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[2010] WASAT 58
General information, not legal advice.
State Administrative Tribunal (WA)
2010-04-20
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : PLESA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION
Town planning - Development approval for private jetty - Proposed jetty to be built on Crown or State land in waterway - Peel Region Scheme - Whether application made as required by Scheme - Whether review valid as made in the name of a corporation - Another public authority adopting a written policy of no further jetties to be built on river - Policy adopted to hold the line against further despoliation of river - Whether policy ought to be aplied - No evidence of material or relevant departure from policies by regulatory authorities - Policy previously upheld and applied by Tribunal - Proponent residing on delta island - Whether necessity of reasonable access should permit structure to be built - Tribunal finding application was valid - Tribunal finding that temporary approval should be given to a jetty structure to enable reasonable access to the mainland - But for necessity argument review would have failed - Review allowed and matter referred to mediation
Jetties Act 1926 (WA)
State Administrative Tribunal Rules 2004 (WA), r 10
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Kenlynn Hospitality Pty Ltd v Bundaberg City Council [2006] QPEC 85, [2007] QPELR 37
The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303
Weedon and Shire of Murray [2006] WASAT 128
1 Plesa Pty Ltd sought a review of the refusal of the Western Australian Planning Commission to grant planning approval under the Peel Region Scheme for the construction of a small replacement jetty on Crown or State foreshore land. This land was public foreshore land adjacent to a small delta island located in a waterway branch of the Murray River.
2 The applicant's principal (Mr Patrick) resided on the island and he sought to argue, essentially, that necessity required approval for this structure, as this was the only reasonable access off the island. Access to public jetties was problematic as, for example, time limits were prescribed by the local Shire in respect of the mooring of boats.
3 The Commission argued that its policies, its consistent record of approvals to date, certain Tribunal decisions and a concern for the waterway's fragile environment all outweighed the convenience to be afforded to the applicant by a mainland jetty in the position and of the size that had been proposed. They pointed out that there was already a licensed jetty on the island side, so no question arose of the land being in some sense 'landlocked'. The Commission's position was supported by the local Shire and the Department of Water.
4 The Tribunal nevertheless agreed with the applicant. It found that a reasonable case had been made out for conditional temporary approval for such duration and in respect of such a structure as should be determined by negotiation or, failing that, by further proceedings in the Tribunal. Thus, the Tribunal noted that the precedential effect of this decision would be relatively limited.
5 The Tribunal said that further policy work would be needed by the Commission to address, amongst other competing users, the problem of owners who lived on the delta islands and who needed reasonable access to the mainland. The Tribunal acknowledged that this would not be an easy task. The Tribunal noted that there would be no necessary guarantee of a continued approval for the jetty after the temporary approval expired.
6 The Tribunal also overruled the Commission's submission that the application for review was invalid as it was brought in the name of a company, and not in the name of the individual who sought planning approval. The Tribunal found the application valid, and distinguished a previous Tribunal decision that dealt with the death of an applicant for review: see The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303.
7 The review was allowed and the matter sent for further mediation.
8 What follows is a formally revised and edited version of the reasons delivered orally by the Tribunal.
9 On 23 January 2009, Plesa Pty Ltd (applicant or Plesa) sought a review of a decision made on behalf of the Western Australian Planning Commission (Commission or respondent) dated 15 December 2008 to refuse planning approval under the Peel Region Scheme (PRS) for the construction of a small jetty on public foreshore across a waterway and directly opposite to Minjugup Terrace, South Yunderup which is located on a small island (subject land).
10 The application was brought out of time and the issue of an extension of time to bring the proceeding was deferred until after attempts at a mediated outcome. As the review has now proceeded, and the delay was minimal and has been explained, and there is no relevant prejudice to the respondent's position, the time should be extended under r 10 of the State Administrative Tribunal Rules 2004 (WA). An order will be made to this effect.
11 The proposed development is set out in more detail below.
12 The subject land is public foreshore land adjacent to and south of a small delta island, 'Minjoogup Island', in a waterway branch of the Murray River (sometimes also referred to as the 'Minjoogup River'), where, it appears, the principal and agent of the applicant (Mr Martin Patrick) mainly resides (that is, on Minjugup Terrace).
13 The subject land is reserved land 'Regional Open Space' under the PRS, and is foreshore owned by the Crown or State of Western Australia. The associated waterway is reserved for 'Waterways' under the PRS.
14 Critically, it is common ground that the island and Minjugup Terrace are only accessible by boat, apparently 'via the river and foreshore reserves' to use the words of a key regulatory policy, to which matter greater attention will be given below.
15 The proposed development on the mainland replaces an existing smaller unlicensed jetty which is currently used for this purpose of access.
16 On the island side, the applicant currently has a second small licensed jetty (licensed under the Jetties Act 1926 (WA)) and that development is not affected by these proceedings.
17 As is indicated above, various attempts at mediation were unsuccessful and the Tribunal ordered that the matter be determined upon the documents. The Tribunal did, however, in the presence of the parties conduct a site inspection and view of surrounds in 2009.
18 The respondent refused approval for the development upon three grounds:
(a) alienation of the foreshore and waterway;
(b) reduced capacity for public access and use; and
(c) degradation of the landscape.
19 These and related reasons which, according to the respondent, warrant refusal of the proposed development, are considered in more detail below.
20 Under the Shire of Murray's Town Planning Scheme No 4 (TPS 4) the subject land, so far as it is foreshore, is zoned 'Public Recreation/Conservation'. Otherwise, the waterway is not locally zoned. The Shire also opposed the application, noting in part that:
... the applicant has already a licen[s]ed jetty [that is, on the island], and approval of the current proposal would result in a second jetty for the applicant.
21 The Department of Water also opposed the application citing its policy 'WS 3.4', which is considered in more detail below. The Shire also cited this policy in support of its position.
22 Subject to what follows, much of the essential planning and policy background in relation to planning approval for jetties and other structures in and adjacent to the River Murray's waterways is set out in detail in both Weedon and Shire of Murray [2006] WASAT 128 (Weedon) and The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303 (Haigh).
23 It is unnecessary to reproduce that material for the purposes of this review. It is common ground that here, as in the cases cited above, the proposed development requires the approval of the Commission under the PRS.
24 The relevant zonings have already been referred to above.
25 As appears above, the Commission has been, in part, guided in the exercise of its planning approval functions by a written policy: 'WS 3.4', originally endorsed by the Peel Inlet Management Council (PIMC) on 19 May 2004 (amended on 6 March 2007), and titled 'Boating Facilities, Jetties and Structures' (WS 3.4). According to WS 3.4, the PIMC has been replaced by the Peel Inlet Advisory Council from 15 October 2008. Parts of that policy were considered in both Weedon and Haigh.
26 However, unlike the circumstances in both Weedon and Haigh, WS 3.4 has special provisions in respect of the Murray River's Delta Islands, as follows (cl 4.1, at 3):
Murray River Delta Islands As access to lots on these islands is via the river and foreshore reserves, [Department of Water] will consider recommending approval of applications for jetty licenses (excluding boat ramps and slipways) in these locations. Preference will be given to applications for shared jetties, with the preferred design being for 'landbacked' types due to the narrow river channels.
27 Accordingly, WS 3.4's evident purpose of preventing, for sound reasons according to both Weedon and Haigh the proliferation of various structures in the Peel Inlet and its waterways, is to some degree ameliorated by the implicit recognition that access to certain places is solely via a waterway.
28 Thus, it will be indispensable on some occasions, as WS 3.4 appears to indicate, to recognise the unavoidability of building certain structures, at least in some areas, where necessity so dictates.
29 However, the officers' position as at December 2008 was that this provision of WS 3.4 only provides, in effect, an exemption for 'three specified areas' and these 'do not include the Minjoogup foreshore'. This position was reiterated and developed by the respondent in this review. I will return to this matter below.
30 I have already mentioned TPS 4 which is, at this stage, only indirectly relevant to this review, given the dominant status of the PRS in the approvals process. However, it is convenient to mention here that the Shire's Consolidated Local Government Local Laws provide limitations on the mooring time permitted at public jetties located near to the subject land, as follows:
(a) Subject to paragraph (b) ... a person shall not moor a vessel or permit it to be moored to a jetty for more than 4 hours unless he or she has -
(i) applied to, and obtained written consent of the Council in the form prescribed by the Council for that purpose from time to time; and
(ii) paid to the Shire any fee set by the Council from time to time for the purpose.
(b) The owner, or a person in control of a vessel which is moored to a jetty shall remove the vessel forthwith when so directed by an Authorised Officer.
(c) The Council may not consent to a vessel being moored at a jetty for more than seven (7) consecutive days.
31 Notwithstanding the role of Plesa in this review, the principal application for planning approval under the PRS was made on 14 February 2008 by, and solely, in the name of Mr Patrick as 'owner' of the subject land (which he was not, in point of fact, as the land is Crown or State land).
32 Mr Patrick described his application then as an 'extension of licence to include existing jetty on land side' (sic). A second application under the PRS, also received on 14 February 2008, showing the State of Western Australia as the 'owner' of the subject land (which is correct), sought 'permission for extension of licence to include existing jetty on land side' (sic). Reference was made in the applications to certain related correspondence to the Shire of Murray.
33 Both applications were made in the form of an application prescribed under the PRS.
34 However, as has been noted, the review is brought in the name of Mr Patrick's company, Plesa. Mr Patrick, who is or was a lawyer by profession, is shown as the 'lawyer or other representative' for Plesa. Whether these discrepancies as to the names of, or status of the parties, cause any jurisdictional problem is considered below.
35 Notwithstanding these descriptions of what was proposed, which appear to refer solely to a jetty licence under the Jetties Act 1926 (WA), the parties have, subject to what follows, characterised the applications - initially at least - as essentially seeking planning approval for a replacement landward side jetty on Crown or State land. I should add that I do not see the application as having any element of seeking retrospective approval for the existing jetty development.
36 The Crown or State appears to have 'consented' to the application, as owner, solely for the purpose of processing the proposal on its merits: cf Haigh at [37].
37 A builder's plan dated 7 April 2008 (which accompanied the PRS application) shows the proposed development as an Lshaped wooden structure with a 1.5 metre boardwalk, projecting from the foreshore at 4 metres in length with a 6 metre mooring arm, erected upon '16 jarrah bush poles'.
38 Minjoogup Island is comprised of some 26 lots. Most of these are in private hands. Mr Patrick, and not Plesa, appears to be the registered proprietor of Lot 4 (formerly Lot 71) which is comprised of 1065 square metres. A dwelling, where Mr Patrick resides, has been erected on the southern end of the island lot. The distance from jetty to jetty is, by the Tribunal's estimate reading from the maps, approximately 50 metres from each foreshore; however Mr Patrick estimates it to be only a 15 metre crossing.
39 Currently, according to the respondent's evidence, Mr Patrick uses a small 'pontoonboat which he berths perpendicular to the shore'. The applicant alleges that a new jetty is needed as in summer, in particular, a jetty that projects sufficiently into the waterway is necessary (as opposed to a mooring point on the bank, or a small jetty) because of the reduction in water levels.
40 The point at which Mr Patrick berths his boat on the mainland foreshore appears to be, according to the respondent, 'located at a node that is understood to have been [originally] provided to enable owners of island lots to gain access to, and from the mainland'.
41 The respondent provides the following information on the location and environment of the proposed development:
The subject land/waterway and surrounding area
42 As I understand it, nearly all of this basal factual material is not objected to by the applicant. The applicant does, however, object to some of the respondent's interpretation of events or circumstances.
43 The respondent has summarised the relevant issues as follows:
(a) the proposed jetty is consistent with the aims and purposes of the [PRS];
(b) the proposed jetty is consistent with [WS 3.4];
(c) the [a]pplicant has an overriding entitlement to access to the mainland through the proposed jetty; and
44 Apart from some additional complex legal arguments, to be considered below (if necessary), the applicant generally agrees with this analysis of the issues.
45 In addition, the respondent raises two jurisdictional matters. First, the Commission contends that the first application, made by Mr Patrick, is 'defective' under cl 28 of the PRS. Clause 28 provides as follows:
Form of application
An application for planning approval is to be -
(b) signed by the owner of the land on which the development is proposed; and
(c) accompanied by such plans and other information as are required under clause 29.
46 Clause 29, referred to in cl 28, deals with 'accompanying material' and specifies various information that must accompany every application for planning approval 'unless the Commission waives any particular requirement'.
It must be an incident of administrative or executive power (as occurs with judicial power in respect of any application made to a court) to properly characterise, within proper limits, an administrative application ...
48 In my opinion, the two applications purportedly made under the PRS, when taken together and having regard to the material attached thereto (such as the builder's plan) satisfy both cl 28 and cl 29 of the PRS. The documents, when read liberally, having regard to their substance and in their context demonstrate that Mr Patrick was seeking planning approval under the PRS for the construction of a small, new jetty opposite to Minjugup Terrace, South Yunderup, even if the language used by him was inapt for that purpose. As I have said, the consent of the owner (that is, the State) to that process appears from those documents.
49 The Commission, at least initially, seems to have so characterised the application, and to hold otherwise would truly be, with respect, a triumph of form over substance.
50 Further, notwithstanding counsel for the respondent Ms Pedersen's submission to the contrary, I read the application for a review as extending to a review of a decision to refuse planning approval, being a decision originating in both applications under the PRS.
51 In Kenlynn Hospitality Pty Ltd v Bundaberg City Council [2006] QPEC 85, [2007] QPELR 37 Rackemann DCJ said, at [46] (footnotes omitted):
The various statutory requirements which apply to the development assessment system [in Queensland] have the potential to promote the triumph of technicality over merit, if applied inflexibly. The need to make every endeavour to deal with the substance of an application has long been recognised by courts and tribunals in this area of the law. In Queensland, both the IPA [Integrated Planning Act] and its predecessor contained provisions to permit, in appropriate cases, the substance of an application to be considered notwithstanding non-compliance. Such provisions have generally been liberally interpreted and, at times, robustly applied. The legislative response, over time, has been to broaden the scope and somewhat further liberalise the terms of the excusal provisions ...
52 In any event, assuming that there has not been relevant 'compliance' with the PRS in this case and notwithstanding that the PRS does not appear to contain any provision 'to permit, in appropriate cases, the substance of an application to be considered notwithstanding noncompliance', in my view the PRS should nevertheless be interpreted, at least as regards such procedural steps and related matters that we are dealing with, flexibly and without regard to technicalities to the intent that the substance of the application ought to be considered, both by decisionmakers below, and by this Tribunal on review. Cf s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), to broadly similar effect.
54 Part of this objection is resolved by the finding made immediately above. As to the balance of the argument, in support of the second objection, Ms Pedersen cites Haigh, at [45] and at [68] [71]. Before dealing with that case, it is necessary to say something about Plesa and its relationship with Mr Patrick.
55 Mr Patrick says that at the time of the commencement of his review Plesa 'was the trustee company which owned Lot 4'. Since then, ownership of the land has been transferred into his name. The precise details of these arrangements have, however, not been supplied to the Tribunal.
56 It may be that Plesa was the trustee of a family trust and that, at relevant times, Mr Patrick was acting in his capacity as a director of the trustee company. Whatever the precise arrangements were, it may be, I think, safely assumed that at all material times Mr Patrick had at least a beneficial interest in Plesa and the property that it owned. In any event, given the nature of the relationship between the corporate entity and Mr Patrick, Plesa may, I think, be properly characterised as the agent of Mr Patrick for the purposes of seeking planning approval. In Haigh I said, at [43]:
Th[e] task [of characterisation of the application] must include, where necessary, characterisation as to who is the true applicant or proponent with respect to an application if for no other reason than to determine whether such a person has standing to bring the application. For example, in relation to Queensland planning law, it has been said that:
'[It is] well established ... that the true applicant could be treated as an undisclosed principal where professional advisers and consultants made the application apparently in their own name. If the professional relationship to the true applicant can be shown, then the consultants are taken to be agents [internal citations omitted].': A Fogg, R Meurling and I Hodgetts, Planning and Development (Qld), Law Book Co, [3010].
57 Haigh mainly dealt with a particular problem of jurisdiction that arose as a question of substance, and not merely procedure, where the central applicant in a review (Mr Haigh) passed away but before the determination of his review. His wife, an applicant in the review, but not an applicant under the PRS, wished to proceed with the review and, in effect, obtain the benefits of her husband's planning application if the review were successful. It was argued, amongst other things, that, if necessary, Mr Haigh should be regarded as the agent of Mrs Haigh at any material point.
(1) who was the 'true' applicant in the review?; and
(2) whether, if it were the case that the applicant was solely the late Mr Haigh, he had a 'transmissible' interest or whether the proceedings abated upon his death.
59 The Tribunal held that Mr Haigh was, on the facts of that case, the applicant for planning approval under the PRS, that his relevant rights were personal to him, and that there was no transmissible interest. The Tribunal said, at [44] [45]:
With respect to [counsel for the applicants], who submitted to the effect that Mr Haigh might be regarded as an agent for Mrs Haigh, the Tribunal is inclined to the view that all of the applications presently before the Tribunal, whatever their form, should be properly characterised as concurrent applications made by or on behalf of Mr Haigh and him alone in relation to a specific purpose: permission or authority sought by him (and required to be sought by him - see cl 18 of the PRS and s 162 of the Planning and Development Act 2005 (WA) ... dealing with the requirement for approval to commence 'development'), in respect of the use or development of land (including the body of water over that land) owned by another - in this case the Crown (or the State of Western Australia).
The clearest statement of that position, which is also suggested given everything else that has happened in the Tribunal, may be found in the WAPC application under the PRS itself where Mr Haigh alone sought planning approval for the mooring poles. As we shall see, the review must, it seems, focus on that application in order to give the Tribunal jurisdiction: see s 252 of the [Planning and Development Act 2005 (WA)] ...
60 Now, the conclusions reached in that case were made in the context of a particular (and complex) factual matrix of concurrent applications where the principal player in the review unfortunately died before the completion of the review.
61 That case says nothing about the case where a corporate applicant for review with a close beneficial relationship with an applicant under the PRS could be properly regarded as the agent of the natural person, still living, who had sought the original planning approval. Again, to hold otherwise would be, in my respectful opinion, 'a triumph of form over substance'.
62 The Tribunal therefore overrules the State's jurisdictional challenges.
63 Putting to one side for the moment WS 3.4, Ms Pedersen submits the following arguments justifying refusal of the application:
(b) interference with public access and use of the foreshore area and river;
(c) negative impact upon visual amenity of the foreshore and natural waterway; and
64 These arguments are supported by the statements of evidence of the respondent's Team Leader, PRS, Mr John Pride; the chief planner in the Shire, Mr Rodney Peake; and the Shire's Environment Officer, Ms Naomi O'Hara.
65 The respondent's arguments are consistent with these statements of evidence, the overarching intent of the planning framework and the decisions to refuse planning approval found in Weedon and Haigh. Thus, the respondent submits a powerful regulatory case for refusal, and without reasonably strong countervailing factors, the review would ordinarily face the prospect of dismissal.
66 Are there in existence such countervailing factors?
67 In the Tribunal's view, there are sufficient factors to warrant a temporary approval upon terms and conditions as are agreed to between the parties or, failing agreement, as are determined by the Tribunal in due course and, in either case, as will be reflected in further orders of the Tribunal.
68 I reach this conclusion for the following reasons.
69 So far as is presently relevant, Mr Patrick's case is essentially based around necessity. In effect, he seeks recognition of the special position that he is in, that is, as a resident with only limited options. The Tribunal, as appears below, accepts the basic premise of his case. In short, where as here a discretion exists, some access for mooring, it seems to me, must be recognised so that Mr Patrick can enjoy the amenity of his substantial property interest. (This does not necessarily mean, however, that he is entitled in the long term to the convenience of an exclusive mooring point directly opposite to his dwelling.)
70 I turn to the other reasons justifying a temporary approval.
71 First, the Tribunal does not accept any argument to the effect that the applicant's lot is not effectively 'landlocked', say, because of the existence of the other jetty on the island. Mr Patrick and his family are lawfully living upon the island, they have done so for a number of years and they need reasonable access to the immediate mainland; a single jetty alone does not provide such access.
72 Secondly, it is clear that the alternative of public jetty arrangements is both impractical and unworkable because of the parking and mooring limitations imposed by the Shire (see above). The Shire's efforts are, of course, an entirely reasonable attempt to 'ration out' access to a limited public resource. However, if enforced by the Shire, they would have a considerable and adverse impact upon Mr Patrick. It does not appear to be the case that the Shire has suggested any practical resolution to this impasse.
73 Thirdly, no other formal arrangements are in place or are apparently contemplated dealing with, say, the sharing of, or similar arrangements for (assuming that these steps were possible to implement), with respect to nearby private jetties.
74 However, having said all of this, I do not think that this matter should be resolved by an approval which would be prejudicial to wider public interest considerations. The respondent, the other regulatory agencies and for that matter this Tribunal have all held the line against unjustified inroads into what Ms O'Hara, with respect, correctly observed is 'an important and unique natural system'.
75 There is, speaking generally, currently a mixture of preexisting 'grandfathered' jetties, some expressly recognised exceptions shown as designated areas, some public jetties, some authorised coinciding mainland jetties and some unauthorised jetties. The precise details are set out in the written evidence of Mr Pride, and summarised above in the respondent's submissions.
76 And, where there is a difference between the parties as to the status of those jetties or associated developments, then I prefer the evidence and submissions of the respondent, as it is the custodian of the relevant records and principal administrator of the various schemes or plans underlying the various approvals, or is otherwise responsible for the investigations into their status.
77 As Mr Pride's evidence makes clear (backed up by Mr Peake), the ongoing planning and regulation needed to cope with a range of matters, including these structures; the pressures of population growth; the need to protect the natural landscape and riparian vegetation; and providing the public (not just adjacent land owners) with fair and reasonable access to the public foreshore, would be undermined by ad hoc decisions granting development approval in respect of more or less permanent structures.
78 Further, it may be accepted that a precedent would be created in favour of the other lot owners in the delta who may make similar demands on the use of public foreshore in the area (that is, the respondent's submission as to the 'aggregate effect of up to 76 jetties').
79 Therefore, the Tribunal will only grant a temporary approval for Mr Patrick's development proposal. Such a decision cannot be regarded as a precedent establishing that delta island owners have a general 'right' to a mooring point on the public foreshore.
80 The Tribunal will need to hear from the parties on the precise details of this approval unless, in the meantime, agreement is reached in mediation. One particular issue is that Mr Patrick's current proposal, which is to build a substantial structure, might be a poor investment for him if he is limited to a period of, say, only three years approval.
81 This period, when it is finalised, is intended to reflect the time needed to put in place such consultation, strategies, notices or plans as may be necessary to recognise the special position of Mr Patrick (and others that may be in his position). Or, if this is not possible, to at least work out a transitional arrangement for the winding back over time of private jetties by refusal, regulation or, say, by way of 'buyback'.
82 I should emphasise that these are essentially complex policy matters for the respondent and other authorities to work through, and the Tribunal has no role to play in their resolution. And, Mr Pride's evidence suggests that the resolution of these matters may not be an easy task. Not easy, but unfortunately probably necessary. I draw some comfort from the observations of both Mr Peake, at [20] of his statement, and Ms Pedersen's submissions, at [56] of the respondent's Statement of Issues, Facts and Contentions, that indicate that further planning work of this nature may already be underway.
83 If at the end of the period of temporary approval it has proved impossible to accommodate Mr Patrick's necessary transport problems by some broader policy development, then the Tribunal may be faced with a fresh dilemma. However, by then, Mr Patrick will have had a reasonable period to consider his position and his options. Alternatively, it might be said that he has had a reasonable notice period to the effect that his access in its temporary form may not be renewed.
84 Nothing I say here should, of course, be taken as suggesting what the outcome might be in respect of any future review (if there be any).
85 In conclusion as to my observations and findings on the merits of the proposed development, I should say something briefly about this important policy. I have already referred above to WS 3.4's apparent recognition of an exception for Murray River island residents. The respondent argues, however, that on a true construction of this policy it does not give any relief in respect of jetties proposed to be built on the mainland foreshore. The respondent contends as follows:
(c) such jetties being at locations not in the islands themselves.
86 Assuming, without deciding, that the respondent is correct in its interpretation of the policy, this is one of those cases where 'flexibility' might be said to require the policy to be departed from. In Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433 (Clive Elliott Jennings), Barker J said at [24] (emphasis added):
If the Commission has adopted ... a 'policy', and it is relevant to the [planning] application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will be why the 'policy' should not be applied; why the planning principles that find expression in the ' policy ' are not relevant to the particular application. Good public administration demands no less an approach.
87 Here, the conclusion on the merits of the case discussed at length above suggests that, whatever its other strengths, to apply this policy so as to deprive Mr Patrick of a necessary entitlement to at least temporary access to the mainland would be, with respect, an error in the exercise of a decisionmaker's discretion.
88 The applicant has also raised a number of complex legal arguments which, he contended, supported a finding in his favour. These arguments included the 'well established ancient [R]oman principle ... that owners of land have a right of access' to their land; the 'right to commit a private nuisance ... acquired by prescription'; the question of occupier's liability 'for all nuisances' which exist on land controlled by the occupier; and the consequent liability in tort for allegedly obstructing a private right of access or for unsafe passage in exercising that right.
89 The respondent rejects these various claims and, in any event, submits that the jurisdiction of the Tribunal does not extend to any adjudication upon them.
90 It is true, for example, that Barker J in Clive Elliott Jennings spoke in general terms which recognised some consistency between aspects of tort law and planning discretion when he observed, at [23], that:
Sound town planning principles, amongst other things, may require planning authorities, in appropriate cases, in effect to avoid the 'nuisance' and to harmonise, as far as possible, competing development and land use proposals in the public interest.
91 However, given the result reached above, in this case it is unnecessary to pursue these matters any further except to observe that, in any event, the Tribunal, at least as presently constituted (that is, by a nonjudicial member), is perhaps 'underequipped' to resolve such matters. Cf s 91 of the SAT Act authorising judicial members of the Tribunal to grant declaratory relief in a proceeding in the Tribunal.
92 The extent of the Tribunal's jurisdiction in respect of such types of 'claims' should await another day.
93 For the reasons given above, the Tribunal makes the following orders:
I certify that this and the preceding [93] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2002) 122 LGERA 433