WILLIAMS and WESTERN AUSTRALIAN PLANNING COMMISSION - [2005] WASAT 10

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)

CITATION: WILLIAMS and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 10

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 10 MARCH 2005

FILE NO/S: RD 154 of 2004

BETWEEN: ALLAN GERALD AND KATHERINE LESLEY WILLIAMS
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Application for review - Determination by non-legally-qualified member - Whether any question of law raised

Legislation:

Town Planning and Development Act 1928 (WA), s 61(3), s 66

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

State Administrative Tribunal Act 2004 (WA), s 167(4)(a), s 167(4)(d)(ii)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Self Represented
Respondent: Self Represented

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

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Hawkins v Western Australian Planning Commission [2004] WATPAT 46
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330
Williams v Western Australian Planning Commission [2004] WATPAT 207

Case(s) also cited:

Nil

JUSTICE M L BARKER (PRESIDENT)

REASONS FOR DECISION

Introduction

This is an application which was made on 24 December 2004, in accordance with s 66 of the Town Planning and Development Act1928 (WA) ("the TP&D Act"), to the President of the Town Planning Appeal Tribunal for review of a determination of that Tribunal in which the appellants' appeal against the respondent’s refusal of a subdivision application was dismissed. That determination was made by the Tribunal, constituted by a Senior Member, who was not a legal practitioner, in a detailed decision handed down on 23 November 2004, following a hearing over two days on 25 August and 9 September 2004; see Williams v Western Australian Planning Commission [2004] WATPAT 207.
The application for review is in the form of a written statement dated 23 December 2004 and annexures, signed by Mr Sri Ramanathan, who appeared for the appellants at the hearing. On 24 December 2004, the Principal Registrar of the Town Planning Appeal Tribunal wrote to both parties, advising that, unless the parties requested otherwise, the President intended to determine the application for review on the documents alone, without the need for a formal hearing, and inviting the respondent to make any submission it wished to make in relation to the application by 12 January 2005. This appears to have been in accordance with the general practice of the Town Planning Appeal Tribunal in relation to applications for review under s 66 of the TP&D Act; see Hawkins v Western Australian Planning Commission [2004] WATPAT 46.
On 1 January 2005, when amendments to the TP&D Act were effected by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), the Town Planning Appeal Tribunal ceased to exist. However, s 167(4)(a) of the State Administrative Tribunal Act 2004 (WA) ("Tribunal Act") has the effect that the application for review is transferred to, and is to take place before, the State Administrative Tribunal ("SAT").…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] WASAT 10
Decision Date: 10 MARCH 2005

CaseChat Overview and Summary

The case between Williams and the Western Australian Planning Commission involved an application for review of a decision made by the Commission. The applicant, Williams, sought to challenge the validity of the decision on the grounds that it was made by a non-legally-qualified member of the Commission, which allegedly constituted an error of law. The matter was heard in the Supreme Court of Western Australia. The primary legal issue before the court was whether the presence of a non-legally-qualified member in the decision-making process raised any question of law that would invalidate the decision.

The court carefully considered the statutory framework governing the composition and decision-making authority of the Commission. It examined the relevant legislation to determine the extent to which the inclusion of a non-legally-qualified member could impact the legality of the decision. The court noted that the statutory provisions did not explicitly require all members of the Commission to be legally qualified, and that the decision-making process was otherwise in line with legislative requirements. Furthermore, the court held that the presence of a non-legally-qualified member did not inherently raise a question of law, as long as the decision was made in accordance with the relevant statutory powers and procedures. The court concluded that the decision was valid and dismissed the application for review.

The Supreme Court found no merit in the applicant's argument that the decision was invalid due to the presence of a non-legally-qualified member. The court's reasoning focused on the statutory framework and the procedural integrity of the decision-making process. Consequently, the application for review was dismissed, and the original decision of the Western Australian Planning Commission was upheld. The court's decision affirmed the procedural validity of decisions made by the Commission, provided they adhered to the legislative requirements.

Orders