WARDEN and TOWN OF MOSMAN PARK - [2019] WASAT 33

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   WARDEN and TOWN OF MOSMAN PARK [2019] WASAT 33
MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT
HEARD:   5 APRIL 2019
DELIVERED          :   5 APRIL 2019
PUBLISHED           :   30 MAY 2019
FILE NO/S:   DR 11 of 2019
BETWEEN:   MARGOT ALLISON WARDEN
Applicant
AND
TOWN OF MOSMAN PARK
Respondent
AND
CATE AND MARK HOHNEN
Proposed Interveners

Catchwords:

Practice & procedure - Planning review proceeding - Third party participation - Leave to intervene - Sole issue in proceeding is whether proposed development should be refused because of impact of building height on views from proposed interveners' property - Proposed interveners retained visual impact expert witness and could call expert witness to give evidence at final hearing - Applicant retained visual impact expert witness to give evidence at final hearing - Respondent sought to retain visual impact expert witness, but could not do so in sufficient time for final hearing, because of limited number of experts in visual impact assessment in Western Australia - Application by applicant for adjournment of final hearing in order to enable respondent to retain visual impact expert witness - Whether leave to intervene should be granted

Legislation:

Planning and Development Act 2005 (WA), s 3, s 252(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 37(3)

Result:

Adjourned to further directions hearing to enable respondent to make enquiries as to whether it will be able to call an expert witness in relation to visual impact assessment at an adjourned final hearing and, if not, then to grant leave to Mr and Mrs Hohnen to intervene so as to call Mr Kaeshagen of Ecoscape to give evidence at the final hearing

Summary of Tribunal's decision:

Mr and Mrs Hohnen sought leave to intervene in a planning review proceeding concerning the refusal of a development application for alterations and additions to their neighbour's property. The sole issue in the proceeding is whether the proposed development should be refused because of the impact of building height on views from the proposed interveners' property. The proposed interveners retained an expert in visual impact assessment and proposed to call that person as an expert witness if they were granted leave to intervene. The applicant had also retained an expert witness in relation to visual impact assessment to give evidence. Although the Town of Mosman Park sought to retain an expert witness to give evidence in relation to visual impact assessment, it had been unable to do so in time for the listed final hearing date, because of the limited number of experts in visual impact assessment in Western Australia and because the proposed interveners had retained one of that limited number. The applicant applied for an adjournment of the final hearing date in order to enable the respondent to call an expert witness in relation to visual impact assessment.
The proposed interveners submitted that they should be granted leave to intervene in the proceeding, because they are the only ones (other than the applicant) in a position to call expert evidence in relation to visual impact assessment at the final hearing, and because their knowledge of the affected property is superior to the parties and only they have full and unrestricted access to that property.
The Tribunal determined that, although the proposed interveners have a sufficient interest in the matter, it is not necessary to allow them to intervene in order to present their position or give evidence, or to ensure that there is access to their property. The Town indicated that it would call the proposed interveners as witnesses in its case and there was no basis to find that they would not allow access to their property for the preparation of evidence or during the hearing.
However, the Tribunal also determined that, if the currently listed final hearing date is to be maintained, then intervention limited to calling the expert witness in relation to visual impact assessment is necessary in order to achieve the Tribunal's objectives and the objectives of the enabling Act. That is because otherwise there would be no contradictor in terms of expert evidence in relation to visual impact assessment.
The Tribunal adjourned the matter to a further directions hearing in order to enable the Town to make enquiries as to whether, if the final hearing date were adjourned, it would be in a position to present expert evidence in relation to visual impact, and, if not, then to grant leave to the proposed interveners to intervene to the extent necessary to call the expert witness who they had retained.

Category: B

Representation:

Counsel:

Applicant	:	Mr J Skinner
Respondent	:	Mr CA Slarke
Proposed Interveners	:	Mr PJ McQueen

Solicitors:

Applicant	:	LSV Borrello Lawyers
Respondent	:	McLeods
Proposed Interveners	:	Lavan Legal

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

Australian Conservation Foundation v Commonwealth of Australia [1980] HCA 53; (1980) 146 CLR 493
Dunbar and City of Stirling [2006] WASAT 331; (2006) 47 SR (WA) 50
ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184
The Commissioners of the Presbyterian Church of Western Australia and Shire of Peppermint Grove [2007] WASAT 306
Walsh and Shire of Peppermint Grove [2009] WASAT 46; (2009) 61 SR (WA) 335
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Cate and Mark Hohnen, who reside at No 6 Saunders Street, Mosman Park, seek leave to intervene, pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), in a planning review proceeding commenced by their adjacent neighbour, Margot Warden (applicant), who is the owner of No 1 The Coombe, Mosman Park (site).

Proposed development

In this proceeding, Ms Warden seeks review, under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of the decision of the Town of Mosman Park (Town or Council) to refuse Ms Warden's application for development approval in relation to the site. The development application, in summary, seeks approval to extend the existing basement floor, extend the existing ground floor outdoor living area, increase the size of the entrance area and stairwell, make internal changes to the basement and ground floor levels, and significantly, in terms of the application for intervention and in terms of the issue in the proceeding, add a third story incorporating a new master bedroom, living area, and two balconies.
The development application was refused by the Town for the following sole reason:
The additional building height will have a negative impact on the amenity of a neighbouring property as it will result in loss of views of significance from the top level of 6 Saunders Street, Mosman Park, and does not meet the overall objectives of the Town's Local Planning Policy 14 - Building Height and Natural Ground Level.
Similarly, in the statement of issues, facts, and contentions dated 3 April 2019, filed by the Town in this proceeding, the sole issue raised in opposition to the granting of development approval is:
Should the development be refused because of the impact of its building height on views enjoyed by 6 Saunders Street?

Application for leave to intervene

Mr and Mrs Hohnen contend that they have a sufficient interest to intervene in this matter, being directly adjacent residents, particularly given that the sole issue for determination in the review relates to the impact of the proposed development on views of significance from their property. They submit that, if granted leave to intervene, they would 'materially contribute to the determination of the application for review and would assist the Tribunal in making the correct and preferable decision'.
In particular, they submit that they are the only parties 'in a position to furnish the Tribunal with full information and evidence as to the affected property and the loss of views'. They submit that they are the only parties 'in a position to provide the Tribunal and the current parties (as of right) with full and unrestricted access to the affected property' and, as the landowners of the affected property, their knowledge of that property is 'superior to that of the current parties to the proceeding'.
In their written submissions, Mr and Mrs Hohnen say that:
… in anticipation of this application for leave to intervene being made, [they] have procured a visual impact assessment from an independent consultant (being Ecoscape), which means that [they] would be in a position to provide the Tribunal with useful and necessary expert evidence in relation to the issue for determination.
In the oral submissions made this morning by Mr Paul McQueen on behalf of Mr and Mrs Hohnen, Mr McQueen stressed that the circumstances of this case are 'unusual, if not unique', in two important respects. Firstly, Mr McQueen submits that the situation is unusual, if not unique, because the development application was refused for the sole reason of the impact of the development on his clients' property and that remains the sole issue raised in opposition to the application in this review proceeding. The second unusual, if not unique, matter referred to by Mr McQueen is that his clients are the only persons who could currently present contrary evidence to evidence to be presented by Ms Warden in relation to visual impact assessment.
In particular, Mr and Mrs Hohnen have retained Mr Kaeshagen of Ecoscape to prepare a visual impact assessment. Mr Kaeshagen is in the position to provide a witness statement by the current date of filing for witness statements of 18 April 2019.
Mr McQueen also relies on two decisions of the Tribunal in support of the application for intervention, Walsh and Shire of Peppermint Grove [2009] WASAT 46; (2009) 61 SR (WA) 335 at [36] and [37], and Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29, in which a third party, Alcoa of Australia Limited, was granted to leave to intervene in a planning review proceeding.

Parties' submissions in relation to application for leave to intervene

The application for intervention is opposed by Ms Warden. Mr Julius Skinner, who represents Ms Warden, submits in opposition to the application for intervention that Mr and Mrs Hohnen are not in any unique, or even unusual, position. They are simply objectors to a development; and although the sole reason for refusal and the sole issue in the proceeding relates to the impact on their views of significance, that is not an unusual circumstance, and is not a circumstance that would warrant the exercise of discretion in favour of granting leave to intervene.
Mr Skinner also submits that it is not necessary for the proposed interveners to intervene in order to give evidence, given that the Town has indicated that it would call one or both of the proposed interveners as witnesses in its case – its case being essentially in support of their position.
Finally, Mr Skinner submits that, if it is necessary to enable the Council to be able to obtain evidence in relation to visual impact assessment, then the applicant seeks an adjournment of the final hearing date, currently set for 2 May 2019. That date was set by the Tribunal at the first directions hearing on 8 February 2019 on the application of Ms Warden, having indicated that there was little prospect of resolution through mediation and seeking the earliest available hearing after programming the matter, including enabling a reconsideration by the Council at its meeting on 26 March 2019. Ms Warden therefore seeks an adjournment, in effect, and as Mr Skinner says, in highly unusual circumstances, to enable the other party, the Council, to be able to obtain evidence contrary to Ms Warden's evidence on visual impact assessment.
The Town supports the application for leave to intervene in what Mr Craig Slarke, representing the Town, described as a situation which is 'at least unusual, if not unique'.
Mr Slarke submits that the situation is unusual, if not unique, because the Town has made efforts to obtain a visual impact assessment by a suitably qualified expert, but given the limited number of such experts in Western Australia, and given that the firm Ecoscape, and in particular, its officer, Mr Kaesehagen, has been retained by the proposed interveners, the Town was left with only one other possibility, a Mr Mitchell. Mr Mitchell was on long service leave for some considerable period and has only recently returned. As a result of his leave and the limited time between now and the final hearing, currently set for 2 May 2019, Mr Mitchell simply could not present or prepare a witness statement. Mr Slarke indicated that the Town intended to call visual impact assessment evidence and made efforts to that effect. The fact that it has not been able to achieve that between the time of the listing of the matter for final hearing on 8 February 2019 and today was due to the limited availability of such experts, the engagement of Mr Kaesehagen by Mr and Mrs Hohnen, and Mr Mitchell's absence and only recent return.
In response to Mr Skinner's observation that the Town could simply call Mr Kaesehagen as its own witness, given that he now has familiarity with the matter and would be in a position to present or provide a witness statement for Mr and Mrs Hohnen within the current listed programming orders, Mr Slarke expressed some concern about that prospect on behalf of the Town, given that there may well be a perception that Mr Kaesehagen, having been retained by Mr and Mrs Hohnen, has some obligation to them. As Mr Slarke said, it may be a situation, at least, as a matter of perception, of a 'servant having two masters'. For that reason, the Council would be 'cautious about our capacity to call Mr Kaesehagen'.
Mr Slarke also said that he is not in a position to indicate to the Tribunal today whether Mr Mitchell may be available if, as Mr Skinner submits should happen, the hearing date is adjourned. He's simply not in a position to know today whether Mr Mitchell will be available to give evidence and how long it will take him to prepare a witness statement. All Mr Slarke could say is that it is highly unlikely that he could produce a witness statement within the currently listed programming, given the currently set programming timetable.

Legal framework and principles

Section 37(3) of the SAT Act states as follows:
The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit.

The applicable principles in relation to intervention are not in dispute and were helpfully summarised by Deputy President 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 at [28]. I incorporate and respectfully adopt the principles set out by his Honour in that paragraph (citations omitted):
In my view, the authorities and statutory provisions referred to above lead to the conclusion that in relation to applications under the PD Act:
(i)to be granted leave to intervene, a person must demonstrate at least an interest sufficient to meet the test for standing identified in Australian Conservation Foundation;
(ii)merely demonstrating a sufficient interest does not by itself enliven a right to intervene;
(iii)an incorporated or unincorporated body will not gain standing to intervene merely because it has constitutional objects directed to promoting outcomes relevant to the matter under a review. Similarly private citizens will not gain standing to intervene merely because they hold strong beliefs or emotions concerning the matter under review;
(iv)although the third party's interest may not necessarily be a legal interest (although it commonly will involve a legal interest), merely demonstrating any of the other matters referred to in s 38 of the SAT Act will not usually be sufficient to secure leave to intervene under s 37;
(v)the third party will generally need to demonstrate that its intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act (including minimising cost and avoiding delay, and the PD Act. Factors which the Tribunal will take into account when considering an application for leave to intervene will include:
•the contribution which the applicant for [intervention] is likely to be able to make to the proper disposition of the issues before the Tribunal;
•whether the interest which the applicant for intervention represents and the material to be advanced by that person will be adequately dealt with by the parties already before the Tribunal[;]
•the impact on the proceedings of the intervention;
•the interests of the parties before the Tribunal as of right and the public interest in the prompt and efficient dispatch of proceedings[;]
•any other matter that, in the particular circumstances of the case, justifies leave to intervene;
(vi)an intevenor, unlike a party, will ordinarily be allowed only to support or oppose a decision contended for by one or other of the parties to the proceedings and will not be permitted to expand the issues to be decided;
(vii)intervention will generally not be permitted where the third party simply seeks to argue on the very same basis as an existing party to the proceedings;
…
As I said in Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29 at [11]:
The Tribunal has a broad discretion under s 37(3) of the SAT Act to grant leave to intervene. However, the established test for intervention has two principal elements, both of which must be established by a proposed intervener in order to be granted leave to intervene. The two principal elements are:
1)The proposed intervener must demonstrate at least an interest sufficient to meet the test for standing to seek judicial review, as stated in the decision of the High Court of Australia in Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493 (ACF); and
2)The proposed intervener will generally need to demonstrate that its intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act and of the relevant enabling Act - in this case, the PD Act.

Should leave to intervene be granted?

There is no dispute – nor can there be a dispute – that Mr and Mrs Hohnen have a 'sufficient interest' to meet the test for standing, as stated in Australian Conservation Foundation v Commonwealth of Australia [1980] HCA 53; (1980) 146 CLR 493 (see Gibbs J at 530 and Mason J at 547). They are adjacent neighbours and the sole issue in this proceeding relates to the impact of the proposed development on views from their property.
The key issue between Mr and Mrs Hohnen, on the one hand, and Ms Warden, on the other, in relation to the application for intervention, is whether the Tribunal should exercise its discretion to allow Mr and Mrs Hohnen to intervene, and in particular, whether their intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act and of the relevant enabling Act, the PD Act.
As I said, Mr McQueen submits on behalf of Mr and Mrs Hohnen that the circumstances of this case are highly unusual, if not unique, firstly because the sole issue in this proceeding is the impact of the development on their views. I am not persuaded that that makes this application unusual or unique. Councils very often refuse applications because of impacts on one particular neighbour. They often defend planning review proceedings in this Tribunal and call evidence from that neighbour as well as expert evidence in support of the issue raised.

The second basis on which Mr McQueen submits that the situation is unusual is, as we sit here today, only his clients can be, in terms of evidence in relation to visual impact assessment, effective contradictors to the applicant's evidence. I accept that, given the issue for determination in this case, in order for the Tribunal to meet its objectives in s 9 of the SAT Act and meet the objectives in s 3 of the PD Act, the Tribunal requires an effective contradictor in terms of evidence in relation to visual impact assessment. That is the issue in this case. The Council contests the applicant's evidence, but has no expert evidence at present in support of its position, in particular, no visual impact assessment evidence.
As I indicated earlier, Mr McQueen relies on two particular decisions of the Tribunal. However, in my view, both of those decisions are distinguishable.
Walsh and Shire of Peppermint Grove involved a situation where, as set out at [36] of that decision, the respondent Council had raised an issue in relation to the impact of the proposed development on a heritage property located next door to the site the subject of that application, but had decided that it 'was not calling an expert heritage witness'.
In this case, the situation is different in that the Council sought to call a witness in relation to visual impact and has made active efforts to obtain such a witness, but has been unable to do so, at least for the purposes of the current listed hearing date, because of Mr Mitchell's absence and because of Mr Kaesehagen's engagement by Mr and Mrs Hohnen.
The second decision relied on is Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission. That case is also clearly distinguishable, because it involved, as set out at [30]-[31] of that decision, a case described by the Tribunal as 'unusual in two important respects which, in combination at least, result in a somewhat exceptional case'. Those respects were, firstly, that there was a previous refusal of an earlier subdivision application by the Tribunal in relation to the site, the subject of the proceeding, on the application of the precautionary principle, and secondly that, in that case, the Minister for Planning had 'called in' the proceeding, but had directed the Tribunal to hear the application and make recommendations to him in relation to the determination. In that case, although issues were raised in relation to the subdivision application, the respondent, the Western Australian Planning Commission, did not intend to present any evidence by way of contradiction to the applicant's evidence.
In exercising the Tribunal's discretion as to whether to grant leave to intervene, I am mindful of the Tribunal's objectives, set out in s 9 of the SAT Act. They, of course, include 'to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case' and 'to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties'.
I am not persuaded that it is necessary for Mr and Mrs Hohnen to intervene in this proceeding to enable the Tribunal to meet its objectives and the objectives of the PD Act simply in order to present their position or to give evidence. The Council is prepared to call them as witnesses and as I have said, it is not unusual at all for objecting neighbours to be called as witnesses by a local government or other original decisionmaker in a planning proceeding in the Tribunal.
I also do not accept that it is necessary for Mr and Mrs Hohnen to be granted leave to intervene for the Tribunal to achieve its objectives and the objectives of the PD Act because they are the only people, as the owners of the affected property, with full and unrestricted access to that property. There is, as Mr Skinner said, no basis on the material before me to find that they would not allow access to the parties for the purpose of preparation of evidence by another party or for the hearing of the review by the Tribunal. Indeed, it would be contrary to their interests to deny access to their property.
Mr and Mrs Hohnen certainly have a different perspective, as Mr McQueen submits, from the Council, because they have a direct, no doubt, financial interest in the outcome of the application, because of the potential impact on their views. But that, in itself, does not, in my view, provide a sufficient basis to grant leave to intervene. That does not, in my view, satisfy the Tribunal that their intervention is necessary for the Tribunal to meet its objectives or the objectives of the PD Act. Their perspective will be put through the evidence that they would present as part of the Council's case. I am also conscious that, in this State, there are no third-party rights of review, although of course, any person may apply for leave to intervene under s 37(3) of the SAT Act.
However, I am satisfied that, if the currently listed hearing date is to remain, then the intervention of Mr and Mrs Hohnen, limited to the calling of Mr Kaesehagen to give evidence, is necessary in order to achieve the Tribunal's objectives and the objectives of the PD Act in this case. That is because, as I have said, otherwise there would be no contradictor in terms of evidence in relation to visual impact assessment to the applicant's evidence.
The applicant seeks an adjournment of the final hearing date, unusually, in order to enable the other party, the Council, to call its own witness. Mr Slarke is not in a position to indicate today whether, in fact, he can call Mr Mitchell on a relisted hearing date, or indeed how much of an adjournment would be required if Mr Mitchell were available.
I accept Mr Slarke's reluctance to call Mr Kaesehagen. Putting aside any contractual issues that Mr Kaesehagen might have with Mr and Mrs Hohnen, there may well be a perception that he is a 'servant of two masters' (see Dunbar and City of Stirling [2006] WASAT 331; (2006) 47 SR (WA) 50 at [24] and The Commissioners of the Presbyterian Church of Western Australia and Shire of Peppermint Grove [2007] WASAT 306 at [34]-[35]).
In all of the circumstances, I consider that it is consistent with the Tribunal's objectives in s 9 of the SAT Act to grant the application for an adjournment in order for the Council to be able to present evidence. However, if the Council will not be in a position to present evidence from Mr Mitchell or another qualified witness in relation to visual impact at an adjourned final hearing, then the application for intervention should be granted, limited to calling Mr Kaesehagen to give evidence in relation to visual impact assessment. That may, however, not be necessary if the Council is in the position to call Mr Mitchell.
Rather than making formal orders today vacating the final hearing, and in the event that the Council indicates to the Tribunal that it simply would not be in a position to call Mr Mitchell or any other witness in relation to visual impact assessment once it has made further enquiries, in my view, the proceeding should be adjourned until next Tuesday. That would give sufficient time, if the Council is unable to call evidence from Mr Mitchell at an adjourned hearing, for the currently listed date to be maintained, and for Mr and Mrs Hohnen to provide a witness statement from Mr Kaesehagen if he could be the only effective contradictor in relation to evidence on visual impact assessment.

Conclusion

For the reasons I have given, I am persuaded that, if Mr Mitchell cannot give evidence at an adjourned hearing, and the Council is unable to call any other qualified expert in relation to visual impact of the development, then the application for intervention should be granted, limited to calling Mr Kaesehagen, and the hearing date can be preserved. So I am not adjourning the final hearing today.
I am adjourning the matter to a directions hearing on Tuesday afternoon of next week in order for the Council to be able to determine from Mr Mitchell, and if necessary, any other expert witness who might be otherwise available, as to whether, if the hearing date were adjourned, it would be in a position to present effective evidence of an expert nature in relation to visual impact. I will then, consistently with the reasons I have given today, adjourn the final hearing if the Council can present evidence in relation to visual impact at a later date to facilitate that and give the parties the first available final hearing date. If the Council will not be in a position to present such evidence at an adjourned hearing, then I will formally grant leave to Mr and Mrs Hohnen to intervene in order to be able to call evidence from Mr Kaesehagen.

Orders

I make the following order:
The matter is listed for a further directions hearing at 4.15 pm on 9 April 2019 in the State Administrative Tribunal building at 565 Hay Street, Perth, in order to:
(a)enable the respondent to make enquiries of Mr Mitchell and potentially other experts in relation to a visual impact assessment as to whether such an expert will be available to give evidence in relation to visual impact in this matter and, if so, when; and
(b)having regard to the outcome of such enquiries, to either adjourn the final hearing date to enable such evidence to be called by the respondent or, if the respondent will be unable to call such evidence, to grant leave to Mr and Mrs Hohnen to intervene in this proceeding so as to call Mr Kaesehagen of Ecoscape to give evidence in this proceeding.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate to the Honourable Judge Parry
30 MAY 2019