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

State Administrative Tribunal (Conferral of Jurisdiction)

Town Planning and Development Act 1928

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Hawkins v Western Australian Planning Commission [2004] WATPAT 46

Lawson & Anor v Shire of Mundaring [2004] WATPAT 220

Randwick Municipal Council v Manousaki (1985) 66 LGRA 130

JUSTICE M L BARKER (PRESIDENT):

1 This is an application and a cross-application under s 66 of the Town Planning and Development Act 1928 (WA) (the TP&D Act) for review of a determination of the Town Planning Appeal Tribunal. The application for review was made to the President of the Town Planning Appeal Tribunal on 23 December 2004. The cross-application was made, in effect, to the President of the State Administrative Tribunal (New Tribunal) on 12 January 2005.

2 The proceedings before the Town Planning Appeal Tribunal were an appeal by Mr and Mrs Lawson (the appellants) against the imposition by the Shire of Mundaring (the respondent) of two conditions on a conditional development approval which was granted by the respondent for the parking of a commercial vehicle at Lot 35 (No. 625) Cook Street, Mount Helena. The conditions the subject of the appeal were in the following terms:

"2. No commercial vehicles or their attachments including trailers shall be parked on the property unless parked behind the building line of the property and screened by a gate or other structure, to the satisfaction of the Executive Manager Statutory Services.

...

5. The vehicle is not to be brought to or from the land between the hours of midnight and 6am."

3 The appellants' appeal was determined on the documents by the Town Planning Appeal Tribunal, constituted by a Senior Member, who was not a legal practitioner, in a detailed decision handed down on 13 December 2004; see Lawson & Anor v Shire of Mundaring [2004] WATPAT 220. The Senior Member upheld the appeal against condition 2 and imposed an alternative condition acceptable to the appellants. The Senior Member dismissed the appeal against condition 5.

4 The application for review is in the form of a letter from the appellants dated 20 December 2004. On 23 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 requesting the respondent to make any submission it wished to make in relation the application by 10 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.

5 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) (the Tribunal Act) has the effect that the application for review is transferred to, and is to take place before, the SAT. Section 167(4)(d)(ii) of the Tribunal Act has the effect that the application for review is to continue to be dealt with as though the law in force immediately before 1 January 2005 had continued to apply, although s 66 of the TP&D Act remains in substantially the same terms as it stood prior 1 January 2005.

6 Neither party has requested a formal hearing. In a letter received by the new Tribunal on 12 January 2005, the respondent submits that the appellants have not raised any question of law. The respondent then makes what is, in substance, a cross-application for review of the Town Planning Appeal Tribunal's determination, insofar as that determination upheld the appeal against condition 2 and substituted a new condition of approval in its place.

Section 66 of the Town Planning and Development Act 1928 (WA)

7 Section 66 of the TP&D Act sets out two pre-conditions which must be satisfied by an appellant in order to found jurisdiction to review a determination of the Town Planning Appeal Tribunal (and now, of the new Tribunal). The first is that the determination must have been made by the tribunal when constituted without a member who is a legal practitioner (now a 'legally qualified member'). As I have noted above, the Senior Member in question was not a legal practitioner.

8 The second pre-condition is that the determination must have been upon a matter involving a question of law. In my view, neither the application nor the cross-application for review raises a question of law. Accordingly, the present application and cross-application for review are both misconceived, and must be dismissed.

9 In their letter, the appellants say that they "are satisfied" that the Senior Member "thoroughly examined the evidence provided by both parties and documented his determination dated 13/12/04 for Condition 5". Nevertheless, the appellants seek a "review" and the substitution of a differently worded condition 5 which would allow them to operate the vehicle from their property from 5am, and in the event of an "emergency call", at other times.

10 Plainly, the appellants do not claim that the determination the subject of the review was "upon a matter involving a question of law", as is required by s 66 of the TP&D Act. What they seek is a factual or merits redetermination of the Senior Member's decision in relation to condition 5. Neither the President of the Town Planning Appeal Tribunal nor I, as President of the new Tribunal, have power to undertake such a review. The question of whether condition 5 as imposed by the respondent is appropriate was entirely within the province of the Senior Member to determine for himself, and did not involve any question of law; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at pp 155/6; Randwick Municipal Council v Manousaki (1985) 66 LGRA 130, at pp 133/4. Moreover, the decision to which the Senior Member came was open to him on the evidence, and was perhaps the only decision to which he could have come, given the terms of clause 4.46 of Shire of Mundaring Town Planning Scheme No.3, which he set out at par [6] of his decision.

The respondent's cross-application for review

11 The respondent contends in its letter that the Senior Member erred in his finding at par [31] of his decision that the parking of eight commercial vehicles without screening in the locality "made a contribution to the local character and amenity". It contends that the Senior Member's determination in relation to condition 2 was based heavily on this finding.

12 The Senior Member's disputed finding was one of fact. If there was any error, it was an error of fact, not of law. His relevant conclusion, expressed at par [40], was that "there is an established character in this residential area that includes unscreened parked commercial vehicles" and that "if sufficiently parked back from the building line ... the Appellant's truck would not dominate the streetscape and be consistent with that character". This conclusion was one which was clearly open on the evidence.

13 In consequence, the Tribunal makes the following orders:

(1) The application for review made by the appellants under s 66 of the Town Planning and Development Act 1928 is dismissed.

(2) The cross-application for review made by the respondent under s 66 of the Town Planning and Development Act 1928 is dismissed.

I certify that this and the preceding 5 pages comprise the reasons of judgment of the Honourable Justice Barker.

__________________________

Justice M L Barker

President