Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Citation : ERUJIN PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2010] WASAT 29

Administrative law - Appeal from State Administrative Tribunal - Consent orders - Abuse of process by re­litigating

Planning and Development Act 2005 (WA), s 135, s 138, s 143, s 151, s 153, s 241, s 251

State Administrative Tribunal Act 2004 (WA), s 13, s 26, s 27, s 29, s 47, s 56

Administration of the Territory of Papua and New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353

Attorney-General (NSW) v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469

Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502

Chin v Legal Practice Board Western Australia [2009] WASCA 117

Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29

Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138

In re South American and Mexican Company; Ex parte Bank of England [1895] 1 Ch 37

Isaacs v The Ocean Accident and Guarantee Corporation Ltd & Winslett [1958] SR (NSW) 69

Mustac v Medical Board of Western Australia [2007] WASCA 128

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

Paridis v Settlement Agents Supervisory Board [16] - [18]; Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331

R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598

Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140

Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699

Walton v Gardiner [1992] HCA 77; (1993) 177 CLR 378

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

1 ALLANSON J: Erujin Pty Ltd (Erujin) was the applicant in proceedings in the State Administrative Tribunal (SAT). It applied to review two conditions of subdivision approval which had been imposed by the Western Australian Planning Commission (the Commission) in relation to two alternative subdivisions of a rural property.

2 SAT dismissed the proceedings as an abuse of process. It did so, in summary, for the following reasons:

(1) the conditions were essentially identical to conditions which were imposed by the tribunal by making consent orders in a previous proceeding between the same parties in relation to the subdivision of the same land;

(2) the applicant was seeking to re-agitate issues which had, as a matter of substance, already been determined by the tribunal;

(3) there had been no significant change in circumstances and the proceedings involved a collateral attack on the prior decision of the tribunal; and

(4) to allow the proceedings to continue would bring the administration of administrative justice into disrepute.

3 Erujin seeks leave to appeal the decision of the tribunal striking out its application. The application for leave was heard at the same time as argument on the appeal.

4 A party may only appeal from a decision of SAT by leave: State Administrative Tribunal Act 2004 (WA), s 105 (1). The appeal can only be brought on a question of law: s 105(2); that is, the subject matter of the appeal is the question or questions of law: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] (Buss JA); Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [49] - [53] (Owen JA).

(a) The Tribunal erred in law in determining that for the purpose of an application under s 47 of the State Administrative Tribunal Act, a consent order involved or was equivalent to determining an application on the merits.

(b) The Tribunal erred in law in concluding that a reason to grant the application was that it could give rise to inconsistent decisions when a consent order was not a decision on the merits.

(c) The Tribunal erred in law in concluding that s 56(2) of the SAT Act required the Tribunal to consider whether the conditions should be imposed.

6 Erujin contends that, on those grounds, the appeal is on the following questions of law:

(1) whether a consent order is, as a matter of law, equivalent to or involves determining an application on the merits; and

(2) the nature and effect of a consent order as a matter of the construction and application of s 56 of the State Administrative Tribunal Act.

7 In my opinion, the questions identified by the applicant are questions of law, and the appeal is on a question of law in the required sense.

8 The test for the grant of leave was stated in Chin v Legal Practice Board Western Australia [2009] WASCA 117 [12]:

The power to grant leave to appeal is conferred in general terms. It is not restricted or qualified and therefore leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. It is usually necessary for an applicant for leave to show that there is a real or significant argument to be put in support of the grounds, that there is sufficient doubt about it to justify the grant of leave and that, should the error go uncorrected, it would impose substantial injustice. Where the order below is final, that injustice will often be more readily discernible.

9 See also Paridis v Settlement Agents Supervisory Board [16] - [18]; Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 337 [16].

10 The questions raised by Erujin are important, and there are real arguments to be put in support of the grounds. Its application has been dismissed, so it would suffer substantial injustice if the tribunal erred. Leave should be granted.

11 The matter proceeded in SAT on a statement of agreed facts. The substance of the factual position is set out in [10] - [31] of the tribunal's decision: Erujin Pty Ltd and Western Australian Planning Commission [2010] WASAT 29. The following paragraphs summarise those facts.

12 Erujin is the registered proprietor of an area of 237 hectares of land at Kalgan (the land). The land was and is zoned Rural under the City of Albany Town Planning Scheme No 3.

13 On 8 January 2008, Erujin lodged an application with the Commission under s 135 of the Planning and Development Act 2005 (WA) for approval to subdivide the land to create three lots (referred to in the reasons of the tribunal as subdivision 1). The proposed use of the lots was rural.

14 The Commission referred the application to agencies, including the Department of Water and the Department of Environment and Conservation. Neither agency opposed the subdivision in principle, but each recommended that conditions be imposed on an approval.

15 On 22 April 2008, the Commission granted subdivision approval for subdivision 1 subject to 11 conditions, including the following:

1. Development and implementation of a foreshore re-vegetation plan, in consultation with the Department of Water.
2. [Areas identified on an attached map] to be fenced with stock-proof and rabbit-proof fencing.

16 Conditions 2 and 3 were consistent with the recommendations made by the Department of Water and the Department of Environment and Conservation.

17 On 9 June 2008, Erujin commenced proceeding in SAT to review the Commission's decision. It sought orders that seven of the conditions (including conditions 2 and 3) be removed, and that another condition be amended.

18 SAT commenced to hear the application in Albany on 16 December 2008. It conducted a view of the land, and heard the evidence of some of the witnesses. Following the commencement of the hearing, the parties' representatives negotiated an agreed position by which the proceeding could be resolved. Consent orders were presented to the tribunal, which issued final orders in accordance with the consent on 17 December 2008.

19 The orders provided for the application to be allowed in part. The decision of the Commission was varied by deleting 5 of the conditions imposed. Conditions 2 and 3 were deleted and replaced with amended conditions, as follows.

1. 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 creekline 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 than 10 metres in width; and

(c) require revegetation with appropriate local endemic species and weed management in denuded areas surrounding the creekline 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).'

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

20 Under the orders made on 17 December 2008, Erujin had until 17 December 2011 to submit a diagram or plan of survey of the subdivision to the Commission and request the Commission to approve the diagram or plan of survey: Planning and Development Act, s 145.

21 On 27 February 2009, Erujin sent two fresh subdivision applications for the land to the Commission for approval under s 135 of the Planning and Development Act (referred to in the reasons of the tribunal as subdivision 2 and subdivision 3). Subdivision 2 proposed the subdivision of the land into three lots. Subdivision 3 proposed the subdivision of the land into two lots.

22 On 2 June 2009, the Commission granted subdivision approval under s 135 of the Planning and Development Act for each of subdivision 2 and subdivision 3. In each case the approval was subject to two conditions. The condition for foreshore revegetation (condition 2 in the orders made by the tribunal on 17 December 2008) was imposed unchanged. The condition regarding fencing was recast:

Those areas identified in black on the plan marked 'A' are to be fenced with stock proof fencing. Where the abovementioned areas overlap boundaries between proposed Lots A and B, B and C, those sections of common boundary should be demarcated, only if necessary and with minimal disturbance of native vegetation only. (Department of Environment and Conservation)

23 A similar condition was imposed on subdivision 3.

24 Erujin requested the Commission to reconsider the conditions in relation to each of the 2009 applications, under s 151 of the Planning and Development Act. On 13 September 2009, the Commission confirmed the conditions.

25 Erujin then applied to SAT under s 251(3) of the Planning and Development Act for a review of the Commission's decision on each application.

26 The Commission applied to SAT to dismiss the proceedings as an abuse of process pursuant to s 47 of the State Administrative Tribunal Act. The tribunal dismissed both applications as an abuse of process.

27 SAT has jurisdiction in this matter because s 251 of the Planning and Development Act gives a right of review of conditions attached to the grant of an approval: see State Administrative Tribunal Act, s 13. In exercising its review jurisdiction, SAT is to deal with a matter in accordance with the State Administrative Tribunal Act and the Planning and Development Act: State Administrative Tribunal Act, s 18(1). If there is any inconsistency between those Acts, the Planning and Development Act prevails: State Administrative Tribunal Act, s 5.

28 The review of a reviewable decision is by way of a hearing de novo. Section 27 of the State Administrative Tribunal Act provides:

(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

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

(3) The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.

29 Section 27(2) reflects the language used by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419, describing the nature of the review jurisdiction exercised by the Commonwealth Administrative Appeals Tribunal. The verbal formula 'correct and preferable' recognises that in some cases more than one decision may correctly be made, and the role of the tribunal in such a case is to make the decision that is preferable.

30 When dealing with a matter in the exercise of its review jurisdiction, SAT has functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision: State Administrative Tribunal Act, s 29(1). It may affirm the decision, vary it, or set it aside and substitute its own decision or send it back to the decision-maker with any directions or recommendations as the tribunal considers appropriate: s 29(3).

31 Part 4 div 2 of the State Administrative Tribunal Act contains two provisions that are central to this appeal: s 47 and s 56.

32 Under s 47:

(1) This section applies if the Tribunal believes that a proceeding -

(a) is frivolous, vexatious, misconceived or lacking in substance;

(b) is being used for an improper purpose; or

(c) is otherwise an abuse of process.

(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.

33 The tribunal's power to strike out proceedings as an abuse of process may only be exercised by a legally qualified member. While the condition for the operation of s 47 is that the tribunal 'believes' that a proceeding is an abuse of process, a decision under s 47 can be challenged where the relevant belief is the result of a mistake of law.

34 The expression 'abuse of process' has an acquired legal meaning. Unless a contrary indication appears from the context, it is presumed that it is used in s 47 in that sense: see Attorney-General (NSW) v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469, 531; Barker v The Queen [1983] HCA 18; (1983) 153 CLR 338 at 341, 356. The three grounds in s 47(1)(a) - (c) show an intention to use the expression in its acquired meaning. The tribunal applied s 47 in that way.

35 Section 26 of the State Administrative Tribunal Act provides that, subject to specific exceptions, after the commencement of proceedings for review, the original decision-maker cannot vary the decision, or set it aside and substitute a new decision. Accordingly, where a settlement requires orders to be made which will have a legal effect, such as orders imposing conditions on the grant of an approval, orders will be necessary to give effect to the settlement. Section 56(1) provides that SAT may make those orders.

36 By s 56:

(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.

37 The tribunal is not bound to make the orders. Where an Act confers a power on a public officer or body by facultative words, as in s 56(1), it is a question of construction whether a discretion is conferred, and, if so, the nature of the considerations that the person in whom the power is confided may be entitled or required to take into account in the exercise of the discretion. This requires consideration of the particular provisions, the context, and the general scope and objects of the enactment conferring the power: see Ward v Williams [1955] HCA 4; (1955) 92 CLR 496, 505, 506; Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 [32]. See also Interpretation Act 1984 (WA) s 56.

38 I have set out the provisions of the State Administrative Tribunal Act which govern the review jurisdiction of SAT in [27] - [30] above. Regard must also be had to the requirements of the enabling Act.

39 Part 10 of the Planning and Development Act deals with subdivision and development control. A person is not to subdivide any lot without the approval of the Commission: s 135(1). Section 138 provides for approval by the Commission:

(1) The Commission may give its approval under section 135 or 136 subject to conditions which are to be carried out before the approval becomes effective.

(2) Subject to subsection (3), in giving its approval under section 135 or 136 the Commission is to have due regard to the provisions of any local planning scheme that applies to the land under consideration and is not to give an approval that conflicts with the provisions of a local planning scheme.

(3) The Commission may give an approval under section 135 or 136 that conflicts with the provisions of a local planning scheme if -

(a) the local planning scheme was not first published, or a consolidation of the local planning scheme has not been published, in the preceding 5 years and the approval is consistent with a State planning policy that deals with substantially the same matter;

(b) the approval is consistent with a region planning scheme that deals with substantially the same matter;

(c) in the opinion of the Commission -

(i) the conflict is of a minor nature; or

(ii) the approval is consistent with the general intent of the local planning scheme;

(d) the local planning scheme includes provisions permitting a variation of the local planning scheme that would remove the conflict;

(e) in the case of an application under section 135, the local government responsible for the enforcement of the observance of the scheme has been given the plan of subdivision, or a copy, under section 142 and has not made any objection under that section; or

(f) the approval is given in circumstances set out in the regulations.

(4) Despite subsection (3), the Commission is to ensure that an approval under section 135 or 136 complies with the provisions of a local planning scheme to the extent necessary for compliance with an environmental condition relevant to the land under consideration.

40 When, in the opinion of the Commission, a plan of subdivision may affect the functions of a local government, a public authority, or a utility services provider, the Commission must forward the plan to that local government, public authority or utility services provider for objections and recommendations. Section 143(1) requires the Commission to consider any objections or recommendations from those bodies before making a decision to approve or refuse the plan of subdivision.

41 Part 14 of the Act provides for review of decisions of the Commission by SAT, including review of conditions affixed to the granting of an approval: s 251. Under s 241:

(1) In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including -

(a) any State planning policy which may affect the subject matter of the application; and

(b) any management programme for the development control area in force under the Swan and Canning Rivers Management Act 2006 Part 4 that may affect the subject matter of the application.

(2) ...

(3) In determining an application for the review of the determination of, or conditions imposed in respect of, an application for approval to subdivide a lot into not more than 3 lots, the State Administrative Tribunal may have regard to claims of hardship raised by the applicant and proved to the satisfaction of the State Administrative Tribunal, if the State Administrative Tribunal is of the opinion that such regard will not affect the application of sound planning principles.

42 When exercising its review jurisdiction, SAT has functions and discretions corresponding to those of the Commission in making the reviewable decision.

43 The tribunal held that s 56(1) conferred a power to be exercised at discretion. It reached that conclusion from the words used in s 56(1), and from the nature of the function conferred on the tribunal in determining an application to review a planning decision. The tribunal said, at [45]:

[R]eview 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.

44 Having regard to the legislative context, and in particular s 138, s 153 and s 241 of the Planning and Development Act, I agree with the conclusion of the tribunal regarding its discretion in making orders under s 56.

45 Section 56(2) requires SAT to be satisfied that it would have the power to make a decision in the terms of the agreed settlement. In this matter, the conditions are attached to an approval to subdivide. The tribunal referred to the test of validity stated by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [57], following Newbury District Council v Secretary of State for the Environment [1981] AC 578:

[A] condition attached to a grant of planning permission will not be valid therefore unless:

1. 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.
2. The condition reasonably and fairly relates to the development [or subdivision] permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.

46 The tribunal was required by s 56(2) to be satisfied of its power to make a decision imposing those conditions. The criteria stated by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Ltd apply the principles relating to manifest error of jurisdiction: see R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 615. Conditions that did not meet those criteria would not be within the power of the Commission, or within the power of SAT.

47 In my opinion, the tribunal correctly construed s 56(2).

48 Ground 1 claims that the tribunal determined that for the purpose of an application under s 47, a consent order 'involved or was equivalent to determining an application on the merits.'

49 The decision of the tribunal does not say, in those words, that a consent order under s 56 involves determining an application on the merits. Nor is that the effect of what it said. The tribunal said at [45] - [46] that when it made the consent orders substituting modified conditions, it 'necessarily determined that the conditions it imposed were reasonable and appropriate.' That is not the same as saying the consent orders involved determining the application on the merits.

50 This ground also raises whether for the purposes of s 47 an order under s 56 is equivalent to a determination on the merits.

51 The tribunal said at [46] that, as a matter of substance, the consent orders determined that the conditions it then imposed 'could and should' be imposed on the subdivision of the land. I understand the tribunal's comments, as further explained in [47], to mean it had determined that the conditions could and should be imposed on a subdivision that is not significantly different from subdivision 1. For the reasons set out in relation to Ground 2, in my opinion this is an error of law.

52 The fact that the conditions were imposed by a consent judgment, however, is not the real issue.

53 There is no reason in principle why a consent order should not support a finding of abuse of process. A consent judgment by a court of record will support a plea of res judicata: Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502, 508. A consent judgment may also found an issue estoppel. The fact that the judgment was obtained by consent is no bar to a claim that an issue estoppel arises out of the judgment so long as one can ascertain what are the issues which have necessarily been determined and disposed of by the judgment: In re South American and Mexican Company; Ex parte Bank of England [1895] 1 Ch 37, 50; Isaacs v The Ocean Accident and Guarantee Corporation Ltd & Winslett [1958] SR (NSW) 69, 75; Makhoul v Barnes (1995) 60 FCR 572 at 582.

54 The concept of abuse of process offers wider protection against attempted re-litigation than either res judicata or issue estoppel. Even where there is no strict estoppel, an attempt to re-litigate a matter that has been disposed of by earlier proceedings may be an abuse of process: Walton v Gardiner [1992] HCA 77; (1993) 177 CLR 378, 393; Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434 [25]; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 [58] - [70]. So long as the issue of law or fact which has been determined in the earlier judgment can be identified, the court and the parties may be protected against an abuse of process by way of attempted re-litigation of the issue already judicially determined.

55 SAT is not a court but an administrative tribunal, even when constituted by a judicial member: Mustac v Medical Board of Western Australia [2007] WASCA 128 [48]; Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138 [26]. Care must be exercised in the application, even by analogy, of authorities relating to courts.

56 SAT has, however, been given an express power to dismiss for abuse of process. Further, it has jurisdiction to finally decide the questions raised on a review. While an appeal lies to the Supreme Court, it is by leave and confined to an appeal on a question of law. An estoppel may arise from the decision of a tribunal given power to finally determine the questions raised before it: The Administration of the Territory of Papua and New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353, 453. In my opinion, the principles relating to abuse of process in a court of record, including abuse of process by re-litigation of a matter that has been finally determined, are properly applied to SAT.

57 The parties reached a settlement, and the tribunal made the orders necessary to give it effect. The fact that they were made by consent does not alter their character as final orders of the tribunal. The State Administrative Tribunal Act does not differentiate between an order made by consent and one made after a full hearing on the merits. Each is a final decision of the tribunal that disposes of the matters raised in the application.

58 Neither error alleged in Ground 1 has been demonstrated. The ground fails.

59 The applicant contends that the tribunal erred in law in concluding that a reason to grant the application was that it could give rise to inconsistent decisions when a consent order was not a decision on the merits.

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'.

61 The issue of potentially inconsistent decisions requires the court to consider what was determined by the earlier consent orders.

[The] judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 532 (Dixon J).

62 At a general level, the tribunal said that the consent orders had determined that the conditions imposed on approval for subdivision 1 were within power and were 'reasonable and appropriate.' This was paraphrased as conditions the tribunal 'could and should' impose on subdivision 1. This general finding would not, however, support a claim that a decision to allow a subdivision of the same land without those conditions was inconsistent with the consent orders.

63 More specifically, the tribunal made the following important findings in [46] and [47]:

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.

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. (emphasis added)

64 This reasoning sets out a basis for finding a relevant inconsistency but, in my opinion, impermissibly extends what was decided by the consent orders.

65 There will be the potential for inconsistent decisions if the consent orders made by the tribunal in December 2008 determined not only that conditions 2 and 3 are reasonable and appropriate to subdivision 1, but also that such conditions are reasonable and appropriate, or should be imposed, on 'the subdivision of the land.' But the consent orders do not determine 'the basis for the imposition of the conditions'; that is, they do not determine why those conditions were imposed or the circumstances in which such conditions should be imposed. None of those matters was legally necessary to the conclusion that the tribunal could and should make orders imposing those conditions to give effect to the settlement agreed by the parties. And because the consent orders do not determine the basis for the imposition of the conditions, they cannot decide as a matter of substance whether those conditions should be imposed on a subsequent application in relation to the same land, or to a subdivision where there has been 'no relevantly significant change in circumstances.'

66 Put another way, for Erujin to claim that the conditions should not be imposed on subdivision 2 or subdivision 3 is not necessarily to assert that the earlier decision of the tribunal is wrong.

67 The finding that there was the potential to give rise to inconsistent decisions was only one of the reasons given for finding an abuse of process. Further, it was part of a more general finding that the 2009 applications bring the administration of justice into disrepute. But it was a central part of the reasoning of the tribunal in finding an abuse of process. The finding that there was an abuse of process was affected by an error of law about the effect of the consent orders. In my opinion ground 2 should be upheld, and the matter should be sent back to the tribunal for reconsideration.

68 In ground 3, the applicant contends that SAT erred in concluding that s 56(2) required the tribunal to consider whether the conditions should be imposed.

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.

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).

71 To the extent the tribunal said s 56 required it to consider whether the conditions should be imposed, it was under the discretion conferred by s 56(1). In my opinion, for the reasons set out above, s 56(1) does confer that discretion.

73 For these reasons, the applicant should have leave to appeal, and the appeal should be allowed on ground 2, with the matter sent back to the tribunal for reconsideration.