State Administrative Tribunal Act 2004 (WA) s 36(1), 37(3), s 70

Town Planning Development Act 1928 (WA), s 62, s 51(i), s 8A

Application for leave to intervene and to make submissions dismissed

(applicants for leave to intervene) : Mr JCW Skinner

(applicants for leave to intervene) : Jackson MacDonald

Department of Housing and Works v City of Canning [2004] WATPAT 114

Harding v Shire of Chittering [2003] WATPAT 147

Koltasz Smith and Partners v Western Australian Planning Commission [2000] WATPAT 1

Oon v Town of Claremont [2003] WATPAT 97

Rebel Sport Limited v City of Melville [2004] WATPAT 2

REASONS FOR DECISION

MR D R PARRY:

1 On 21 January 2005, I heard argument in relation to an application by Mr and Mrs Ilbery for leave to intervene in, or alternatively to make submissions relation to, an appeal brought by their neighbour ("the applicant") against a condition imposed by the respondent Council on the grant of development approval for the erection of a house on the applicant's property.

2 As the substantive hearing of the appeal against the condition is set down to take place mid-February 2005, and as directions have been made which require that evidence be filed and served in advance of the hearing, the parties requested that I make a determination relation to the application for leave to participate as soon as possible. Accordingly, I gave oral reasons on the day in which I dismissed Mr and Mrs Ilbery's application.

3 On 28 January 2005, Mr and Mrs Ilbery requested, in accordance with s 78 of the State Administrative Tribunal Act 2004 (WA) was that the Tribunal give its reasons for dismissing the application in writing.

4 The following are the reasons I gave orally which have been taken from the transcript and edited by me in minor respects to aid clarity. I note that I expressed the reasons set out at [22] and [23] below at the end of my oral reasons when counsel for Mr and Mrs Ilbery noted that I had not expressly referred to the provision there identified when I considered his first argument earlier in the reasons. [22] and [23] below form part of my reasons and appear where intended within the reasons.

5 This is an application by Mr and Mrs Ilbery for leave to participate in a proceeding to which they are not a party. Mr and Mrs Ilbery are the registered proprietors of the property described as Lot 20 on Diagram 38426 and located at 102 Victoria Avenue, Dalkeith. The proceeding is an appeal brought by Mr Kaard under section 8A of the Town Planning and Development Act 1928 (WA) and Pt V of that Act, against the City of Nedlands' decision to grant his development application for the erection of a two-storey dwelling house at his property, which is located at 102A Victoria Avenue, Dalkeith, subject to a condition (namely condition xxii) which requires that the overall height of the development be lowered by 1 m from RL16.627 to RL15.627.

6 Mr Kaard's property lies between Mr and Mrs Ilbery's property and the Swan River. Mr and Mrs Ilbery lodged an objection to the development application - as did others - with the Council. Notwithstanding that objection - and the others - the Council determined in its discretion to grant development approval, although subject to conditions, including the disputed condition xxii.

7 The land owned by the applicant in the proceedings is governed by the provisions of the City of Nedlands Town Planning Scheme No.2 ("TPS2"). In particular, the land is zoned Residential under the provisions of that instrument. TPS2 contains the following relevant provisions:

Clause 5.2.3:

"Unless otherwise provided for in the Scheme the development of land for any of the residential purposes dealt with by the Residential Planning Codes shall conform to the provisions of those codes."

Clause 5.3.3:

"Notwithstanding the provisions of the Residential Planning Codes a person shall not commence or carry out the development of any land within a Residential zone:

by the erection of a building used for residential purposes at a distance less than 9 metres from a street alignment, unless otherwise provided in the Scheme ...".

Clause 5.9.6:

"If the council decides to give its written consent to the commencement or carrying out of any development or other work, the council may give that written consent, notwithstanding that the development or work involved does not comply with the Building Regulations 1989 or the Residential Planning Codes or with any requirement or standard specified in or arising out of this text."

8 In December 2004, the Town Planning Appeal Tribunal listed for determination by the State Administrative Tribunal this morning, an application which was expressed as an application for joinder by Mr and Mrs Ilbery as parties in the proceeding.

9 When the matter was called on this morning I pointed out to Mr Skinner, counsel for Mr and Mrs Ilbery, that various provisions of the Town Planning and Development Act 1928 had been amended, with effect from 1 January 2005, in consequence of the legislation which established and conferred jurisdiction upon this Tribunal. In particular, I pointed out that s.51 of the Town Planning and Development Act had been repealed. It appeared from Mr Skinner's initial submissions and from an outline of written submissions, which he helpfully provided to the Tribunal, that the application for joinder was initially based on subpars (e) and (f) of s 51(1) of the Town Planning and Development Act, as it stood prior to 1 January 2005. The matter was then adjourned briefly to enable the parties to consider the effect of the State Administrative Tribunal Act 2004 ("Tribunal Act") and the amendments to the Town Planning and Development Act on the application that was listed for determination this morning.

10 Following the brief adjournment, Mr Skinner made an application, which was not opposed, for leave to amend the application to the Tribunal this morning, from an application for joinder to an application for leave to intervene in the proceedings pursuant to s 37(3) of the Tribunal Act. That section provides that the Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit. I note that s 36(1) of the Tribunal Act provides that, among other persons, a person intervening in the proceeding is a party to the proceeding.

11 Mr Skinner also indicated that, as an alternative, the application to the Tribunal on behalf of Mr and Mrs Ilbery was put under s 62 of the Town Planning and Development Act which, although amended in some respects with effect from 1 January 2005, provides a discretion to the Tribunal to receive or hear submissions from a person who is not a party to an appeal in certain circumstances. Section 62, in fact, provides as follows:

"The State Administrative Tribunal may receive or hear submissions in respect of an application from a person who is not a party to the application if the Tribunal is of the opinion that the person has a sufficient interest in the matter."

12 As the substantive proceeding is listed for hearing over 2 days before the Tribunal in mid-February 2005, I was requested by each of the parties to consider and determine the application as a matter of urgency. I adjourned the matter for a period and am now in a position to give reasons for decision.

13 It is common ground before me that the proper test for determining whether it is appropriate to grant leave to intervene in a proceeding under Pt V of the Town Planning and Development Act is similar, if not the same, as that set out by the Town Planning Appeal Tribunal in relation to joinder applications made under now repealed legislation in Harding v Shire of Chittering [2003] WATPAT 147 especially at [19] - [26].

14 Mr Skinner has helpfully summarised the principles accepted by the Tribunal in that case in the following paragraph, with which the other parties concur:

"There is power to join persons as parties to an appeal before the Tribunal in circumstances where it is necessary to do so for the proper disposition of the appeal or in order to ensure that the material before the Tribunal is sufficient to enable the Tribunal to dispose of the appeal on an informed, insightful and critically analysed basis."

15 Mr Skinner also referred the Tribunal, in particular, in relation to the appropriate considerations, to s 27(2) of the Tribunal Act, which provides as follows:

"The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review."

The issues in relation to which the applicant seeks leave to intervene

16 In his helpful written submissions, Mr Skinner has identified essentially four issues in relation to which he submits it is appropriate, applying the principles referred to above, for leave to be granted to his clients to intervene in the proceedings. These are as follows:

1. Mr Skinner's clients wish to advance an argument to the effect that the proposed development, without the condition the subject of the appeal, does not comply with the provisions of the Residential Design Codes, and therefore cannot be approved. They intend to advance an argument that, consequently, the condition the subject of the appeal is not able to be severed from the approval.

2. Mr and Ms Ilbery wish to advance a further alternative argument to the effect that the proposed development, even with the condition the subject of the appeal, does not comply with the provisions of the Residential Design Codes and therefore cannot be approved.

3. Mr and Mrs Ilbery also wish to advance an argument that, in light of the matters that have occurred since the Town Planning Appeal Tribunal's decision in Kaard v City of Nedlands [2004] WATPAT 96, which concerned the same land the subject of the present proceeding, on the proper interpretation of cl 5.3.3(a) of TPS 2, the proposed development fails to comply with the requirements of that clause for a 9 m set-back from the boundary of Riverview Court and therefore "cannot or should not be approved."

4. Finally, Mr and Mrs Ilbery also wish to advance an argument that any consideration of the impact of the proposed development on the amenity of the surrounding area should take into account other matters of amenity and not simply bulk and obstruction of Swan River views.

Consideration of the application for leave to intervene

17 In my opinion, for reasons outlined below, this is not an appropriate case in which to grant the leave sought. I will address each of the issues or arguments in relation to which Mr and Mrs Ilbery wish to intervene in turn.

The argument that the proposed development without the condition in question does not comply with the R Codes

18 Although Mr Skinner did not expressly refer to the relevant provision of the R Codes in relation to this argument, it appears from the argument before me, and from the apparent purpose of the condition in dispute which relates to height, that the relevant provision of the R Codes in question is cl 3.7.1 which concerns building height.

19 Although the Council, which was represented this morning by Mr Whittkuhn, maintained that it intends to defend and press the disputed condition on the basis of amenity considerations, in my opinion the building height performance criteria in cl 3.7.1 of the Residential Design Codes are fundamentally concerned with the same considerations which the Council has flagged in its grounds of response to the appeal filed on 5 January 2005, that it intends to raise in the proceeding.

20 In particular the Council has referred in its grounds of response to clauses 5.5.1, 5.10.1, 5.10.2(a), 5.10.2(c) 6.1.1 and 6.5.1 of TPS2, which are concerned with the very same considerations as are raised in cl 3.7.1 of the R Codes.

21 At [14] of the grounds of response the Council maintains the position that:

"The development adversely impacts on the amenity of the surrounding area, _particularl_y in relation to bulk and obstruction of Swan River views enjoyed by Lots 3, 16 and 20." (Emphasis added).

22 In my opinion, although the Council does not in its grounds of response refer to the Residential Design Codes cl 3.3.1, the substance of the matters identified in cl 3.3.1 - performance criteria - are referred to in the considerations of amenity that are identified throughout the grounds of response. The amenity impacts of the additional 1 m which is the subject of the issue in the proceeding will form the basis of the contest between the applicant and the respondent Council, as is apparent from the grounds of response, at the hearing. Although the grounds of response emphasise the issues of bulk and obstruction of views, they do not limit the amenity considerations which the grounds contend the 1 m issue gives rise to those considerations.

23 I note that cl 3.3.1 of the Residential Design Codes does expressly deal with building bulk and its impact on adjoining properties, as well as other aspects of residential amenity. In my opinion, the amenity considerations which are set out in cl 3.3.1 will, in substance, be raised in relation to whether the condition in question should be imposed, based on the grounds of response.

24 In these circumstances, I am not satisfied that it is necessary to grant leave to Mr and Mrs Ilbery to intervene in order to ensure that the material before the Tribunal is sufficient to enable the Tribunal to dispose of the proceeding on an informed, insightful and critically analysed basis in relation to the first issue in respect of which leave to intervene is sought.

The argument that the disputed condition does not comply with the R Codes and therefore cannot be approved

25 This issue and the third issue in relation to which leave to intervene is sought raise a very interesting question because, as Mr Skinner conceded, these issues go not to whether the disputed condition should be imposed, but rather to whether development approval of any nature should be granted.

26 In Koltasz Smith and Partners v Western Australian Planning Commission [2000] WATPAT 1, the Town Planning Appeal Tribunal was called upon to consider whether it was appropriate for that Tribunal to review whether a subdivision approval should be granted in circumstances where a subdivision approval had been granted by the Commission, but subject to a disputed condition which was subsequently appealed to the Tribunal. The Tribunal relevantly observed and held as follows:

"46. Although the Tribunal hears the matter de novo with the same jurisdiction as that conferred upon the Commission, a right of appeal under s 26(1)(a) of the Act does not arise in respect of an approval. The appellant can only bring a refusal or a condition before the Tribunal. If the Tribunal could revoke an approval, the effect would be that it was enlarging its jurisdiction to review approval ...

47. In ordinary circumstances, the Tribunal should not embark upon a review of the approval when it is a condition that is the subject of the appeal. This is because the Act gives no jurisdiction to consider an approval, but only a refusal or a condition ...

48. There may be, however, some instances, where the conditions are such an integral part of the approval that they cannot be severed without fundamentally altering the subdivision."

27 Although it is correct, as Mr Skinner submitted, that Koltasz Smith (supra) was a subdivision appeal, in my opinion, similar considerations arise in the context of an appeal or application for review brought under s 8A of the Town Planning and Development Act and Pt V of that Act.

28 Mr Skinner has taken me to two more recent decisions of the Town Planning Appeal Tribunal upon which he places heavy reliance in order to advance issues 2 and 3. The first decision is that of Department of Housing and Works v City of Canning [2004] WATPAT 114, in which the President of the Town Planning Appeal Tribunal sat alone. At [9] of the judgment, the President noted an argument against leave being granted to raise an issue on the basis that development approval had already been granted.

29 The President held as follows:

"It seems to me, however, that the issue is more fundamental. If there was no power in the way in which the respondent contends the Codes are to be interpreted, to have approved the development in the first place then that must be a situation which applies equally to the Tribunal.

The Tribunal approaches the matter on the basis that it is a hearing de novo. The fact that the underlying decision might involve an approval subject to conditions and the fact that the appeal is now focussed upon whether or not those conditions - or in this case one condition - should have attached, does not mean that the absence, having regard to the relevant underlying document, of the power to grant approval, denies the Tribunal the capacity to otherwise address that issue."

30 I note that the Tribunal does not appear to have been taken to Koltasz Smith (supra) and did not refer to that decision.

31 The second case on which Mr Skinner places considerable reliance is one in which the Tribunal, again constituted by the President, did consider the Koltasz Smith decision in the context of a development appeal, Rebel Sport Limited v City of Melville [2004] WATPAT 211. In the Rebel Sport (supra) case, it appears that the respondent Council had regard in determining the permissibility of the proposal to the definition of "shop" which did not form part of its Town Planning Scheme.

32 The President held at [25] of the reasons for decision that:

"Such an error is sufficiently clear to invite the Tribunal to take the matter further."

33 At [28] of the judgment, the President set out pp 47 and 48 of the Koltasz Smith (supra) decision and at [29] observed that:

"That seems to be the position here, subject to the nature of the exercise being undertaken by the respondent."

34 He determined that the case before him was one where the conditions themselves were incapable of separation from the issue as to whether at all it was open to the respondent to ever approve the matter, let alone impose conditions. At [30] the President referred to the respondent's error as "plainly an error of law" and at [31] he referred to "patent shortcomings".

35 He determined at [34] that the matter sought to be raised in that case went "to the jurisdictional basis for a decision" and that in those circumstances the Tribunal could properly consider that question even though an appellant had formally appealed only against a condition or conditions of approval.

36 At [39] of his reasons, the President pointed out that the conclusion to which he had arrived did not involve, "a consideration of the merits of the matter," but rather a consideration of whether, in the circumstances, the respondent had jurisdiction to have granted the approval at all.

37 I do not accept that the question sought to be raised is relevantly a jurisdictional one. All residential development is required to conform to the Codes. However, there is necessarily a discretionary judgment to be formed by the Council as to whether the performance criteria in question are met, and indeed as to what are the appropriate elements to even be considered, in the context of cl 3.7.1 of the Residential Design Codes.

38 This is not a case, such as Rebel Sport (supra), where it could even be alleged that "The way the matter was apparently approved by the respondent is plainly an error of law" (at [30]) or that there is a "patent shortcoming".

39 It was, in particular, within the discretion of the respondent to determine that (with the disputed condition) the development in question is "consistent with the desired height of buildings in the locality" and that it recognised "the need to protect the amenities of adjoining properties".

40 Moreover, cl 5.9.6 of TPS2 provided the Council (and provides the Tribunal on review) with an ability to grant approval to the commencement or carrying out of any development, even though it does not comply with the Residential Design Codes.

41 It is common ground before me that although a subdivision approval has been granted in relation to Lot 11, which apparently required, as a condition, the dedication of a right-of-way known as Riverview Court, that subdivision approval has not yet been acted upon. It appears, therefore, that the alignment of Mr Kaard's property to that right-of-way is not a "street alignment" within the meaning of cl 5.3.3 of TPS2.

42 Moreover, as noted above, cl 5.9.6 of TPS2 permitted the Council to decide to give approval to an application for development which does not comply with a requirement of the Town Planning Scheme. This provision, of course, is also available in relation to an appeal or an application for review before this Tribunal.

43 In the circumstances I do not consider that the present proceeding is appropriately one in which the Tribunal should consider whether development approval should be granted at all, at least for the reasons advanced by the applicants on the application for leave to intervene in this application.

44 Accordingly, I do not consider it appropriate in the present case to grant leave to intervene in the proceeding in order to advance these issues.

45 In my opinion, this issue plainly concerns the merits of whether development approval should have been granted. As was accepted by the Town Planning Appeal Tribunal in the decisions referred to above it is not appropriate, generally, to permit a merit issue as to whether or not development approval should be granted to be raised in an appeal, or in an application for review, centred upon a disputed condition. I, therefore, do not consider it appropriate, in the present circumstances, to grant leave to intervene in order to raise the fourth issue.

46 Moreover, I do not accept that the respondent's grounds of response filed in the proceedings raise only amenity considerations of bulk and scale and views of the Swan River. Certainly these are emphasised. However, as is apparent from [14] which I set out above, the grounds of response are not so limited. Nor are the matters identified in the provisions of TPS2 which the Council has specifically identified in its grounds of response and which will be appropriately before the Tribunal in determining this proceeding. Indeed, it may be observed that the Council in its Grounds of Response appears at pains to preserve, by pressing the condition in dispute, the amenity of three properties, including Mr and Mrs Ilbery's property.

47 As the Town Planning Appeal Tribunal recognised in Oon v Town of Claremont [2003] WATPAT 97, at [5], there are two stages to the determination to be made in relation to an application under s 62. These two stages were set out in that judgment by the President of the Tribunal as follows:

"The first is to determine whether in fact the person in question has 'a sufficient interest in the appeal'.

14. That in itself is not determinative of the matter.

15. The Tribunal must in addition then be satisfied that there is a basis upon which it should in the exercise of its discretion 'receive or hear submissions from a person who is not a party to an appeal'.

16. In other words, even if a person had a sufficient interest it remains a matter for the Tribunal to determine in each case whether it will receive or hear submissions from such a person."

48 In my opinion, on the basis of the evidence, Mr and Mrs Ilbery, being the registered proprietors and occupants of an adjoining property to the property the subject of the proceeding, have "a sufficient interest in the appeal". However, in my opinion, the discretion of the Tribunal should in the present case be exercised against granting the application for Mr and Mrs Ilbery to make submissions.

49 There is no evidence before me to suggest that the Council does not intend to actively defend its decision to impose the disputed condition. It is obvious from the grounds of response that one of the key factors behind the Council's decision to both impose the condition and to defend its condition is to preserve the amenity of three identified properties, including that of Mr and Mrs Ilbery. Moreover, there is no evidence before me that the Council will not call Mr and Mrs Ilbery, should they wish to give evidence, at the hearing.

50 Although the categories of cases or the circumstances in which it is appropriate for the Tribunal to exercise its discretion to grant an application to make submissions under s 62 are not closed, it appears to me that in the present circumstances it is not appropriate to grant the application, which is an application in the alternative.

51 If circumstances change and, in particular, if issues which are identified in the grounds of response are not pursued or if the Council, for whatever reason, does not call Mr and Ms Ilbery, as objectors to the application, they can make application for leave as is appropriate. However, on the evidence presented to me the present application should not be granted.

52 My order is that application for leave to intervene and to make submissions dismissed.

I certify that this and the preceding 13 pages comprise the reasons of judgment.

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