BETWEEN : ALLAN GERALD AND KATHERINE LESLEY WILLIAMS

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

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)

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

1 This is an application which was made on 24 December 2004, in accordance with s 66 of the Town Planning and Development Act 1928 (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.

2 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.

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

4 Neither party has requested a formal hearing. In a letter received by the SAT on 17 January 2005, the respondent made a brief submission in which it contends that the appellants have not raised any question of law. I will proceed to determine the application for review on the basis of the appellant's submissions, the decision of the Senior Member which is sought to be reviewed, and the exhibits in the proceeding.

5 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 SAT). 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.

6 The second pre-condition is that the determination must have been upon a matter involving a question of law. For the reasons set out below, in my judgment, none of the submissions which have been made by the appellants in the present case raise a question of law. Accordingly, the present application for review is misconceived and must be dismissed.

7 The appellants appealed against the respondent's refusal of an application for consent to subdivide Lot 13 of Swan Locations 100 and 1316 Toodyay Road, Gidgegannup ("the site"), which has an area of 48.83 ha, into two lots of 28.44 ha and 20.5 ha. The application proposed that the existing house, outbuildings and two bores be retained on the larger lot.

8 The respondent refused the subdivision application for four reasons, one of which was:

"3. The subdivision would be inconsistent with the Gidgegannup Rural Strategy which recommends that lots within the 'Perennial Precinct' be maintained at a lot size of 40 hectares other than in exceptional circumstances based on land capability, viability and water availability. The subject land and the subdivision proposal are not considered to meet the criteria for subdivision based on the marginal capability of the land. The failure to demonstrate that the land will remain for productive agricultural productivity and the lack of evidence to demonstrate the availability and suitability of water."

9 As the Senior Member noted at [7] of his reasons for decision, cl 3.1.5 of the Gidgegannup Rural Strategy ("the Strategy") provides, in relation to the Perennial precinct, of which the site forms part, that:

"Minimum lot size for this precinct is 40 ha. In exceptional circumstances, where the owner/developer can demonstrate compliance with land capability and other stated development criteria, subdivision to 10 ha may be permissible."

10 As the Senior Member noted at [9], cl 4.11 of the Strategy states that the principal objective for the Perennial precinct is "[t]o provide potential for viable agricultural lots".

11 The respondent's third reason for refusal of the subdivision application was one of the principal issues at the hearing. In relation to this issue, the appellants called, among other witnesses, Mr Michael Taylforth, an environmental and planning consultant. The Senior Member recorded the evidence of Mr Taylforth at [19] - [22] of his reasons. Mr Taylforth gave evidence that groundwater would be available to the proposed smaller lot, because groundwater is available from the existing bores (which would be on the other proposed lot), and because of the presence of strands of tall, healthy, well established Marri and the finding of damp to wet soils at approximately 1 metre in test holes (in July). The Senior Member also recorded the evidence of Mr Taylforth that annual rainfall of 800 mm to 1000 mm would provide sufficient surface water runoff and infiltration from the higher parts to fill a dam constructed on the proposed smaller lot.

12 In his assessment of this evidence at [39] to [42] of the decision, the Senior Member noted that the appellants' evidence in relation to the critical issue of the adequacy of water supply for the proposed smaller lot was based on "a number of assumptions", albeit assumptions made by "a person with some experience in the field". The Senior Member was not satisfied, therefore, that the evidence established that the proposed subdivision merited approval, in light of the applicable provisions of the Strategy. The essence of his reasoning is set out at [47] as follows:

"I consider that the evidence presented demonstrates the level of suitability [of the site] for subdivision into the 40 hectare lots. To achieve subdivision into lots down to 10 hectares requires something more, that is, something exceptional to the main criteria. There has not been sufficient evidence to demonstrate that exceptional circumstances do exist. A guaranteed water supply has not been demonstrated."

13 It was essentially for this reason that the Senior Member refused the subdivision application at [53] and [54].

14 In his statement dated 23 December 2004, Mr Sri Ramanathan contends that the Senior Member's decision should be reviewed on what ultimately appear to be three purported grounds, namely:

1. That as the Senior Member was not satisfied on the evidence presented to him that the application merited consent, particularly as there was insufficient evidence to demonstrate a guaranteed water supply, the appellant should be given a further opportunity to present conditions to the President of the Tribunal and obtain conditional approval to the subdivision application (at [2] to [10]).

2. That the proposed subdivision "upholds planning principles, the Gidgegannup Rural Strategy and the City of Swan Town Planning Scheme" (at [11] and [12]).

3. That the appellants have "incurred considerable expenditure and suffered pain and duress" (at [13]).

15 The essence of this purported ground of review is set out at [7] of the submission as follows:

"We request that the subdivision proposal as shown in Attachment A be approved subject to the Appellant demonstrating the availability of a guaranteed water supply prior to clearance being granted for the subdivision by the Local Authority and the Western Australian Planning Commission."

16 At [8], the appellants set out "one option available to assist in determining whether a guaranteed water supply can be provided on the proposed lot", namely establishment of a bore and installation of a rainwater storage tank. At [10], the appellants "request the [P]resident to impose conditions on the proposed subdivision generally as follows" and then set out three conditions.

17 This "ground" for review is misconceived for two reasons. First, it does not allege or establish 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. Questions such as the adequacy of the evidence, the relative significance or weight to be given to the evidence, and appropriate findings to be made based on the evidence, are questions of fact, which were entirely within the province of the Senior Member to determine for himself, and do not ground any error of law**; Azzopardi v Tasman UEB Industries Ltd** (1985) 4 NSWLR 139 at pages 155 - 6; Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at pages 133 - 4.

18 In a planning appeal, an applicant can advance conditions of consent which might make a development or subdivision proposal more acceptable. The decision-maker determining the appeal might be satisfied that, if conditioned as proposed by the applicant, a development or subdivision which would otherwise be unacceptable, would merit conditional approval. It does not appear that the conditions which the appellants ask me to impose on an approval were presented to the Senior Member. However, even if they had been, it was entirely within his planning discretion to consider that the application did not merit approval, even subject to the proposed conditions.

19 The first "ground" for review is also misconceived, because once judgment has been given by the Tribunal refusing an application for approval in a contested matter at which both parties were present or represented, the Tribunal does not have power, whether constituted by the President or otherwise, to permit further evidence or submissions to be presented on the merits of the application. This is essentially what the present appellants seek the Tribunal constituted by the President to permit. Once a proceeding has been finally and regularly determined by refusal of consent, neither the Town Planning Appeal Tribunal nor the SAT has power, under s 66 of the TP&D Act or otherwise, to consider whether a different result should flow if the application were conditioned in a particular way.

"Ground" 2: The application is consistent with planning principles

20 This purported ground plainly raises a question of fact, not of law. It was for the Senior Member alone to determine whether the subdivision application merited approval, having regard to all relevant circumstances, including proper and orderly planning, the Strategy and any relevant planning instruments. His reasons for decision show that he did so, and came to findings of fact and a conclusion adverse to the application.

21 It is to be noted in particular that the Senior Member was certainly made aware of the fact that the relevant planning officer of the Shire of Swan considered that the site has "capability ... for perennial agriculture". Indeed, the author of the letter from the Shire to the respondent dated 17 December 2003 (attachment B to the application for review) was called to give evidence in the appellants' case before the Senior Member. The letter was also in evidence before the Senior Member as attachment 3 to the statement of evidence of that witness.

22 This purported ground also clearly raises a question of fact, not of law. At [30] of his reasons for decision, the Senior Member correctly identified the applicability of s 61(3) of the TP&D Act, which provided the Town Planning Appeal Tribunal (and now provides the SAT) with a discretion in determining a subdivision application such as the present to "have regard to claims of hardship" raised by an applicant, if the Tribunal is of the opinion that such regard will not affect the application of sound planning principles.

23 At [31] to [32], the Senior Member recorded the evidence and submissions in relation to hardship that were put to him. At [52], the Senior Member correctly determined that, given his findings on the planning issues adverse to the appellants, it was not necessary to come to a conclusion on the matter of hardship. Nevertheless, he observed that he did not, on the face of it, find the submissions on hardship persuasive. This conclusion was open and was not vitiated by error of law.

24 For the reasons, the Tribunal makes the following order:

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

I certify that this and the preceding 7 pages comprise the reasons for decision of the State Administrative Tribunal.