is whether the proposed intervener's participation in the hearing is necessary in order for the Tribunal to meet its objectives. As to that question, the proposed intervener submits that only it has the detailed and complete information as to the nature of the agriculture, tourism and other commercial operations carried out on land that surrounds the proposed development.
The proposed intervener refers to issues such as harvesting and spray drift in the vineyards, including what chemicals are applied and what practices are followed, as well as noise considerations. Only the proposed intervener holds the information that will inform the Tribunal about what is described as the potential 'land use conflict issue'.
The proposed intervener stresses that, like the situation in Wattleup Road, only it has this information. It is not information that is carried or accessible by the WAPC, nor is it a matter of public record.
The proposed intervener also sets out that it is, perhaps, unrealistic for it to be made to hand over what might be regarded as commercially sensitive material so that use of that information may be made by the WAPC.
The proposed intervener further submits, and it does not appear to be in contest that, the proposed intervener's participation would not impact on the final hearing which is currently listed to commence on 23 November 2021.
The proposed intervener submits that its participation is needed for the Tribunal to make the correct and preferable decision as to the substantial merits of the application.
Applicant's submissions
As I have explained, the applicant opposes leave being granted to intervene.
The applicant submits that there are, essentially, three aspects to the land use conflict question, the issue to which the application to intervene is directed. These relate to operational issues such as harvesting and spray drift as well as noise.
The applicant submits that all of these are well-known areas of expert evidence which the respondent will be able to call. The applicant further submits that the proposed intervener's direct participation, in the form of intervention, is not necessary for the Tribunal to discharge its statutory functions.
Consideration and decision
For the following five reasons, I have determined that the application for leave to intervene should be granted, but only on a conditional basis related to the question of land use conflict.
Firstly, I agree that the situation is broadly analogous to that in Wattleup Road, with some important distinctions. The focus in Wattleup Road, related to an industrial facility of regional, perhaps even State, significance and economic consequence. With great respect, I do not consider that the operations on the land surrounding the subject land fall into that same category.
However, having said that, I agree that the proposed intervener does possess special or unique knowledge about its operations which the Tribunal may need to address to arrive at the correct and preferable decision in relation to the proposed development.
While I agree with the applicant that the matters that inform the question of land use conflict are all well-known areas of expert evidence, expert evidence always proceeds on the basis of underlying facts, and in this case the proposed intervener is uniquely placed to inform that factual background.
It is also the case that, as I shortly will come to, the proposed intervener's operations, more or less, envelop the subject land.
Secondly, and related to that first point, the planning framework as it now stands does seem to focus on, at least at some level, the need to protect agricultural uses in the Swan Valley, and to discourage uses that are deemed to be incompatible. That seems to be a real issue that the Tribunal must grapple with in this proceeding.
For that reason, I consider that the planning framework, as it stands, bolsters the argument that detailed information on the nature and operations of land uses that surround the subject land is needed.
I am also of the view that the relevant information that informs that question is possessed, almost exclusively, by the proposed intervener. Furthermore, in my view, it is not without relevance that the proposed intervener has three interfaces with the subject land.
As I stated above, the situation is such that the subject land is almost enveloped by the land owned, controlled and operated by the Yukich family. Viewed through that lens, the need to hear directly from the Yukich family on questions relating to potential land use conflict between the proposed development and its existing land uses that surround the subject land, is almost palpable.
Thirdly, the proposed intervener's participation is unlikely to result in the need for the hearing to be extended or, otherwise, adjourned. That is a further consideration that inclines me towards granting intervention.
Fourthly, the issue of potential land use conflict is already an issue between the parties. In this way, the participation of the proposed intervener is unlikely to result in new issues arising for determination. That also inclines me towards granting intervention.
Finally, in an overall sense, I am satisfied that the proposed intervener's participation is necessary to assist the Tribunal in reaching the correct and preferable decision having regard to the proposed development in the context of the applicable planning framework and the surrounding locality.
Conclusion
For the foregoing reasons, the proposed intervener is granted leave to intervene pursuant to s 37(3) of the SAT Act.
That participation is not unlimited but is conditional. The condition being that the proposed intervener's participation in the final hearing is limited to the question of land use conflict between the proposed development and surrounding land uses.
Orders
The Tribunal orders:
1.The Western Australian Planning Commission is substituted as the respondent in these proceedings.
2.The respondent's Statement of Issues, Facts and Contentions dated 12 August 2021 filed on 30 August 2021 stands as its Statement of Issues, Facts and Contentions in these proceedings.
3.The following issue is to be determined by the Tribunal as a preliminary issue:
Is the proposed development properly characterised as any of the following land uses, all of which are 'X' uses (and therefore not permitted) in the Priority Agriculture zone under the Swan Valley Planning Scheme No 1:
(a)residential aged care facility;
(b)aged or dependant persons dwelling;
(c)independent living complex;
(d)community purpose;
(e)multiple dwelling; or
(f) serviced apartment;
or is it a use that is not specifically referred to in the land use permissibility table and that cannot reasonably be determined as falling within a use class referred to in the land use permissibility table (a 'use not listed').
4.By 10 September 2021 the parties must file with the Tribunal an agreed statement of facts and an agreed bundle of documents in relation to the preliminary issue.
5.By 13 October 2021 the applicant is to file with the Tribunal and serve any evidence on which it intends to rely for the purposes of the preliminary issue.
6.By 29 October 2021 the respondent is to file with the Tribunal and serve in reply any evidence it intends to rely for the purposes of the preliminary issue.
7.By 12 November 2021 the parties must each file with the Tribunal written submissions and any decided cases on which it relies in relation to the preliminary issue and exchange written submission and a list of decided cases on which it relies.
8.The final hearing listed to commence on 23 November 2021 for a duration of 4 days is vacated.
9.The preliminary issue is to be heard on 23 November 2021 at 10am for a duration of 1 day.
10.Pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) leave to intervene in this proceeding is granted to Oakover Vineyards Pty Ltd, Swan Location II Pty Ltd and Yukich Holdings Pty Ltd in relation to the land use conflict between the proposed development and the land controlled by the intervener companies.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
28 SEPTEMBER 2021
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