WEST AUSTRALIAN SHALOM GROUP INC. and CITY OF SWAN
[2018] WASAT 36 (S)
•17 AUGUST 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WEST AUSTRALIAN SHALOM GROUP INC. and CITY OF SWAN [2018] WASAT 36 (S)
MEMBER: DEPUTY PRESIDENT, JUDGE PARRY
HEARD: 17 AUGUST 2018
DELIVERED : 17 AUGUST 2018
PUBLISHED : 22 AUGUST 2018
FILE NO/S: DR 299 of 2015
BETWEEN: WEST AUSTRALIAN SHALOM GROUP INC.
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Development application - Rehabilitation centre for men with serious drug or other addictions or other life-dominating issues - Tribunal had determined that use is properly classified as 'Community Purpose' under local planning scheme and is therefore discretionary use capable of approval - Tribunal made order inviting respondent to reconsider its decision to refuse development application under s 31(1) of the State Administrative Tribunal Act 2004 (WA) so that respondent would consider development application on its merits - Practice & procedure - Whether matter should be referred for mediation - Whether Tribunal should make further order inviting respondent to reconsider its decision to refuse development application - Whether Tribunal satisfied that respondent has turned its mind to and properly considered the merits of the development application
Legislation:
City of Swan Local Planning Scheme No. 17
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 31, s 31(1), s 54(1)
Result:
Order made inviting respondent to reconsider its decision under s 31(1) of the State Administrative Tribunal Act 2004 (WA)
Summary of Tribunal's decision:
The Tribunal had previously determined that the use of a property as a rehabilitation centre for men with serious drug or other addictions or other life-dominating issues is properly classified as 'Community Purpose' and is therefore a discretionary use which is capable of development approval under the applicable local planning scheme. The Tribunal made an order under s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) inviting the respondent to reconsider its decision to refuse the development application, because the respondent had not yet considered the merits of the development application.
The respondent's Executive Manager for Planning and Development recommended that the respondent should grant conditional development approval. However, a councillor moved an alternative motion for refusal of the development. Although the motion referred to the use a 'Community Purpose', in his submissions at the Council meeting, the councillor who moved the motion for refusal said words to the effect of 'the use of the land is not a community purpose my definition of a community purpose in that it is open to community members on the street, and members of the public can access the property 24 hours a day' and 'it is not a community purpose because you have to make an application to join Shalom House it is a private facility, not a community facility'.
The applicant applied to the Tribunal for a further order under s 31(1) of the SAT Act inviting the respondent to reconsider its decision. The respondent applied to the Tribunal for the matter to be referred for mediation before any further order is made inviting a reconsideration.
The Tribunal gave an oral immediate decision in which it declined to refer the matter for mediation at this stage and made a further order under s 31(1) of the SAT Act inviting the respondent to reconsider its decision. This is because the Tribunal is not satisfied that the respondent has in fact turned its mind to and properly considered the merits of the development application. In light of the councillor's submissions at the Council meeting, there is a real possibility that the Council only considered the application on a misunderstanding as to its proper land use classification.
The Tribunal subsequently published these reasons taken from the transcript and edited for clarity.
Category: B
Representation:
Counsel:
| Applicant | : | Mr M Flint |
| Respondent | : | Mr P L Wittkuhn |
Solicitors:
| Applicant | : | Steenhoff Brothers Barristers & Solicitors |
| Respondent | : | McLeods Barristers & Solicitors |
Case(s) referred to in decision(s):
City of Swan v West Australian Shalom Group Inc. [2017] WASC 217
West Australian Shalom Group Inc. and City of Swan [2016] WASAT 41
West Australian Shalom Group Inc. and City of Swan [2018] WASAT 36
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
There are two applications before the Tribunal at a directions hearing this morning.
The first application is made by the City of Swan (City or Council) for an order referring this proceeding for mediation under s 54(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The second application is made by West Australian Shalom Group Inc. (Shalom) for an order under s 31(1) of the SAT Act inviting the City to reconsider its decision to refuse development approval for a rehabilitation centre that has been operating for close to three years, without prior development approval under the City of Swan Local Planning Scheme No. 17 (LPS 17 or Scheme), at Nos. 13/157 Park Street, Henley Brook.
Background
The proceeding involves an application for review of the refusal by the City of the development application, brought by Shalom under s 252(1) of the Planning and Development Act 2005 (WA). The application for review was commenced on 24 August 2015 after the City refused to grant development approval on the basis that the use is properly classified as 'Residential Building', which is a prohibited use in the subject Rural-Residential zone under LPS 17. Shalom lodged the development application on this basis, and has maintained throughout since that time, that its use is properly classified as 'Community Purpose', which is a discretionary use capable of development approval in the zone under LPS 17.
The Council had not determined the merits of the development application at the time that the application for review was brought, as it contended that the use is absolutely prohibited as 'Residential Building' under LPS 17.
Following the commencement of the application for review, the Tribunal listed, as a preliminary issue for determination, whether the use is properly classified as 'Residential Building' (and is therefore prohibited) or 'Community Purpose' (and is therefore capable of approval) or a use not listed (and is therefore capable of approval) under LPS 17.
The preliminary issue was heard on 19 January 2016 by Senior Member McNab and determined on 21 April 2016: see West Australian Shalom Group Inc. and City of Swan [2016] WASAT 41. Senior Member McNab determined that the use is not properly classified as either 'Residential Building' or 'Community Purpose', but rather is a use not listed under LPS 17. The City sought leave to appeal against that decision to the Supreme Court, and Shalom filed a notice of contention, and sought leave to crossappeal. The Supreme Court (Banks-Smith J) heard the appeal on 27 January 2017 and 8 February 2017 and, on 3 August 2017, the Court allowed both the appeal and the cross-appeal and remitted the matter to the Tribunal for redetermination of the preliminary issue: see City of Swan v West Australian Shalom Group Inc. [2017] WASC 217.
On 27 and 28 March 2018, I conducted a hearing in relation to the preliminary issue and, on 25 May 2018, I published my decision and reasons: see West Australian Shalom Group Inc. and City of Swan [2018] WASAT 36 (earlier reasons). I determined that the use is not properly classified as 'Residential Building' under LPS 17 and is therefore not prohibited under the Scheme. I also determined that the use is properly classified as 'Community Purpose' under LPS 17. As I said at [15] of the earlier reasons:
Under cl 1.7.1 of LPS 17, the meaning of the land use class 'Community Purpose' is defined in Sch 1 of the Scheme … The term 'community purpose' is defined in Sch 1 of LPS 17 as follows:
''community purpose'' means the use of premises designed or adapted primarily for the provision of educational, social or recreational facilities or services by organisations involved in activities for community benefit[.]
I determined that the use is properly classified as 'Community Purpose', because, as I said at [117] of the earlier reasons:
•the premises at the site are 'adapted' primarily for the use of the site as a rehabilitation centre;
•the use of the site as a rehabilitation centre is or involves the provision of 'educational services' and 'social services'; and
•the educational services and social services are provided by an organisation involved in activities for 'community benefit'.
(see generally [112] [142] of the earlier reasons)
I concluded the earlier reasons at [145] [146] as follows:
Almost three years ago, Shalom applied to the City for development approval under LPS 17 to change the use of the site from three 'Grouped Dwellings' to 'Community Purpose'. In particular, Shalom seeks development approval for use of the site as a rehabilitation centre for men with serious drug or other addictions or other life-dominating issues. As Shalom has maintained since it lodged the development application, the use proposed in the development application is properly classified as 'Community Purpose' under LPS 17 and is therefore a discretionary use on land in the Rural-Residential zone of the Scheme. The use is capable of development approval at the site in the exercise of planning discretion under LPS 17.
As the City has not yet considered the merits of the development application, it is appropriate that it be invited to do so under s 31(1) of the SAT Act. Under s 31(3) of the SAT Act, if the City varies its decision to refuse development approval or sets it aside and substitutes a new decision, then, unless the proceeding is withdrawn, it is taken to be for the review of the decision as varied or the substituted decision.
I then made the following orders:
1.The preliminary issues are answered as follows:
(a)the proposed development is not properly classified as 'Residential Building' under the City of Swan Local Planning Scheme No. 17; and
(b)the proposed development is properly classified as 'Community Purpose' and is therefore capable of approval under the City of Swan Local Planning Scheme No. 17.
2.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision on or before 27 July 2018.
3.The proceeding is adjourned to a directions hearing at 2.00 pm on 3 August 2018 in order to await the reconsideration.
Application for a further order inviting reconsideration
On 1 August 2018, Shalom made an application to the Tribunal for 'the Tribunal [to] invite the Respondent to again reconsider its decision in this matter' under s 31(1) of the SAT Act. In support of the application for a further order inviting reconsideration under s 31(1) of the SAT Act, Shalom relies on the affidavit of Mr Simon James Steenhof, sworn 1 August 2018. Mr Steenhof is the solicitor acting for Shalom in this proceeding. Mr Steenhof was not required for crossexamination.
In his affidavit, Mr Steenhof gives evidence that, pursuant to order 2 made on 25 May 2018, the City proposed to reconsider its decision to refuse the development application at its meeting on 4 July 2018. Mr Steenhof gives evidence that, prior to the meeting of the Council, he obtained and reviewed a copy of the report to the Council prepared by the Executive Manager for Planning and Development 'in which it was recommended that the Application be approved by the Council subject to a number of conditions'. The report of the Executive Manager is annexed to Mr Steenhof's affidavit.
Mr Steenhof gives further evidence that, on 4 July 2018, he attended the City's Council chambers for the purposes of viewing the City's deliberation and determination of the reconsideration. He gives evidence that prior to the commencement of the meeting he was provided with a copy of an alternative motion proposed by Cr Charlie Zannino. The alternative motion proposed by Cr Zannino, which is annexed to Mr Steenhof's affidavit, states as follows:
[T]hat the Council resolve to:
1)Refuse to grant approval to the proposed change of use - "Grouped Dwelling"s to "Community Purpose" (Shalom House) - Lot 1(No.13/157) Park Street, Henley Brook, for the following reasons:
1.The use is considered to be inconsistent with objective a) of the Rural[-]Residential zoning applicable to the land in that it is not a low[-]density residential use; and
2.The use is considered to be inconsistent with planning objectives 2 and 3 for proposed development within Area A of the Swan Valley Planning Act 1995 in that it is not a viticulture, horticulture, hobby farming, tourism, or other rural activity.
2)Advise WA Shalom Group Inc. that the Council gives it notice that it has 12 months from the date of Council's decision to cease the use of the Premises for "Community Purpose".
…
Mr Steenhof gives evidence that when the Council meeting commenced, he observed that two councillors, being Cr John McNamara and Cr Andrew Kiely, were absent, meaning that there were 13 councillors in attendance. After a number of unrelated matters were considered by the Council, when the time came for deliberation and determination of the development application, Cr Peter Lyndon-James, who is the principal of Shalom, left the meeting.
Mr Steenhof gives evidence that Cr Zannino then put the alternative motion, referred to earlier, before the Council, and made a number of submissions in opening, in support of the motion, including stating words to the effect of:
the use of the land is not a community purpose - my definition of a community purpose in that it is open to community members on the street, and members of the public can access the property 24 hours a day
and
it is not a community purpose because you have to make an application to join Shalom House - it is a private facility, not a community facility.
Mr Steenhof gives evidence that prior to the vote being taken in the Council meeting, and before Councillor Zannino's closing submissions, Mayor David Lucas stated that this has been one of the most difficult decisions the Council has faced, and that he was personally unsure as to whether he ought to approve the application or approve the alternative motion, subject to hearing Cr Zannino's closing submissions. Mr Steenhof gives evidence that Cr Zannino then repeated the contents of his opening submissions and the Council voted six in favour of the alternative motion, including the mayor, and six against the alternative motion.
The mayor then exercised his casting vote in favour of the alternative motion. As a result, the application for development approval was refused by a vote of seven (including the mayor's casting vote) to six.
Finally, Mr Steenhof annexes an article from a local community newspaper, which reported that Councillor Zannino said the following words at the Council meeting on 4 July 2018:
My definition of a community service [sic] is that it's open to community members on the street.
You have to put an application in for Shalom House. It's a private facility, not a community facility.
Application for referral of the matter for mediation
As I indicated earlier, there are two applications before the Tribunal today. On behalf of the City, Mr Wittkuhn seeks an order referring the matter for mediation. Mr Wittkuhn seeks that order for the following five reasons.
First, there has not been a mediation for the purpose of seeking to resolve the planning merits of the development application in this proceeding.
Secondly, the issue raised in Mr Steenhof's affidavit, Mr Wittkuhn submits, can be addressed, to the extent that is necessary, in mediation, along with the planning merits of the development application.
Thirdly, it is submitted that mediations usually conclude in this jurisdiction with an order inviting a reconsideration of s 31(1) of the SAT Act in any case and, therefore, it in essence matters not whether the order for reconsideration is made for the reasons referred to by Mr Steenhof in his affidavit or simply as the culmination of a mediation.
Fourthly, it is submitted on behalf of the City that the vote was close, and indeed it was. Mr Wittkuhn submits that:
… it may not take all that much for people to be persuaded by further focused merits based discussion in the context of a mediation.
Finally, it is submitted on behalf of the City that if it were invited to reconsider its decision without a mediation and if the City stands by its decision to refuse development approval on reconsideration, then we will be back in the same position in six weeks and have to consider whether to refer the matter to mediation or for a final hearing. If the matter is listed for a final hearing at that stage, Mr Wittkuhn submits, then the process will have been 'impoverished' by reason of the lack of mediation in relation to the merits of the development.
Shalom opposes the matter being referred for mediation at this stage and moves for a further invitation under s 31 of the SAT Act, inviting the City to reconsiders its decision. Mr Flint on behalf of Shalom submits that his client is 'not philosophically opposed to mediation' and can see that mediation is a useful mechanism for seeking to resolve disputes. However, at this stage, Shalom seeks the invitation for reconsideration and not mediation. In particular, this is because the City's officers, Mr Flint submits, recommended approval on the merits of the application and therefore have an understanding of the merits of the application without the need for further mediation, and having been before the Tribunal for three years, including the use having continued for three years, Shalom at present does not see how it might make changes to the use through mediation.
Mr Flint submits that rather than the matter being referred for mediation at this stage, the Tribunal should exercise its discretion under s 31 of the SAT Act to again invite the City to reconsider its decision. In support of this application, Mr Flint submits that while the applicant does not seek a finding that one or more councillors of the City misdirected themselves as to the proper land use classification of the use, there is at the very least a 'real possibility' that at least one if not more of the councillors did misdirect themselves as to the proper land use classification and therefore approached the reconsideration on that misunderstanding.
Mr Flint also submits that given the long history of the proceeding, the costs incurred by the parties in three hearings in relation to the proper land use classification, two in the Tribunal and one in the Supreme Court, it is appropriate for there to be a determination on the merits on a clear understanding of the proper land use classification of the use. Mr Flint was very clear in his submissions that Shalom is not seeking a finding that one or more councillors misdirected themselves and is certainly not seeking an order in any way setting aside the Council's resolution of 4 July 2018. As Mr Flint correctly submits, the Tribunal does not have power to set aside that determination on the basis of a misdirection. Rather, the essence of the submission put on behalf of Shalom is that there is a real possibility that one or more councillors did misdirect themselves as to the proper land use classification and that it is appropriate in those circumstances for there to be a further order.
In response, Mr Wittkuhn submits on behalf of the City that a mediation at this stage would add value to the process and that although the City does not concede that there was any misdirection as to the proper land use classification by any councillor, it accepts that there is at least a doubt and that ultimately, a reconsideration order, although one following mediation, may be appropriate.
Determination of applications
Mediation is an essential dispute resolution process in this Tribunal, including in the planning jurisdiction. It is an important means by which the Tribunal gives effect to its objectives set out in s 9 of the SAT Act 'to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case' and to do so 'as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties'.
It is correct, as Mr Wittkuhn submits, that this matter has never been referred for mediation in relation to the merits of the application. That is because the first three years of the progress of this proceeding has been devoted to the determination of the proper land use classification of the use.
In my view, for the following reasons, the matter should not be referred for mediation at this stage, but rather should be subject to a further invitation for reconsideration by the City under s 31(1) of the SAT Act.
As indicated earlier, the outcome of my determination as to the proper land use classification of the use being Community Purpose on 25 May 2018 was that [146]:
As the City has not yet considered the merits of the development application, it is appropriate that it be invited to do so under s 31(1) of the SAT Act.
As indicated earlier, the City prior to that point had never turned its mind to the merits of the development application. There is, as Mr Flint submits, a strong possibility that at least one and perhaps more councillors misdirected themselves as to the proper land use classification of the use. Although the alternative motion moved by Cr Zannino referred to the 'proposed change of use' from 'Grouped Dwelling' to 'Community Purpose', the councillor's submissions at the meeting (which may have caused the Mayor to vote for the alternative motion and to exercise his casting vote for refusal of the development) referred to his 'definition' or understanding of 'Community Purpose', which is not the definition of that land use class in LPS 17 and which I applied in my earlier decision. I am therefore not satisfied that the Council has in fact turned its mind to and properly considered the merits of the development application. In light of Cr Zannino's submissions at the Council meeting, there is a real possibility that the Council only considered the application on a misunderstanding as to its proper land use classification.
Therefore, the intent of the order made on 25 May 2018 inviting a reconsideration by the Council on the merits of the development application has not been satisfied. Furthermore, this matter has had a very long history and throughout that history the Council has not yet turned its mind to the merits of the development application on a clear understanding that the application is capable of development approval as a Community Purpose.
Given the long history of the matter and given the expectation in the orders made on 25 May 2018 that there would be a determination on the merits of the application and on an understanding of the proper land use classification as discussed in the Tribunal's reasons published on that day, it is appropriate that the Council be invited again to reconsider its decision on the merits under s 31 of the SAT Act.
In relation to the application for the matter to be referred for mediation prior to a reconsideration, Mr Wittkuhn is quite correct that there has not been a mediation in this proceeding in relation to the merits of the application. However, the merits of the application have certainly been sufficiently understood by the Council's professional staff to be able to provide a recommendation for approval of the application to the Council.
Furthermore, the issue raised by Mr Steenhof in his affidavit is not a matter that should be the subject of mediation. The issue raised involves a very real possibility that the Council has not turned its mind to the merits of the development application on the basis of a correct understanding of the proper land use classification and that is a matter that should be remedied by the Council now turning its mind to the merits of the development application on a clear understanding that the application is capable of approval as it is properly classified as Community Purpose under LPS 17.
In relation to the submission that mediations often result in a s 31 reconsideration invitation and that it matters not whether that order arises from discussions at mediation or from an order made by the Tribunal today, I respectfully disagree. It matters a great deal that the Council properly address the order made for reconsideration following detailed reasons on 25 May 2018 as to why the use is indeed properly classified as 'Community Purpose' under LPS 17.
It is certainly the case, as Mr Wittkuhn submits, that the vote was close on 4 July 2018. However, I am not satisfied that that vote involved a determination of the merits of the development application on the basis of a correct understanding of the proper land use classification. It may well be, as the City submits, that the vote at a further Council meeting, involving a reconsideration of the decision to refuse the development application, will be the same, and that in six weeks' time we will be talking about whether the matter should go to mediation.
However, if there is a determination to refuse the development application on the merits, then that will be based on a correct understanding of the proper land use classification, and the parties can then discuss the merit concerns that found such a refusal. On the other hand, if the Council resolves to approve the development application, then the matter will have been, in effect, resolved through the reconsideration.
Conclusion
For these reasons I consider that the application by the City for the matter to be referred for mediation in advance of a reconsideration by the City should not be allowed.
Rather, I consider that the application by Shalom for an order inviting the respondent to reconsider its decision, on the basis of the land use classification as determined by the Tribunal on 25 May 2018, should be granted.
Orders
For these reasons, I make the following orders:
1.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision on or before 28 September 2018 on the basis that the use for which development approval is sought is properly classified as 'Community Purpose' under the City of Swan Local Planning Scheme No. 17, and is therefore capable of being approved for the reasons set out in West Australian Shalom Group Inc. and City of Swan [2018] WASAT 36.
2.The proceeding is adjourned to a further directions hearing at 9.30 am on 5 October 2018 at 565 Hay Street, Perth, Western Australia in order to await the reconsideration and to make further programming orders if necessary.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D PARRY, DEPUTY PRESIDENT
22 AUGUST 2018
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