Wakeman and Shire Of Toodyay
[2019] WASAT 17
•8 MARCH 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WAKEMAN and SHIRE OF TOODYAY [2019] WASAT 17
MEMBER: JUDGE D PARRY, DEPUTY PRESIDENT
HEARD: 8 MARCH 2019
DELIVERED : 8 MARCH 2019
PUBLISHED : 5 APRIL 2019
FILE NO/S: DR 29 of 2019
BETWEEN: DAVID WAKEMAN
Applicant
AND
SHIRE OF TOODYAY
Respondent
Catchwords:
Practice & procedure Summary dismissal Town planning Applicant purporting to seek merits review of Tribunal decision in planning review proceeding Whether proceeding should be dismissed as misconceived Whether Tribunal would extend time for commencement of application for review by judicial member under s 244 of the Planning and Development Act 2005 (WA) Extraordinary delay Lack of satisfactory explanation for delay No arguable question of law in relation to Tribunal decision
Legislation:
Bush Fires Act 1954 (WA), s 33
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 54
Planning and Development Act 2005 (WA), s 244, s 244(1), s 244(3), s 252(1), Pt 14
State Administrative Tribunal Act 2004 (WA), s 3(1), s 13, s 17(1), s 47
State Administrative Tribunal Rules 2004 (WA), r 10
Result:
Proceeding dismissed as misconceived
Summary of Tribunal's decision:
Mr David Wakeman purported to seek a merits review of a planning review decision made by a non-legally qualified sessional member of the Tribunal approximately four years earlier in which the Tribunal refused to grant Mr Wakeman development approval to keep two horses on his property. The proceeding was referred to a judicial member in order to determine whether the application should be dismissed as misconceived. The judicial member dismissed the proceeding as misconceived, because the Tribunal does not have jurisdiction to conduct a merits review of an earlier Tribunal decision and although the Tribunal (constituted by a judicial member) has jurisdiction to review a non-legally qualified member's decision in a planning review proceeding upon a matter involving a question of law, the judicial member would not extend time in which such an application for review could be commenced in the exercise of discretion. This was because of the extraordinary delay, the lack of a satisfactory explanation for the delay and the absence of any arguable question of law in relation to the earlier decision.
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr J Algeri (acting as agent) |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Wakeman and Shire of Toodyay [2015] WASAT 22
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 22 February 2019, Member Mr P de Villiers referred this proceeding to me:
… to consider whether or not to dismiss the application pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) on the basis that the application is misconceived if it is determined that the Tribunal lacks jurisdiction.
Background
The proceeding was commenced by Mr David Wakeman (applicant) on 5 February 2019 by the filing of an application stated on the form to be an application under cl 54 of the deemed provisions prescribed in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions). Clause 54 of the deemed provisions enables a person who prepared a local development plan to apply to the Tribunal for a review, in accordance with Pt 14 of the Planning and Development Act 2005 (WA) (PD Act), of a decision by the local government not to approve the local development plan.
It is clear from the applicant's application that he does not seek a review of any decision of a local government in relation to a local development plan. Rather, as he states in his application and as he confirmed in his submissions to me today, the applicant seeks review of or purports to seek review of a decision of Sessional Member Ms J Bell in this Tribunal in the decision of Wakeman and Shire of Toodyay [2015] WASAT 22 (earlier proceeding).
In that decision, Sessional Member Bell considered an application for review by the applicant brought under s 252(1) of the PD Act for review of the decision of the Shire of Toodyay (Shire or Council), made on 25 March 2014, to refuse an application for development approval for the keeping of two horses at the applicant's property at Lot 43 Laterite Way, Coondle (site).
The reasons for decision of the Tribunal in the earlier proceeding, after setting out a description of the site and locality, the proposal and its refusal by the Shire, and the planning framework, identified the issue for determination by the Tribunal as follows at [15]:
The issue for consideration, agreed to by the respondent and the applicant, is whether the subject land is capable of supporting the proposal to accommodate two horses, having regard to the development requirements of the Rural Residential zone contained within LPS 4 and the Guidelines.
The sessional member then considered and referred to expert evidence, the Shire's position and the applicant's position, before determining the application for review. At [26] of the Tribunal's reasons for decision in the earlier proceeding, the sessional member stated the key issue for determination again:
The principal issue for consideration by the Tribunal is whether the proposal for the keeping of two horses and a foal on the subject land is an appropriate use of the subject land, within the context of the planning framework for development in the Rural Residential zone.
During the course of the sessional member's consideration of that issue over the paragraphs that follow at [27] - [35] of the reasons for decision in the earlier proceeding, the member considered Guidelines for Recommended Stocking Rates (Guidelines), which she acknowledged at [29] 'are not a statutory requirement', but she found and determined that they 'are to be given due regard in dealing with an application to keep horses on rural residential properties'. She then found as follows:
… The Tribunal was not provided with convincing evidence that they should not be applied in this locality. In this regard, it also noted the evidence of Mr Pate that the current Guidelines for recommended stocking rates had been prepared on the basis of rainfall figures and pastoral production some 25 years ago and that lower rainfall trends since that time required the application of a more conservative and risk management approach.
The Tribunal then considered evidence of Mr Priest, an environmental consultant called by applicant, which she said at [31]:
… indicated that there was significant tree cover and some bushland areas in need of protection on that portion of the subject land proposed for additional paddock space. …
The Tribunal found at [31] that:
… the applicant's view that the land should be regarded as clear was based primarily on the fragmentation, poor quality and limited rehabilitation potential of the vegetation on the site. …
and noted that the Tribunal agreed with the contention of the Shire that the applicant's view:
… did not address the wider objectives for the Rural Residential Zone, particularly the protection and conservation of native vegetation and the visual aspect of the site. …
Having said that, the sessional member determined at [31] that:
… the [Shire's] assumption that approximately 1 hectare of the subject land had been cleared was reasonable as a basis for assessing the stocking rate.
The sessional member concluded her decision and determined to dismiss the application for review for the following reasons at paragraphs [34] - [35]:
The Tribunal, in considering this review, is unable to take into account the status of horse keeping on other properties in rural residential areas in the absence of evidence about such uses and the consistency of decisionmaking.
In conclusion, the Tribunal considered that the accommodation of two horses on the site would reasonably require use of the majority of the subject land and did not meet the limited circumstances for such use contemplated by the planning framework. The Tribunal therefore formed the view that there was not sufficient justification to support this discretionary use and that the proposal was likely to create a potential risk to the overall amenity of this rural residential area.
Application for review
The application for review now before the Tribunal was commenced 47 months after the publication of the Tribunal's decision in the earlier proceeding. In his application to the Tribunal on this occasion, the applicant states that he seeks review of the decision of Sessional Member Bell and states that the decision sought is:
I would like to appeal as I am allowed livestock on my property for the keeping of grassland (and, therefore, fire hazard) in check.
In his oral submissions to me today, the applicant expanded on his reasons for seeking or wishing to seek review of the sessional member's decision, saying, firstly, that his understanding of s 33 of the Bush Fires Act 1954 (WA) (BF Act) is that, if there is an area of one hectare or more, grass height may not exceed 100mm and that, on the basis of that provision, he should be allowed to keep at least two horses, if not four. He submits that the keeping of two or more horses would assist in keeping the grass on his property limited to the 100 millimetres under the BF Act.
The applicant also referred to the Council having allowed his next-door neighbour to have a horse on half a hectare of land, which he said is less than the Guidelines for stocking of horses, as well as three dogs, whereas Council's policies would generally limit a property to two dogs.
He also expressed a concern that there is a real risk of bush fire affecting his property and other properties if he were not allowed to keep two or more horses. Referring again to the BF Act, the applicant also said that Sessional Member Bell, when she made her decision, 'may have been mistaken about the [BF] Act'.
Statutory provisions
Section 47 of the SAT Act states as follows:
(1)This section applies if the Tribunal believes that a proceeding
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal’s powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
Section 13 of the SAT Act describes the source of the jurisdiction of the Tribunal, and, in particular, in subsection (1) states:
A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.
Section 17(1) of the SAT Act states:
If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal’s review jurisdiction.
As I have previously said, cl 54 of the deemed provisions does not confer jurisdiction on the Tribunal in this case. As I indicated to the applicant, the only potential source of jurisdiction in relation to this matter, which could enable the Tribunal, at least constituted by a judicial member, to review the determination of Sessional Member Bell in the earlier proceeding, is s 244 of the PD Act. That section provides in subsection (1):
The State Administrative 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 State Administrative Tribunal when constituted without a legally qualified member as defined in section 3(1) of the State Administrative Tribunal Act 2004.
Sessional Member Bell is not a legally qualified member as defined in s 3(1) of the SAT Act. However, as indicated in s 244(1) of the PD Act, such a proceeding may only be 'upon a matter involving a question of law'. Subsection (3) of s 244 requires that an application under that section be made within one month of the determination. That subsection provides as follows:
An application for a review of a direction, determination or order upon a matter involving a question of law may be made, in accordance with the regulations and rules made under the State Administrative Tribunal Act 2004, by a party within one month after the direction, determination or order is given to the party.
As I indicated to the applicant during the hearing today, the Tribunal has discretion under r 10 of the State Administrative Tribunal Rules2004 (WA) (SAT Rules) to extend the one month time limit for the commencement of an application for review under s 244 of the PD Act in the following terms:
(1)The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.
(2)Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time.
Shire's position
The Shire's position is that the application for review is misconceived and that, insofar as it might be regarded as an application under s 244 of the PD Act, although there is no prejudice to the Shire in an extension of time being granted under r 10 of the SAT Rules, there is no justification provided by the applicant for such a lengthy delay and there is no arguable review upon a matter involving a question of law. The Shire applies for the dismissal of the proceeding under s 47 of the SAT Act as misconceived.
Should the proceeding be dismissed as misconceived?
In my view, the proceeding is misconceived, because there is no jurisdiction under the enabling provision identified in the application and the Tribunal would not, in the exercise of discretion under r 10 of the SAT Rules, extend the period for the commencement of an application for review under s 244 of the PD Act in the circumstances of this case, for the following reasons.
There are four principal considerations to guide the exercise of discretion under r 10 of the SAT Rules. These have been identified in a number of decisions of the Tribunal. As has also been said in those decisions, the matters for consideration are not closed. There may well be, and in past cases have been identified, other relevant matters for consideration in the exercise of discretion. However, in this case, neither party referred me to any other consideration in relation to the exercise of the discretion.
In terms of the length of delay, the delay in this case, if this application were regarded as, in effect, an application under s 244 of the PD Act, is extraordinary; it is some 46 months. It is so extraordinary, in my view, in the context of a one month period for the commencement of proceedings, as to, if extension were granted, undermine the integrity of that period.
In relation to whether there is an explanation, the applicant has provided no real explanation for the delay, other than to refer to his concerns about bush fire, the BF Act and what he says has been allowed in relation to the neighbouring property. Those matters are not an explanation for the delay. There is no explanation put forward that is in any way satisfactory for such an extraordinary delay.
In relation to whether there is an arguable case for review, the applicant has not put forward any arguable legal error on the part of the Tribunal in the earlier proceeding. Although the applicant referred to the BF Act and said, as I said earlier, that Sessional Member Bell 'may have been mistaken about the [BF] Act', it is clear from the reasons for decision in the earlier proceeding that there was no issue in that case in relation to the BF Act. The issue, as I have said earlier, related to whether the subject land is capable of supporting the proposal to accommodate two horses having regard to the development requirements of the Rural Residential zone contained within the applicable local planning scheme and the Guidelines. Furthermore, as the Tribunal noted at [15] of the reasons for decision in the earlier proceeding, that issue was agreed by the Shire and the applicant.
Furthermore, and in any case, the BF Act was irrelevant to the determination of the application for review which related to an application under the PD Act. Section 33 of the BF Act, which is the section referred to by the applicant, simply enables the local government to give a notice to the owner or occupier of land to do, or refrain from doing, nominated things to prevent the outbreak of a bushfire or prevent the spread or extension of a bushfire.
There is no arguable question of law raised by the applicant in relation to the Tribunal's decision in the earlier proceeding. That being the case, there is no arguable review in the circumstances of this case, given that s 244 is limited to a review 'upon a matter involving a question of law'.
What the applicant seeks is a merits review of the Tribunal's decision in the earlier proceeding. However, there is no enabling Act that confers jurisdiction on the Tribunal to review an earlier determination of the Tribunal on the merits in the circumstances of this case.
In relation to prejudice, as Mr J Algeri, who appears as agent on behalf of the Council, properly concedes on behalf of the Shire, there would be no prejudice in an extension of time being granted.
In terms of other considerations, although not put in terms of another consideration, I note that the applicant raised as a consequence of the previous decision, or at least as an indirect consequence of the previous decision, when he continued to keep two horses, that he was prosecuted by the Shire in the Magistrates Court, received a criminal conviction and was fined $12,000. I note those unfortunate circumstances; however, they do not persuade me that the discretion should be exercised in favour of extending time.
If this application were regarded as a s 244 application, I would decline to extend time in the exercise of discretion under r 10 of the SAT Rules, given the extraordinary delay in this case, the lack of any satisfactory explanation for the delay, and that there is no arguable case for review involving a question of law in the circumstances. For those reasons, I would dismiss an extension application if one were made.
Conclusion
In all of those circumstances, this is a case in which the application for review is misconceived. There is no jurisdiction in the Tribunal to review the decision of Sessional Member Bell on the merits and I, therefore, dismiss the application under s 47 of the SAT Act.
The order of the Tribunal is that:
1.The application for review is dismissed under s 47(1)(a) of the State Administrative Tribunal Act 2004 (WA) on the basis that it is misconceived.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry5 APRIL 2019
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