CITATION : O'CONNOR and TOWN OF VICTORIA PARK [2005] WASAT 161

Practice and procedure - Application for extension of time in which to commence an application for a review of a determination of the Town Planning Appeal Tribunal under Town Planning and Development Act 1928 (WA), s 66 - Whether commencement of s 66 review was "commencement of a proceeding" - Factors for consideration in exercise of discretion to extend time - Development application for funeral parlour refused by Town Planning Appeal Tribunal - Funeral parlour use was not listed in zoning table - Whether determination that the use was not consistent with the objectives and purposes of the zone was of a jurisdictional fact - Purpose of zone was to offer services for the day­to­day needs of the local population - Whether irrelevant consideration taken into account ­ Words and phrases: "day­to­day needs"

Interpretation Act 1984 (WA), s 56(1), s 61(1), s 61(2)

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

State Administrative Tribunal Act 2004 (WA), s 42, s 167(4)(d)

State Administrative Tribunal Rules 2004 (WA), r 10

Town Planning and Development Act 1928 (WA), s 66

3. Determination of the Town Planning Appeal Tribunal affirmed

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Francis David O'Connor & Anor and Town of Victoria Park [2004] WATPAT 223

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Girando and Anor v Girando (1997) 18 WAR 450

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Londish v Knox Grammar School (1997) 87 LGRA 1

Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333

Woolworths Ltd v Pallas Newco Pty Ltd and Anor [2004] NSWCA 422; (2004) 136 LGERA 288

1 The applicants applied, under r 10 of the State Administrative Tribunal Rules 2004 (WA), for an extension of the time in which they could seek review by the President of a determination of the old Town Planning Appeal Tribunal under s 66 of the Town Planning and Development Act 1928 (WA). The Town Planning Appeal Tribunal had dismissed the applicants' appeal against the respondent's refusal of planning approval for a funeral parlour. The application to extend time and the proposed application for review were filed 36 days after the expiry of the one-month period in which an application for review should be made.

2 The President determined the application to extend time and the application for review together. In the exercise of discretion as to whether to extend the time, the President determined: (i) the length of delay was borderline; (ii) the explanation for the delay was not thoroughly satisfactory; (iii) the proposed grounds of review were arguable; and (iv) an extension of time would not cause any real prejudice to the respondent. However, in all the circumstances, the application to extend time was granted.

3 A review by the President is only available where the determination involves a question of law. The applicants submitted that the determination involved two alternative errors of law.

4 First, that the finding by the Town Planning Appeal Tribunal that the proposed development would not serve the day­to­day needs of the local population was a "jurisdictional fact", with the consequence that it was for the President on review to determine that question. The President determined that, on the proper construction of the planning instrument, the finding was not of a jurisdictional fact, and that this ground of review did not make out a matter involving an error of law. However, had the finding been of a jurisdictional fact, the President would have arrived at the same conclusion as that reached by the Town Planning Appeal Tribunal.

5 Second, the applicants claimed that the Town Planning Appeal Tribunal's consideration of the relative lack of frequency of use of a funeral parlour was irrelevant in relation to whether it would serve the day­to­day needs of the local population. The President determined that this consideration was not irrelevant.

6 The application for review was therefore dismissed.

7 Francis David O'Connor and Maria Ann O'Connor (the applicants) have applied for an order to extend the period within which they were entitled to make an application under s 66 of the Town Planning and Development Act 1928 (WA) (TPD Act) for review of a determination of the Town Planning Appeal Tribunal. If leave is granted to extend the period, the applicants would seek review, in accordance with s 66(1) of the TPD Act, by the President of the State Administrative Tribunal of the determination of the Town Planning Appeal Tribunal. Both applications are opposed by the Town of Victoria Park (the Town or respondent).

8 The proceedings before the Town Planning Appeal Tribunal were an appeal against the refusal by the Town to grant planning approval for a funeral parlour at No 265 (Lot 7) Berwick Street, East Victoria Park, 6101 (the site). The proceedings were heard by Mr Jordan, a Senior Member of the Town Planning Appeal Tribunal, on 6 December 2004. On 21 December 2004, the Senior Member published written reasons for decision in which he dismissed the appeal and refused planning approval: Francis David O'Connor & Anor and Town of Victoria Park [2004] WATPAT 223.

9 Under cover of a letter dated 21 December 2004, the Principal Registrar of the Town Planning Appeal Tribunal sent the reasons for decision to the applicants' solicitors and to the respondent. In her letter, the Principal Registrar referred to the entitlement to apply for a review of the decision by the President of the Town Planning Appeal Tribunal under s 66 of the TPD Act.

10 At the time when the decision was made and communicated to the parties, s 66 of the TPD Act provided, in part, as follows:

"(1) The [Tribunal] constituted by the President may, of its own motion or upon an application made under sub­section (3), review a direction, determination or order of the [Tribunal], when constituted without a member who is a legal practitioner, upon a matter involving a question of law.

(2) The [Tribunal] constituted by the President may -

(a) affirm the direction, determination or order; or

(b) revoke the direction, determination or order and substitute another direction, determination or order that the [Tribunal] could have made in relation to that matter.

(3) An application for review of a direction, determination or order upon a matter involving a question of law may be made, in accordance with the regulations or rules, by a party within one month after the direction, determination or order is given to the party.

..."

11 Senior Member Jordan was not a "legal practitioner", as that term was defined for the purposes of the TPD Act in s 2(1) of that Act, as at the date of the determination in question.

12 On 1 January 2005, when amendments to the TPD Act were effected by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA), the Town Planning Appeal Tribunal ceased to exist. However, s 167(4)(d) of the State Administrative Tribunal Act 2004 (WA) ("Tribunal Act") has the effect that a determination of the Town Planning Appeal Tribunal, which could have been the subject of an application for review under s 66 of the TPD Act while that Tribunal existed, is to continue to be dealt with by the Tribunal as if the law in force immediately before 1 January 2005 had continued to apply. In consequence, the applicants were entitled to make application for review of the determination of the Town Planning Appeal Tribunal made on 21 December 2004, in accordance with s 66(3) of the TPD Act as it stood prior to 1 January 2005, within one month after the determination was given to them.

13 As noted earlier, the determination in question was given to the applicants through their solicitors under cover of a letter dated 21 December 2004. The letter was sent by the Town Planning Appeal Tribunal to the applicants' solicitors' post office box in West Perth. In the ordinary course of the post, the determination would have been received by the applicants through their solicitors on 22 December 2004. Any application for review of the determination in accordance with s 66 of the TPD Act was, therefore, required to be commenced on or before Monday 24 January 2005 (22 January 2005 having been a Saturday): Interpretation Act 1984 (WA) s 61(1)(b), s 61(e) and s 61(2). The application to extend time and the proposed application for review under s 66 of the TPD Act were made in a document dated 28 February 2005, which was filed on 1 March 2005. The proposed application for review was, therefore, filed 36 days out of time.

14 The Tribunal advised the parties that I would consider the application to extend time and the application for review together and entirely on the documents, namely Senior Member Jordan's reasons for decision, the parties' written submissions and the exhibits identified and referred to in the written submissions, unless either party requested a hearing. The applicant filed and served written submissions in relation to the application to extend time and the proposed application for review, the respondent filed and served written submissions in relation to both applications, and the applicant filed and served written submissions in reply. Neither party requested a hearing.

15 I will address aspects of the substantive issue before considering the extension of the review period issue. At [2] of his reasons for decision, the Senior Member noted that, although the site is owned by the applicants, the funeral parlour which was the subject of the application for planning approval "would be a branch of the funeral business of Parravale Pty Ltd operating as Chippers Funerals". Having identified and set out relevant provisions of the planning framework at [5] ­ [10] (to which I will refer in the next section of these reasons), at [11], the Senior Member set out the respondent's three stated reasons for refusal of the application. The reasons for refusal concerned traffic generation, noise and disturbance after normal office hours, and negative impact on residential amenity.

16 Mr S Allerding, a town planning consultant, appeared for the Town at the hearing before Mr Jordan. It appears that, although Mr Allerding maintained the respondent's reasons for refusal in the appeal, he also stressed the fact that the proposed use was one which was not listed in the Zoning Table to cl 15 of the applicable planning instrument, namely the Town of Victoria Park Town Planning Scheme No 1 (TPS1). This was common ground. It was, in fact, Mr Allerding's main submission before Mr Jordan "that the proposed use cannot be considered as of right in [the] zone and must be tested against the criteria of TPS1 and the policy framework": at [16]. The Senior Member identified the issues for determination, at [17], in the following terms:

"Essentially, to be examined are the impact of the proposed use on the locality and the residential neighbours because of traffic, parking and noise and the appropriateness of the use in the Local Centre zone."

17 In relation to traffic, at [25], the Senior Member indicated that he "lean[ed] to the view that the traffic from the proposed use using the adjoining residential zone will not be materially different from that which occurred previously and from what can reasonably be expected in the future because of the zoning of the subject land".

18 In relation to parking, at [29], the Senior Member referred to the evidence of Mr K Chipper, a director of Parravale Pty Ltd, that "for most funerals up to 10 cars might attend", and accepted that "the level of parking is adequate for the [level of] development proposed".

19 At [34], the Senior Member stated that he "could find nothing in the evidence that leads to a conclusion that the proposed use will generate noise that would be sufficient to provide a reason for refusing the proposed use".

20 The Senior Member then proceeded to consider and determine the issue of the appropriateness of the use in the Local Centre Zone at [35] ­ [45] of his reasons for decision.

21 At [35], the Senior Member referred to the evidence that, of the previous 100 funerals conducted by Chippers Funerals at its Albany Highway funeral parlour, 64 per cent of the deceased had lived within five kilometres of the funeral parlour, another 21 per cent had lived between 5 and 10 kilometres away, and only 15 per cent had lived more than 10 kilometres away. The Senior Member noted the submission put by Mr MJ Hardy, counsel for the applicants, "that the proposed [development] would provide a service for local people [who died]".

22 Earlier in his reasons, at [7], the Senior Member had set out cl 16 of TPS1, which is entitled "Unlisted Uses", and provides as follows:

"If the use of land for a particular purpose is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the Use Class categories the Council may:

(1) determine that the use is consistent with the objectives and purposes of the particular Zone and is therefore permitted; or

(2) determine that the proposed use may be consistent with the objectives and purposes of the Zone and thereafter follow the advertising procedures of clause 37 in considering an application for planning approval; or

(3) determine that the use is not consistent with the objectives and purposes of that particular Zone and is therefore not permitted."

23 At [9], the Senior Member had noted that Precinct Plan P12, which formed part of TPS1, stated, in relation to the Local Centre Zone located in that Precinct (of which the site formed part), as follows:

"ETWELL STREET AND BERWICK STREET SHOPS

These centres offering services for the day­today [sic] needs of the local population can be further consolidated. Uses such as local shops, consulting rooms, child care facilities and restaurants are appropriate in these areas."

24 Having again quoted from this part of Precinct Plan P12, at [43] of his reasons, the Senior Member determined, at [44] - [45], as follows:

"This statement provides a list of uses and there are others in the zoning table for the Zone that might be approved. It can be inferred that these activities are appropriate for the Zone as they serve the needs, in a general sense, of the local population, if not every day, then as part of ordinary routine and regular activity.

The proposed funeral parlour would provide a service for local people, but I am not convinced it is a use that can be easily placed among the other uses listed. It is a use that caters for such a small proportion of the local population and for such a specified purpose. I have concluded that it [is] not one serving the day-to-day needs of the local population."

25 Finally, in the "Conclusion" to the reasons, the Senior Member stated, at [48], as follows:

"From Precinct Plan P12, however, it is clear that the Local Centre [Z]one was created particularly for development that would serve the day­to-day needs of the local population. A funeral parlour would provide a particular service for the local population, but I have formed the view that a funeral parlour does not serve the day­to­day needs of this population and so would not be consistent with the objectives for this zone, which was created particularly for this purpose."

26 At [49], the Senior Member dismissed the appeal on this basis.

Relevant provisions of Town Planning Scheme No 1

27 Clause 3 of TPS1 provides that the Scheme includes the Scheme text and each of the precinct plans. Clause 11 of TPS1 states that the Scheme area is divided into the Precincts set out in the Precinct Table at the end of that clause, and that "for each precinct, there is a precinct plan or plans". The Precinct Table includes Precinct P12 East Victoria Park. A part of Precinct Plan P12, which relates to the Local Centre Zone, is set out at [22] above.

28 Clause 15(1) of TPS1 provides as follows:

"The Scheme Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various Zones. The permissibility of any use is determined by cross[-]reference between the list of Use Classes on the left hand side of the Zoning Table and the list of Zones at the top of the Zoning Table.

The symbols used in the cross[-]reference in the Zoning Table have the following meanings:

"P" means that the use is permitted by the Scheme.

"AA" means that the use is not permitted unless the Council has granted planning approval.

"X" means a use that is not permitted by the Scheme."

29 As noted earlier, use of land as a funeral parlour is not listed as a "Use Class" in the Zoning Table to cl 15 of TPS1. As also noted earlier, cl 16 of TPS1, which is set out at [22] above, specifically addressed uses which are "not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the interpretation of one of the Use Class categories". The term "unlisted use" is defined for the purposes of TPS1 in Sch 1 as having the meaning given to it in cl 16: cl 10. Clause 37 of TPS1, which is entitled "Determination of application for an unlisted use", and which is referred to in cl 16(2), provides as follows:

"(1) Subject to subclause (2), the Council may refuse or approve an application which involves an unlisted use.

(2) The Council cannot grant planning approval for a development which involves an unlisted use unless -

(a) the advertising procedure referred to in clause 35 has been followed; and

(b) it is satisfied, by an absolute majority, that the proposed development is consistent with the matters listed in clause 36(5)."

30 Clause 35(1) of TPS1 states that, "[w]here an application involves an unlisted use, the [respondent] is to direct the applicant to advertise the application in any manner that it considers to be appropriate". Clause 36(5) of TPS1 sets out mandatory heads of consideration in relation to a planning application.

31 Finally, cl 30 of TPS1, which is entitled "Need for planning approval", provides as follows:

"(1) A person shall not begin or continue development of any land or building in the Scheme area, unless it is a development exempted by clause 31, without first having applied for and obtained planning approval.

(2) To avoid any doubt, development for which planning approval is required includes both use (which is the subject of Part 2 of this Scheme) and development (which is the subject of Part 3)."

32 In their application to extend the period in question, and in the written submissions, the applicants contend that the source of power to extend the period is found in r 10 of the State Administrative Tribunal Rules 2004 (WA) ("Tribunal Rules"). Rule 10 provides as follows:

"10. Extension of time limit

(1) The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.

(2) Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time."

33 Rule 10 of the Tribunal Rules confers power on the Tribunal to extend the period within which an application for a review of a determination under s 66 of the TPD Act may be made. This is because the commencement of such a review is, relevantly, the commencement of "a proceeding".

34 The term "proceeding" is not defined in the Tribunal Rules or the Tribunal Act. It is, however, used throughout the Tribunal Act. In particular, s 42 of the Tribunal Act provides, in part, as follows:

(1) A person applying to the Tribunal for review, or otherwise bringing a matter before the Tribunal by referral or other means, has to do so in accordance with this Act except to the extent that the enabling Act states otherwise.

(3) A proceeding before the Tribunal commences when the application is accepted by the executive officer."

35 It is apparent from the terms of s 42 of the Tribunal Act that a "proceeding" involves a matter in relation to which the Tribunal Act or an enabling Act confers jurisdiction on the Tribunal and which is commenced by the filing and acceptance of an application. This is consistent with the relevant, ordinary meaning of the noun "proceeding", which is "the instituting or carrying on of an action at law" (Macquarie Dictionary, Revised Third Edition, page 1514) or "a lawsuit" (Australian Oxford Dictionary, page 1074).

36 In this case, the "proceeding" before the Town Planning Appeal Tribunal was concluded by the determination sought to be reviewed. The commencement of an application for review of that determination under s 66 of the TPD Act involves the commencement of a new review "proceeding".

37 Section 56(1) of the Interpretation Act 1984 (WA) provides that "[w]here in a written law the word 'may' is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion". The term "written law" is defined in s 5 to include "all subsidiary legislation", which is defined to include "any ... rule of court ... or other instrument, made under any written law and having legislative effect". The Tribunal Rules were made under s 170 of the Tribunal Act and are relevantly "subsidiary legislation". Therefore, the power to extend time for the commencement of a proceeding under r 10 may or may not be exercised by the Tribunal in its discretion.

Principal considerations in the exercise of discretion

38 In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, McHugh J held, at 459, as follows:

"The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 ­ 195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; [1967] VR 871 at 872; Hughes, at 263 ­ 264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has a 'vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 922 at 935:

'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'"

39 In a passage quoted with approval and applied by Malcolm CJ (with whom Kennedy and Franklyn JJ agreed) in Girando and Anor v Girando (1997) 18 WAR 450 at 454, Kennedy J held in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as follows:

"In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case."

40 The four factors identified by Kennedy J are the principal matters for consideration in the exercise of discretion as to whether to extend the period within which an application for review under s 66 of the TPD Act may be commenced. In Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, Brennan CJ and McHugh J expressed doubt, at [6] ­ [7], as to whether the four factors identified by Kennedy J were the correct matters for consideration in the exercise of the discretion which was in question in that case. Their Honours noted that Esther Investments Pty Ltd v Markalinga Pty Ltd (supra) was, like the matter before them, concerned with the failure to enter an appeal for hearing in accordance with O 63 r 7(1) of the Rules of the Supreme Court 1971 (WA), that is "a purely procedural application to extend time for doing an act in respect of an appeal already lodged"; see also Kirby J at [66.7]. However, their Honours did not doubt the correctness of the four factors identified by Kennedy J as being the principal matters for consideration in the exercise of a discretion to extend the period in which an appeal may be commenced.

41 As noted earlier in these reasons, the length of delay in this case was just over five weeks. In the context of a statutory period of one month in which to seek review, the length of delay in this case was borderline.

42 The reasons put forward by the applicants for delay are "the intervention of the Christmas and New Year break" and "the absences of Mr Chipper from Western Australia". According to the applicants' submissions, Mr Chipper was "the principal director of Chipper & Sons Pty Ltd (the entity which has had the substantive conduct of the appeal and from whom the solicitors acting on the appeal received instructions)". According to the applicants' submissions, Mr Chipper was absent from Western Australia from 23 December 2004 to 2 January 2005 and again from 27 January 2005 to 7 February 2005.

43 The applicants' submissions state, at [5], as follows:

"Following the receipt of the reasons for decision the following factors occurred:

(a) The reasons for decision of the Tribunal were conveyed to the Appellants and to Mr Chipper.

(b) Following Mr Chipper's return from overseas, he familiarised himself with the reasons for decision and sought legal advice on the prospects of an appeal against that decision.

(c) Upon resumption of the offices of Hardy Bowen following the Christmas and New Year break advice was prepared in relation to the reasons for decision and the basis upon which an appeal could be commenced.

(d) That advice was considered by Mr Chipper and instructions given to request a review pursuant to section 66.

44 In Girando and Anor v Girando (supra), Malcolm CJ observed at 455 as follows:

"It is true that where the delay has been caused by a solicitor that will not be held against an applicant for leave: see Christie v Harvey (1900) 2 WALR 146 at 150, per Hensman J. That was a case in which a bona fide mistake was made by the solicitor: see Christie v Harvey (at 148), per Stone J. Where the failure is that of the solicitor and not the client that is a material consideration in the exercise of discretion: see Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 199, per Kennedy J; at 204, per Rowland J." (See also: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [66.7] to [68] and [70] per Kirby J.)

45 However, it was not submitted in this case that the delay was caused by the applicants' solicitors. Moreover, although it is implicit in the submissions set out at [43] above, that Mr Chipper familiarised himself with the reasons for decision and sought legal advice on the prospects of an appeal after his return from overseas on 3 January 2005, and that, at the time that he sought that advice, the applicants' solicitors' office was closed for the New Year break, it is also implicit that the advice was provided within the period of one month after the determination was given to the applicants through their solicitors. This is apparent from [5(c)] of the written submissions, which state that, following the break, "advice was prepared in relation to the reasons for decision and the basis upon which an appeal could be commenced". The applicants' solicitors have significant experience in relation to applications under the TPD Act. It is to be expected that, if the one month period had expired before the advice was sought or provided to the applicants/Mr Chipper, the applicants' solicitors would have advised in relation to an extension application as well.

46 Therefore, although the applicants' submissions do not expressly identify the date on which the advice was provided, it appears that it was provided within the one month period for the commencement of a s 66 review, that is, on or before 24 January 2005. As the respondent submitted, Mr Chipper was in Western Australia during "the critical period for decision making", namely the period after the provision of the advice and before the expiry of the one month period. In any case, given the availability of modern methods of communication, such as e­mail and telephone, mere absence from the jurisdiction does not necessarily amount to a satisfactory explanation for delay in commencement of a review or appeal. In the present case, the reasons put forward for the delay do not constitute a thoroughly satisfactory explanation.

47 The respondent submitted that it would be prejudiced by an extension of time, because it "represents the interests of amenity for its district, and it is submitted that neighbours and objectors who have an interest in the outcome, are entitled to peace and finality on the issue".

48 By cl 5 of TPS1, the respondent is charged with responsibility for the administration of the Scheme. The general objectives of the Scheme include to ensure that the use and development of land is managed in an effective and efficient manner which recognises the individual character and needs of localities, and to promote the development of a sense of local community and recognise the right of a community to participate in the evolution of localities (cl 6(3)(c), (e)). It is also significant that the respondent comprises the democratically elected representatives of the community.

49 However, it appears that the only prejudice which the respondent would suffer from an extension of time is having to contest the applicants' submissions on the substantive review. It has done so in its brief written submissions. The objectors' understandable desire for the Senior Member's determination not to be reviewed out of time is not, relevantly, a prejudice to the respondent.

50 In relation to the application to extend time, I have found that:

(ii) the explanation for the delay is not thoroughly satisfactory;

(iii) as explained in these reasons, the proposed grounds of review are arguable; and

(iv) an extension of time would not cause any real prejudice to the respondent.

51 I am prepared, on balance, to grant the required extension of time to apply for review in this case.

52 The applicants seek to argue on review "that the dismissal of the application [for planning approval] was based on an error in law, namely:

(a) The finding as a jurisdictional fact that the proposed development of the Applicant did not serve the day to day needs of the local population and therefore did not fall within the scope of uses encouraged by the Respondent's Town Planning Scheme [and alternatively]

(b) Taking into account an irrelevant consideration, namely, that the relative lack of frequency of use of a funeral parlour has the result that, first, it cannot provide a day to day service and that, secondly, that day to day service is not available to the local population." (Applicants' written submissions [9]).

53 While the first proposed ground of review is arguable for the purposes of the application to extend time, I do not consider it can be made out.

54 The first proposed ground of review is founded on the decision of the New South Wales Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd and Anor [2004] NSWCA 422; (2004) 136 LGERA 288 ("Pallas Newco"). Pallas Newco was an appeal from a decision of the Land and Environment Court, in judicial review proceedings, that a development consent for a "drive-in take­away establishment" was void and of no effect. The Land and Environment Court had determined that the characterisation of a development as a "drive-in take­away establishment" was a jurisdictional fact, with the consequence that it was for the Court itself, on the evidence before it, to determine whether the development application was for such a use. The Land and Environment Court found that the proposed development was not a "drive-in take­away establishment" and that, accordingly, it was a prohibited development under the relevant planning instrument. The Court, therefore, declared the development approval to be void.

55 The appeal to the Court of Appeal was ultimately heard by a bench of five judges, in consequence of a conflict of authority in that Court. In Londish v Knox Grammar School (1997) 87 LGERA 1, the Court of Appeal held, following a line of authority in the Land and Environment Court, "that if the opinion formed by the decision[­]maker was not vitiated by irrelevant considerations and one which was reasonably open to make, the court will not review the substance of the decision" (per Stein JA, with whom Mason P and Meagher JA agreed, at 8). Although this decision was followed by the Court of Appeal in Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333, in the more recent decision of Chambers v Maclean Shire Council (2003) 57 NSWLR 152, Ipp JA, with whom Sheller JA agreed, accepted the submission that the "classification of a development ... has now become jurisdictional": see [45] ­ [48].

56 In Pallas Newco, the Court of Appeal unanimously departed from its earlier decision in Londish v Knox Grammar School (supra), and held that, taking into account legislative purpose and context, the characterisation of a use proposed in a development application as permissible with consent under the terms of the applicable planning instrument, was a jurisdictional fact, which the Land and Environment Court, in judicial review proceedings, must determine for itself.

57 Spigelman CJ, with whom the other members of the Court of Appeal relevantly agreed, observed and held, at [5] ­ [6], as follows:

"The case law and legal literature contains a great deal of terminological confusion about the concepts of 'jurisdiction' and 'jurisdictional facts'. The authoritative statement of the relevant concept for Australia is set out in the joint judgment of the High Court in Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; 106 LGERA 419 at [28]:

'The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.'

The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional."

"The issue before this Court is whether the characterisation of a proposed development in an environmental planning instrument under the Act is so fundamental to the operation of the legislative scheme that, unless the proposed development is, as a matter of objective fact, accurately characterised as a use which is permissible, then a purported consent is not valid."

59 At [20] ­ [52], the Chief Justice carefully examined the legislative scheme found in the Environmental Planning and Assessment Act 1979 (NSW), the Environmental Planning and Assessment Regulation 2000 (NSW) and the environmental planning instrument in question. His Honour identified a number of "indicators" of jurisdictional fact drawn from his analysis of that particular legislative scheme.

60 However, the decision in Pallas Newco is clearly distinguishable from the present case, as the legislation to be construed is different, particularly in relation to "unlisted uses". It is apparent from the terms of cl 16 of TPS1, which is set out at [22] above, that, if there is a "jurisdictional fact" to be determined, it is whether a proposed use is mentioned in the Zoning Table or can reasonably fall within one of the Use Class categories there identified. As noted earlier, it was common ground in this case that a funeral parlour use was relevantly an unlisted use. Where that is the case, the words of cl 16, read in the context of other provisions of TPS1, indicate that a finding as to whether an unlisted use is, may be, or is not consistent with the objectives and purposes of the relevant Zone is not "jurisdictional".

61 In Pallas Newco, Spigelman CJ referred, at [46], to the distinction "identified in a seminal authority on this area of the law", namely Colonial Bank of Australasia v Willan (1873 ­ 74) LR 5 PC 417 at 442 ­ 443, "between a fact that is an 'essential preliminary to the decision-making process' and a 'fact ... to be adjudicated upon in the course of the inquiry'". The finding by the Senior Member in this case that the proposed use was not consistent with the purpose of the Local Centre Zone was not an "essential preliminary to the decision-making process" or, as Spigelman CJ said in Pallas Newco at [47], "legally antecedent to the decision­making process", but rather a fact adjudicated upon "in the course of the inquiry". It is apparent from the reasons for decision that this is how the critical point was argued and determined. This approach was in accordance with the proper construction of TPS1.

62 The terms of cl 16 of TPS1, read in the context of other relevant provisions of the Scheme, clearly indicate that a determination as to whether an unlisted use is, may be, or is not consistent with the objectives and purposes of the relevant Zone, is one which is made in the exercise of planning discretion. It is not a determination upon which the existence of a planning discretion depends.

63 As noted earlier, cl 30 of TPS1 requires a person to obtain prior planning approval for all development in the Scheme area, unless exempted by cl 31. Clause 31 does not exempt unlisted uses in general, or funeral parlour uses in particular. As also noted earlier, the use of the word "may", in a written law which confers a power, is to be interpreted to imply that the power may be exercised or not, at discretion: Interpretation Act 1984 (WA) s 56(1). A town planning scheme is relevantly a "written law": Interpretation Act 1984 (WA) s 5. The use of the word "may" in cl 16 of TPS1, therefore, indicates that the respondent, and the Tribunal on review, may, or may not, make any of the determinations identified in par (1), (2) or (3) of cl 16.

64 In the course of determining a planning application for an unlisted use, the respondent or the Tribunal may, therefore, make a determination under cl 16, or may determine the application on the basis of any other relevant matter for consideration under the Scheme. Indeed, in this case, the respondent had refused to grant planning approval on the basis of merit considerations under cl 36(5) of TPS1. It did not, nor was it required to, make any of the three determinations set out in cl 16.

65 Moreover, the very nature of the three possible findings which are open under cl 16, namely that the use is consistent, may be consistent, or is not consistent with the objectives and purposes of the Zone, indicate that consistency is not a jurisdictional fact. In particular, the availability of the second option demonstrates that a finding of consistency is not necessary to found jurisdiction and give rise to a planning discretion.

66 Finally, as noted earlier, cl 37 of TPS1 expressly confers a discretion on the respondent, and on the Tribunal on review "[to] refuse or approve an application which involves an unlisted use". Therefore, a determination under cl 16 that a particular unlisted use is, may be, or is not consistent with the objectives and purposes of the relevant zone, is a determination in the course of planning discretion under cl 37.

67 In their written submissions, the applicants contend that "[a] jurisdictional fact is a fact about which an independent, none expert [sic], impartial observer could make an assessment" and that "[t]he categorisation in this case is just such an exercise". Although the applicants adopted these words from the judgment of Spigelman CJ in Pallas Newco, at [62], in that passage his Honour was assessing "indicators against jurisdictional fact". His Honour reasoned that, because a determination of whether a proposed development is a "drive-in take-away food establishment" is one "about which an independent, non-expert, impartial observer could make an assessment as to whether it is right or wrong. It is not the kind of test which, by its very nature, is unlikely to be jurisdictional". In the preceding paragraph of his judgment, at [61], having reviewed a number of decisions which show that it is not always the case that matters of judgment involved in determining the existence of facts, including matters of fact and degree, mean that the fact is not jurisdictional, his Honour said:

"In each case it was the overall statutory context that proved determinative as to whether or not Parliament intended the existence of the fact to both objectively exist and be essential, notwithstanding the element of fact and degree, or even of judgement, that was required in the process of determining whether or not the relevant fact existed."

68 There is certainly an element of judgment involved in determining whether the use of land for the purpose of the proposed funeral parlour is, may be, or is not consistent with the purpose of the Zone, namely to offer services for the day­to­day needs of the local population. Although an independent, non­expert, impartial observer could make an assessment as to whether it is right or wrong to characterise a proposed use as a "drive­in take­away food establishment", it is not as clear that such an observer could make an assessment as to whether it is right or wrong to determine that the proposed use is consistent with the servicing of the day­to­day needs of the local population. But, in any case, the question is fundamentally one of statutory construction. It is apparent from cl 16 of TPS1 that the draftsperson did not intend the existence of the fact in question in this case to "both objectively exist and be essential". Rather, the intention was that the fact could be determined by the decision­maker in the course of determining whether to grant planning approval to a particular application.

69 The applicants also argued that "a determination as to the permissibility of [the proposed] use is not regulated by a categorisation for the purposes of the Precinct Plan but, rather, is a determination made earlier in time by the Officers of the Respondent when considering the use as a use not listed". This submission is misconceived for two reasons. First, the fact that the respondent might have considered the proposed development to be permissible, that is, capable of lawful approval, but refused it for merit reasons, does not preclude the Tribunal on review from determining that the proposed development was not permissible. Secondly, for reasons already discussed, the Senior Member did not make "a determination as to the permissibility of [the proposed] use" in the sense of determining whether it could be the subject of lawful approval. Rather, in the course of determining whether to grant planning approval to the proposed development (including the use), the Senior Member found that the use was not consistent with the purpose of the Zone, and therefore refused to grant approval in accordance with cl 16(3) of TPS1.

70 In any event, if the Senior Member's finding that the proposed use was not consistent with the purpose of the Zone, because it did not provide services for the day-to-day needs of the local population, were a jurisdictional fact, which accordingly I was required to consider and determine for myself, I would have come to the same conclusion as that which was arrived at by the Senior Member.

71 Although the Senior Member did not refer to the dictionary definition of "day­to­day", his analysis at [44] ­ [45] of the reasons accords with the ordinary meaning of the term, and was correct. The adjective "day-to-day" is defined in the Macquarie Dictionary (Revised Third Edition) at page 492 as "ordinary; happening every day". It is defined in the Australian Oxford Dictionary at page 338 as "mundane, routine". The Senior Member was correct in identifying the common characteristics of the indicative uses listed on Precinct Plan P12 (see [23] above) as to "serve the needs, in a general sense, of the local population, if not every day, then as part of ordinary routine and regular activity". This characteristic is inherent in the term "day-to-day needs". In its context in TPS1, the term implies uses which service daily material needs.

72 King Solomon wrote in the book of Kohelet (Ecclesiastes):

"To everything there is a season, and a time to every purpose under heaven:

a time to be born, and a time to die; ..."

(Ch 3 v 2, The Jerusalem Bible, Koren Publishers, 1989, page 877).

73 Death is the inevitable conclusion to life. There can be no question that the community generally, and the local population in the area around the site in particular, has a need for the provision of appropriate funeral services. The evidence before the Senior Member established that the proposed funeral parlour would provide services for four to five deceased local people and their families each week. However, in my opinion, the needs of the local population which would be met by the proposed use could not be described as "ordinary", "mundane", "routine" or "happening every day", and therefore as "day-to-day" needs. Quite to the contrary, the needs which would be served by the proposed use would be unusual, of tremendous significance to the participants, of a specialist nature, and required by most families only rarely.

74 As a result, I do not accept the applicants' submission that the phrase "day-to-day needs", in the context in which appears in TPS1, denotes a use which is available to the population generally and is capable of utilisation both on a continuing basis and on an as needs basis (at [29]). Such a construction essentially ignores the word "day-to-day".

75 The second proposed ground of review was that the Senior Member erred in law by taking into account an irrelevant consideration, namely "the relative lack of frequency of use of a funeral parlour".

76 While this proposed ground of review is arguable for the purposes of the application to extend time, I do consider it can be made out.

77 The two factors that the Senior Member particularly identified were that the use would cater for "such a small proportion of the local population and for such a specific purpose". It is assumed that, by "relative lack of frequency of use", the applicants seek to attack the consideration of the proportion of the local population who would utilise the development. The considerations identified in the Senior Member's reasons were not irrelevant to the question he had to determine. The frequency of use is certainly relevant to whether a use serves the day­to­day needs of the local population.

78 The applicants have not, in my view, been able to demonstrate that the determination of the old Town Planning Appeals Tribunal involved an error in law. As a result, the review application should be refused.

79 The orders of the Tribunal will be :

1. The application to extend the time in which an application for review under s 66 of the Town Planning and Development Act 1928 (WA) may be made is granted.

3. The determination of the Town Planning Appeal Tribunal in Francis David O'Connor & Anor and Town of Victoria Park [2004] WATPAT 223 is affirmed.

I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE M L BARKER, PRESIDENT