Wattleup Road Development Co Pty Ltd v Western Australian Planning Commission
[2015] WASCA 104
•28 MAY 2015
WATTLEUP ROAD DEVELOPMENT CO PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASCA 104
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 104 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:162/2014 | 30 MARCH 2015 | |
| Coram: | McLURE P BUSS JA NEWNES JA | 28/05/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | WATTLEUP ROAD DEVELOPMENT CO PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION ALCOA OF AUSTRALIA LTD |
Catchwords: | Competency of appeal Recommendation of the State Administrative Tribunal to the Minister for Planning under s 246(2)(b) Planning and Development Act Whether there was a 'decision' for the purpose of s 105 State Administrative Tribunal Act |
Legislation: | Planning and Development Act 2005 (WA) Planning Appeal Amendment Act 2002 (WA) State Administrative Tribunal Act 2004 (WA) Town Planning and Development Act 1928 (WA) |
Case References: | Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WATTLEUP ROAD DEVELOPMENT CO PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2015] WASCA 104 CORAM : McLURE P
- BUSS JA
NEWNES JA
- Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent
ALCOA OF AUSTRALIA LTD
Second Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE D R PARRY (DEPUTY PRESIDENT)
- MR P CURRY (SENIOR SESSIONAL MEMBER)
MR B HUNT (SENIOR SESSIONAL MEMBER)
Citation : WATTLEUP ROAD DEVELOPMENT COMPANY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 159
File No : DR 362 of 2013, DR 444 of 2013
Catchwords:
Competency of appeal - Recommendation of the State Administrative Tribunal to the Minister for Planning under s 246(2)(b) Planning and Development Act - Whether there was a 'decision' for the purpose of s 105 State Administrative Tribunal Act
Legislation:
Planning and Development Act 2005 (WA)
Planning Appeal Amendment Act 2002 (WA)
State Administrative Tribunal Act 2004 (WA)
Town Planning and Development Act 1928 (WA)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr S Penglis
First Respondent : Ms C A Ide
Second Respondent : Mr C G Colvin SC
Solicitors:
Appellant : Lavan Legal
First Respondent : State Solicitor for Western Australia
Second Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
1 McLURE P: The preliminary question for determination is whether this appeal is competent. The appeal is from a recommendation made by the State Administrative Tribunal (the Tribunal) to the Minister for Planning (the Minister) under s 246(2)(b) of the Planning and Development Act 2005 (WA) (the PD Act). The issue is whether the Tribunal's recommendation is a 'decision' for the purpose of s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
2 The background is as follows. Wattleup Road Development Company Pty Ltd (the appellant) applied to the first respondent, the Western Australian Planning Commission (Commission) for approval to subdivide 3 lots of land at Wattleup Road, Hammond Park (the Land) which is in proximity to land used by the second respondent, Alcoa of Australia Ltd (Alcoa), for the drying, disposal and storage of bauxite residue from its alumina production facility. The appellant proposed a subdivision of the Land into, inter alia, 147 residential lots. Another party, Primewest (Wattleup) Pty Ltd (Primewest), applied to the Commission for approval to subdivide two adjoining lots.
3 Under s 253 of the PD Act, there was a deemed refusal of the appellant's and Primewest's subdivision applications which enlivened an entitlement to apply to the Tribunal for a review of the deemed refusals in accordance with pt 14 of the PD Act.
4 After the appellant and Primewest applied to the Tribunal to review the Commission's deemed refusal of their applications, the Minister under s 246(2)(b) of the PD Act directed the Tribunal to hear the applications but, without determining them, to refer them with recommendations to the Minister for determination.
5 The Tribunal has heard the applications and made recommendations to the Minister in the following terms:
For the reasons set out in this report, the Tribunal considers that the 'correct and preferable decision' under s 27(2) of the SAT Act is that the applications for review should be dismissed and subdivision approval should be refused for the proposed subdivisions.
The Tribunal therefore recommends that the Minister should determine the review applications as follows:
1) The applications for review are dismissed.
2) The deemed refusals of the subdivision applications by the [first] respondent are set aside and in their place decisions are substituted that subdivision approval is refused for each of the proposed subdivisions.
6 The appellant has commenced an appeal in this court from the Tribunal's recommendation regarding its application. The court acceded to the respondents' applications for the jurisdictional question to be determined as a preliminary issue.
7 The appellant contends that the Tribunal's conclusion as to the correct and preferable decision under s 27(2) of the SAT Act and its recommendation are, each or together, a 'decision' within the meaning of s 105(1) of the SAT Act. The submission is that 'decision' should be given its natural and ordinary (dictionary) meaning of 'a conclusion or resolution reached after consideration' or a 'choice or judgment'.
8 The Commission submits that the meaning of 'decision' in s 105(1) is not sufficiently broad to encompass a recommendation under s 246(2)(b) of the PD Act. A positive definition was not forthcoming.
9 Alcoa, relying on the decision of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 contends that 'decision', when used in the context of judicial or administrative proceedings, refers to a determination that effectively disposes of a matter in hand, that is, has an operative effect. Accordingly, a recommendation under s 246(2)(b) of the PD Act, which is merely advisory, is not a decision.
The statutory framework - SAT Act
10 A matter comes within the Tribunal's review jurisdiction where an enabling Act refers to the Tribunal a matter that expressly or necessarily involves a review of a decision: s 17(1). A decision to which s 17(1) applies is defined as a 'reviewable decision': s 17(3).
11 In exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act: s 18(1).
12 The enabling Act may modify the operation of the SAT Act in relation to a matter that comes within the Tribunal's review jurisdiction: s 18(2). If there is any inconsistency between the SAT Act and an enabling Act, the enabling Act prevails: s 5.
13 The review of a reviewable decision is to be by way of a hearing de novo, the purpose of which is to 'produce the correct and preferable decision at the time of the decision upon the review': s 27(1) and (2).
14 The Tribunal's functions and powers in its review jurisdiction are detailed in s 29, which relevantly provides:
(1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision.
(2) Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.
(3) The Tribunal may -
(a) affirm the decision that is being reviewed; or
(b) vary the decision that is being reviewed; or
(c) set aside the decision that is being reviewed and -
(i) substitute its own decision; or
(ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate.
16 Section 105 of the SAT Act is the source of this court's jurisdiction to hear and determine appeals from a decision of the Tribunal. Section 105 relevantly provides:
(1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
(2) The appeal can only be brought on a question of law.
(3) The appeal lies to -
(a) the Court of Appeal, if the decision was made by -
(i) a judicial member; or
(ii) the Tribunal constituted by members who include a judicial member.
18 The SAT Act makes provision for the enforcement of decisions of the Tribunal: s 85, s 86. The terms 'decision', 'decision-maker' and 'final decision' are defined in s 3(1) as follows:
decision of the Tribunal includes an order, direction, or determination of the Tribunal;
decision-maker means a person who makes a reviewable decision;
…
final decision means a decision of the Tribunal that disposes of the matter raised in an application.
19 This survey of the SAT Act reveals two points of significance. First, the SAT Act establishes a standing administrative tribunal with general functions and powers. However, the SAT Act is not (generally) the source of the Tribunal's jurisdiction to review particular decisions. That jurisdiction comes from enabling Acts which specify the particular reviewable decision(s) to which the Tribunal's general functions and powers will apply unless expressly or impliedly added to, excluded or varied by the enabling Act. Thus the SAT Act must be construed with the enabling Act.
20 Second, the use (in s 11(5)(a), s 11(5)(aa), s 74(a), s 76, s 77 and s 78(1)) and definition of the expression 'final decision' indicates that the term 'decision' in s 105(1) covers interim, interlocutory and final decisions of the Tribunal in a proceeding.
The PD Act
21 The appellant's subdivision application was made under pt 10 of the PD Act. There is a prohibition against subdividing any lot without the approval of the Commission: s 135(1). The Commission may give its approval subject to conditions: s 138(1).
22 Subject to considering specified matters, the Commission is under a duty to make one of three alternative decisions, being to approve the plan of subdivision, refuse to approve the plan of subdivision or approve the plan of subdivision with such conditions as it thinks fit: s 143(1).
23 If at any time after the end of a specified period (the 'decision period') the Commission has not, relevantly, approved or refused to approve an application under pt 10, and the applicant gives a notice of default, the applicant may apply to the Tribunal for a review in accordance with pt 14 of the PD Act 'as if the [Commission] had refused to approve the application on the day … on which the notice of default was given': s 253.
24 Division 2 of pt 14 identifies the decisions which may be reviewed by the Tribunal. Section 251, which deals with the decisions made under pt 10, relevantly provides:
(1) An applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision of the Commission to refuse to approve any plan … in respect of which an application for approval was made to the Commission.
25 In this case, the 'reviewable decision' is the (deemed) refusal of the Commission to approve the appellant's plan of subdivision the subject of its application. That is, the relevant 'decision' for the purposes of the SAT Act is that specified in the PD Act. It follows that the meaning of the term 'decision' in s 17(1) of the SAT Act does not govern whether a 'decision' is reviewable by the Tribunal.
26 Division 1 of pt 14 provides for the making and determination of applications for review by the Tribunal. The PD Act specifies how the Tribunal is to be constituted (s 237A) and makes express provision for the qualifications of Tribunal members (s 238), legal representation before the Tribunal (s 239), mandatory relevant planning considerations to which the Tribunal must have regard (s 241) and for the Minister to make submissions to the Tribunal on its invitation or on the Minister's own motion (s 245).
27 Under s 244, the Tribunal constituted by a judicial member may 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.
28 Sections 246 and 247 of the PD Act deal with what is described as the 'call-in' system. Section 246 relevantly provides:
(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.
…
(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.
(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.
30 A direction by the Minister under s 246(2) effects a significant change to the Tribunal's review function and powers under the SAT Act. The Tribunal is empowered and obliged by the PD Act to hear and consider the review application (solely for the purpose of making a recommendation) and then refer the application to the Minister, with a recommendation, for determination by the Minister. The final decision-making function and powers are removed from the Tribunal. In particular, s 29(1) and (3) of the SAT Act are inconsistent with the call-in provisions of the PD Act. It is arguable that s 27(2) of the SAT Act is also inconsistent, however it is unnecessary to determine that issue.
31 The Minister's determination of the application, whether under par (a) or (b) of s 246(2), cannot be the subject of an appeal under s 105 of the SAT Act. Any room for doubt on that score is removed by s 247(5) of the PD Act. Moreover, the Minister's duties and powers are sourced solely in the PD Act.
32 Having removed the Tribunal's final decision-making function and powers, the PD Act does not expressly provide that a Tribunal's recommendation under s 246(2)(b) is a decision to which s 105(1) of the SAT Act applies.
33 Other issues of statutory construction canvassed during the appeal hearing include the following: whether the Tribunal's function under s 246(2)(b) is to put itself in the position of the Commission under pt 10 of the PD Act or in the position of the Minister under s 247 of the PD Act; are the parties to the application entitled to make submissions directly to the Minister and is the Minister required to have regard to them under s 246(6); and is the Minister required to have regard to the recommendations of the Tribunal. These questions of construction are peripheral to the issue for determination in this appeal and need not be determined.
34 Assuming for present purposes that the Minister is obliged to have regard to the Tribunal's recommendations, it is accepted by all parties that the Minister is free to depart from them. Moreover, the Minister is not bound by the Tribunal's conclusions, findings and evaluative assessments on which the recommendations are based.
The history of the call-in provisions
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.
Disposition
37 But for s 246(2)(b) of the PD Act, the Tribunal would not have jurisdiction or power to make recommendations of the type in issue in this case. Putting the PD Act aside, in review proceedings the Tribunal's duties and associated decision-making powers under the SAT Act are to make any directions that are necessary for the speedy and fair conduct of the review proceedings, determine any interlocutory applications and make a final decision on the review application.
38 However, an enabling Act may nominate any conduct of a decision-maker (even if advisory in character) as a decision reviewable by the Tribunal under s 17(1) of the SAT Act to which s 29(1) and (3) apply and may (expressly or impliedly) bring the Tribunal's decision within s 105(1) of the SAT Act. However, that is not what the PD Act does in this case. The direction of the Minister under s 246(2) of the PD Act takes what was a reviewable decision outside the scope of the Tribunal's final review powers.
39 That is, the PD Act empowers the Tribunal to perform an advisory function that is otherwise outside the scope of its functions and powers under the SAT Act and does not make express provision for an appeal from the exercise of that advisory function. Moreover, having regard to this court's very wide dispositive powers in s 105(9) of the SAT Act (which includes empowering the court to make any decision the Tribunal could have made) and the finality of the Minister's determination, a legislative intention that there be an entitlement to appeal under s 105 from a Tribunal recommendation cannot be implied in the PD Act.
40 As a result, the outcome in this case is governed by the meaning of the expression 'decision of the Tribunal in the proceeding' in s 105(1) of the SAT Act. The starting point is the statutory definition. The terms 'order', 'direction' and 'determination' in the definition of decision in s 3 are wide enough to capture most of the outcomes of the exercise of the decision-making powers conferred on the Tribunal by the SAT Act. The definition of decision would also extend to rulings and other similar adjudications made by the Tribunal. However, a recommendation is not an order, direction, determination or other similar outcome. The issue is whether the inclusive definition is wide enough to include the Tribunal's recommendation. In my view it is not.
41 The function of the Tribunal under the SAT Act is to hear, consider and decide (determine) the relevant matter in issue, be it procedural or substantive. As in judicial proceedings, the Tribunal's reasoning and reasons, which ordinarily require conclusions and evaluations of fact, law and policy, are part of the consideration (or deliberative) process which leads to, but is not part of, the decision.
42 In the context of administrative (and judicial) proceedings, the ordinary meaning of 'decision' is a dispositive or operative outcome of the exercise of a power (the ordinary meaning). That is illustrated in the definition of 'final decision' as a decision that 'disposes of the matter raised in the application'. In a review application, the final decision is the outcome of the exercise of the power in s 29(3) of the SAT Act, whether that be to affirm, vary or set aside the reviewable decision with any consequential order under par (c)(i) or (ii) of s 29(3). An example of an interlocutory decision is a direction resulting from the exercise by the Tribunal of its power in s 34.
43 The ordinary meaning of the term 'decision' in s 105(1) of the SAT Act is consistent with the way appellate jurisdiction is ordinarily conferred by statute. An appeal is from a decision, not the reasons for the decision. An error of law or fact apparent from the reasons that does not change the outcome (decision) will result in the dismissal of an appeal.
44 In one sense, findings and conclusions in the deliberative process may be seen as involving decisions between competing choices. However, that is not its meaning in s 105(1) of the SAT Act. Very clear language would be required to persuade an appellate court that a party has a right of appeal (even on a question of law) from a conclusion leading to but not forming part of an appealable decision.
45 Although the word 'includes' in the definition of decision in s 3 of the SAT Act indicates that the definition is not intended to be exhaustive, the intention is not to enlarge the ordinary meaning of 'decision' save and except to the extent that an enabling Act expressly or impliedly has that effect. The PD Act does not.
Conclusion
46 For these reasons the term 'decision' in s 105(1) means, in this case, the dispositive or operative outcome of the exercise by the Tribunal of its interlocutory or final statutory powers. Accordingly, a recommendation under s 246(2)(b) of the PD Act, which is advisory in nature, is not a 'decision' to which s 105(1) of the SAT Act applies. Thus the appeal is incompetent and should be dismissed.
47 BUSS JA: I agree with McLure P, generally for the reasons she gives, that the appeal is incompetent and should be dismissed.
48 NEWNES JA: I agree with McLure P.
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