The applicant sought an interim injunction pursuant to s 90 of the State Administrative Tribunal Act 2004 to restrain the Council from revoking its decisions made upon reconsideration and from making any further decisions in relation to the development applications until further order.

The Tribunal determined that it is 'just and convenient' to grant the interim injunction sought by the applicant until further order and, in particular, until there is an opportunity for a determination of a foreshadowed application for a declaration pursuant to s 91 of the State Administrative Tribunal Act 2004 that the Council may not lawfully revoke its substituted decisions made pursuant to s 31 of the State Administrative Tribunal Act 2004 to grant conditional development approval for the proposed developments and cannot lawfully set aside the substituted decisions and substitute new decisions, unless one of the circumstances set out in paragraphs (c), (d) or (e) of s 26 of the State Administrative Tribunal Act 2004 applies. The Tribunal was satisfied that there is a serious question to be tried and that there is a prima facie case established in the sense that, if the evidence remains as it is, there is a probability that at the hearing of the application for the foreshadowed declaration, the applicant will be entitled to relief in the form of the declaration. The Tribunal was also satisfied that the balance of convenience favours the granting of an injunction to maintain the status quo.

Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176

Dengold Holdings Pty Ltd v Real Quality [2014] WASC 108

Madden and Shire of Broome [2007] WASAT 117; (2007) 54 SR (WA) 1

Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 16

1 Mr Michael Franco (applicant) has made an urgent application for an interim injunction pursuant to s 90 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to restrain the City of Nedlands (respondent, City or Council) from revoking its decisions made on 24 March 2015 in respect of proposed developments on three adjoining properties at Jutland Parade, Dalkeith, and from making any further decisions in relation to the development applications in respect of those properties until further order. Section 90(1) of the SAT Act provides:

The Tribunal may by order grant an interim injunction in any proceeding if it is just and convenient to do so.

2 Section 90(2) of the SAT Act provides that the Tribunal's power to make an order under s 90(1) is exercisable by a judicial member. Section 90(5) of the SAT Act provides that an interim injunction may be granted, in any case, for a specified period and, if granted on the application of a party, for the period up to the final determination of the application.

3 The applicant commenced these proceedings in September 2014 seeking review by the Tribunal of what were then deemed refusals of development applications for the construction of single dwellings on the three adjoining properties. The proceedings were referred for mediation and were the subject of six half­day mediation sessions culminating in modified development proposals being developed.

4 As is usual in the Tribunal, following mediation, the Council was invited to reconsider its reviewable decisions pursuant to s 31(1) of the SAT Act. In particular, following mediation on 6 February 2015, the Tribunal made the following order in each proceeding:

In view of a modified proposal submitted by the applicant, pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent is invited to reconsider its decision at its meeting on 24 March 2015.

5 At the Ordinary Meeting of the Council held on 24 March 2015, the Council resolved to debate and decide in relation to the development applications made by the applicant in an open session, rather than in a confidential session.

6 The unquestioned evidence of Ms Clare Nicole Gleeson, a solicitor for the applicant, is that:

... The decision in respect of each of the applications was to grant conditional approval by a vote of 8/5.

7 Mr Craig Slarke, counsel for the City, conceded in his submissions that the Council resolved on 24 March 2015 '... in effect, to grant conditional development approval for the three development applications'.

8 On 25 March 2015, the applicant's town planning consultant received a letter from the Chief Executive Officer (CEO) of the City which states as follows:

I am to advise that Council is likely to receive a rescission motion later today and that you should not assume formal approval will be issued with respect to (Lot 427) No. 36 Jutland Parade, Dalkeith; (Lot 51) No. 38 Jutland Parade, and (Lots 62 & 61) No's. 40a and 40b Jutland Parade, Dalkeith.

Arrangements are currently being made to reconvene a Special Council Meeting at the earliest opportunity to consider the revocation of planning approval for the aforementioned properties.

Should revocation be obtained, Council will proceed to reconsider Confidential [R]eport No's. 17.1, 17.2 and 17.3 as listed on Council's Agenda for the Ordinary Meeting of Council held on 24 March 2015.

9 On 26 March 2015, the City published on its website an agenda for a 'Special Council Meeting' to be held at 5.30 pm today, 26 March 2015. The agenda, on its cover page, states as follows:

Dear Council member

A Special Meeting of the City of Nedlands is to be held on Thursday, 26 March 2015, in the Council Chambers at 71 Stirling Highway Nedlands commencing at 5:30pm for the purpose of rescinding Council decision made at the Ordinary Meeting of Council held on 24 March 2015 with respect to Items 17.1, 17.2 and 17.3, being: Lot 427 ­ No. 36 Jutland Parade, Lot 51 ­ No. 38 Jutland Parade and Lots 62 & 61 ­ No's 40a and 40b Jutland Parade Dalkeith.

10 Item 3 of the agenda for the Special Meeting of the Council on 26 March 2015 states the following 'Recommendation' to be considered as an item of 'confidential business':

Council pursuant to Section 5.23(2)(d) of the Local Government Act 1995 closes the meeting to members of the public to consider:

(a) Notice of Motion to revoke a Decision of Council (attached);

(b) Legal advice in relation to planning considerations; and

(c) Reconsider Confidential Reports 17.1 (Lot 427) No. 36 Jutland Parade, Dalkeith; ­ Item 17.2 (Lot 51) No. 38 Jutland Parade, Dalkeith and Item 17.3 (Lots 61 & 62) No's. 40a & 40b Jutland Parade, Dalkeith ­ Proposed Four Storey Single House(s) with conditions.

11 The Notice of Motion to revoke the decisions of the Council, dated 25 March 2015, is signed by five of the councillors of the City, including its Mayor. The proposed motion states as follows:

That Council's decisions at its Ordinary Meeting of 24 March 2015, BE RESCINDED, with respect Items 17.1, 17.2 and 17.3 granting conditional approval to three separate applications for proposed four single storey houses at:

Lot 427 ­ No. 36 Jutland Parade Dalkeith

Lot 51 ­ No. 38 Jutland Parade, Dalkeith

Lot 62 & 61, No's. 40a and 40b Jutland Parade, Dalkeith.

12 The 'Reasons for Rescission' stated in the Notice of Motion to revoke the decisions of the Council are as follows:

1. There has been further consideration of the issues and the legal advice.
2. There is concern that the decision may be unlawful in allowing something that should not be allowed.
3. It is considered necessary and appropriate for the Council to meet further, take advice from its lawyers in their presence and then decide if the decisions made should be changed.

13 As noted earlier, s 90(1) of the SAT Act confers a power on the Tribunal constituted by a judicial member to grant an interim injunction in any proceeding 'if it is just and convenient to do so'.

14 In Madden and Shire of Broome [2007] WASAT 117; (2007) 54 SR (WA) 1 (Madden), the Tribunal's inaugural President, Barker J, considered the principles which are applicable in relation to an application for an interim injunction and said the following at [26] ­ [27]:

[26] It is usual to say when an interlocutory injunction is sought in court proceedings, as in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, that there are a number of principles that normally have to be established to get the injunction. The first is that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability at the trial of the action that the plaintiff will be entitled to relief; secondly that the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and thirdly that the balance of convenience favours the granting of an injunction.

[27] Those principles were laid down in the context of the principles governing the grant or refusal of interlocutory injunctions in private law litigation. They have also been applied in constitutional cases. Those principles are not entirely relevant in an administrative review context where the Tribunal has a statutory power to grant an interim injunction. However, they provide some guidance to the exercise of the statutory power in an administrative review context.

Consideration of application for interim injunction

15 In my view, it is just and convenient to grant an interim injunction as sought by the applicant in the circumstances of this case until further order and, in particular, until there is an opportunity for a determination of a foreshadowed application for a declaration by the applicant pursuant to s 91 of the SAT Act that the Council may not lawfully revoke its substituted decisions made pursuant to s 31 of the SAT Act at its meeting on 24 March 2015 to grant conditional development approval to the proposed developments and cannot lawfully set aside the substituted decisions and substitute new decisions unless one of the circumstances set out in paragraphs (c), (d) or (e) of s 26 of the SAT Act applies.

16 I have come to this view for the following reasons. In relation to the question of whether there is a serious question to be tried or whether there is a prima facie case established in the sense that, if the evidence remains as it is, there is a probability that at the hearing of the application for the foreshadowed declaration, the applicant will be entitled to relief in the form of the declaration, I am satisfied that there is a serious question to be tried and that there is a prima facie case. I note that Mr Slarke, on behalf of the City, quite properly conceded so much in his submissions, although maintaining that the City will contend on the hearing of the substantive matter that the City is lawfully able to revoke its decisions made on 24 March 2015 and reconsider and make fresh determinations.

17 It is clear from the Notice of Motion for revocation and from the agenda for the Special Council Meeting on 26 March 2015 that it is acknowledged by the City that the Council made a decision on 24 March 2015 in accordance with the invitation under s 31 of the SAT Act to grant conditional development approval for each of the three proposed developments.

After the commencement of a proceeding for the review of a decision the decision­maker cannot ­

(a) vary the decision; or

(b) set aside the decision and substitute its new decision,

(c) that is permitted by the enabling Act; or

(d) the parties to the proceeding consent; or

(e) the decision­maker is invited under section 31 to reconsider the decision.

19 The Council's decision made at its meeting on 24 March 2015 to grant conditional development approval to each of the three applications the subject of these proceedings was made pursuant to s 31 of the SAT Act, and, in particular, in accordance with the invitation made by the Tribunal in its order made on 6 February 2015. Section 31 of the SAT Act states as follows:

(1) At any stage of a proceeding for the review of a reviewable decision, the Tribunal may invite the decision-maker to reconsider the decision.

(2) Upon being invited by the Tribunal to reconsider the reviewable decision, the decision­maker may ­

(c) set aside the decision and substitute its new decision.

(3) If the decision­maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision.

20 It is apparent that at its meeting on 24 March 2015 the Council reconsidered the reviewable decision in respect of each of the development applications, namely, the deemed refusal of each of the development applications, and, in particular, set aside each of those decisions and substituted new decisions to grant conditional development approval to each of the development applications pursuant to s 31(2)(c) of the SAT Act. In consequence, pursuant to s 31(3) of the SAT Act, as contended by Mr Paul McQueen on behalf of the applicant, unless the proceeding is withdrawn '... it is taken to be for the review of the ... substituted decision.'

21 There is a serious question to be tried and a prima facie case, as submitted by Mr McQueen, that, under s 26 of the SAT Act, the Council is now expressly precluded from varying the substituted decision, or setting aside the substituted decision and substituting another decision, unless one of the circumstances stated in paragraph (c), (d) or (e) of s 26 of the SAT Act applies.

22 In relation to s 26(c) of the SAT Act ('that is permitted by the enabling Act'), I note that, as Mr Slarke pointed out, s 5.25(1) of the Local Government Act 1995 (WA) (LG Act) provides for the making of regulations in relation to, in paragraph (e):

[T]he circumstances and manner in which a decision made at a council or a committee meeting may be revoked or changed (which may differ from the manner in which the decision was made); ...

and that reg 10 of the Local Government (Administration) Regulations 1996 (WA) (LG Regulations) provides for revocation of a decision made at a council or committee meeting by motion. However, it is not suggested ­ at least in the application for an interim injunction ­ by or on behalf of the City that the LG Act or the LG Regulations is the 'enabling Act' for the purposes of s 26(c) of the SAT Act.

23 The term 'enabling Act', as defined in s 3(1) of the SAT Act:

... means another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal, and, if relevant, it includes subsidiary legislation under that other Act.

24 The 'enabling Act' under which jurisdiction is conferred on the Tribunal in these proceedings is s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). It is not suggested, at least in this application for an interim injunction, that the PD Act permits the proposed setting aside of the decision and substitution of a new decision by the Council for the purposes of s 26(c) of the SAT Act.

25 In relation to s 26(d) of the SAT Act ('the parties to the proceeding consent'), the applicant certainly does not consent to the proposed revocation and substitution of a new decision by the City.

26 In relation to s 26(e) of the SAT Act ('the decision­maker is invited under section 31 to reconsider the decision'), while maintaining that it is unnecessary to do so, because the Council contends that it is lawfully authorised to revoke its decision and substitute another decision by virtue of its power to revoke a decision under s 5.25(1) of the LG Act and reg 10 of the LG Regulations, nevertheless, for the avoidance of doubt and in order to enable the City to consider legal advice as to whether its decision made on 24 March 2015 is lawful, Mr Slarke on behalf of the City seeks further invitations under s 31 of the SAT Act for the Council to reconsider its substituted decisions and make fresh decisions. That application is strongly opposed by the applicant.

27 Section 31 of the SAT Act confers a discretion upon the Tribunal at any stage of a proceeding for the review of a reviewable decision to invite the original decision­maker to reconsider the reviewable decision: Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176 at [22]. Although s 31 of the SAT Act does not expressly require the consent of both parties, it would be unusual to invite a reconsideration at the request of one party and over the objection of the other party: see Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 16 at [28].

28 In my view, in the exercise of discretion under s 31 of the SAT Act, it would be inappropriate in the circumstances of this case to grant the application of the City for a further invitation for reconsideration under that section, both because of the objection, and strong objection, of the applicant, and because the City has already been invited to reconsider its decisions, following extensive mediation and the development of modified proposals, and has, in fact, done so only two days ago. In my view, having regard to the Tribunal's objectives in s 9 of the SAT Act and, in particular, the objective to achieve the resolution of questions, complaints or disputes and to make or review decisions fairly and according to the substantial merits of the case, and to act as speedily and with as little formality and technicality as is practical and minimise costs to the parties, and having regard to the considerable effort of the parties and the Tribunal in six mediation sessions culminating in a s 31 invitation and in an actual reconsideration by the City, it would be contrary to those objectives and, in particular, the objectives of fairness and substantial merits, acting speedily and minimising costs to parties, for there to be a further invitation at this time.

29 In relation to the balance of convenience, or, as it is sometimes referred to the balance of the risk of doing an injustice, the City submits that there is no substantial injustice to the applicant if the City were not enjoined from making a decision on its Notice of Motion to revoke its decisions made on 24 March 2015. Mr Slarke, for the City, submits that there is no guarantee that the revocation would be successful. Furthermore, he submits that if the revocation were successful, the applicant could challenge the lawfulness of the revocation, whether in this Tribunal or in the Supreme Court, and, furthermore, that the applicant would not lose the right to seek review before the Tribunal and that the Tribunal could grant development approval to the applicant even if the City resolves, in effect, to revoke its decisions to grant development approval to him.

30 In my view, the balance of convenience lies firmly in favour of granting an injunction to restrain the City from revoking its decisions.

31 I note that the applicant requested the City to defer its foreshadowed revocation motion and to defer the meeting scheduled for 5.30 pm today, but that the City has declined to do so.

32 I accept that there is potentially significant detriment to the applicant if the revocation motion is considered and if the decisions made on 24 March 2015 are revoked.

33 It appears, as matters currently stand, that the applicant has the benefit of development approvals granted to it by the City, pursuant to s 31 of the SAT Act. Importantly, that follows significant litigation, not only in these proceedings, but in previous applications for review brought by the applicant before the Tribunal.

34 If the Council proceeds to reconsider its decisions and revokes its decisions to grant development approval, then the applicant would have lost the benefit of those development approvals. Although the applicant maintains applications for review before the Tribunal, that will involve a merit assessment of whether to grant development approval and that merit assessment may come to a different conclusion from the conclusion reached by the City upon reconsideration on 24 March 2015.

35 Furthermore, although it is correct that the applicant could seek to challenge the lawfulness of the revocation, if it takes place in accordance with the Notice of Motion before the Special Council Meeting, that will potentially involve significant cost and delay, particularly if it involves Supreme Court proceedings.

36 I note that there is no injustice or prejudice to the City in enjoining it from considering the revocation proposal and from making a fresh determination in relation to the development applications at its meeting on 26 March 2015.

37 In all of the circumstances, in my view, the balance of convenience favours the granting of an injunction.

38 Mr Slarke also submits that the applicant cannot show that he will suffer irreparable injury, for which damages will not be an adequate compensation, unless an injunction is granted. I note that it has been suggested by Beech J in Dengold Holdings Pty Ltd v Real Quality [2014] WASC 108 at [18] that '[t]here are questions as to whether the inadequacy of damages is a separate requirement or a consideration.'

39 It may well be, as Mr McQueen observed in his submissions, that the applicant could not obtain damages given the nature of the matters in question. It does appear that this is not a case in which damages would be available to the applicant. However, ultimately, in my view, for the reasons I have given, even if there could be a potential claim for damages against the Council, the interests of justice and the balance of convenience warrant the granting of the interim injunction to maintain the status quo.

40 Finally, as Mr Slarke submits, the considerations set out by Barker J in Madden are not closed. A further consideration raised by Mr Slarke in support of the City's position resisting an injunction is that his client is a local government, and is the primary decision-maker in relation to planning matters. Mr Slarke submits that the Tribunal will be slow to grant an injunction precluding a council from making a planning decision.

41 However, as Mr McQueen submits, in the circumstances of this case, the Tribunal is substituted as the decision-maker, because the matter is on review. Subject to s 26 and s 31 of the SAT Act, and without making any final decision in relation to whether the City could make a further decision upon revocation under its powers in the LG Act and related Regulations, the City is arguably, as Mr McQueen submits, functus officio, having made its determination in relation to the development applications, or, rather, having been deemed to do so by operation of the relevant local planning scheme and the PD Act, and, furthermore, having made its determinations under s 31 of the SAT Act.

42 In all the circumstances, I am, for these reasons, satisfied that this is an appropriate case in which the Tribunal should exercise its discretion to grant an interim injunction under s 90, and, in particular, I am satisfied that in all of these circumstances it is just and convenient to do so.

43 The interim injunction that I have granted is as follows:

Pursuant to s 90 of the State Administrative Tribunal Act 2004 (WA), an interim injunction is hereby granted restraining the respondent, the City of Nedlands, from revoking its decision made on 24 March 2015 in respect of proposed development at Lot 427 (No 36), Lot 51 (No 38) and Lots 62 and 61 (Nos 40a and 40b) Jutland Parade, Dalkeith, and from making any further decision in relation to the development applications in respect of those properties until further order.

44 The costs of the application for the interim injunction are reserved.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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