WESTERN AUSTRALIAN PLANNING COMMISSION and CPP PTY LTD

[2006] WASAT 379

WESTERN AUSTRALIAN PLANNING COMMISSION and CPP PTY LTD [2006] WASAT 379

Last Update :21/12/2006

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 379
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:331/2006, DR:332/2006	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUSTICE M L BARKER (PRESIDENT)	Delivered:	21/12/2006
No Pages:	23	Judgment Part:	1 of 1
Result:	The decisions made 31 August 2006 is affirmed The review applications made under s 244(3) of the Planning and Development Act 2005 (WA) are dismissed
Category:	A

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WESTERN AUSTRALIAN PLANNING COMMISSION and CPP PTY LTD [2006] WASAT 379 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 DECEMBER 2006 FILE NO/S : DR 331 of 2006 BETWEEN : WESTERN AUSTRALIAN PLANNING COMMISSION

Applicant

AND

CPP PTY LTD
Respondent

FILE NO/S : DR 332 of 2006 BETWEEN : WESTERN AUSTRALIAN PLANNING COMMISSION

Applicant

AND

SEATTLE BAY PTY LTD
Respondent

(Page 2)

Catchwords:

Planning and development - Repeal of s 20(5) of the Town Planning and Development Act 1928 (WA) - Whether s 20(5) continues to apply in review proceedings commenced in Tribunal before repeal operative - Whether s 138(2) Planning and Development Act 2005 (WA) applies

Legislation:

Acts Interpretation Act 1901 (Cth), s 8, s 8(c), s 8(e)
Acts Interpretation Act 1958 (Vic), s 7(2)
Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Environmental Protection Act 1986 (WA)
Interpretation Act 1984 (WA), s 5, s 36, s 36(a), s 36(b), s 36(c), s 36(d), s 36(e), s 37, s 37(1)(c)
Planning and Development (Consequential and Transitional Provisions) Act 2005(WA), s 4, s 17, First Schedule
Planning and Development Act 2005 (WA), s 4, s 135, s 136, s 138, s 138 (1), s 138(2), s 138(3), s 138(4), s 244(3),
Residential Design Codes 2002 (WA), Table 1
Shire of Busselton Town Planning Scheme No 20, cl 6(3), cl 61(1)
Social Security (Budget and Other Measures) Legislation Amendment Act 1993 (Cth)
Social Security Act 1991 (Cth), s 1237
State Administrative Tribunal Act 2004 (WA), s 27(2)
Town Planning and Development Act 1928 (WA), s 20, s 20(1), s 20(5), First Schedule

Result:

The decisions made 31 August 2006 is affirmed
The review applications made under s 244(3) of the Planning and Development Act 2005 (WA) are dismissed

(Page 3)

Category: A

Representation:

DR 331 of 2006

Counsel:

Applicant : Ms C Ide
Respondent : Mr P McQueen

Solicitors:

Applicant : State Solicitor's Office
Respondent : Lavan Legal

DR 332 of 2006

Counsel:

Applicant : Ms C Ide
Respondent : Mr P McQueen

Solicitors:

Applicant : State Solicitor's Office
Respondent : Lavan Legal

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

ACI Pet Operations Pty Ltd v Comptroller-General of Customs (1993) 118 ALR 114
Attorney General (NSW) v World Best Holdings Limited (2005) 63 NSWLR 557
Attorney General (Queensland) v Australian Industrial Relations Commission (2002) 213 CLR 485
Borsa v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 204
Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1996) 46 ALD 273
Director of Public Works v Ho Po Sang [1961] AC 901
Esber v The Commonwealth of Australia (1992) 174 CLR 430

(Page 4)

Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693
Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure and Anor [2002] WASCA 274
New South Wales Aboriginal Land Council v Minister Administering The Crown Lands (Consolidationi) Act and the Western Lands Act (1988) 14 NSWLR 685
Perrott of CPP Pty Ltd and Western Australian Planning Commission [2006] WASAT 260
Re Bennett-Borlase Ex Parte Commissioner for Police (Unreported, Supreme Court of Western Australia, Lib No 970322C at page 5, 20 June 1997)
Robertson v City of Nunawading [1973] VR 819
Seattle Bay Pty Ltd and Western Australian Planning Commission [2006] WASAT 261
State Planning Commission v Wallasley Pty Ltd (Unreported, Supreme Court of Western Australia, Lib No 950254, 26 May 1995)

Case(s) also cited:

Nil

(Page 5)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The President confimed an earlier ruling of the Tribunal that a review application lodged under the Town Planning and Development Act 1928 (WA), before that Act was repealed, should be determined on the basis that s 20(5) of that Act continued to apply to the review proceedings notwithstanding the repeal of the Town Planning and Development Act 1928 by the Planning and Development Act 2005 (WA).

Issue

2 The main issue in these review proceedings is:

• whether s 138(2) of the Planning and Development Act 2005 (WA) (the PD Act) applied to the determination of primary review proceedings before a member of the Tribunal in the primary proceeding to which these further review proceedings relate, rather than s 20(5) of the TownPlanning and Development Act 1928 (WA) (the TPD Act) as the member found.

The initial ruling

3 The applicant, Western Australian Planning Commission (Commission), has commenced these review proceedings before me under s 244(3) of the PD Act in respect of rulings made by Member Mr J Jordan in Seattle Bay Pty Ltd and Western Australian Planning Commission [2006] WASAT 261 and Perrott of CPP Pty Ltd and Western Australian Planning Commission [2006] WASAT 260 that s 20(5) of the TPD Act applied in the determination of the review proceedings before him. In so ruling, the Commission contends the Member erred in law.

4 The respondents to these review proceedings own land in Ella Gladstone Drive, Eagle Bay, a small coastal village on Geographe Bay, northwest of Dunsborough in the Shire of Busselton.

5 Chris Perrot of CPP Pty Ltd applied to the Commission for approval to subdivide Lot 63 Ella Gladstone Drive into two survey strata lots, proposing that one lot should be an 880 square metre vacant lot and the other an 1120 square metre lot with the existing house.

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6 Seattle Bay Pty Ltd applied to the Commission for approval to subdivide Lot 61 Ella Gladstone Drive into two vacant survey strata lots, one of 950 square metres and the other of 1050 square metres.

7 The Commission refused each application for these reasons:

• The subdivision did not comply with Table 1 of the Residential Design Codes (2002) (WA) in that the proposed lots did not comply with the minimum lot size and frontage requirements applicable to the R5 density code.

• The subdivision did not comply with cl 6(3) of the Shire of Busselton Town Planning Scheme No 20 (TPS 20) by not complying with the Residential Design Codes.

• The subdivision did not comply with the "Eagle Bay Precinct Structure Plan" (Eagle Bay Structure Plan) as endorsed by the Commission, which identifies the subject lot as having an "R5" density code.

• The subdivision did not comply with cl 61(1) of TPS 20 in that it did not comply with the Eagle Bay Structure Plan.

• Approval of the subdivision would create an undesirable precedent for further subdivision of surrounding lots with an R5 density code, the cumulative effect of which would be detrimental to the existing character of the area.

8 At material times, before the TPD Act was in effect repealed by the PD Act, s 20(5) of the TPD Act provided:

"(5) In giving its approval under sub-section (1)(a), the discretion of the Commission is not fettered by the provisions of a town planning scheme except to the extent necessary for compliance with an environmental condition relevant to the land under consideration."

9 After the PD Act came into operation, s 138(2) of the PD Act provided:

"(2) Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that

(Page 7)

applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme."

10 Following the Commissioner's refusal in each case, the applicants for subdivision approval, as I will call them, commenced review proceedings in the Tribunal. It was these proceedings that came on for determination before Member Jordan.

11 In the review proceedings before Member Jordan, it was common ground that TPS 20 and the Eagle Bay Structure Plan were of principal significance to the subdivision proposals and must be taken into account by the Tribunal in the determination of the review.

12 In this context, an issue arose whether, if the Tribunal were to consider the approval of subdivision in each case, the approval would "conflict" with the provisions of TPS 20. Member Jordan considered it was arguable that an approval would conflict with the Scheme and the proposal would not fit with any exceptional circumstances listed in s 138(3) of the PD Act: see [2006] WASAT 260 at [52] and [2006] WASAT 261 at [42].

13 However, Member Jordan also considered that, if s 138(2) were not applicable to the review proceedings, and s 20(5) of the TPD Act applied to the proceedings then, for reasons consistent with orderly and proper planning, each proposed subdivision could be approved.

14 Member Jordan then ruled that, by a combination of s 17 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) (the Transitional Act) and s 37 of the Interpretation Act 1984 (WA) (the Interpretation Act), s 20(5) of the TPD Act applied in relation to the determination of each review proceeding.

15 Member Jordan then decided, on the merits of each case, that each subdivision proposal should be approved.

16 The Commission now applies for a review by the President of the finding made by Member Jordan that s 138(2) of the PD Act did not apply to the determination of the review proceedings on the basis that this finding constitutes an error of law.

Section 20 Town Planning and Development Act 1928 (WA)

17 At material times before it was repealed by the Transitional Act, the TPD Act controlled the subdivision of land in Western Australia.

(Page 8)

Section 20(1) of the TPD Act prohibited subdivision of land unless approved by the Commission.

18 However, at material times, s 6 of the TPD Act also enabled a town planning scheme made under the TPD Act to deal with subdivision (see First Schedule, Item 5). Prior to the inclusion of s 20(5) of the TPD Act in 1996, a clause in a town planning scheme which directly prohibited subdivision was considered to be determinative of the issue when subdivision approval was sought: State Planning Commission v Wallasley Pty Ltd (Unreported, Supreme Court of Western Australia, Lib No 950254, 26 May 1995).

19 Section 20(5) of the TPD Act was introduced in 1996 to ensure the Commission could determine a subdivision application without being "fettered" by a provision of a town planning scheme, except to the extent necessary for compliance with an environmental condition imposed under the Environmental Protection Act 1988 (WA) (EP Act) relevant to the land under consideration.

Section 138 Planning and Development Act 2005

20 When the PD Act was recently introduced, the position again changed.

21 By s 138(1) (like the old s 20(1)) the Commission may give its approval to subdivision under s 135 or s 136 subject to conditions which are to be carried out before the approval becomes effective.

22 However, s 138(2), subject to subsection (3), in giving its approval under s 135 or s 136 -

"…the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme."

23 However, s 138(3) ameliorates this provision in that it provides that the Commission may give an approval under s 135 or s 136 that "conflicts with" the provisions of a local planning scheme if one of a number of criteria is met.

24 Section 138(4) (as the old s 20(5)) also enables environmental conditions imposed under the EP Act to remain in place notwithstanding the terms of any subdivision approval.

(Page 9)

Section 17 of the Transitional Act

25 A question arises whether, after the repeal of the TPD Act by the Transitional Act, things done or commenced before the repeal are valid and must continue to be dealt with as though the appeal had not occurred.

26 Section 17 of the Transitional Act provides:

"17. Application of Interpretation Act 1984

(1) The provisions of the Interpretation Act 1984 (for example, sections 16(1), 36 and 38) about the repeal of written laws and the substitution of other written laws for those so repealed apply to the repeal of an Act mentioned in Schedule 1 as if that Act were repealed and re-enacted by the PD Act.

(2) The other provisions of this Act are additional to the provisions applied by subsection (1) and except in the case of section 14(3) and (4) do not affect the operation of the provisions applied by subsection (1)."

27 The TPD Act is mentioned in Schedule 1 of the Transitional Act. Consequently, amongst other provisions, s 36 of the Interpretation Act expressly mentioned in s 17, applies in the case of the repeal of the TPD Act; but so too does s 37 of the Interpretation Act even though note expressly mentioned by s 17.

28 In the absence of s 17 of the Transitional Act, these provisions would not apply to the PD Act, as the PD Act does not in terms repeal the TPD Act; it is s 4 of the Transitional Act that repeals the TPD Act. However, the effect of s 17 is to require that the PD Act be treated as though it repeals and re-enacts the TPD Act. Accordingly, each party accepts that relevant provisions of the Interpretation Act apply to the PD Act and the TPD Act.

Section 36 of the Interpretation Act

29 Section 36 of the Interpretation Act provides:

"36. Repealing and re-enacting a provision, effect of

Where a written law repeals and re-enacts, with or without modification, any enactment -

(a) all districts or other local divisions or areas;

(Page 10)

(b) all councils, corporations, boards, tribunals, commissions, trusts, or other bodies constituted, and all elections and appointments of members thereof made; and

(c) all offices constituted and appointments of officers made;

(d) all subsidiary legislation, warrants, certificates, and documents made; and

(e) all other acts, matters, and things whatsoever,

which, at the commencement of the repealing law, are respectively in existence, or in force or operation, under or for the purposes of such provision, shall, in so far as is consistent with the repealing law, subsist and enure for the purposes of such law and shall continue as if the repealing law had been in operation when they respectively originated or were constituted, made or done and they had originated or been constituted, made or done under that law."

30 Counsel for the Commission contends that s 36 has the effect that all applications, including the review applications here that were made under the TPD Act, need to be treated as though they were commenced under the PD Act, and ought to be determined in accordance with the PD Act.

31 The Commission says this view is supported by s 27(2) of the State Administrative Tribunal Act 2004 (WA) which requires the Tribunal to make the correct and preferable decision at the time of the decision upon the review.

32 However, I cannot see how s 36 has this effect. Nothing in s 36(a)-(e) requires this result. Perhaps it is arguable that the references to "documents" in s 36(d) and to "all other acts, matters, and things whatsoever" in s 36(e), pick up the review applications lodged under the TPD Act, but I do not think that can be the right conclusion. Section 36 seems to me to be a saving provision in respect of the official status of a range of matters, including "documents made", and is not concerned with the acts taken or proceedings commenced by private individuals, albeit that such acts or proceedings may have been done or taken under a statute. Each of the enumerated acts, matters and things in paragraphs (a) - (e) subsists for the purposes of the repealing law if they continue to be "in existence, or in force or in operation". This language does not encompass a review application lodged by an aggrieved applicant for subdivision approval before the PD Act effectively repealed the TPD Act.

(Page 11)

33 In any event, even if s 36 did pick up a review application under the TPD Act, nothing in s 36 says anything about the law to be applied. All that it says is that relevant documents made or other acts "subsist and enure for the purposes of such law and shall continue as if the repealing law had been in operation when they respectively originated or were constituted, made or done and they had originated or been constituted, made or done under that law". That says nothing about the relevant law to be applied. At best, it is ambiguous in its meaning.

34 Consequently, I do not consider that s 36 has any bearing on the question whether the Tribunal erred in applying s 20(5) of the TPD Act in the determination of the review proceedings rather than s 138(2) of the PD Act.

Section 37 of the Interpretation Act

35 More relevant, on the face of it, is s 37 of the Interpretation Act which relevantly provides:

"37. General savings on repeal

(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -

…

(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
…
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made."

(Page 12)

36 The equivalent of s 37 is to be found in s 8 of the Acts Interpretation Act 1901 (Cth) and equivalent legislation in the various Australian States and Territories.

37 As we have seen, Member Jordan considered that the effect of s 17 of the Transitional Act and s 37 of the Interpretation Act was that s 20(5) of the TPD Act continued to apply in relation to the determination of the review proceedings before him. The Commission contests this finding.

38 The Commission contends that s 37 gives statutory effect to certain, well understood general law principles, to this effect:

• In deciding whether an amending statute is to be given retrospective operation it is appropriate to ask whether a substantive right, or merely an existing practice and procedure for enforcing an existing right, is affected by the amendment.

• Prima facie the statute must not be construed so as to change the legal character or the legal consequences of past events and transactions.

39 Counsel for the Commission draws attention to what their Lordships said in the Privy Council in Director of Public Works v Ho Po Sang [1961] AC 901 at 921 – 922, to the effect that liberty to apply for a right is not itself an accrued right or privilege. Their Lordships, at 922, expressly agreed with the proposition that when dealing with a provision such as s 37, it is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law, but quite another thing to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether the applicant shall be given a right which the applicant did not have when the procedure was set in motion.

40 Counsel for the Commission also relies to similar effect on the decision of the Full Court of the Supreme Court of Victoria in Robertson v City of Nunawading[1973] VR 819 where, at 825, the Full Court, in relation to a Victorian provision similar to s 37, held that the mere standing of a member of the community to "take advantage of an enactment" is not a "right" of the sort that is protected by the statute, or otherwise there could be no effective repeal or amendment of any enactment.

(Page 13)

41 Counsel for the Commission also says these principles were applied in Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure and Anor [2002] WASCA 274 at [54].

42 Robertson's case is worth closer examination, particularly because its facts are not dissimilar to those in question here. A landowner lodged a notice of intention to subdivide under the relevant provisions of the Victorian local government legislation on 4 June 1971. As of that date, a local government did not have any power to require the payment of a security, failing which payment it might refuse to allow subdivision. However, on 16 June 1971, an amendment to the local government legislation came into operation and gave a local government precisely this power. The local government then made a request for security to the landowner following the commencement of the amended law. The landowner did not comply with the request, contending that the new law did not apply to a subdivision proposal submitted before the amendment came into operation. The local government then resolved to refuse to approve the proposed subdivision.

43 Section 7(2) of the Acts Interpretation Act 1958 (Vic) was in terms similar to those found is s 37 of the Interpretation Act, and provided that where any Act repeals or amends any other enactment, then unless the contrary intention appears, the repeal or amendment shall not affect "any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed or amended; or affect any investigation in respect of such right, privilege, obligation, liability".

44 The Full Court decided, as the headnote to the report of the case says, that:

• the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings unaffected by amendment of the statute;

• no "right" within the meaning of the Acts Interpretation Act 1958 existed in these circumstances;

• accordingly, the Council was entitled to refuse to approve the plan of subdivision when its request for security was not complied with.

(Page 14)

45 As I say, the circumstances of the present cases are not dissimilar to those in Robertson. Here, the applicants for subdivision approval applied under one set of approval rules that included s 20(5) of the TPD Act, but by the time their applications came to be determined, were faced with a change to those rules reflected in s 138 of the PD Act.

46 On the basis of the authorities cited thus far, it would not appear open to accept that s 37 of the Interpretation Act protects the belief of the applicants for subdivision approval that their review applications should be determined in accordance with the rules that applied prior to the repeal of s 20(5) of the TPD Act and its effective replacement by s 138 of the PD Act.

47 Ordinarily, one would expect that such an administrative review proceeding would be governed by the law as it applies at the date of determination; as s 27(2) of the State Administrative Tribunal Act 2004 (WA) suggests.

48 However, the applicants for subdivision approval contend that the operation of s 37 of the Interpretation Act is wider in scope than that contended for by the Commission and described in Robertson's case, and applies not only to "rights" but to any "interest, title, power or privilege, acquired, established or exercised" prior to the repeal, including an interest in the review proceedings commenced before the repeal of a provision giving entitlement for review. In this regard they also rely on the reasoning of the decision of the High Court of Australia in Esberv The Commonwealth of Australia (1992) 174 CLR 430.

49 Esber was a case that, in part, dealt with s 8 of the Acts Interpretation Act 1991 (Cth), which is similar to s 37 of the Interpretation Act. In Esber, Mr Esber, a former member of the defence forces, received weekly payments in excess of $50 as compensation under the relevant Commonwealth compensation legislation as a result of an injury suffered while a member of the Forces. He applied to redeem his weekly payments pursuant to a provision of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act) so that he might receive a lump sum in lieu of weekly payments. The application for redemption was rejected by the responsible officer under the 1971 Act. The applicant then applied out of time to the Commonwealth Administrative Appeals Tribunal (AAT) to review that decision, as he was entitled to do. Time to apply was extended. After the application for review was made, but before the hearing by the AAT, the 1971 Act was repealed by the Commonwealth Employees' Rehabilitation and

(Page 15)

Compensation Act 1988 (Cth) (1988 Act). The 1988 Act provided that weekly payments over $50 were not redeemable. However, a provision of the 1988 Act provided that proceedings instituted under the 1971 Act but not completed upon the repeal of that Act may be continued on or after that day, and where the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings.

50 Section 8 of the Acts Interpretation Act 1901 (Cth) relevantly provided that, unless the contrary intention appeared, an Act repealing a former Act would not "(c) affect any right … acquired … under any Act so repealed" or "(e) affect any investigation, legal proceeding or remedy in respect of any such right…".

51 On the face of it, the majority of the High Court (Brennan J dissenting) held that the 1971 Act applied to the application for review for two reasons:

• The provision of a 1988 Act providing for the continuation of proceedings was not a procedural provision but gave the applicant a substantive right to have his application heard and determined under the 1971 Act. As the proceedings had not been completed before the commencement of the 1988 Act, the applicant had the right to have the decision reconsidered and determined under the 1971 Act.

• The applicant's right was in any event a right within s 8(c) of the Acts Interpretation Act 1901. The 1988 Act did not affect that right since it expressed no intention to do so.

52 In the majority joint judgment of Mason CJ, Deane, Toohey and Gaudron JJ, their Honours accepted that it may not be possible to say of a person in the position of Mr Esber that he had a right to a favourable determination from the AAT. But at CLR 440, their Honours stated:

"But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim… Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely 'a power to take advantage of an enactment' (footnote omitted). Nor was it a mere matter of

(Page 16)

procedure (footnote omitted); it was a substantive right (footnote omitted). Section 8 … protects anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent' (footnote omitted). This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 … and was not affected by the repeal of the 1971 Act."

53 By contrast, Brennan J in dissent, at CLR 449, observed as follows:

"The distinction between a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a rightshould be granted is critical in this case. Clearly the appellant had no accrued right on 1 December 1988 to a redemption payment; the very purpose of the review by the A.A.T. which the appellant applied for was to obtain a right to a redemption payment. As the A.A.T. was bound to apply the law as it was at the time of the rehearing, it was bound to refuse the application."

54 In this case, if one were to treat the entitlement of an applicant in review proceedings such as these, as being equivalent to the entitlement of Mr Esber to seek review of the refusal of the responsible officer to redeem his weekly payments under the 1971 Act, then the applicants for subdivision here had a "substantive right", to use the language of the majority in Esber, to have the Commission's decision to refuse subdivision reviewed.

55 Counsel for the Commission contends, however, that the right of Mr Esber to have the decision of the delegate reconsidered and determined by the AAT was of a nature that could be regarded as an accrued right, as it dealt with an existing, and continuing, right to compensation. Thus counsel for the Commission contends that the Court in Esber, at 440-441, applied s 8(c) of the Acts Interpretation Act 1901 (Cth), on the basis that Mr Esber had a conditional right to redemption of compensation payments, which right was substantive, albeit contingent in nature.

56 By contrast, counsel argues, the applicants for subdivision approval in this case seek the grant of a discretionary approval, the effect of which would be to relax a prohibition against subdivision otherwise provided for by s 20(1) of the TPD Act. Counsel thus says the applicants had no more

(Page 17)

than a mere hope or expectation of achieving subdivision approval when they commenced review proceedings in the Tribunal and this cannot be considered to be in the nature of an accrued right, to which s 37(1)(c) of the Interpretation Act 1984 applies.

57 The applicants for subdivision approval continued, however, that the decision in Esber applies and, in any event, even if there are grounds for distinguishing the application of the case in certain circumstances, s 37 of the Interpretation Act is more generous in the range of interests it protects when compared with s 8(c) of the Acts Interpretation Act 1901 (Cth). Attention is drawn to the fact that s 37 also refers to a "power", which term is defined by s 5 of the Interpretation Act to include "any privilege, authority or discretion". Counsel for the applicants submits that the meaning of "power" when read in s 37 of the Interpretation Act includes the "power to take advantage of an enactment", namely the unfettered power or discretion of the Commission to approve an application for subdivision. They contend that s 37 protects any legal proceeding in respect of any such power. They say there is no contrary intention that the specific power to seek review has been affected by the PD Act, and that s 138 of the PD Act cannot be read as an intention to the contrary as it would render s 37 of the Interpretation Act nugatory.

58 The decision in Esber seems to have been accepted, for some years, as an unassailable authority for the proposition that provisions such as s 37 of the Interpretation Act protect the right of a person who has commenced an administrative review proceeding before the right to commence such proceeding is taken away or the law governing the substantive subject matter on the proceeding is changed by a repealing law, to have the review proceeding determined in accordance with the law as it stood before the repealing law came into operation; subject of course to any clear statutory expression in the repealing statute or other law to the contrary.

59 Pearce & Geddes "Statutory Interpretation in Austalia" (5th Ed) at [6.12], for example cite Esber for the following proposition:

"Proceedings to review a decision that have been commenced under the Administrative Appeals Tribunal Act 1975 (Cth) may be continued notwithstanding the repeal of the legislation under which the decision is made."
The learned authors also rely on Lee v Secretary, Department of Social Security (1996) 139 ALR 57 in support of this proposition. Pearce &

(Page 18)

Geddes at [6.12] also say that a like ruling in relation to applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was made in ACI Pet Operations Pty Ltd v Comptroller-General of Customs (1993) 118 ALR 114. But the learned authors also note the doubts about this approach expressed in Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1996) 46 ALD 273 at 279. The authors also note that the conclusion is always subject to any contrary intention which may appear in the repeal of the legislation; and cite Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693 at 698 and Borsa v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 204 on this point.

60 As we have seen, the dissenting judgment of Brennan J in Esber strongly rejects the notion that a mere administrative review proceeding can be so protected by provisions such as s 37 of the Interpretation Act. In Lee v Secretary, Department of Social Secretary, Davies J strongly supported the dissenting position of Brennan J in Esber, though the majority of Cooper and Moore JJ in this Federal Court of Australia decision followed the majority approach in Esber.

61 In Lee, the appellant received pension payments under the Social Security Act 1991 (Cth) and was overpaid an amount. From 13 December 1993 a delegate of the respondent decided that this amount was a debt due to the Commonwealth which should be recovered. A recommendation preceding the primary decision showed that waiver and write-off had been considered but were not considered appropriate. The appellant sought review of the primary decision on 23 December 1993. It was affirmed by the review officer and, in due course, by the Social Security Appeals Tribunal before further review was sought by the Administrative Appeals Tribunal. On 24 December 1993 the Social Security (Budget and Other Measures) Legislation Amendment Act 1993 (Cth) commenced. It repealed and replaced s 1237 of the Social Security Act 1991 (Cth), which dealt with the power of the respondent to waive a debt. Under the Act as amended, s 1237 empowered (and required) the respondent to waive a debt, but only in particular factual circumstances. The Administrative Appeals Tribunal in applying the amended provision decided that none of these circumstances applied to the appellant and therefore the waiver of the debt was not possible. It also decided that half of the appellant's debt should be written off and that the balance should be recovered by way of instalments. The appellant argued that the Tribunal had erred in applying the amended provisions of the Act and that s 8 of the Interpretation Act 1901 (Cth) preserved a right to have the decision reviewed by reference to the unamended provision concerning waiver.

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62 Cooper J, at 70, applied the language of the High Court in Esber and found in effect that the appellant had a right to have her claim to waiver determined in her favour if the delegate had wrongly refused her claim and that once those review proceedings were initiated, she had a right to have the decision reconsidered and determined according to law as it applied at the time the review proceedings were commenced.

63 Similarly, Moore J at 80 thought that the view of the majority in Esber was "clear", to similar effect. He found this notwithstanding that the approach to the scope and operation of s 8 of the Acts Interpretation Act did "not accord with the approach" adopted in Director of Public Works v Ho Po Sang and Robertson v City of Nunawading, both of which decisions are referred to earlier in these reasons. Moore J concluded at 80 by saying that s 8:

"… confers on a person affected by the exercise of a statutory power, a right to have the exercise of the power reviewed and exercised again as it might have been exercised initially. Plainly Parliament may indicate that this consequence will not arise by manifesting, in the amending legislation, contrary intention displacing the prima facie operation of s 8."

64 Neither judge in the majority considered that a contrary intention displacing s 8 had been expressed.

65 Davies J, however, dissented as to the application of Esber. His Honour first emphasised the nature of the function which a review tribunal performs. He also emphasised the nature of the claim that is made in review proceedings and whether it has characteristics appropriate to an accrued right or characteristics merely of a procedural matter or of a "power to take advantage of an enactment". Davies J then raised for consideration a further matter namely, whether the review proceedings were commenced prior to the commencement of the amending or repealing Act. He noted what Hope JA had said in New South Wales Aboriginal Land Council v Minister Administering The Crown Lands (Consolidationi) Act and the Western Lands Act (1988) 14 NSWLR 685, at 696:

"These decisions satisfy me that a statutory right will be preserved notwithstanding the repeal or amendment of a statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided

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that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment."
Davies J accepted that the majority in Esber had not referred to this particular point made by Hope JA.

66 Unlike the position in Esber - which Davies J plainly thought constituted review proceedings in respect of a non-discretionary decision or an official or a court, as described as by Hope JA - in the instant case Davies J considered there was no review application of that sort, but merely a claim that was being pursued for a favourable exercise of statutory discretion. At 65, Davies J concluded that the claim in this regard was not a right, either inchoate or contingent, of the sort described in Esber.

67 In Dai Xing Yao v Minister for Immigration and Ethnic Affairs, Black CJ and Sundberg J (in a joint judgment) at 278 - 279 cast considerable doubt on the extent to which the majority judgment in Esber should be relied upon for the proposition previously put. Black CJ and Sundberg J, at 279, expressly noted that neither the majority Justices nor Brennan J in Esber refer to the distinction drawn by Hope JA in the Aboriginal Land Council case between discretionary and non-discretionary decisions, although that case was referred to by the majority on another point.

68 Their Honours referred to the decision of the Full Federal Court in Lee as well as other decisions of the Federal Court which had taken the approach of the majority in Esber as the authority for the proposition earlier put. Their Honours then added at 279:

"This approach does not appear to be consist with Ho Po Sang and the other cases that have applied it, and the High Court in Esber relied on that case, among others, for the proposition that inchoate and incontingent rights can be protected by s 8."

69 In the end their Honours in Dai Xing Yao did not need to express a final view on this point as they considered repealing legislation expressed a contrary intention that s 8 should not apply in the circumstances of the case.

70 Other judges have also expressed some misgivings about the extent to which the majority judgment in Esber stands for the proposition earlier put: see for example, Spigelman CJ in Attorney General (NSW) v World Best Holdings Limited (2005) 63 NSWLR 557 at 573, where the Chief

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Justice refers to the "problematic judgment" in Esber and suggests that it is probably best explained as turning on the interpretation of the transitional provisions of the 1988 Act.

71 Since these decisions doubting the extent to which the majority judgment in Esber supports the proposition put, the High Court has touched on the ratio decidendi of Esber in Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 (AIRC case). In the AIRC case, no party sought to reopen the decision in Esber. Rather all members of the Court distinguished Esber from the proceedings before it. The question which now arises is whether the manner in which the High Court in the AIRC case distinguished Esber is also relevant to the matter in issue in the present case.

72 In the joint judgment of Gaudron, McHugh, Gummow and Hayne JJ in the AIRC case, at [50], their Honours stated that the "accrued right" at stake in Esber was concerned with the continuation of an application for review by the Administrative Appeals Tribunal and "the determination of Mr Esber's entitlement to redeem his rights to further payments for compensation under the earlier legislation".

73 Their Honours emphasised, at [39], that s 8(c) of the Acts Interpretation Act 1901 (Cth)describes in general terms the nature of the "rights" which it preserves. The "right" must be one that is "acquired" or "accrued" under the repealed Act. In the AIRC case, the respondent unions did not assert that they had acquired or accrued a "right" to an award under the earlier legislation which had been repealed. Rather they submitted they had acquired or accrued the "right" to have their disputes arbitrated in accordance with a provision of the repealed Act. Their Honours observed, at [40]:

"Describing the putative right in this manner, however, says little about its legal nature or the way in which it may be enforced. The right acquired or accrued by the respondent unions is more accurately described as a public law right to require the [C]ommission to observe its duty to comply with the law as it exists from time to time. A right of that nature, where it exists, is a right to have a claim or application considered in accordance with a statute that governs its determination."

74 As a consequence, at [47] of the joint judgment, their Honours found the parties to the industrial disputes, with which the AIRC was dealing, (Page 22)

had no "accrued" rights "in the path of changes … effected by [the repealing Act]".

75 Kirby J also considered that Esber was distinguishable from the circumstances presented to the Court in the AIRC case. At [127], he explained that the majority reasons in Esber rested on the construction that their Honours favoured concerning Mr Esber's entitlement to redemption under the transitional provisions that were applicable. As a result, His Honour considered that the remarks of the majority concerning the operation of s 8 of the Acts Interpretation Act 1901 (Cth)were obiter dicta andunnecessary to the result reached. Kirby J, at [136], also emphasised that Mr Esber had an "uncontested statutory entitlement to weekly compensation payments. This afforded him the foundation of a legal right for a fairly simple determination of entitlement to a redemption sum and calculation of its amount". In passing, Kirby J also referred, at [137], to the "persuasive dissenting opinion" of Brennan J in Esber.

76 What the decision of the High Court in Attorney General (Queensland) v Australian Industrial Relations Commission, reveals, perhaps, is that the majority decision in Esber must be approached with caution, in the sense that not every administrative procedure created an earlier law, will be treated as having created in the applicant a substantive right to have a matter determined on the basis of that procedure as it applied before the change. While, on the one hand, it may be said the position in Esber was unusual in that Mr Esber had, as both the joint judgment and Kirby J in Esber explained, an existing entitlement to redeem his rights to further payments for compensation, and this may help to explain the decision in Esber, nothing in the AIRC case expressly disapproves of the majority finding in Esber that, where a person commences an administrative review proceeding before the law is changed that proceeding should be determined according to the law as it stood prior to the repeal.

77 Thus, while I consider there is a strong case to be made in support of the view that no right, interest, title, power or privilege is thereby created, acquired, established or exercisable prior to the operation of the repealing law in circumstances where an owner of land -

• has no existing right to subdivide land and may only subdivide if a statutory prohibition on subdivision is removed by a relevant approval authority;

• applies for such approval;

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• is denied approval;

• then applies for review of that refusal as part of an administrative review process; and then

• before such review is complete finds that the law governing the exercise of the subdivision approval power has been changed by a repealing or amending law,

the decision in Esber stands as high authority in support of the contrary view and I can see no persuasive ground to distinguish Esber from the case before me. It is not for me, as a single judge, to purport effectively to set aside the decision in Esber. As a result, I should follow Esber.

78 The final result is that, in my view, Member Jordan was correct in ruling that the review proceedings before him should be determined by reference to s 20(5) of the TPD Act.

Conclusion and order

79 For these reasons, I consider the Member did not err in law when he held that s 20(5) of the TPD Act continued to govern the applications before him in these cases.

80 As a result, the Tribunal orders that:

1. The decisions of Member Jordan made 31 August 2006 are confirmed; and

2. Each review application made under s 244(3) of the Planning and Development Act 2005 (WA) is dismissed.

I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT