Whiteman and Anor and Western Australian Planning Commission

[2006] WASAT 255

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION:   WHITEMAN & ANOR and WESTERN AUSTRALIAN PLANNING COMMISSION [2006] WASAT 255

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   25 AUGUST 2006

FILE NO/S:   DR 62 of 2006

BETWEEN:   KENNETH PAUL WHITEMAN

SUSANA KROLL
Applicants

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Leases and licenses - Application for approval of lease or licence to use or occupy land for a period exceeding ten years - Preliminary issue - Jurisdiction - Whether licensee may seek approval - Whether retrospective approval can be granted - Application for review dismissed as misconceived

Legislation:

Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA), s 4, Sch 1
State Administrative Tribunal Act 2004 (WA), s 29(1), s 29(2), s 47(1)(a), s 60(2)

Town Planning and Development Act 1928 (WA), s 20(1), s 26(1)(a), s 27(1)

Result:

The Tribunal does not have jurisdiction to entertain the proceedings
Proceedings dismissed

Category:    B

Representation:

Counsel:

Applicants:     Mr B Eagle

Respondent:     Mr T Sharp

Solicitors:

Applicants:     Eagle & Partners

Respondent:     State Solicitor

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

Farleigh Investments Pty & Anor the Reefking Pty Ltd [2002] WAFC 115

Glentham Pty Ltd v City of Perth [1986] WAR 205

Perpetual Trustees WA Limited v Holmes & Ors (Unreported SCWA, Anderson J, CIV 2476 of 1996, 21 April 1997)

Rafferty & Ors and City of Joondalup [2006] WASAT 229

Stone James and Co v Investment Holdings Pty Ltd [1981] WAR 363

WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton [2005] WASAT 266

Case(s) also cited:

Bishop & Anor v Taylor (1968) 118 CLR 518

Caltex Properties Limited (in liq) v Love & Anor (unreported, SCWA, Parker J, CIV 1304 of 1995, 14 May 1997)

Cobanov v Cobanov [2002] WASC 257

Goldsworthy Mining Limited v The Commissioner of Taxation of the Commonwealth of Australia (1973) 128 CLR 199

Palamore Pty Ltd v Clode (unreported, SCWA, Murray J, CIV 1282 of 1998, 16 October 1998)

re Town Planning Appeal Tribunal; ex parte Environmental Protection Authority (2003) 27 WAR 374

Radaich v Smith & Anor (1959) 101 CLR 209

Re Western Australian Planning Commission; ex parte Leeuwin Conservation Group Inc [2002] WASCA 150

Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [2005] WASC 132

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The parties to review proceedings each contended that the Tribunal did not have jurisdiction to entertain the review.

2. The Tribunal determined that it did not have jurisdiction and dismissed the proceedings.

Preliminary issue

1. These are review proceedings in which both parties contend that the Tribunal does not have jurisdiction to entertain the review. 

2. The proceedings involve an application made by Mr Kenneth Paul Whiteman and Ms Susana Kroll (applicants), purportedly pursuant to s 26(1)(a)(i) of the Town Planning and Development Act 1928 (WA) (TPD Act) (see now Planning and Development Act 2005 (WA) (PD Act) s 251(1)) for review of the decision of the Western Australian Planning Commission (Commission) to refuse to approve an application for a lease or licence to use or occupy land for a term exceeding ten years under s 20(1)(a) of the TPD Act (see and compare now PD Act 136).

3. As at the date of the applicants' application to the Commission, the Commission's decision and until the repeal of the section by s 4 and Sch 1 of the Planning and Development (Consequential and Transitional Provisions) Act 2005 (WA) with effect from 9 April 2006, s 20(1)(a) of the TPD Act provided, in part, as follows:

   "…a person shall not, without the approval of the Commission, … either lease or grant a licence to use or occupy land for any term exceeding ten years including any option to extend or renew the term or period …"

4. Section 27(1) of the TPD Act provided that any person who contravened or failed to comply with s 20(1) was guilty of an offence.

5. As at the date of the applicants' application to the Commission, the Commission's decision and the application for review, s 26(1)(a) of the TPD Act provided, in part, as follows:

"An applicant may apply to the State Administrative Tribunal for a review, in accordance with Part V, of –

(i) The refusal of the Commission to approve the … lease [or] licence to use and occupy … for which the applicant sought approval…"

1. The Commission raised a preliminary issue in the proceedings as to whether the Tribunal has jurisdiction to entertain the application for review. The preliminary issue was listed for determination entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and orders were made for the filing of submissions. In their submissions, the applicants contest the Commission's basis for arguing that the Tribunal does not have jurisdiction to entertain their application, but contend that, for other reasons, the Tribunal does not have jurisdiction.

Factual background

1. The parties agree on the following facts for the purpose of the preliminary issue:

   •At all relevant times, Kapanya Investments Pty Ltd (Kapanya) has been the registered proprietor of the land described as Lot 2785 on Deposited Plan 189833 comprised in Certificate of Title Volume 2064 Folio 860, on which the Palm Grove Caravan Resort Broome (Caravan Park) is located.

   •At all relevant times, the applicants are owners of a cabin situated on part of the land in the Caravan Park.

   •On 30 August 1996, the applicants purported to enter into a written agreement with Kapanya (agreement).

   •By application dated 13 September 2005, the applicants applied to the Commission for approval of the agreement with a commencement date of 30 August 1996, under s 20 of the TPD Act.

   •At no time has Kapanya applied to the Commission for approval in relation to the agreement.

2. It is not a formal agreed fact, but nevertheless apparent from the Commission's letter dated 27 January 2006 to the applicants' solicitors that the applicants' application for approval of the agreement was refused by the Commission for three reasons which essential concern planning merit.  The Commission's reasons did not include that the applicants' application was incompetent.

Does the Tribunal have jurisdiction to entertain the review?

1. The parties both contend that the agreement is a licence to use or occupy land. They disagree as to whether the agreement is a licence to use or occupy land to which s 20(1)(a) of the TPD Act relevantly applied. The Commission contends that the agreement is subject to s 20(1)(a), whereas the applicants contend that it is not.

2. However, it is unnecessary to resolve this dispute, which involves arguments of some complexity. The Tribunal considers that, whether the agreement is subject to s 20(1)(a) of the TPD Act or not, it does not have jurisdiction to entertain the application for review.

3. If s 20(1)(a) does not apply to the agreement, as the applicants contend, then the application to the Commission which was purportedly made pursuant to that section was incompetent and a legal nullity: Rafferty & Ors and City of Joondalup [2006] WASAT 229 at [24]; WR Carpenter Properties Pty Ltd & Anor and Shire of Busselton [2005] WASAT 266 at [30]. A purported approval or refusal by the Commission of the applicants' application would also be a nullity. A decision which is a nullity cannot found a right of review under s 26(1)(a) of the TPD Act: Rafferty & Ors and City of Joondalup at [26].

4. Moreover, s 29(1) of the SAT Act provides that, when dealing with a matter in the exercise of its review jurisdiction, the Tribunal has functions and discretions corresponding to those exercisable by the original decision‑maker in making the reviewable decision. Although s 29(2) provides that subsection (1) does not limit the powers given to the Tribunal by the SAT Act or the enabling Act, SAT does not relevantly have any greater powers than did the Commission in relation to the applicants' application.

5. It follows that, if s 20(1)(a) of the TPD Act does not apply to the agreement, the Tribunal does not have jurisdiction to entertain an application for review of the Commission's refusal to approve the agreement under that section.

6. On the other hand, if, as the Commission contends, s 20(1)(a) applies to the agreement, then the Tribunal does not have jurisdiction to entertain the application for review for each of two reasons, one advanced by the Commission and one advanced by the applicants.

7. As the Commission contends, the Supreme Court of Western Australia has determined in a number of judgments that s 20(1)(a) requires prospective approval and does not permit retrospective approval: Glentham Pty Ltd v City of Perth [1986] WAR 205 at 207 and 212; Stone James and Co v Investment Holdings Pty Ltd [1987] WAR 363 at 369; Perpetual Trustees WA Limited v Holmes & Ors (unreported, SCWA, Anderson J, CIV 2476 of 1996, 21 April 1997) at 6; Farleigh Investments Pty & Anor v Reefking Pty Ltd [2002] WASC 115 at [37]. However, even absent authority, the Tribunal would arrive at the same conclusion based on the words of the section. The section makes it clear that approval of the Commission is required before a person leases or grants a licence to use or occupy land. Section 20(1)(a) does not, therefore relevantly authorise the Commission or the Tribunal on review to retrospectively approve the agreement.

8. Furthermore, as the applicants contend, they do not have standing to apply for approval under s 20(1)(a). As Burt CJ observed Glentham Pty Ltd v City of Perth at 207:

   "the prohibition s 20(1) in its application to a lease is directed to the would‑be lessor. He is the person who shall not without the approval of the Board lease '… land (other than as a lot or lots) for any term exceeding ten years'."

9. In this case, on the assumption that s 20(1)(a) applies to the agreement, the prohibition in the section was directed to Kapanya as licensor, not to the applicants as licencees. Moreover, on the assumption that s 20(1)(a) applies to the agreement, Kapanya, not the applicants, have contravened or failed to comply with the section and have therefore committed an offence contrary to s 27(1) of the TPD Act.

10. It follows that, on the assumption that s 20(1)(a) of the TPD Act applies to the agreement, only Kapanya could have applied to the Commission for its approval of the agreement, before the agreement was entered into. On this assumption, the applicants' application for approval of the agreement was incompetent and a legal nullity. For reasons discussed earlier, on this assumption as well, neither the Commission nor the Tribunal on review has power to grant the applicants' application.

11. The Tribunal does not, therefore, have jurisdiction to entertain the application for review of the Commission's decision to refuse to approve the agreement.

Conclusion

1. The Tribunal does not have jurisdiction to entertain the application for review. Whether or not s 20(1)(a) of the TPD Act applies to the agreement, neither the Commission nor the Tribunal on review has power to approve the agreement in the circumstances of this case.

2. It follows that the proceedings must be dismissed as misconceived under s 47(1)(a) of the SAT Act.

Order

1. The Tribunal makes the following order:

   1.The application for review is dismissed.

I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER