State Administrative Tribunal (WA)|2010-02-25

The application for review is allowed in part.
The decision of the respondent made on 23 April 2008 to grant conditional approval to subdivision application No. 136690 is varied as follows:

(b) Condition 2 is deleted and replaced with the following condition:

'2. Development and implementation of a basic foreshore revegetation plan, in consultation with the Department of Water, which plan is to:

(a) require fencing of the creek line including existing and proposed vegetation in accordance with the plan attached and marked "A" on the southern portion of the property. The fencing is to be ringlock 1 barb fence;

(b) require installation of watering and crossing points, utilising existing points where possible. These points will need protecting with a hard surface such as gravel unless gravel is already in place, such crossing points not to be greater then 10 metres in width; and

(c) require revegetation with appropriate local endemic species and weed management in denuded areas surrounding the creek line contained within the area that is fenced in accordance with the plan attached and marked "A".

The plan marked "A" does not constitute a basic foreshore revegetation plan. (Department of Water).'

'Those areas identified in black on the plan marked "A" are to be fenced with stock-proof fencing. (Department of Environment and Conservation).'

(d) Condition 9 is deleted and replaced with the following:

(e) Condition 10 is deleted and replaced with the following:

(f) For the purposes of s 145 of the Planning and Development Act 2005 (WA) the commencement of the prescribed period is 17 December 2008.'

24 It is apparent from these orders that the substance of condition 2, as recommended by the DoW and as imposed by the Commission, was retained, but with specificity. The specific requirements in relation to the foreshore revegetation plan set out in the modified condition generally reflected the advice given in the DoW's letter dated 6 February 2008. It is also apparent from the Tribunal's orders that condition 3, as recommended by the DEC and as imposed by the Commission, was, in substance, retained. While the requirement for rabbitproof fencing was deleted, rabbitproof fencing was only identified as a preference in the DEC's letter dated 7 February 2008, whereas stockproof fencing of the identified areas of bushland was strongly recommended by that agency. Comparison of the plan marked 'A' attached to the Tribunal's orders with the plan referred to in condition 3 as imposed by the Commission indicates that three areas of bushland were removed from the requirement for fencing under the condition imposed by the Tribunal. However, substantial areas of bushland were still required to be fenced.

25 The effect of order 2(f) made by the Tribunal on 17 December 2008 was that Erujin has until 17 December 2011 in which to submit a diagram or plan of survey of subdivision 1 to the Commission and request the Commission to approve the diagram or plan of survey of the subdivision: see s 145 of the PD Act.

26 On 27 February 2009, that is, within about 10 weeks of the Tribunal's final orders in the previous proceeding, Erujin's consultant surveyor completed and despatched to the Commission two fresh subdivision applications of the land for approval under s 135 of the PD Act. These subdivision applications were received by the Commission on 6 March 2009. The first of the subdivision applications (subdivision 2) proposed the subdivision of the land into three lots labelled A, B and C. These three lots have substantially the same configuration and areas as the three lots in subdivision 1. There are some minor differences in the location of the internal boundaries and in the length and width of an accessway, with consequently minor differences in the areas of the three lots. The second subdivision application (subdivision 3) proposed the subdivision of the land into two lots labelled A and B. Lot A of subdivision 3 is located in the western part of the land, has a battleaxe shape with a 100 metre wide frontage to Nanarup Road to the south and an area of 107.38 hectares. Lot B of subdivision 3 has an irregular shape and occupies the remainder of the Nanarup Road frontage of the land, a strip adjoining the eastern boundary and a strip adjoining the northern boundary of the land. Lot B surrounds Lot A on its southern, eastern and northern sides and has an area of 129.67 hectares.

27 While the configuration and areas of Lots A and B of subdivision 3 differ from the configuration and areas of Lots A, B and C of subdivision 1 and subdivision 2, all three subdivisions have in common that each lot traverses the creek and includes areas of remnant bushland identified as requiring stockproof fencing on the plan referred to in condition 3 as modified by the Tribunal's order in the previous proceeding. Furthermore, like the boundary between Lot A and Lot B in subdivision 1 and subdivision 2, the boundary between Lot A and Lot B in subdivision 3 traverses an area of bushland that is required to be fenced by condition 3 imposed by the Tribunal in the previous proceeding, although, in subdivision 3, this area is traversed eastwest, whereas in subdivision 1 and subdivision 2, the area is traversed northsouth.

28 On 2 June 2009, the Commission granted subdivision approval under s 135 of the PD Act for subdivision 2 subject to four conditions, and for subdivision 3 subject to two conditions. Condition 1 and condition 2 of the subdivision approval for subdivision 2 and the two conditions of subdivision approval for subdivision 3 are identical to condition 2 and condition 3 as imposed by the Tribunal in its orders made on 17 December 2008 in the previous proceeding for subdivision 1, with one variation. The variation is that condition 2 of the subdivision approval for subdivision 2 and subdivision 3 contains the following additional sentence:

Where the abovementioned areas overlap boundaries between proposed [Lot A and Lot B, Lot B and Lot C in subdivision 2/Lot A and Lot B in subdivision 3], those sections of common boundary should be demarcated, only if necessary and with minimal disturbance of native vegetation only.

29 This variation is minor and does not alter the substance of the condition as imposed by the Tribunal in the previous proceeding.

30 Erujin applied to the Commission, under s 151 of the PD Act, for reconsideration of condition 1 and condition 2 imposed in relation to each of subdivision 2 and subdivision 3. However, on 13 September 2009, the Commission confirmed each condition.

31 On 12 October 2009 and on 12 November 2009, Erujin commenced proceedings DR 392 of 2009 and DR 438 of 009, respectively. Each of these proceedings involves an application for review under s 251(3) of the PD Act of condition 1 and condition 2 affixed by the Commission on the granting of approval to subdivision 2 and subdivision 3. Section 251(3) of the PD Act enables an applicant who made a request under s 151 of the PD Act to the Commission for reconsideration in relation to a condition to apply to the Tribunal for review of the decision of the Commission in relation to the reconsideration. In each application for review, Erujin sought a decision by the Tribunal to 'revoke and delete conditions 1 and 2' imposed and confirmed by the Commission on approval of subdivision 2 and subdivision 3. At the first directions hearing in the proceedings, the Commission foreshadowed its application for orders that the proceedings should be dismissed as an abuse of process.

Leading authorities in relation to abuse of process by relitigation of a decided matter

32 In AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (AON), French CJ recently summarised the principles and leading authorities in relation to abuse of process by relitigation in the following passage at [33] [34]:

... Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to relitigate that which has already been determined. Reichel v Magrath [(1889) 14 App Cas 665] is a longstanding example of a relitigation case decided on abuse of process grounds, rather than on the basis of res judicata or issue estoppel [Footnote omitted]. It was relied upon in Walton v Gardiner [(1993) 177 CLR 378] and Rogers v The Queen [(1994) 181 CLR 251]. In the former case, Mason CJ, Deane and Dawson JJ said [at 393] that:

'proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, the continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.' (footnote omitted)

The majority also endorsed the observation in Hunter v Chief Constable of West Midland Police [[1982] AC 529 at 536] that the courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of the Rules, would nevertheless be unfair to a party to the litigation 'or would otherwise bring the administration of justice into disrepute among right-thinking people' [Footnote omitted.] In Rogers v The Queen, the majority characterised as an abuse the tender of records of interview at a criminal trial in circumstances where the records have been rejected as involuntary at another trial on other charges. Mason CJ said [at 255]:

'The circumstances in which an abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.' (footnote omitted)

The House of Lords in Johnson v Gore Wood & Co [[2002] 2 AC 1] acknowledged the distinction between 'Henderson v Henderson abuse of process' on the one hand, and cause of action estoppel or issue estoppel on the other. Referring to public interest considerations of the kind discussed earlier in these reasons, Lord Bingham of Cornhill said [at 31]:

'The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.'

A broad merits-based judgment was required, taking account of public and private interests affected and focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue which could and should have been raised earlier. As Lord Bingham said [at 31]:

'As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.'

A court faced with a late amendment seeking to raise new claims and the in errorem prediction that a multiplicity of proceedings may follow if the amendment is not allowed, is entitled to have regard to the barriers to the implementation of suggestions of that kind.

33 In Batistatos v Roads and Traffic Authority of New South Wales [2006] CA 7; (2006) 26 LR 56, Gleeson CJ, and Gummow, Hayne and Crennan JJ referred, with approval, to the following observation made by McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories:

(1) The court's procedures are invoked for an illegitimate purpose;

(2) The use of the court's procedures is unjustifiably oppressive to one of the parties; or

(3) The use of the court's procedures would bring the administration of justice into disrepute.

34 Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290 (Russo) involved an application for leave to appeal, and if leave were granted, to appeal, from orders made by Sheahan J in the New South Wales Land and Environment Court. The Land and Environment Court proceeding involved an appeal against (review of) the decision of a local authority to refuse development approval for a childcare centre in a southern suburb of Sydney. In the Court of Appeal, Stein JA, at [7] [8], referred to the background to the making of one of Sheahan J's orders as follows:

The second issue relates to the finding of res judicata. His Honour's order says that the subject matter of the appeal is res judicata. His Honour observed that the application before him was conceded by Mr Russo's counsel as being, for all intents and purposes, identical with the two previous development applications in that they were submitted for the same purpose, that of establishing a childcare centre at No 1 Rocky Point Road, Kogarah, and that all three applications involved the same number of children and the same number of staff, although there was some small differences in internal layout and external changes.

Sheahan J recounted the fate of each of the first two applications. The first was heard by Assessor Nott, who dismissed the application on the basis that the proposed development was not consistent with the objectives of the relevant zone. From that decision there was no appeal. The second application, pursued for all intents and purposes on the same development application, was heard by Assessors Bly and Bull of the Court. Again, they found for the council on the question of consistency with the zone objectives but there was an appeal on the question of law on that issue. This aspect of the appeal was dismissed by Bignold J, but his Honour raised the question of existing [nonconforming] use and sent the matter back to the assessors. The assessors then submitted a question of law on existing use for a judge of the Court to determine. This question was determined by Pearlman CJ adversely to the claimant.

35 Stein JA then observed and determined at [9] as follows:

Then we come to the subject development application with which we are concerned. Mr Davison submits that, in effect, what his Honour was saying was that in the circumstances [of] the virtual identity of the three development applications, and the fate of the first two in the Land and Environment Court, the third application was an abuse of process of the Court. He accepts, as I understand it, that it was not strictly a res judicata but submits that the circumstances are such that the Court should refuse leave to appeal. I think that Mr Davison is correct in his interpretation of the judgment. The current application, being more or less precisely the same application as the first and second, both of which were appealed and dismissed by the Court, is an abuse of process of the Land and Environment Court, and ought not to be permitted to proceed. ...

36 At [10], Stein JA proposed orders setting aside Sheahan J's order that 'the subject matter of the appeal is res judicata' and substituting an order that 'the appeal be dismissed as an abuse of process of the Land and Environment Court'. The presiding member of the Court of Appeal, Meagher JA, agreed with Stein JA, at [11].

37 The third member of the Court of Appeal was Davies AJA. It is, with respect, useful to set out the whole of Davies AJA's short judgment in Russo, because the principles discussed and applied by his Honour are apposite in this case. His Honour's statement of these principles has been subsequently applied by the Land and Environment Court, including recently by Biscoe J in Edwards v The Hills Shire Council [2009] NSWLEC 187 (Edwards).

38 Davies AJA observed and held in Russo at [12] [19] as follows:

It is a general precept of law that an issue between parties should, subject to appeal, be determined by a court once and for all. This precept finds expression in the principle of res judicata, in the extended principle expressed by Wigram VC in Henderson v Henderson [1843] EngR 917; (1943) 3 Hare 100; 67 ER 313 and discussed by the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 and in the principle of issue estoppel as enunciated by Dixon J in Blair & Perpetual Trustee Co Ltd v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 532.

In the present case, the principle of res judicata [does] not apply because the application to the Land and Environment Court was brought from a fresh decision of the Kogarah Municipal Council. There was a new cause of action. The principle of issue estoppel is also difficult to apply in the field of town planning. In a case such as the present, it may be difficult to find a point of fact which should be determined once and for all. Circumstances change. The issue whether a development is consistent with a zoning may turn upon the facts as they exist when the issue comes to be decided.

Nevertheless, it is an abuse of process for an applicant to bring repeated applications to a Court, such as the Land and Environment Court, seeking to reagitate issues which have as a matter of substance already been determined in prior decisions.

The application of this principle is not precluded by the making of some minor changes to a town planning application or by reliance upon an argument or arguments which could have been put [but] were not previously put. If there has been no significant change in circumstances, the new application ought not to be brought. Otherwise, the application will appear to be a collateral attack upon the prior decision or decisions of the Court. (emphasis added)

In Deputy Commissioner of Taxation v Edelsten (unreported, Federal Court, Burchett J, 10 March 1988), Burchett J discussed many of the authorities dealing with abuse of process. Subsequently, in Wiest v Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472 at 486 487, his Honour said:

'In Deputy Commissioner of Taxation v Edelsten, I discussed, in the context of s 55 of the Bankruptcy Act 1966 (Cth), a number of the leading authorities with respect to abuse of process. I concluded that "These authorities unite in seeing as crucial the purpose for which the process is sought. It is the illegitimacy of the purpose that makes the abuse". If this is the root from which the principle grows, the reason why repeated applications may be an abuse of process is that the process was not intended to be used to achieve the purposes involved in some cases of repeated applications.'

In my opinion, the subject application to the Land and Environment Court was an abuse of process. The trial judge used the expression res judicata. That was an error. But the substance of the points made by his Honour was that the application was an abuse. With this I agree.

The appellant was seeking to reagitate matters which had earlier been rejected by Assessor Nott, Assessors Bly and Bull, Justice Bignold and Justice Pearlman. The application was in substance a collateral attack upon the earlier decisions.

The trial judge was correct in holding that it should be struck out. I agree with the orders proposed by Stein JA.

39 Having regard to the principles discussed in the authorities, I consider that the applications for review in this case are each an abuse of the Tribunal's process.

40 The Tribunal made the orders on 17 December 2008 in the previous proceeding under s 56 of the SAT Act. Section 56(1) and s 56(2) of the SAT Act state as follows:

(1) If the parties agree in writing to settle a proceeding that is before the Tribunal, the Tribunal may make any orders necessary to give effect to the settlement.

(2) The Tribunal cannot make an order under subsection (1) unless it is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (emphasis added)

41 Section 56(2) of the SAT Act required the Tribunal to be satisfied that it had the power to make a decision in terms of the consent orders proposed by the parties. Relevantly, the Tribunal had to be satisfied that the conditions could be validly imposed under the test stated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 which was endorsed by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at [57] in the following terms:

... a condition attached to a grant of planning permission will not be valid therefore unless:

The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
The condition reasonably and fairly relates to the development [or subdivision] permitted.
The condition is not so unreasonable that no reasonable planning authority could have imposed it.

42 Furthermore, the word 'may' in s 56(1) of the SAT Act imports a discretion as to whether or not to make consent orders proposed by parties. While the fact that the proponent of a planning application and the original decision-maker (particularly the latter, as it is the authority originally charged with the exercise of the planning power) both contend that modified conditions of approval are reasonable and appropriate is a material consideration in the exercise of discretion under s 56(1) of the SAT Act, the parties' joint position is hardly determinative. In Dowling v City of Malvern (1983) 1 PABR 86 (Dowling) at 89 90, the Victorian Planning Appeals Board (chaired by Mr Stuart Morris, later Morris J, president of the Victorian Civil and Administrative Tribunal (VCAT)) established principles in relation to the making of consent orders in planning review proceedings which have been consistently followed by VCAT, most recently in the decision of Deputy President Helen Gibson in Muller v Mildura Rural City Council [2010] VCAT 42 (Muller). At [5], the Planning Appeals Board said:

From a practical point of view it is desirable that the parties to an appeal negotiate to achieve a planning solution that is acceptable to all parties. This can save time, money, and heartache; and can often achieve development that is more desirable in the public interest than that previously proposed by the Applicant. It would be unfortunate if the Planning Appeals Board regularly frustrated agreements reached between parties as this would discourage negotiation and promote litigation. However, it does not follow that the Board should, therefore, blindly make directions sought by the parties regardless of the planning merits.

Although there are competing arguments on this matter, the Board has come to the view that it cannot be a mere 'rubber stamp' in determining appeals which are brought pursuant to the Town and Country Planning Act 1961 [(Vic)]. Whilst the Planning Appeals Board is constituted to hear and determine appeals between parties, its determinations have a wide effect upon the public. Moreover, the Board is required to make its determinations based upon considerations of public interest and public policy. This distinguishes the Board from a Court exercising civil jurisdiction. Unlike a Court, the Board has, and must exercise, an independent responsibility and judgment as to the appropriateness of any determination it makes.

43 Applying these principles to the circumstances of the case in Muller, VCAT refused to make the consent orders jointly sought by the applicant and the original decisionmaker.

44 Similarly, in New South Wales, cl 36 of the Land and Environment Court's Practice Note Class 1 Development Appeals includes the following:

Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the circumstances, including the proposed co nditions. ...

45 The law and practice in Western Australia is essentially the same as that in Victoria and New South Wales in planning and other review proceedings before the Tribunal. The purpose of the review in review proceedings 'is to produce a correct and preferable decision at the time of the decision upon the review': s 27(2) of the SAT Act. Clause 33 of Practice Note 2 Review Proceedings states that in a review proceeding:

The Tribunal will make an order by consent only if it is satisfied that it has power and that it is appropriate to do so. (emphasis added)

In contrast, cl 31 of Practice Note 3 Original Proceedings states merely that in an original (nonreview) proceeding:

The Tribunal will make an order by consent only if it is satisfied that it has power to do so.

While s 56(1) of the SAT Act confers a discretion on the Tribunal in both review and original proceedings as to whether or not to make consent orders proposed by the parties, in exercising the discretion in review proceedings, but not generally in original proceedings (professional disciplinary proceedings are an exception because of public interest considerations), the Tribunal is required to be satisfied that it is appropriate to make the consent orders. The reason for this distinction is that, whereas original proceedings are generally akin to civil, inter partes litigation, review proceedings involve the application of public law and the exercise of a statutory discretion to produce the correct and preferable decision. Specifically, in a planning review proceeding, the Tribunal is required to exercise a statutory planning discretion. It is not absolved from this significant public responsibility merely because the parties have settled their dispute on agreed terms. While, as noted earlier, the consent of the parties and, in particular, of the original decisionmaker, is a material consideration in the exercise of discretion as to whether to make consent orders, ultimately, as the Planning Appeals Board recognised in Dowling, the Tribunal 'has, and must exercise, an independent responsibility and judgment as to the appropriateness [of the consent orders]' having regard to the relevant planning circumstances. In making the consent orders substituting modified conditions in the previous proceeding, the Tribunal necessarily determined that the conditions it imposed were reasonable and appropriate: see, for example, Lavenda Pty Ltd and Town of Vincent [2006] WASAT 374; (2006) 48 SR (WA) 149.

46 As noted earlier, the decision sought by Erujin in each of the current proceedings is for the Tribunal to 'revoke and delete' the two conditions in dispute. The issues that Erujin therefore necessarily seeks to raise in the proceedings are whether the conditions can and should be imposed on the subdivision of the land. However, as a matter of substance, these issues have already been decided by the Tribunal in the previous proceeding. Unless there has been a significant change in circumstances between subdivision 1 and subdivision 2 or subdivision 3, Erujin's attempt to reagitate these issues constitutes a collateral attack on the prior decision of the Tribunal.

47 There has, however, been no relevantly significant change in circumstances between subdivision 1 and either subdivision 2 or subdivision 3. Subdivision 1 and subdivision 2 are essentially the same in their form. Subdivision 3 is different to subdivision 1 in relation to the number and configuration of the proposed allotments. However, having regard to the basis for the imposition of condition 2 and condition 3 on the subdivision 1 approval as expressed in the advice of the DoW and the DEC, the changes between subdivision 3 and subdivision 1 do not bear significantly on the reasons why the same conditions as are now sought to be challenged were imposed by the Tribunal on subdivision 1. Subdivision 1 and subdivision 3 both involve an increase in the number of lots on the land and therefore an intensification of the use of the land including the use of the creek for crossing and for livestock. Both subdivisions also include at least one new lot boundary traversing bushland that is required by condition 3 of the subdivision 1 approval to be fenced. The basis for the imposition of the conditions in the advice of the DoW and the DEC in relation to subdivision 1 therefore remains apposite in relation to subdivision 3.

48 The changes between subdivision 1 and subdivision 3 are relevantly akin to the minor amendments to the development proposal considered by Biscoe J in Edwards. Having been refused development consent for a brothel in a northwestern suburb of Sydney by the local authority and, subsequently on appeal, by the Land and Environment Court, the applicant in Edwards lodged a fresh development application for a brothel on the same site within six weeks of the dismissal of the earlier appeal, and appealed for a second time to the Land and Environment Court on the basis of a deemed refusal six weeks later. The applicant submitted that there were two changes in circumstances between the applications. First, the applicant adduced expert evidence in the second proceeding concerning the economic impact of the brothel on nearby businesses which was not presented in the first proceeding. Secondly, the applicant made changes to the physical configuration of the proposed brothel. The change which the applicant emphasised most of all was a reduction in the number of service rooms for sex workers from seven to six, with a consequent reduction in staff. Biscoe J determined that the proceeding was an abuse of process and should be dismissed. His Honour's reasoning, at [12] [13], was as follows:

... I do not accept that the addition of further expert evidence such as the applicant now proposes to call from Mr Goddard constitutes a change in circumstances in the sense discussed in Russo. The evidence could have been called in the earlier proceeding. It is unnecessary to explore the full ramifications of the applicant's oral submission except to note that it appears to raise the unattractive spectre of multiple successive proceedings in which evidence is adduced that could have been called in earlier proceedings.

The minor amendments to the development proposal, in my opinion, do not significantly bear on the Senior Commissioner's reasons for dismissing the previous appeal. The factors material to these reasons have not changed significantly.

49 While the current proceedings were brought under s 251(3) of the PD Act, and the previous proceeding was brought under s 251(2) of the PD Act, the two enabling provisions relevantly involve the same 'process'. That process is the review of the decision of the Commission to impose a condition of subdivision approval. The Tribunal's task, under either enabling provision, is to determine whether the condition imposed by the Commission or any alternative condition can be validly imposed and, if so, whether it is appropriate and reasonable. The process is the same whether an applicant sought review of the Commission's decision to impose the condition under s 251(2) of the PD Act without having applied to the Commission for a reconsideration of the condition, or sought review of the Commission's decision to confirm the condition under s 251(3) of the PD Act on a reconsideration of the condition.

50 This case can therefore be contrasted with Nikolaidis v Pittwater Council [2009] NSWLEC 227 (Nikolaidis). In Nikolaidis, Preston CJ determined in the Land and Environment Court that an appeal to the Court under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the refusal by the local authority of a development application to erect a parapet on a dwelling house was not an abuse of process in circumstances where the applicant had previously appealed without success to the Court under s 96(2) of the EPA Act against the refusal by the local authority to modify a development consent that it had granted to construct a new dwelling so as to increase its height by adding a parapet. His Honour's reasoning, expressed at [14], [15], [21] and [22], was as follows:

... An application to modify a development consent under s 96(2), the matters to be considered in determining such an application under s 96(2) and (3) and the power to approve such an application are subject to limitations: see s 96(2), (3) and (4) of the Act. They are different to a development application under s 78A(1), the matters to be considered under s 79C(1) when determining a development application and the power to approve a development application under s 80(1) of the Act.

Accordingly, the 'process' in an appeal under s 96(6) is different to the 'process' in an appeal under s 97(1) of the Act. This is an important point of distinction from the cases of Russo v Kogarah Municipal Council and Edwards v The Hills Shire Council. Critical in those cases was the fact that the same process was being repeatedly used; it was the repeated use of the same process that constituted the abuse. ...

Accordingly, in this case, for the applicants to exercise for the first time their statutory right to appeal under s 97(1) of the Act against a determination of the Council refusing the applicants' first development application under s 78A(1) to erect a parapet on their dwelling house is not an abuse of process simply because the applicants have earlier exercised a different right of appeal under s 96(6) of the Act against a different determination of the Council of a different application under s 96(2) of the Act to modify an existing development consent. The new development application and appeal under s 97(1) cannot appear to be a collateral attack upon the prior decision of the court in the different appeal under s 96(6) with respect to a different type of application, being a modification application not a development application.

The applicants also could not have run their current appeal under s 97(1) 'in' the s 96(6) appeal the two types of process are different.

51 However, in this case, the 'process' under both s 251(2) and s 251(3) of the PD Act is, relevantly, the same. The considerations in proceedings brought under both enabling provisions are relevantly the same. Neither review right is subject to any limitation that is not applicable to the other.

52 In my opinion, to allow the current proceedings to continue would bring the administration of administrative justice into disrepute in three respects. First, it would undermine the important public interest that there should be finality in litigation. Secondly, it would potentially give rise to inconsistent decisions by the Tribunal in relation to the same conditions of planning approval at a time when both approvals remain operative. Thirdly, it would be inconsistent with 'the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole' (to quote Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 referred to by French CJ in AON in the extract set out earlier in these reasons). This latter consideration is arguably of even greater significance in relation to the commencement and conduct of proceedings in the Tribunal than in civil courts, because the Parliament has specifically legislated that SAT's main objectives in dealing with matters within its jurisdiction include 'to act as speedily ... as is practicable, and minimise the costs to the parties': s 9(b) of the SAT Act.

53 Mr PG McGowan of counsel, who appeared on behalf of Erujin, advanced essentially four arguments as to why the current proceedings are not an abuse of process. First, Mr McGowan submitted that Erujin has made two fresh subdivision applications which were assessed and determined by the Commission on their merits. Although the Commission imposed essentially identical conditions on its approvals of subdivision 2 and subdivision 3 as were imposed by the Tribunal on the approval of subdivision 1, Mr McGowan contended that the decisions to impose the conditions in relation to subdivision 2 and subdivision 3 were based on the merits of those proposals and that, in consequence, Erujin has a statutory right to seek review by the Tribunal of the fresh decisions to affix the conditions under s 251(3) of the PD Act.

54 However, the Commission was under a statutory duty to assess and determine the applications made in respect of subdivision 2 and subdivision 3 on their merits. Unlike the Tribunal, the Commission did not have power to dismiss the subdivision applications as an abuse of process. Furthermore, while Erujin undoubtedly has a statutory right to seek review of the Commission's decisions to affix the relevant conditions to its grant of subdivision approval, the Tribunal has a statutory power to protect its process from abuse. In the circumstances of this case, the exercise by Erujin of its rights to seek review amounts to an abuse of the Tribunal's process.

55 Secondly, Mr McGowan submitted that the current proceedings are to be approached as a hearing de novo and the Tribunal is therefore not limited to either the reasons given by the original decisionmaker or to the information that was available to it. However, while s 27(1) of the SAT Act states that the review of a reviewable decision 'is to be by way of a hearing de novo' and is not confined to the matters that were before the original decisionmaker, s 47 of the SAT Act confers power on the Tribunal to dismiss an application for review if the Tribunal believes that the proceeding is an abuse of process. In situations such as Russo, Edwards and this case, where an application for review of a planning decision is in itself an abuse of process, the review application ought not to have been brought in the first place. In such a case, the Tribunal does not embark on a hearing of the merits in accordance with s 27 of the SAT Act.

56 Thirdly, Mr McGowan referred to the 'obvious distinction between a consent order and an order made on a consideration of the merits' and submitted that a consent order, 'not being a reasoned decision', cannot result in a subsequent proceeding being dismissed as an abuse of process. However, as Barrett J said in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 at [63]:

It is well established that orders made by consent may create an estoppel and that in this respect, an order of dismissal is no different from any other order.

57 Barrett J referred to the following statement by Vaughan Williams J in Re South American and Mexican Company; Ex parte Bank of England [1895] 1 Ch 37 at 45:

It has always been the law that a judgment by consent or by default raises an estoppel just in the same way as [if] the Court has exercised a judicial discretion in the matter ... [I]f [the parties] agree upon a result, ... an estoppel is raised as to all the matters in respect of which an estoppel would have been raised in judgment if the case had been fought out to the bitter end.

58 See also Isaacs v Ocean Accident and Guarantee Corporation Ltd (1958) SR (NSW) 69 at 75; (1957) 75 WN (NSW) 48 at 49 50 per Street CJ and Roper CJ in Eq.

59 While, for reasons discussed by Davies AJA in Russo, the principle of res judicata does not apply and the principle of issue estoppel does not readily apply in the context of planning review proceedings, if a consent order can create an estoppel in a civil proceeding, then, by analogy, a consent order can found an abuse of process in a planning review application. Furthermore, as discussed earlier in these reasons, in deciding to make the consent orders proposed by the parties in the previous proceeding, the Tribunal was required to be satisfied that the conditions could be validly imposed (s 56(2) of the SAT Act) and should appropriately be imposed in the exercise of planning discretion (s 56(1) of the SAT Act). Finally, s 3(1) of the SAT Act states that, in the Act, unless the contrary intention appears 'decision of the Tribunal includes an order, direction, or determination of the Tribunal'. An order made by consent under s 56 of the SAT Act is a 'decision' for the purposes of the Act. Subject to obtaining leave of the appeal court, a party to a proceeding may appeal on a question of law from a consent order under s 105 of the SAT Act. Consequently, a consent order is a decision of the Tribunal and may form the basis for a finding that a subsequent proceeding involves an abuse of process by relitigation of a matter decided by the making of the consent order.

60 Fourthly, Mr McGowan focused on a concession that was properly made by Mr DE Leigh, counsel for the Commission, in response to a question from the Tribunal, that it would not be an abuse of process for Erujin to 'run down the clock' on the subdivision 1 approval and, after it has lapsed on 17 December 2011, to lodge a fresh subdivision application and seek review of the same conditions as it seeks to contest in these proceedings. However, there would be a significant change in circumstances in such a case. While it is correct that the order made on 17 December 2008 will never expire, the modified conditions that it imposed will expire, together with the subdivision 1 approval, unless Erujin submits a diagram or plan of survey of subdivision 1 to the Commission by 17 December 2011.

61 Mr McGowan also relied on the decisions of the Tribunal in Tran and Town of Vincent [2009] WASAT 123 (Tran) and Duckworth and Western Australian Planning Commission [2005] WASAT 337 (Duckworth) and suggested that these cases evidenced an approach by the Tribunal that it can and should hear and determine the current proceedings. However, both of these decisions are distinguishable.

62 Tran involved a review of the Town of Vincent's decision to refuse alterations to an existing dwelling and the construction of an additional two storey dwelling on the rear strata lot in Paddington Street, North Perth. The plans of the proposed development were identical to an application for development on the same property that was conditionally approved by the Tribunal in 2006 (Hughan and Town of Vincent [2006] WASAT 48). As the application was identical to that previously the subject of review, and because there was no significant change of planning context to warrant an alternative outcome from the previous decision, the application for review was upheld and the proposed development was conditionally approved. However, there was a significant change in circumstances between the two proceedings, in that the development approval granted by the Tribunal in 2006 had lapsed: see Tran and Town of Vincent [2009] WASAT 123 (S) at [6] and cl 43(2) of the Town of Vincent Town Planning Scheme No 1. Furthermore, unlike Erujin, the applicant in Tran did not seek a different result to that determined by the Tribunal in the previous proceeding; rather, the applicant put forward precisely the same plans and sought precisely the same result.

63 Duckworth was an application for review of a condition of subdivision approval that required the applicant to construct and drain two roads. The Tribunal determined that the condition as imposed by the Commission was unreasonable and substituted an alternative condition. However, Duckworth is distinguishable, because there was no prior decision of the Tribunal.

64 These proceedings each involve an abuse of the Tribunal's process by relitigation of a decided matter. In applying to the Tribunal to revoke and delete condition 1 and condition 2 of each subdivision approval, Erujin is seeking to reagitate issues which have, as a matter of substance, already been determined by the Tribunal by its order made on 17 December 2008. As there has been no significant change in circumstances between subdivision 1 and either subdivision 2 or subdivision 3, the proceedings involve a collateral attack on the prior decision of the Tribunal. To allow the proceedings to continue would bring the administration of administrative justice into disrepute. The proceedings ought not to have been brought and, having been brought, should be dismissed as an abuse of process within the meaning of s 47(1)(c) of the SAT Act.

Pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) the proceeding is dismissed as an abuse of process.

I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

Planning and Assessment Act 1979

Administrative Tribunal Act 2004

Conservation Act 1976

Country Planning Act 1961

Development Act 2005

Protection (Clearing of Native Vegetation) Regulations 2004

ERUJIN PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 29 (25 February 2010)

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256

Duckworth and Western Australian Planning Commission [2005] WASAT 337

Edwards v The Hills Shire Council [2009] NSWLEC 187

Hughan and Town of Vincent [2006] WASAT 48

Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160

Lavenda Pty Ltd and Town of Vincent [2006] WASAT 374; (2006) 48 SR (WA) 149

Muller v Mildura Rural City Council [2010] VCAT 42

Newbury District Council v Secretary of State for the Environment [1981] AC 578

Nikolaidis v Pittwater Council [2009] NSWLEC 227

Russo v Kogarah Municipal Council [1999] NSWCA 303; (1999) 105 LGERA 290

Tran and Town of Vincent [2009] WASAT 123

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

(1999) 105 LGERA 290

ERUJIN PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 29 (25 February 2010)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (86 paragraphs)

Legislation Cited (8)

Cases Cited (24)

ERUJIN PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 29 (25 February 2010)