WATTLEUP ROAD DEVELOPMENT COMPANY PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION - [2014] WASAT 16

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 16

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 17 JANUARY 2014

DELIVERED : 17 JANUARY 2014

PUBLISHED : 6 FEBRUARY 2014

FILE NO/S: DR 362 of 2013

BETWEEN: WATTLEUP ROAD DEVELOPMENT COMPANY PTY LTD
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Town planning - Subdivision application - 'Call in' by Minister for Planning - Minister directed Tribunal to hear application but, without determining it, refer it with recommendations to Minister for determination - Western Australian Planning Commission supports approval of subdivision application subject to imposition of conditions agreed to by applicant - Preliminary issues - Whether Tribunal has power to make an order inviting Commission to reconsider its decision under s 31(1) of the State Admnistrative Tribunal Act 2004 (WA) - Whether Tribunal should exercise discretion to invite Commission to reconsider its decision

Legislation:

Planning and Development Act 2005 (WA), s 135, s 246(1), s 246(2), s 246(2)(b), s 247(1), s 251(1), s 253 (2), s 253(3)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 9, s 31(1), s 37(3), s 46(1), s 54(1)

Result:

Tribunal declined to invite Western Australian Planning Commission to reconsider its decision

Summary of Tribunal's decision:

The Minister for Planning 'called in' a planning review application in relation to the deemed refusal by the Western Australian Planning Commission of a subdivision application and directed the Tribunal to hear the application but, without determining it, refer it with recommendations to the Minister for determination under s 246(2)(b) of the Planning and Development Act 2005 (WA). The Commission subsequently resolved that it supports the approval of the subdivision application subject to conditions agreed to by the applicant. The applicant and the Commission then raised preliminary issues as to whether the Tribunal has power to invite the Commission to reconsider its decision under s 31(1) of the State Administrative Tribunal Act 2004 (WA) and, if so, whether it should exercise its discretion to invite a reconsideration by the Commission.
The Tribunal gave an oral immediate decision. The Tribunal said that it was inclined to the view that it has power to invite a reconsideration by an original decisionmaker in circumstances where it has been directed by the Minister to hear an application but, without determining it, refer it with recommendations to the Minister for determination.
However, the Tribunal also said that it was unnecessary to express a considered view on this issue, because it determined that, if it had power, it would decline to invite a reconsideration in the exercise of its discretion in the circumstances of the case. This is because an invitation for reconsideration in this case would be inconsistent with the Minister's direction in certain respects, would be, on balance, inconsistent with the Tribunal's objectives, and is opposed by the Commission.

Category: B

Representation:

Counsel:

Applicant: Mr PJ McQueen
Respondent: Ms CA Ide

Solicitors:

Applicant: Lavan Legal
Respondent: State Solicitor for Western Australia

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

AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 85 ALJR 1233
Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176
Wattleup Road Development Company Pty Ltd and Western Australia Planning Commission [2011] WASAT 160

REASONS FOR DECISION OF THE TRIBUNAL:

Background and preliminary issues

On 23 May 2013, Wattleup Road Development Company Pty Ltd (Wattleup) lodged an application with the Western Australian Planning Commission (Commission) seeking approval under s 135 of the Planning and Development Act2005 (WA) (PD Act) for a green title residential subdivision of land at Lot 809, Lot 9002 and Lot 9003 Wattleup Road, Hammond Park (site). As the Commission did not determine the subdivision application within the relevant decision period, on 26 September 2013, Wattleup gave the Commission a notice of default under s 253(2) of the PD Act, thereby enabling Wattleup to 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 subdivision application; see s 253(3) of the PD Act.
On 27 September 2013, Wattleup commenced this proceeding seeking review by the Tribunal under s 251(1) of the PD Act of the Commission's deemed refusal of the subdivision application. Fourteen days after the commencement of the proceeding, on 11 October 2013, the Hon John Day MLA, Minister for Planning, wrote to the President of the Tribunal as follows:
Dear Justice Chaney
APPLICATION FOR REVIEW IN THE MATTER OF WATTLEUP ROAD DEVELOPMENT COMPANY PTY LTD AND THE WAPC - LOTS 809, 9002 AND 9003 WATTLEUP ROAD, WATTLEUP (DR 362 OF 2013).
On 27 September 2013, Roberts Day for the Wattleup Road Development Company Pty Ltd made an application for review to the State Administrative Tribunal (SAT) in respect of a deemed refusal relating to a subdivision proposal for residential purposes at Wattleup Road, Wattleup (WAPC Ref: 148010).
Having regard to the State and regional importance of the matters pertaining to this proposal, I have determined to call in the application. Accordingly, pursuant to section 246(2)(b) of the Planning and Development Act 2005, I direct that the State Administrative Tribunal hear the application but, without determining it, refer it with recommendations to me for determination.
At its meeting on 26 November 2013, the Commission resolved to advise the Tribunal that it supports the approval of the subdivision application subject to the imposition of 32 conditions and nine advice notes. At the directions hearing which took place in the Tribunal on 29 November 2013, Wattleup indicated that it does not oppose the conditions referred to by the Commission if the subdivision application is approved. There are therefore no matters in issue between Wattleup and the Commission in relation to the merits of the subdivision application. Both parties consider that subdivision approval should be granted subject to the 32 conditions referred to by the Commission in its resolution of 26 November 2013.
At the directions hearing on 29 November 2013, there was apparently discussion between the parties as to whether, having regard to the Minister's direction under s 246(2)(b) of the PD Act, the Tribunal has power to invite the Commission to reconsider its decision under s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT) Act. A 'possible preliminary issue' in that regard was identified in the orders made at the directions hearing.
Also at the directions hearing, applications for leave to intervene in the proceeding under s 37(3) of the SAT Act were foreshadowed by the Kwinana Industries Council Inc and by Alcoa of Australia Ltd (proposed interveners). The Tribunal ordered that the applications for leave to intervene were adjourned to a further directions hearing.
At a further directions hearing convened on 6 December 2013, the parties were directed to file and exchange written submissions prior to a hearing of the preliminary issue, and the proposed interveners were granted leave to make a written submission in relation to the preliminary issue.
The parties ultimately raised two preliminary issues for determination. These are:
(1)Whether the Tribunal has power to make an order inviting the Commission to reconsider its decision under s 31(1) of the SAT Act in circumstances where the Minister has made a direction to the Tribunal under s 246(2)(b) of the PD Act.
(2)If the answer to (1) is yes, whether the Tribunal should, in the exercise of its discretion, make an order inviting the Commission to reconsider its decision under s 31(1) of the SAT Act.
Wattleup contends that the answer to each of these preliminary issues is in the affirmative, whereas both the Commission and the proposed interveners contend that the answer to each of these issues is in the negative.

Does the Tribunal have power to invite the Commission to reconsider its decision?

The answer to the first preliminary issue turns on the proper interpretation of s 246(2)(b) of the PD Act. As the High Court of Australia held in AB v State of Western Australia & Anor [2011] HCA 42; (2011) 244 CLR 390; (2011) 85 ALJR 1233 at [10]:
... What is comprehended by [a legislative provision] falls to be determined by construing its terms in the context of the [legislation] as a whole and by reference to its evident purposes. … (Citations omitted)
Section 246(1) and (2) of the PD Act state as follows:

(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.

Section 247(1) of the PD Act states as follows:
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.
Wattleup, the Commission and the proposed interveners each presented detailed submissions in relation to the proper interpretation of s 246(2)(b) of the PD Act in terms of its text, context and purpose. The resolution of issue (1) is complex and difficult. There are strong competing arguments in relation to whether, on its proper interpretation, s 246(2)(b) of the PD Act precludes the Tribunal from exercising power under s 31(1) of the SAT Act to invite the Commission to reconsider its decision.
I am inclined to the view that the words 'hear the application' in s 246(2)(b) of the PD Act enable the Tribunal to exercise all of its nondeterminative powers under the SAT Act, including powers to refer a matter to mediation under s 54(1) of the SAT Act and to invite an original decisionmaker to reconsider its decision under s 31(1) of the SAT Act. As Mr PJ McQueen submits on behalf of Wattleup, the term 'hearing' is defined in s 3(1) of the SAT Act to include a compulsory conference or mediation. As Mr McQueen also submits, upon being invited to reconsider its decision under s 31(1) of the SAT Act, an original decisionmaker is empowered to make a fresh decision in relation to the matter, not to determine the review proceeding. What is precluded by a direction under s 246(2)(b) of the PD Act is a determination of the application for review. Once a direction is made under that section, unless it is withdrawn, only the Minister can determine the application for review.
Ultimately, however, it is unnecessary in this case to express a considered view as to whether the Tribunal has power to make an order inviting the Commission to reconsider its decision under s 31(1) of the SAT Act, because assuming that the Tribunal has this power, I would decline to make an order inviting a reconsideration in the exercise of discretion under s 31(1) of the SAT Act.

Should the Tribunal make an order inviting the Commission to reconsider its decision?

Section 31 of the SAT Act states as follows:
(1)At any stage of a proceeding for the review of a reviewable decision, the Tribunal may invite the decision maker to reconsider the decision.
(2)Upon being invited by the Tribunal to reconsider the reviewable decision, the decision maker may -
(a)affirm the decision; or
(b)vary the decision; or
(c)set aside the decision and substitute its new decision.
(3)If the decision maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision.
As was observed in Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176 (Canal Rocks) at [22]:
The word 'may' in s 31(1) of the SAT Act imports a discretion. The Tribunal is not compelled to invite the decisionmaker to reconsider its decision if requested to do so by either party or by both parties jointly; rather, it has a discretion in relation to whether or not to invite the original decisionmaker to reconsider its decision.
Mr McQueen submits that discretion should be exercised to invite a reconsideration in the circumstances of this case for four reasons. First, Wattleup has the support of the Commission. Second, it would potentially avoid an unnecessary hearing before the Tribunal. Third, it is consistent with the objectives of the SAT Act. And fourth, it avoids the need for a fresh application for subdivision approval to be lodged by Wattleup with the Commission.
In my view, assuming that the Tribunal has the power to invite the Commission to reconsider its decision under s 31(1) of the SAT Act, the discretion should be exercised against inviting a reconsideration for the following reasons. First, inviting a reconsideration would be inconsistent with the Minister's direction in certain respects. The first respect is that, whereas the direction contemplates and indeed requires that the determination in relation to the subdivision application, being the application the subject of the review proceeding, is to be made by the Minister, a s 31 invitation would authorise the Commission to make a determination in relation to the subdivision application.
Secondly, whereas under s 247(1) of the PD Act, in determining the application, the Minister is not limited to planning considerations, but may make the determination having regard to any other matter affecting the public interest, the Commission is restricted to planning considerations.
Thirdly, as Ms CA Ide, who appears on behalf of the Commission, submits, if an order under s 31(1) of the SAT Act were made inviting the Commission to reconsider its decision and if it were to grant subdivision approval subject to the agreed conditions, it is probable that Wattleup would seek leave to withdraw the review application. If leave were granted to withdraw the review application, it would result, inconsistently with the direction of the Minister, in the Tribunal not hearing the matter in order to make recommendations to the Minister and in there being no referral of the review application to the Minister with the Tribunal's recommendations.
The second reason for declining to make an order inviting a reconsideration in the exercise of discretion is that, in my view, on balance, making such an order in the circumstances of this case would be inconsistent with the Tribunal's main objectives set out in s 9 of the SAT Act. The Tribunal's main objectives are:
(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.
Although resolution of the proceeding by way of reconsideration by the Commission and withdrawal of the review application by Wattleup, if leave to withdraw was sought and granted, is likely to be quicker and cheaper for the parties than a hearing by the Tribunal for the purposes of making recommendations to the Minister and determination of the review application by the Minister, there is a serious question as to whether leave to withdraw the proceeding would be granted when there is a direction by the Minister to the Tribunal to hear the application but, without determining it, refer it with recommendations to the Minister for determination. This is particularly the case because the Minister has determined that the application raises issues of such State or regional significance that it would be appropriate for the application to be determined by the Minister under s 246(1) of the PD Act, and, in determining the application, the Minister is not limited to planning considerations, but may make the determination having regard to any other matter affecting the public interest under s 247(1) of the PD Act.
I am not, in the context of the preliminary issues before the Tribunal, deciding, of course, whether leave to withdraw the proceeding would be granted under s 46(1) of the SAT Act if there were a reconsideration by the Commission and an application for leave to withdraw by Wattleup. However, there is a serious question as to whether leave to withdraw would be granted in such circumstances. That being the case, there is a serious question as to whether the need for a hearing would be avoided if the Commission were invited to reconsider its decision and if it were to grant subdivision approval with Wattleup then seeking leave to withdraw the review application. Further, even if a s 31 invitation were made and resulted in approval of the subdivision application by the Commission, as Ms Ide submits, it would not alter the length of the hearing, because it is clear today that the Commission supports the subdivision application on its merits.
Furthermore, as the interveners submit, in the particular circumstances of this case, inviting a reconsideration by the Commission would be inconsistent with the Tribunal's objective 'to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case'. The 'substantial merits of the case' include issues of State or regional importance, as the Minister has determined under s 246(1) of the PD Act, and not only planning considerations, but also potentially other matters affecting the public interest, which the Minister may take into account in determining the application under s 247(1) of the PD Act. The Commission's reconsideration of its decision may therefore not address all of the 'substantial merits of the case'.
The 'substantial merits of the case' also include an adequate assessment of dust generated from the Kwinana Industrial Area and elsewhere which may impact upon the site. A previous subdivision application was refused by the Tribunal having regard to potential dust impacts; see Wattleup Road Development Company Pty Ltd and Western Australia Planning Commission [2011] WASAT 160. As noted in the Tribunal's summary of its decision at [1] of those reasons, the site is approximately 1.2 to 1.7 kilometres northeast of the edge of a property used for drying and disposal of bauxite residue resulting from alumina production in the Kwinana Industrial Area. The site is also proximate to a large sand quarry, or at least was, at the time of that decision. As the Tribunal observed in its summary of that decision at [3], it found that there was a threat of serious or irreversible environmental damage for residents of the proposed subdivision in relation to dust from the residue disposal area and the sand quarry. The Tribunal also found that there was scientific uncertainty as to the environmental damage. It consequently applied the 'precautionary principle' and found that adequate air quality monitoring would be required in order to avert the anticipated threat of environmental damage. As the Tribunal noted at [5] of its decision, balancing the planning considerations, the Tribunal found that the precautionary principle warranted refusal of the 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.

Although Wattleup submits that it has responded to the Tribunal's reasons for refusal in the earlier proceeding by having further dust monitoring over a 12 month period, the proposed interveners submit that the adequacy of the dust monitoring undertaken on the site is 'contentious' and that their assistance would be required by the Tribunal for a proper and informed assessment of those issues.
Although the proposed interveners do not have a right to seek review of any planning decision in relation to the site, in light of the history of the previous subdivision application refused by the Tribunal, the Minister's direction to the Tribunal to hear and make recommendations in relation to the determination of the application, and the interveners' submissions that the dust monitoring is in contention and that their involvement as parties is necessary for an informed assessment, I do not consider that the Tribunal should exercise its discretion to invite the Commission to reconsider its decision under s 31 of the SAT Act.
Thirdly, although it is correct that Wattleup now has the support of the Commission in relation to the planning merits of the subdivision application, the Commission opposes an invitation being given to it to reconsider its decision and submits that the matter should proceed in the Tribunal to a hearing with recommendations to the Minister. The Commission's opposition to an invitation being given to it is a factor in the exercise of discretion against making such an invitation.
Finally, I note that Wattleup could simply lodge a fresh subdivision application with the Commission and have it determined. Such a subdivision application would not be subject to the direction by the Minister under s 246(2)(b) of the PD Act. While in the absence of the particular circumstances of this case referred to earlier and, in particular, the direction by the Minister, it would be inappropriate and contrary to the Tribunal's objectives, as was found in CanalRocks at [33], to leave the parties to such a course of action, in the particular circumstances of this case, for the reasons discussed earlier, the Tribunal's objectives, on balance, warrant declining to invite the Commission to reconsider its decision. As the Commission submits, CanalRocks itself is distinguishable because there was no direction by the Minister in that case under s 246(2)(b) of the PD Act.

Orders

For these reasons, I make the following orders:
1.The application for the Tribunal to exercise its discretion to invite the respondent to reconsider its decision under s 31(1) of the State Administrative Tribunal Act 2004 (WA) is dismissed.
2.The matter is adjourned to a directions hearing in the development and resources stream list at 10 am on 24 January 2014 for further directions.

I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT