Wattleup Road Development Co Pty Ltd v State Administrative Tribunal
[2016] WASC 11
•13 JANUARY 2016
WATTLEUP ROAD DEVELOPMENT CO PTY LTD -v- STATE ADMINISTRATIVE TRIBUNAL [2016] WASC 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 11 | |
| Case No: | CIV:1769/2015 | 6 NOVEMBER 2015 | |
| Coram: | CHANEY J | 13/01/16 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Conclusion that certiorari is available | ||
| B | |||
| PDF Version |
| Parties: | WATTLEUP ROAD DEVELOPMENT CO PTY LTD STATE ADMINISTRATIVE TRIBUNAL WESTERN AUSTRALIAN PLANNING COMMISSION ALCOA OF AUSTRALIA LTD |
Catchwords: | Administrative law Certiorari Function of certiorari Town planning Ministerial call in State Administrative Tribunal hearing application Recommendations to Minister Whether recommendations amenable to certiorari Whether recommendations condition precedent to exercise of Ministerial discretion Whether Minister obliged to have regard to Tribunal recommendations Preliminary issue |
Legislation: | Planning and Development Act 2005 (WA), s 246(1), s 246(2)(b), s 253 State Administrative Tribunal Act 2004 (WA), s 32, s 37(3), s 105(1) |
Case References: | Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22 Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104 Wattleup Road Development Company Ltd and Western Australian Planning Commission [2014] WASAT 29 Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 159 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
STATE ADMINISTRATIVE TRIBUNAL
First Respondent
WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent
ALCOA OF AUSTRALIA LTD
Third Respondent
Catchwords:
Administrative law - Certiorari - Function of certiorari - Town planning - Ministerial call in - State Administrative Tribunal hearing application - Recommendations to Minister - Whether recommendations amenable to certiorari - Whether recommendations condition precedent to exercise of Ministerial discretion - Whether Minister obliged to have regard to Tribunal recommendations - Preliminary issue
Legislation:
Planning and Development Act 2005 (WA), s 246(1), s 246(2)(b), s 253
State Administrative Tribunal Act 2004 (WA), s 32, s 37(3), s 105(1)
Result:
Conclusion that certiorari is available
Category: B
Representation:
Counsel:
Applicant : Mr S Penglis
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : Mr P G McGowan
Solicitors:
Applicant : Lavan Legal
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149
R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22
Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104
Wattleup Road Development Company Ltd and Western Australian Planning Commission [2014] WASAT 29
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 159
1 CHANEY J: On 23 May 2013, Wattleup Road Development Company Pty Ltd (Wattleup) lodged an application with the Western Australian Planning Commission (WAPC) for approval to subdivide 10.8 ha of land at Wattleup Road, Hammond Park, into 147 residential lots and two public open space reserves. The application was not dealt with by the WAPC before 15 September 2013, and was deemed refused pursuant to s 253 of the Planning and Development Act 2005 (WA) (PD Act). Wattleup then exercised its right to apply to the State Administrative Tribunal (Tribunal) for a review of the deemed refusal.
2 Pursuant to s 246(1) of the PD Act, the Minister for Planning considered that the application raised issues of such State or regional importance that it was appropriate that it be determined by him. Accordingly, the Minister gave a direction under s 246(2)(b) that the Tribunal hear the application but, without determining it, refer it with recommendations to the Minister for determination.
3 Before hearing the matter, the Tribunal gave leave, under s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), for Alcoa of Australia Ltd (Alcoa) to intervene in the proceedings in relation to whether the proposed subdivisions are acceptable in relation to health and amenity impacts of dust - see Wattleup Road Development Company Ltd and Western Australian Planning Commission [2014] WASAT 29. The Tribunal then proceeded to hear the application for review and, by a report published on 21 November 2014, the Tribunal recommended that the Minister should refuse the approval of the proposed subdivisions - see Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 159.
4 Wattleup then commenced an appeal to the Court of Appeal purportedly under s 105 of the SAT Act. On 28 May 2015, the Court of Appeal dismissed the appeal on the ground that it was incompetent because a recommendation under s 246(2)(b) of the PD Act is advisory in nature and is not a 'decision' to which s 105(1) of the SAT Act applies: see Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104 (Appeal Decision).
5 Between the hearing of the appeal and the delivery of the Appeal Decision, Wattleup commenced these proceedings for judicial review, no doubt to cover the eventuality that the Court of Appeal may reach the conclusion which it did, and having regard to the requirement for applications for judicial review to be made within six months of the decision the subject of the proposed review.
6 On 5 October 2015, the third respondent filed its outline of submissions in these proceedings. That outline raised the contention that the recommendation by the Tribunal is not amenable to certiorari. The parties agreed that that question should be determined as a preliminary issue, and it is that question to which these reasons are directed.
The applicable principles
7 There was no dispute between the parties in these proceedings over the principles as to the availability of certiorari. The dispute is as to the application of those principles to the circumstances of this case, in particular having regard to the statutory scheme under which the Tribunal's recommendation was made.
8 In Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 at 159, Brennan CJ, Gaudron and Gummow JJ, referring to Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, explained the function of certiorari in the following terms:
In Ainsworth the court reiterated the function of certiorari. In the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ it was said:
'The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review.'
Brennan J spoke to similar effect as follows:
'Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity but, if an act or decision has no legal effect, there is nothing to quash.'
Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.
This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue:
(1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently 'affects rights' in a legal sense;
(2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently 'determines' or is connected with that decision. (footnotes omitted)
9 In relation to the second situation, their Honours identified the question as being whether the stage of the process under challenge has the necessary effect on the final or ultimate decision.
10 In this case, as in Hot Holdings, there is no issue that the ultimate decision by the Minister under the PD Act affects legal rights in the relevant sense. The question is whether the Tribunal's recommendations sufficiently affect legal rights. Brennan CJ, Gaudron and Gummow JJ said that to determine that question:
[O]ne must ask whether there is a decision which constitutes some condition precedent to the exercise of power which will affect legal rights. Alternatively, in the words of the majority in Ainsworth, the preliminary report or recommendation must operate in this situation 'as a precondition or as a bar to a course of action' or 'as a step in a process capable of altering rights, interests or liabilities' (162). (footnotes omitted)
11 Their Honours also made reference to the decision of the Full Court of the Supreme Court of Queensland in R v Brisbane City Council; Ex parte Read [1986] 2 Qd R 22, and agreed with the conclusion of Thomas J in that case that:
[C]ertiorari lies where a preliminary decision must be taken into account by a body entrusted with the power to make a decision directly determining legal rights … If the final decision-making body is not obliged to take the recommendations into account, then certiorari will not lie (164 - 165). (original emphasis)
12 In this case, it is the applicant's contention that the Tribunal's recommendation is amenable to certiorari because, on a proper construction of the relevant provisions of the PD Act, the Tribunal's recommendation is a pre-condition to the exercise of power by the Minister to make a decision affecting legal rights, and also because the report and recommendations are matters which must be taken into account by the Minister in making the decision.
13 It is thus necessary to turn to the relevant provisions of the PD Act.
The scheme of the ministerial call in provisions
14 What is generally referred to as the 'call in' system is found in s 246 and s 247 of the PD Act. Sections 246 and 247 relevantly provide:
246. Minister may call in application to SAT for review
(1) This section applies to an application made to the State Administrative Tribunal if the Minister considers that the application raises issues of such State or regional importance that it would be appropriate for the application to be determined by the Minister.
(2) The Minister may direct -
(a) the President to refer an application to which this section applies to the Minister for determination; or
(b) the State Administrative Tribunal to hear the application but, without determining it, to refer it with recommendations to the Minister for determination.
(3) The Minister cannot give a direction under subsection (2) -
(a) in respect of an application made to the State Administrative Tribunal under the Heritage of Western Australia Act 1990; or
(b) more than 14 days after the application was made to the State Administrative Tribunal; or
(c) after a final determination has been made in relation to the application.
(4) The Minister, within 14 days after a direction is given, is to cause a copy of it to be published in the Gazette and, as soon as is practicable, is to cause a copy of it to be laid before each House of Parliament or dealt with under section 268A.
(5) If the Minister gives a direction under subsection (2)(a), each party to the proceeding may present the case of that party to the Minister.
(6) The Minister is to have regard to the submissions of the parties and may have regard to any other submission received by the Minister.
(7) A copy or transcript of any submission to which the Minister has regard is to be -
(a) given to each party; and
(b) published in the manner prescribed by the regulations.
247. Determination of application by Minister
(1) In determining an application the Minister is not limited to planning considerations but may make the determination having regard to any other matter affecting the public interest.
(2) When the Minister determines an application that determination has effect according to its tenor.
(3) When an application is referred to the Minister under section 246(2)(b) the executive officer of the State Administrative Tribunal is to -
(a) give a copy of the recommendations that accompanied the referral to each party within a reasonable time after the referral; and
(b) make a copy of the recommendations available during office hours for inspection by any person without charge.
(4) The Minister is to -
(a) give to each party written reasons for the determination of the Minister on the application; and
(b) as soon as is practicable, cause a copy of those reasons to be laid before each House of Parliament; and
(c) upon payment of a fee determined in the manner prescribed by the regulations, supply a copy of those reasons to any other person.
(5) The decision of the Minister is final.
15 In the Appeal Decision, McLure P, with whom the other members of the court agreed, noted that certain issues of statutory construction had been canvassed during the appeal, but that those questions were peripheral to the issue for determination in the appeal and need not be determined. Those questions included whether the parties to an application were entitled to make submissions directly to the Minister, whether the Minister would be required to have regard to such submissions under s 246(6) and whether the Minister is required to have regard to the recommendations of the Tribunal. The President noted (at [34]) that assuming that the Minister is obliged to have regard to the Tribunal's recommendations, all parties accepted that the Minister is free to depart from them and is not bound by the Tribunal's conclusions, findings and evaluative assessments on which the recommendations are based. The parties accepted in this case that the Minister is not bound by the Tribunal's report and recommendations, but disagreed as to whether the Minister is obliged to have regard to the recommendations.
16 It can be seen that s 246(2) provides two alternative ways in which the Minister may proceed to determination of an application once having formed the opinion required in s 246(1).
17 The first alternative is, pursuant to s 246(2)(a), for the Minister to direct the President of the Tribunal to refer the application to him for determination (which I will refer to as 'direct referral'). In that event, s 246(5) enables a party to a proceeding to present the case of that party. Section 246(6) obliges the Minister to have regard to the submissions of the parties. There is a distinction between the words used in s 246(5) and those used in s 246(6). The former refers to presenting 'the case of' a party, whilst the latter refers to 'the submissions of the parties'. The word 'submission' is also used in s 246(7), which requires 'a copy or transcript of any submission' to be given to each party and published in the manner prescribed in the regulations. Regulation 44 of the Planning and Development Regulations 2009 (WA)requires publication of a copy or transcript of a submission by making it available to the public during office hours at the WAPC's office. Section 246(6) not only requires the Minister to have regard to the submissions of the parties, but also permits him to have regard to any other submissions which he might receive.
18 Section 246 is directed not only to conferring the call in power on the Minister, but also to ensuring procedural fairness in relation to the Minister's decision. Section 246(7) requires that submissions to the Minister be made publicly available. Section 246(5) provides for a right of a party to be heard on the application, but its application is limited to direct referrals. In my view, the requirement under s 246(6) for the Minister to 'have regard to the submissions of the parties' must sensibly be construed as a requirement to have regard to 'the case of that party' presented in accordance with s 246(5). That is, 'submissions' in s 246(6) should be construed as a reference to all of the material submitted to the Minister, regardless of whether that might, in the context of curial proceedings, be referred to as evidence rather than submissions. That construction of s 246(6) is also consistent with the object and purpose of s 246(7), which, although in part is no doubt directed to the provision of transparency in the decision making process, is also directed to enabling responsive submissions to be made, either by a party to the application or potentially by others whose submissions the Minister is empowered to have regard to under s 246(6) notwithstanding that they are not parties.
19 The second alternate course under which the call in power may proceed is found in s 246(2)(b) (which I will refer to as 'referral with recommendations'). It is that course which the present application has taken. As already noted, s 246(5) is confined to direct referrals. Thus, there is no express right of a party to a proceeding to present its case directly to the Minister where the Minister has directed a referral with recommendations. No doubt that is because the Tribunal's hearing of the application is governed by s 32 of the SAT Act, which requires the Tribunal to be bound by the rules of natural justice and to ensure that the parties have the opportunity in the proceeding to call or give evidence, examine and cross-examine witnesses, and 'to be heard or otherwise have their submissions considered' (SAT Act s 32(6)(c)).
20 In my view, it is implicit in s 246 and s 247 that the Minister is required to have regard to the recommendations of the Tribunal. Were that not the case, there would be no statutory mechanisms that would require the Minister to have regard to the case presented by a party where he had directed a referral with recommendations. In the case of a referral with recommendations, the opportunity for a party to present its case is provided by s 32 of the SAT Act. It cannot have been the legislature's intention to provide an opportunity for a party to present a case which the Minister was obliged to consider in the case of a direct referral, but to allow the Minister to not have regard to the case presented to the Tribunal and the Tribunal's recommendations in the case of a referral with recommendations. It would render pointless the hearing of an application by the Tribunal, and the making of recommendations, if the Minister was not then obliged to have regard to the Tribunal's recommendations.
21 Alcoa contended that s 246 and s 247 should be construed against the historical background to the PD Act. That background was alluded to by McLure P in the Appeal Decision at [35] - [36] when she said:
[35] The PD Act replaced the Town Planning and Development Act 1928 (WA) (former Planning Act). Prior to the Planning Appeal Amendment Act 2002 (WA) (the 2002 Amendment) the former Planning Act provided for a dual appeal system which permitted appeals to either the (then) Town Planning Appeal Tribunal or the Minister for Planning. The dual appeal system was replaced by the call-in system. Sections 70 and 71 of the former Planning Act are in substantially the same terms as s 246 and s 247 respectively of the PD Act.
[36]The second reading speech for the 2002 Amendment explained that:
'The Bill also provides that the Minister may call in any appeal that is of state or regional significance. This is similar to provisions in the Victorian planning legislation. It is expected that this call-in power will be used infrequently in matters in which a broader community interest must be taken into account and which cannot properly be represented by the appellant or planning authority. Though all the circumstances in which the call-in powers may be considered cannot be prescribed, they will be matters only of a genuine state or regional significance, such as cases in which the determination could have a substantial impact on the achievement of state or regional planning objectives; that raise major issues of state or regional policy; or that could have significant effects beyond their immediate locality.'
23 The Town Planning Appeal Committee was established by s 40 (prior to its repeal by the Planning Appeals Amendment Act 2002 (WA)) of the TP&D Act. Section 40(3) provided that:
The Minister may require the committee or one or more of its members to consider, and report and make a recommendation to him on, an appeal to the Minister (not being an appeal referred to in subsection (3)(a)) and the committee or the member or members shall do so as soon as practicable thereafter, and the Minister, after considering the report and recommendation, shall determine that appeal.
24 The analogy to the former Town Planning Appeal Committee does not, therefore, assist Alcoa's argument. The previous legislation required the Minister to consider the report and recommendation of the Committee. The analogy to the previous appeal system supports the construction that the Minister is obliged to have regard to (although not be bound by) the Tribunal's recommendations (which must necessarily be supported by a report of the Tribunal's hearing and its findings leading to its recommendations).
25 In my view, the Tribunal's recommendation is something to which regard must be paid by the Minister, and therefore has the requisite legal effect upon rights to attract certiorari.
26 That conclusion makes it unnecessary for me to also determine whether the recommendation is a condition precedent to the exercise of the Minister's power. In my view however, where the Minister chooses to give a direction under s 246(2)(b), he is not empowered to exercise his discretion until the Tribunal's recommendations are received. It is the direction under s 246(2)(b) which enlivens the Minister's power to determine the application, subject to the requirements of s 246 and s 247 being met. By choosing the mechanism of referral with recommendations, the Minister is not in a position to have regard to the case presented by a party until such time as the Tribunal has held its hearing and provided its recommendations to him. Where the Minister gives a direction under s 246(2)(b), it is not open to him to exercise a power to determine the application until such time as the Tribunal has provided its recommendations which have in turn been made available to the relevant parties under s 247(3).
27 For those reasons, the recommendations of the Tribunal are amenable to certiorari. I will now hear the parties as to directions for the substantive hearing of the matter.
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