Zadnik and City Of Belmont
[2006] WASAT 284
•4 AUGUST 2006
ZADNIK and CITY OF BELMONT [2006] WASAT 284
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 284 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:139/2006 | 4 AUGUST 2006 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR J JORDAN (MEMBER) | 4/08/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for joinder adjourned | ||
| B | |||
| PDF Version |
| Parties: | JOHN ZADNIK CITY OF BELMONT |
Catchwords: | Practice and procedure Joinder Town planning Development application Demolition Application for joinder of Heritage Council of Western Australia Whether application relates to land to which the Heritage of Western Australia Act 1990 (WA) applies Formal process of consideration of place on land for advice to Minister had commenced Discretion to order joinder available Application for joinder adjourned until advice to Minister known |
Legislation: | Heritage of Western Australia Act 1990, s 27, 47(1), s 50 Planning and Development Act 2005 (WA), s 241(2)(c) State Administrative Tribunal Act 2004 (WA), s 26(d), s 31 |
Case References: | Nil Nil |
Orders | The Tribunal makes the following orders:,1. Pursuant to section 241(2)(a) of the Planning and Development Act 2005, this matter is referred to the Heritage Council of Western Australia for advice in the form of written advice in relation to the development application the subject of these proceedings to be provided to the Tribunal with copies provided to the parties by 15 August 2006.,2. Pursuant to section 31(1) of the State Administrative Tribunal Act 2004, the respondent is invited to reconsider its decision at its meeting on 15 August 2006.,3. The application for joinder pursuant to section 241(2)(c) of the Planning and Development Act 2005 is adjourned to 1 pm 18 August 2006 before Senior Member Parry and Member Jordan.,4. Depending on the position adopted by the respondent and the Heritage Council of Western Australia in relation to the development application the subject of these proceedings, the proceedings may be finally determined at the directions hearing at 1 pm on 18 August 2006.,5. A copy of these orders shall be sent by the Tribunal to the Heritage Council of Western Australia, PO Box 6201, East Perth 6892. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : ZADNIK and CITY OF BELMONT [2006] WASAT 284 MEMBER : MR DR PARRY (SENIOR MEMBER)
- MR JG JORDAN (MEMBER)
- Applicant
AND
CITY OF BELMONT
Respondent
Catchwords:
Practice and procedure - Joinder - Town planning - Development application - Demolition - Application for joinder of Heritage Council of Western Australia - Whether application relates to land to which the Heritage of Western Australia Act 1990 (WA) applies - Formal process of consideration of place on land for advice to Minister had commenced - Discretion to order joinder available - Application for joinder adjourned until advice to Minister known
(Page 2)
Legislation:
Heritage of Western Australia Act 1990, s 27, 47(1), s 50
Planning and Development Act 2005 (WA), s 241(2)(a), s 241(2)(c)
State Administrative Tribunal Act 2004 (WA), s 26(d), s 31
Result:
Application for joinder adjourned
Category: B
Representation:
Counsel:
Applicant : Mr M Hotchkin
Respondent : Mr J Blanchard (Acting as Agent)
Solicitors:
Applicant : Hotchkin Hanley
Respondent : City of Belmont
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 An applicant commenced proceedings for the review of the deemed refusal of a development application for demolition of a house. The applicant applied to have the Heritage Council of Western Australia joined as a party to the proceedings.
2 The Tribunal determined that, once the Heritage Council has commenced a formal process of consideration of a place for the purpose of advice to the Minister in relation to the listing of the place on the Register established under the Heritage of Western Australia Act 1990 (WA), the land which comprises the place is land to which that Act applies, within the meaning of s 241(2) of the Planning and Development Act 2005 (WA).
3 In consequence, the Tribunal determined that the land the subject of the development application, which comprised the place which the Heritage Council was considering for advice to the Minister, was land to which the Heritage of Western Australia Act 1990 applied and, therefore, that the Tribunal had a discretion to join the Heritage Council.
4 The Tribunal adjourned the application for joinder until the Heritage Council's advice to the Minister was known.
Introduction
5 Mr John Zadnik is the applicant in relation to planning review proceedings, which are pending before the Tribunal, concerning an application to demolish a house. The application remains undetermined by the City of Belmont (City) and is therefore brought for review on the basis that it is a deemed refusal under the local planning scheme.
6 Mr Zadnik has made an application for joinder of the Heritage Council of Western Australia (Heritage Council) pursuant to s 241(2)(c) of the Planning and Development Act 2005 (WA) (PD Act). Section 241(2) provides as follows:
"In the case of an application that relates to land to which the Heritage of Western Australia Act 1990 applies, and whether or not a State planning policy provides for the conservation of that land, the State Administrative Tribunal -
(a) is to refer the matter to the Heritage Council for advice;
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- (b) may receive and hear submissions made on behalf of the Heritage Council;
(c) may join the Heritage Council as a party to the application; and
(d) is to have due regard to the objects of the Heritage of Western Australia Act 1990."
Does the application relate to land to which the Heritage of Western Australia Act applies?
7 The threshold issue in relation to the application for joinder is whether the application, which is the subject of the application for review, relates to land to which the Heritage of Western Australia Act 1990 (HWA Act) applies. It is common ground that the land the subject of the application, or more particularly the building which is erected upon the land, is the subject of formal consideration by the Heritage Council under s 47 of the HWA Act. Subsection (1) of s 47 of the HWA Act provides that:
"Subject to this part, where the minister is of the opinion, having regard to any advice given by the Council in relation to that place and to any report of the Council as to submissions made to the Council under subsection (3) -
(a) that place,
(i) is of cultural heritage significance, or
(ii) possesses special interest related to or associated with the cultural heritage and is of value for the present community and future generations; and
(b) that the protection afforded by this Act is appropriate notwithstanding that the place may be afforded protection by the operation of any other written law or law of the Commonwealth,
the minister may direct the Council to enter that place in the register either as an interim registration or on a permanent basis and effect shall be given to the direction in accordance with section 50 or 51 as may be specified."
(Page 5)
8 Section 50 specifically deals with interim registration. It appears from a submission made by the Heritage Council that the formal process of consideration, which is undertaken pursuant to s 47, is intended, if it leads to registration, to result in interim registration under s 50.
9 It is common ground that the recommendation of the Heritage Council to the Minister will be known, if not provided to the Minister, by next Friday, 11 August 2006.
10 The Tribunal considers that once a formal process is initiated by the Heritage Council under s 47 of the HWA Act, which might, depending on the recommendation to the Minister and the Minister's ultimate direction to the Heritage Council, lead to a registration either on an interim or permanent basis on the register maintained under the HWA Act, that the land the subject of the formal process, is land to which the HWA Act applies.
11 That means that the Tribunal is under a mandatory obligation to refer this matter to the Heritage Council for advice. Given that the position of the Heritage Council in relation to its recommendation to the Minister will be known by next Friday, the Tribunal considers that an order referring the matter to the Heritage Council for advice should require written advice in relation to the development application to be provided to the Tribunal by a date shortly after the finalisation of the position of the Heritage Council. Subject to hearing from the parties at the conclusion of these reasons, the Tribunal suggests that that written advice be provided by 15 August 2006, which will tie together with another critical date to which the Tribunal will come shortly.
Application for joinder
12 The Tribunal's determination, in relation to the land the subject of the development application, being land to which the HWA Act applies, also has the result that the precondition for an order for a joinder under s 241(2)(c) is satisfied. However, clearly that subsection confers a discretion on the Tribunal.
13 The Heritage Council, which was represented before the Tribunal today by Mr Daniel Iacopetta, its legal officer, opposes an order that it be joined in the proceedings, really on two bases.
14 First, Mr Iacopetta considers that the hearing in relation to whether development approval for demolition should be granted might become a de facto hearing in relation to whether the building on the land should be
(Page 6)
- listed on the register under the HWA Act, which he submits is a separate and distinct statutory process.
15 Second, he considers that the process of development assessment in relation to demolition may be a waste of time and resources, given that if registration under the HWA Act takes place, any development approval would be, in effect, statutorily set aside.
16 The City, which is represented before the Tribunal by Mr Blanchard, neither consents nor opposes the application for joinder of the Heritage Council.
17 The City has filed a Statement of Issues Facts and Contentions in which it purports to raise two issues. The first issue is whether the application for demolition requires approval under the City's Town Planning Scheme No 14; the second is whether approval should be granted for demolition.
18 The first issue is a non-issue, given that it is common ground that development approval is required - hence the development application and these proceedings. In relation to the second issue, the City's contention is, "The City has resolved not to contest this appeal." Effectively, there is no dispute between applicant and respondent that development approval for demolition should be granted in these proceedings.
19 Mr Hotchkin, who represents the applicant, submits that while there is no dispute between the applicant and respondent as to whether development approval should be granted for demolition, there is a live dispute between the applicant and the Heritage Council in relation to that question.
20 Mr Iacopetta frankly indicated that the Heritage Council opposed the application for demolition when its advice was sought by the City and does not currently support demolition. However, the reason that the Heritage Council does not currently support demolition is that it wants the process of consideration and registration under the HWA Act to proceed. In other words, as matters stand currently, the Heritage Council does not opposite the grant of development approval for demolition on the merits. The Tribunal comprehends that that position might change if the recommendation next Friday to the Minister is that the registration on the State register should go ahead.
(Page 7)
Invitation to City to consider development application
21 The City apparently had a recommendation of approval from its officers notwithstanding the Heritage Council's recommendation of refusal for the development application. It was, however, unable to address that recommendation and the application on its merits because a stop work order, which has since lapsed, was issued. The current proceedings were then commenced against a deemed refusal.
22 It remains the case that the City has not had an opportunity to assess the application on its merits. Given that the City's position before the Tribunal is that it does not contest the review, and that it has not had an opportunity to consider the review on its merits, the Tribunal considers that it is appropriate that it be invited to reconsider its decision, which effectively means that it be invited to make a decision consistently with its statutory function and responsibility.
23 The Tribunal understands that there is a meeting of the City scheduled for 15 August 2006, although the agenda is concluded nevertheless. Given that these proceedings are listed for hearing in just over a month, the Tribunal apprehends that there would be room for a matter of urgency such as these proceedings and the substantive application to be brought to the City's attention for a decision, given that it has not had that opportunity in the past and now has a window of opportunity to address the application.
24 The Tribunal, therefore, will make an order inviting the City to reconsider its decision at its meeting on 15 August 2006. That means that by 15 August 2006, the Tribunal will know the true position of the City in the proceedings, as well as having the benefit of advice from the Heritage Council in relation to the application.
Application for joinder adjourned
25 The Tribunal considers that, as matters are fluid in relation to the position of the respondent and the Heritage Council, and as that fluidity might well solidify by 15 August 2006, the application for joinder should be stood over for determination once the positions of the City and the Heritage Council are known on 15 and 11 August 2006, respectively; in practical terms after 15 August 2006.
26 If the City resolves to approve the development application, then it should grant consent to the application under s 26(d) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
(Page 8)
- That section provides that after the commencement of a proceeding for review of a decision, the decisionmaker cannot vary the decision or set aside the decision and substitute a new decision unless the parties to the proceeding consent. This section now allows a decisionmaker to approve an application by consent after the commencement of proceedings.
27 If the City resolves to refuse the development application on heritage grounds, then there would plainly be a dispute to be determined in the Tribunal. If the City does nothing - that is to say, does not either approve or refuse the development application - and if it maintains its current position of not contesting the review, then potentially, subject to the Heritage Council's position, the application for development approval should be determined without delay, potentially on 18 August 2006, at which time the Tribunal will also list the joinder application for further consideration.
28 The applicant, of course, would still have to satisfy the Tribunal that approval of the development application for demolition should be granted and present whatever documentary or other evidence it considers appropriate for the Tribunal to be satisfied. However, if the City has failed to take the opportunity afforded by a request for reconsideration under s 31 of the SAT Act and continues to not contest the review, that is obviously a relevant consideration, given that the City has primary statutory responsibility under the planning legislation for consideration of planning applications.
29 If the Heritage Council recommends to the Minister that there be a listing on the State Register, it is likely that it would take a clear position on whether development approval for demolition should be granted, consistent with its position on the recommendation. On the other hand, if the Heritage Council recommends that the Minister not direct it to list on the State Register, it is also likely to have a clear position in relation to whether development approval for demolition should be granted, namely, that it does not oppose the granting of development approval on the merits.
30 Either way, the solidifying of the Heritage Council's position following its recommendation to the Minister, or consequent upon its recommendation to the Minister, will be material in determining whether to accede to the applicant's application for joinder of the Heritage Council.
(Page 9)
Orders
31 The Tribunal makes the following orders:
1. Pursuant to section 241(2)(a) of the Planning and Development Act 2005, this matter is referred to the Heritage Council of Western Australia for advice in the form of written advice in relation to the development application the subject of these proceedings to be provided to the Tribunal with copies provided to the parties by 15 August 2006.
2. Pursuant to section 31(1) of the State Administrative Tribunal Act 2004, the respondent is invited to reconsider its decision at its meeting on 15 August 2006.
3. The application for joinder pursuant to section 241(2)(c) of the Planning and Development Act 2005 is adjourned to 1 pm 18 August 2006 before Senior Member Parry and Member Jordan.
4. Depending on the position adopted by the respondent and the Heritage Council of Western Australia in relation to the development application the subject of these proceedings, the proceedings may be finally determined at the directions hearing at 1 pm on 18 August 2006.
5. A copy of these orders shall be sent by the Tribunal to the Heritage Council of Western Australia, PO Box 6201, East Perth 6892.
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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