| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WATTLEUP ROAD DEVELOPMENT COMPANY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASAT 29 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 13 FEBRUARY 2014 DELIVERED : 13 FEBRUARY 2014 PUBLISHED : 14 MARCH 2014 FILE NO/S : DR 362 of 2013 BETWEEN : WATTLEUP ROAD DEVELOPMENT COMPANY PTY LTD Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
ALCOA OF AUSTRALIA LIMITED
KWINANA INDUSTRIES COUNCIL (INC)
Proposed Interveners
FILE NO/S : DR 444 of 2013 BETWEEN : PRIMEWEST (WATTLEUP) PTY LTD Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
ALCOA OF AUSTRALIA LIMITED
KWINANA INDUSTRIES COUNCIL (INC)
Proposed Interveners
Catchwords: Practice and procedure - Participation by third parties - Town planning - Intervention - Leave to make submissions - Whether third party has sufficient interest Whether intervention is necessary to enable the Tribunal to meet its objectives - Whether intervener may be allowed to expand issues beyond issues between applicant and respondent - Circumstances of case unusual and, in combination, exceptional - Previous refusal of subdivision application by Tribunal on application of 'precautionary principle' - 'Call in' of application by Minister for Planning - Leave to intervene granted in relation to health and amenity impacts of dust Legislation: Environmental Protection (Kwinana) (Atmospheric Wastes) Regulations 1992 (WA), Sch 2
Planning and Development Act 2005 (WA), s 3(1)(c), s 242, s 243, s 246, s 251(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 24, s 31, s 37(3), s 38, s 60(2) Result: Alcoa of Australia Limited granted leave to intervene in relation to whether the proposed subdivisions are acceptable in relation to health and amenity impacts of dust
Application by Kwinana Industries Council (Inc) for leave to intervene or to make submissions dismissed
Summary of Tribunal's decision: Alcoa of Australia Limited (Alcoa) and the Kwinana Industries Council (Inc) (KIC) sought leave to intervene or, alternatively, to make submissions, in two planning review proceedings arising out of the deemed refusal of proximate residential subdivision applications.
The site is located within 1 to 2 kilometres of the Kwinana Industrial Area, and, in particular, approximately 1.2 to 1.7 kilometres northeast of a property used by Alcoa for drying and disposal of bauxite residue resulting from alumina production at its Kwinana refinery.
The Tribunal had previously refused a subdivision application of one of the properties on the basis of the 'precautionary principle' having regard to potential dust impacts from the Alcoa residue disposal area and from a sand quarry.
The Minister for Planning 'called in' the current review proceedings and directed the Tribunal to hear the applications but, without determining them, to refer them to the Minister with recommendations for determination by the Minister. The Western Australian Planning Commission (Commission) subsequently resolved that subdivision approval should be granted to the applications subject to conditions which are acceptable to the applicants.
The Tribunal determined that Alcoa has a sufficient interest to be granted leave to intervene. The Tribunal also determined that intervention by Alcoa is necessary to enable the Tribunal to meet the objectives of the State Administrative Tribunal Act 2004 (WA) and the Planning and Development Act 2005 (WA). Given that the applicants and the Commission consider that dust impacts are acceptable, whereas Alcoa contends and proposes to adduce evidence and present submissions to the contrary, Alcoa's intervention is necessary to enable the Tribunal to address the substantial merits of the case, which include an adequate assessment of the dust generated from the Kwinana Industrial Area and elsewhere which may impact on the site.
The Tribunal held that although it is well established that an intervener, unlike another party, will ordinarily not be allowed to expand the issues to be decided beyond the issues raised by the other parties, 'in unusual cases, interveners may be allowed to expand issues where the expansion of issues is necessary to enable the Tribunal to properly undertake its statutory task'. The Tribunal determined that the present proceedings are unusual in two important respects, namely the refusal of the earlier application by the Tribunal on the application of the precautionary principle and the 'call in' by the Minister of the current applications, and that, in combination, these factors are exceptional. The Tribunal determined that 'these unusual and, in combination, exceptional circumstances call for a properly informed hearing in relation to amenity and health impacts of dust on the proposed subdivisions and, in particular, from dust generated by Alcoa's operations'.
The Tribunal therefore granted Alcoa leave to intervene in the proceedings in relation to whether the proposed subdivisions are acceptable in relation to health and amenity impacts of dust.
However, the Tribunal refused to grant leave to KIC to intervene, because it does not, in itself, have a sufficient interest and, in any case, its intervention is not necessary to enable the Tribunal to meet its objectives.
The Tribunal also refused to grant leave to KIC to make a submission in relation to the applications, because it does not have a sufficient interest.
Category: B
Representation: DR 362 of 2013 Counsel:
Applicant : Mr PJ McQueen
Respondent : Ms CA Ide
Proposed Interveners : Mr PG McGowan
Solicitors:
Applicant : Lavan Legal
Respondent : State Solicitor for Western Australia
Proposed Interveners : Clayton Utz (Alcoa of Australia Limited) and
Mr G McLeod (Kwinana Industries Council
(Inc))
DR 444 of 2013 Counsel:
Applicant : Mr MC Hotchkin
Respondent : Ms CA Ide
Proposed Interveners : Mr PG McGowan
Solicitors:
Applicant : Hotchkin Hanly
Respondent : State Solicitor for Western Australia
Proposed Interveners : Clayton Utz (Alcoa of Australia Limited) and
Mr G McLeod (Kwinana Industries Council
Inc))
Case(s) referred to in decision(s):
Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493
Curlewis and City of Albany [2011] WASAT 85
Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29
ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184
Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Shire of AugustaMargaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160
Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 16
REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 Proceeding DR 362 of 2013 involves an application brought by Wattleup Road Development Company Pty Ltd (Wattleup), under s 251(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the deemed refusal by the Western Australian Planning Commission (Commission) of a subdivision application for the green title subdivision of Lots 809, 9002 and 9003 Wattleup Road, Hammond Park into 147 residential lots and two public open space reserves. Proceeding DR 444 of 2013 involves an application brought by Primewest (Wattleup) Pty Limited (Primewest), under s 251(1) of the PD Act, for review of the deemed refusal by the Commission of a subdivision application for the green title subdivision of Lots 117 and 805 Wattleup Road, Hammond Park into 93 residential lots, two balance lots and two public open space reserves. The five lots which are the subject of the subdivision applications all either adjoin or are closely proximate to one another and comprise five of the six lots between Lot 9002 to the east and Lot 9003 to the west. 2 The lots which are the subject of the subdivision applications are located within 1 to 2 kilometres of the Kwinana Industrial Area, and in particular, approximately 1.2 to 1.7 kilometres northeast of a property used by Alcoa of Australia Limited (Alcoa) for drying and disposal of bauxite residue resulting from alumina production at its Kwinana refinery. Residue is produced at a rate of approximately two dry tonnes per tonne of alumina and consists of a coarse sand fraction (termed 'red sand') and a fine silt fraction (termed 'red mud'). 3 Alcoa's residue storage operations at Kwinana cover an area of approximately 625 hectares, including lakes and approximately 170 hectares of active residue storage area. The residue disposal area receives approximately 4.4 million tonnes of residue each year. The residue comprises almost equal components of red sand and red mud. 4 A previous subdivision application for a residential subdivision of Wattleup's three lots was refused by the Tribunal in October 2011, having regard to potential dust impacts from the Alcoa residue disposal area and from a sand quarry: see Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160 (earlier decision). In the earlier decision, the Tribunal discussed and applied the 'precautionary principle' as an element of 'sustainable use and development of land', being one of the three purposes of the PD Act, as stated in s 3(1)(c) of that Act, and determined that the precautionary principle warranted refusal of that proposed subdivision unless and until adequate air quality monitoring was undertaken and reviewed in relation to the site, demonstrating that the proposed subdivision would be acceptable in relation to health and amenity impacts of dust. 5 The Minister for Planning, the Hon John Day MLA (Minister), has formed the opinion, under s 246(1) of the PD Act, that the applications for review in each of proceedings DR 362 of 2013 and DR 444 of 2013 raise issues of such State or regional importance that it would be appropriate for each to be determined by the Minister. In each proceeding, the Minister, therefore, 'called in' the application under s 246(2) of the PD Act, and in particular, directed the Tribunal, under s 246(2)(b) of the PD Act, to hear each application but, without determining it, refer it with recommendations to the Minister for determination. 6 The Commission subsequently advised the Tribunal that it considers that Wattleup's subdivision application in DR 362 of 2013 should be approved subject to the imposition of 32 conditions and nine advice notes, which Wattleup does not oppose. The Commission also advised the Tribunal that it considers that Primewest's subdivision application in DR 444 of 2013 should be approved subject to conditions. Primewest does not appear to oppose any of the Commission's proposed conditions. 7 Finally, by way of background, proceedings DR 362 of 2013 and DR 444 of 2013 are listed for hearing concurrently before the Tribunal on 12 and 13 March 2014 before the same members who made the earlier decision although, owing to the absence of Member Connor, another member who is a town planner will need to be substituted. However, Wattleup has foreshadowed that as there is no issue between it and the Commission, and as there is no issue between Primewest and the Commission, about the merits of the subdivision applications, the applications should be determined entirely on the documents under s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), rather than at an oral hearing.
Applications for leave to intervene or to make submissions 8 Alcoa and the Kwinana Industries Council (Inc) (KIC) each seek leave to intervene in the proceedings under s 37(3) of the SAT Act or, alternatively, to make submissions under s 242 of the PD Act. The applications for leave to intervene or to make submissions are opposed by Wattleup and by Primewest. I will refer to and address their principal submissions in opposition to the applications later in these reasons. The Commission neither supports nor opposes the applications for leave to intervene or to make submissions, but makes submissions as to the possible scope of intervention.
Legal framework and principles 9 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. 10 The applicable principles in relation to intervention are not in dispute between the parties and were helpfully summarised by Chaney J in ING Development Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 104; (2008) 59 SR (WA) 184 (ING) at [28] as follows (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 joinder 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; … 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: 12 The test for standing referred to by Chaney J in ING, as stated by the High Court in ACF, was articulated by Gibbs J at page 530 in ACF as follows: … I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. 13 Similarly, Mason J formulated the test in ACF at page 547 as follows: … Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests ... and perhaps to his social or political interests. 14 Significantly also, Chaney J in ING at [28(vi)] held that (citation omitted): 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; 15 Section 242 of the PD Act states as follows: The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter. 16 As Pullin JA held in Shire of AugustaMargaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55 (Gray), at [139], a 'sufficient interest' for the purposes of s 242 of the PD Act is synonymous with a special interest that would give standing to seek judicial review in accordance with the test in ACF. If the Tribunal is satisfied that a proposed submitter has a 'sufficient interest' in a matter, then the Tribunal has a discretion as to whether to allow the person to make submissions. However, if the Tribunal is not satisfied that a proposed submitter has a special interest, a discretion does not arise. 17 Pullin JA referred to the principal factors in the exercise of the discretion in Gray at [139]. However, because of the decisions to which I have come in relation to the applications by Alcoa and KIC, it is unnecessary to set out those factors in these reasons.
Alcoa's application for leave to intervene or to make submissions 18 Alcoa seeks leave to intervene on the issue of air quality. It is of the view, based on extensive dust monitoring over many years, that there is potential for proposed residential lots in the subdivisions the subject of these proceedings to receive dust from a number of sources in the area including, in particular, its residue disposal area. Alcoa believes that this is particularly the case during the summer months, from October to April, due to wind direction, wind speed and the drying qualities of residue during that period. 19 If granted leave to intervene, Alcoa proposes to lead evidence and make submissions in relation to five matters. These are residents' expectations about acceptable ambient dust levels based on many years of experience with residents in the area, historical monitoring of dust in the vicinity, meteorological monitoring that was undertaken over time, operation of the residue disposal area and generation of dust from it, and air quality monitoring undertaken by consultants for Alcoa in 2008 and 2009 that was discussed without the benefit of Alcoa's input in the Tribunal's earlier decision. 20 In relation to air quality monitoring data, Alcoa proposes to adduce evidence to test the veracity of the monitoring data relied on by Wattleup and Primewest by reference to current and historical monitoring data held by Alcoa in relation to dust levels, and to better identify the risk of local dust impacts by reference to readings from dust monitoring instruments that measure six minute and 10 minute averages. In relation to meteorological data, Alcoa proposes to adduce evidence to test the veracity of Wattleup's and Primewest's meteorological data and assumptions for the purposes of interpreting ambient air quality monitoring data, and to better identify the risk of local dust impacts by reference to meteorological data and expert evidence that Alcoa uses to predict risks of dust generation from its operations. Specifically, Alcoa proposes to adduce meteorological data addressing the potential for dust generation from, and likely patterns of distribution and dispersion of, dust downwind of its residue disposal area, and to provide interpretation of that data. 21 In my view, Alcoa has a sufficient interest to meet the test of standing in ACF. This is because, in terms of the formulation of the test by Gibbs J, it is 'likely to gain some advantage' if subdivision approval is refused to Wattleup and Primewest by the Minister; and, in terms of the formulation of the test by Mason J, Alcoa can 'show actual or apprehended injury or damage' to its 'business or economic interests' if subdivision approval is granted. Alcoa has a sufficient interest in accordance with the test in ACF, because future residential use of the land the subject of these proceedings would change the treatment of that land under the Environmental Protection (Kwinana) (Atmospheric Wastes) Policy 1999 which, in turn, could, if the land is in fact exposed to dust levels in excess of the standard imposed by Sch 2 of the Environmental Protection (Kwinana) (Atmospheric Wastes) Regulations 1992 (WA), result in new conditions being imposed on Alcoa's environmental licence. 22 Moreover, the introduction of a significant number of residents on the land the subject of the subdivision applications in relatively close proximity to Alcoa's significant residue operations may result in increasing community pressure on regulators to impose further regulations on Alcoa's operations in terms of licence conditions, environmental studies and operational improvements generally, as well as pressure on Alcoa itself. 23 In my view, in the particular and unusual circumstances of this case, intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act and the PD Act. Section 9 of the SAT Act states the main objectives of the Tribunal in dealing with matters within its jurisdiction as follows: (a) 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 (b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and (c) to make appropriate use of the knowledge and experience of Tribunal members. 24 Section 3(1) of the PD Act states that the purposes of that Act include, in paragraph (c), to 'promote the sustainable use and development of land in the State'. 25 As I observed in Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 16 at [25], in dismissing Wattleup's application for an order inviting the Commission to reconsider its decision in relation to the subdivision application under s 31 of the SAT Act, the 'substantial merits of the case' include 'an adequate assessment of the dust generated from the Kwinana Industrial Area and elsewhere which may impact on the site'. This is because the Tribunal refused the earlier subdivision application in relation to Wattleup's land having regard to potential dust impacts. Moreover, given the earlier decision of the Tribunal and the purpose of the PD Act to promote the sustainable use and development of land, an informed assessment by the Tribunal is required in relation to the current applications as to whether the proposed subdivisions are acceptable in relation to health and amenity impacts of dust. 26 Given that the current parties to the proceedings consider that the dust impacts are acceptable, whereas Alcoa contends and proposes to adduce evidence and present submissions to the contrary, its intervention is necessary to enable the Tribunal to meet its objectives in these proceedings. Moreover, Alcoa possesses relevant monitoring and other material and experience, including in relation to the operation and impacts of its residue disposal area, which its counsel, Mr McGowan, referred to as 'special' and 'particular', that is not otherwise available to the parties or to the Tribunal. This is necessary, in my view, for a properly informed assessment of the subdivision applications in the particular circumstances of this case. 27 As noted earlier, it is well established that an intervener, unlike another party, will ordinarily not be allowed to expand the issues to be decided beyond the issues raised by the other parties. This reflects the observation of the Court of Appeal in Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 (McCourt) at [41] that: … In the context of town planning, where a very wide range of concerns are relevant to any decision, one can readily see why Parliament would limit the scope of the inquiry before the Administrative Tribunal to the matters at issue between the applicant and decision-maker, as it has done through ss 62 and 63 of the TPD Act. 28 The references to 'ss 62 and 63 of the TPD Act' are now to be taken to be references to the provisions in s 242 of the PD Act which enables submissions to be made with leave in relation to an application by a person with a sufficient interest in the matter, and s 243 of the PD Act, which excludes the Tribunal's power otherwise available to join a person as a party under s 38 of the SAT Act. 29 However, in unusual cases, interveners may be allowed to expand issues where the expansion of issues is necessary to enable the Tribunal to properly undertake its statutory task. Thus, for example, in Curlewis and City of Albany [2011] WASAT 85 at [118], the Tribunal decided that the holder of a development approval, which (unusually, given that there are generally no third party appeal or review rights in Western Australia) was the subject of challenge in third party planning review proceedings, was 'entitled to advance its own case as though it had been named as a party in the application for review'. 30 The present proceedings are also, in my view, highly unusual, although for different reasons. The present proceedings are unusual in two important respects, which, in combination at least, result in a somewhat exceptional case. In consequence of these two respects, in my view, the issue of whether the proposed subdivisions are acceptable in relation to health and amenity impacts of dust is properly before the Tribunal for consideration, even though there is no issue between the existing parties as to the merits of the subdivisions in that or in any other respect. 31 The first respect in which this case is unusual is the previous refusal of the earlier subdivision application by the Tribunal on the application of the precautionary principle. The second respect in which this case is unusual is the Minister's call in of the proceedings, and his directions to the Tribunal to hear the applications and make recommendations to him in relation to their determination. As Mr McGowan submits for the proposed interveners, the contemplation of the Minister's direction, and of s 246(2)(b) of the PD Act on which it is based, is that a merits hearing should be held before the Tribunal in order to make properly informed recommendations to the Minister. 32 Both of these factors are unusual in planning review proceedings in themselves. In my experience, in combination, they are exceptional in terms of planning review proceedings in the Tribunal since its establishment nine years ago. 33 In my view, these unusual and, in combination, exceptional circumstances call for a properly informed hearing in relation to amenity and health impacts of dust on the proposed subdivisions and, in particular, from dust generated by Alcoa's operations. This conclusion does not, nor could it, seek to question or distinguish the correctness of the analysis of the Court of Appeal in McCourt; it simply reflects the fact that this is not simply an unusual case but, in combination, an exceptional one. For this reason also the decision does not, as was contemplated in submissions for Wattleup and Primewest, open the floodgates to interveners generally to raise issues that are not raised by the parties to proceedings. 34 It should also be noted, as Mr McGowan emphasised, that even absent these unusual and, in combination, exceptional circumstances, in planning review proceedings in which the Tribunal is required to determine an application, even by consent, it 'has and must exercise an independent responsibility and judgment' in relation to the determination, because the proceedings 'involve the application of public law and the exercise of a statutory discretion to produce the correct and preferable decision': Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29 at [45]. The position of the parties, and in particular, the position of the original decisionmaker, in circumstances where a consent outcome is sought, is material in forming the Tribunal's decision. It is, however, not determinative. This is no less the case where the Tribunal is charged not with determining a planning review proceeding, but with hearing it and providing a recommendation to the Minister in relation to its determination. Planning review proceedings are not ordinary civil litigation, and the Tribunal is not simply a rubber stamp in such matters. 35 In the circumstances of this case, in my view, the issue of whether the proposed subdivisions are acceptable in relation to the health and amenity impacts of dust is properly before the Tribunal for consideration, and intervention by Alcoa is necessary to enable the Tribunal to properly consider that issue. 36 Wattleup and Primewest advanced several submissions against leave being granted to Alcoa to intervene. 37 Wattleup submits, firstly, that Alcoa has failed to establish the existence of a relevant issue that has not already been considered to justify the granting of leave. It submits that the issue of air quality has been considered in detail at various stages of the planning process in relation to the site: at the stage of lifting Urban Deferment; at the stage of the Tribunal's earlier decision; at the stage of the assessment of the current application by the Commission; and at the stage of the Commission's resolution that it now supports the approval of the application, having obtained advice from the Department of Health and the Department of Environment. However, these circumstances do not absolve the Tribunal from considering the issue. The Tribunal has an independent responsibility, and must exercise independent judgment in hearing the applications and making recommendations to the Minister, in part because of the issues raised in the earlier decision, and in part because of the call in by the Minister. 38 Secondly, Wattleup submits that because the Commission's position is that, having considered Wattleup's updated air quality monitoring information on advice from the Department of Health and the Department of Environment, the proposed subdivision should be approved, the proceeding can properly be disposed of without considering air quality impact other than, in effect, for the Tribunal to satisfy itself that the Commission has reached its position in an appropriate manner and on the basis of appropriate advice from other authorities. However, as Mr McGowan submits, the Tribunal cannot be persuaded by process, but must be persuaded on the basis of evidence. For reasons discussed earlier, in the circumstances of this case, the Tribunal should conduct a hearing on the merits of the application, and exercise an independent mind and judgment about the amenity and health impacts of dust. 39 Thirdly, Wattleup submits that, if air quality is an open issue, then the parties and their experts can assist the Tribunal, as required by the Tribunal. And indeed, Wattleup submits that the proposed intervener's evidence will add nothing of value to the process, because that evidence does not include a sitespecific assessment of dust impacts in relation to the subdivision sites. 40 However, it is appropriate in this case for the Tribunal to hear a different perspective on dust impacts, and the evidence proposed to be presented by Alcoa is relevant in relation to the impact of dust on the sites the subject of the subdivision applications, even though Alcoa has not, itself, undertaken sitespecific monitoring. The evidence proposed to be presented by Alcoa will enable the Tribunal to meaningfully assess and review the applicants' dust monitoring and come to an informed view as to the acceptability of dust impacts on the site so as to properly provide recommendations to the Minister in relation to the applications for review. 41 As the evidence presented in support of the applications for leave shows, Alcoa has a wealth of relevant information, knowledge and experience about not only its own operations but the dust generated from those operations as it affects the locality of the site generally. Furthermore, Alcoa possesses particular information, knowledge and experience that would assist the Tribunal and that would not otherwise be available to the Tribunal in conducting the hearing. 42 Finally, Wattleup submits that intervention would significantly increase the costs of the proceedings and would significantly increase the time of the hearing, which could otherwise take place, in Wattleup's submission, entirely on the documents without the need for an oral hearing. 43 It is certainly the case that intervention would lengthen the hearing, although, in my view, not as significantly as Wattleup and Primewest contend. Given that the issue of dust and its health and amenity impacts is properly before the Tribunal, the Tribunal would conduct an oral hearing in any case, and call for evidence and submissions in relation to that issue. Although allowing intervention will undoubtedly increase the length of the hearing and result in increased costs to the parties, whereas the Tribunal's objectives include acting as speedily as is practicable and minimising costs to parties, the Tribunal's objectives also include making decisions according to the substantial merits of the case. In this case, on balance, in my view, the Tribunal's objectives favour the granting of leave to intervene to Alcoa. 44 Primewest made four principal submissions in opposition to leave being granted. 45 First, Primewest submits that Alcoa's expressed concerns are merely 'speculative', because they are not based on any site-specific modelling undertaken by Alcoa to prove unacceptable impacts. However, the evidence proposed to be adduced and the submissions proposed to be made by Alcoa are, in my view, relevant in assessing: 46 Secondly, Primewest submits that the intervention applications are 'belated' because Alcoa and KIC could and should have sought leave to intervene in the earlier review proceedings. However, as was acknowledged by Mr MC Hotchkin, counsel for Primewest, the Commission was an active contradictor to the previous subdivision application. Furthermore, as I have said earlier, this case involves the application of public law and the exercise of a statutory function by the Tribunal. While the fact that Alcoa and KIC did not seek leave to intervene in the previous proceedings is relevant in the exercise of discretion, it does not, in my view, warrant a different conclusion in relation to Alcoa. 47 Thirdly, Primewest submits that because the application for intervention is based, in its submission, not on sound town planning grounds but on wider political grounds, and because Alcoa and KIC could make submissions to the Minister under s 246(6) of the PD Act (which the Minister may have regard to, under that section, in determining the applications), leave should be refused. 48 Alcoa may have broader interests and perspectives in opposing subdivision of the land the subject of these proceedings and contiguous land. However, its interest in this proceeding, and the interest in relation to which leave is to be granted to intervene, is a relevant planning consideration and does not embrace wider political perspectives. Although it may make a submission to the Minister, such a submission would not assist the Tribunal in conducting a hearing of the applications and making recommendations to the Minister in relation to the planning merits of the applications. 49 Finally, Primewest submits that although there is no contradictor in this case, that is of little consequence in the exercise of discretion, because the Tribunal will not be making a decision in itself but, rather, will only be making recommendations to the Minister, who will make the decision. In my view, this distinction is not relevant. Whether the Tribunal is making a determination or making a recommendation, it is required to exercise a statutory function under the PD Act, having regard to the purposes of the PD Act and its own objectives under the SAT Act. 50 For these reasons, in my view, the application for leave to intervene by Alcoa should be allowed in the exercise of discretion under s 37(3) of the SAT Act.
KIC's application for leave to intervene or to make submissions 51 I have come to a different view in relation to KIC's application. KIC is an incorporated business association established over 20 years ago, with a membership drawn from the Kwinana Industrial Area. It has 11 fulltime members, which include the major industries in the Kwinana Industrial Area, and 28 associate members. The members include significant operators in the area, including BP, BHP Billiton, Cockburn Cement, the Water Corporation, Fremantle Ports and Alcoa. 52 KIC has goals that are relevant to the matters the subject of these proceedings. They include: • to work towards the longterm viability of industry in the Kwinana Industrial Area; • to coordinate a range of intraindustry activities, including water quality, air quality, monitoring and emergency management; and • to liaise effectively with communities, government and government agencies. 53 The Executive Officer of KIC has given evidence at a Parliamentary inquiry. 54 KIC says that it seeks leave to intervene in relation to issues associated with buffer areas around the Kwinana Industrial Area that have given rise to some controversy over time. However, its submissions reveal that it wishes to, in fact, raise broader strategic environmental, environmental planning and regulatory issues, as well as to criticise the Commission's conduct not only in relation to this subdivision application but broad strategic planning of the area. 55 In my view, KIC does not, in itself, have a sufficient interest to meet the test of standing in ACF. It cannot show any actual or apprehended injury or damage to its property or proprietary interests or to its business or economic interests - although at least one of its members, Alcoa, has been able to do so - if subdivision approval is granted to the proposed subdivisions. As Chaney J held in ING at [28]: (iii) an incorporated … body will not gain standing to intervene merely because it has constitutional objectives directed to promoting outcomes relevant to the matter under review. … 56 In my view, KIC falls into that category. 57 Furthermore and in any case, KIC's intervention is not necessary, in my view, to enable the Tribunal to meet the objectives under the SAT Act and the PD Act. This is because intervention by Alcoa is sufficient to achieve that, and because many of the issues sought to be advanced and agitated by KIC go well beyond the proper scope of these planning review proceedings. 58 Finally, as KIC does not have a sufficient interest, leave cannot be granted to it, under s 242 of the PD Act, to make submissions in relation to the applications. 59 For these reasons, the application by KIC for leave to intervene or to make submissions should be dismissed.
Orders 60 The following orders are made in each proceeding: 1. Pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA), Alcoa of Australia Limited has leave to intervene in this proceeding in relation to whether the proposed subdivision is acceptable in relation to health and amenity impacts of dust. 2. The application by the Kwinana Industries Council (Inc) for leave to intervene in this proceeding or, alternatively, to make submissions in relation to the application is dismissed. 3. The respondent is to file four copies and serve a bundle of the documents it is required to provide under s 24 of the State Administrative Tribunal Act 2004 (WA) by 19 February 2014. 4. The matter is adjourned to a directions hearing at 9.30 am on 21 February 2014 in order to make further programming orders for the currently listed hearing dates. |