Court of Appeal (WA)|2018-12-03|Before: Buss P, Murphy JA, Mitchell JA, Smith J

For the reasons explained above, in making the Final Decision, the Tribunal erred in law by failing to have due regard to the provisions of the Scheme as affected by the Scheme Amendment.
On the facts agreed by the parties before the Tribunal, the respondent's proposed use of the Land fell within the definition of 'Service Station' under the Scheme as affected by the Scheme Amendment. It was proposed to be premises, other than premises of an excluded kind, used for the retail sale of petroleum products and goods of an incidental or convenience nature.
Before this court, counsel for the respondent was careful to preserve the respondent's capacity to contest the classification of the proposed use under the amended provisions, including by withdrawing its agreement as to the relevant facts.[65] However, on any view the Scheme Amendment was capable of affecting the Tribunal's conclusion as to the proper classification of the respondent's proposed use of the Land. The error of law in failing to have due regard to the provisions of the Scheme in force at the time of the Tribunal's decision was material, in that the error went to a central issue for consideration (whether the proposed use was permitted or discretionary) and is likely to have impacted on the reasoning process actually adopted by the Tribunal.[66]
Therefore, the appellant's appeal must be allowed and the respondent's cross-appeal dismissed. The Tribunal's decision should be set aside and the matter sent back to the Tribunal for reconsideration, by the Tribunal differently constituted, in accordance with these reasons.

(1) The respondent's application in an appeal dated 27 June 2018 is dismissed.

(4) Orders 3 and 4 made on 10 May 2018 by the Supreme Court in GDA 14 of 2017 are set aside, and the following orders are substituted:

(b) The orders made on 23 August 2017 by the State Administrative Tribunal in matter number DR 475 of 2015 are set aside.

(c) The matter is sent back to the Tribunal for reconsideration, by the Tribunal differently constituted, either with or without the hearing of further evidence as the Tribunal determines, in accordance with the reasons of the Court of Appeal.

The parties should be heard as to the costs of the appeal to this court and the appeal to the General Division, as well as any ancillary orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104

[2] DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2017] WASAT 114.

[3] Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASC 145.

[5] See s 256(5)(b) and s 257B(2) and (3) of the Planning Act read with reg 8(1)(c) and reg 10(4) of the Scheme Regulations.

[6] Section 257A of the Planning Act read with reg 10(2) of the Scheme Regulations.

[7] Clause 67(a) of the Deemed Provisions.

[8] Clause 68(2) of the Deemed Provisions.

[9] Statement of Agreed Facts before the Tribunal (Green AB 254 - 255).

[10] Under reg 6 and reg 7 of the DAP Regulations.

[11] Under reg 8(1) of the DAP Regulations.

[12] Statement of Agreed Facts before the Tribunal (Green AB 254 - 255).

[13] Annexure PDB1 to the affidavit of Phillip Bruce Dobson sworn 26 June 2018 (Yellow AB 11 - 28).

[14] Under reg 18(2)(a) of the DAP Regulations read with s 252(1) of the Planning Act.

[22] Section 87(4) of the Planning Act.

[23] Final Decision [2] - [3], [130], [200].

[24] Affidavit of Stephen James Willey sworn 19 September 2017, par 18.

[25] Affidavit of Stephen James Willey sworn 19 September 2017, par 19.

[26] As required by s 105(2) of the SAT Act.

[31] Primary Decision [37] - [99], esp at [98].

[32] Primary Decision [102] - [156], esp at [154] - [156].

[34] Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1998) 101 LGERA 284.

[35] Kennedy J at 287, Murray J at 292, Anderson J at 296.

[36] City of Cockburn v McNiece Industrial Systems Pty Ltd (Unreported, WASC, Library No 5523, 24 September 1984).

[38] As to which see the cases discussed in Owners of Strata Plan 18449 v City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346 [30] - [53], the discussion in Denis McLeod, Planning & Development WA (at 8 November 2018) [3.252.5] - [3.252.6] and debates on the relevant provision of the Bill for the Planning Act at Western Australia, Parliamentary Debates, Legislative Assembly, 22 September 2004, 6368 - 6369; 6371 - 6372 (Ms C L Edwardes, member for Kingsley, Ms A J McTiernan, Minister for Planning and Infrastructure).

[39] See s 3(1) of the SAT Act (definition of 'enabling Act') read with s 252(1) of the Planning Act and reg 18(2) of the DAP Regulations.

[40] See Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 [95] - [103].

[41] The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227 [20] - [23].

[42] Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14 [134] - [154].

[45] Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1.

[47] Namely the Interpretation Act 1918 (WA) and the Interpretation Act 1898 (WA).

[48] Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545 [47].

[49] See s 3(3), s 5 (definitions of 'amend' and 'repeal'), s 30, s 33, s 42(6)(b) and s 43(4) of the Interpretation Act.

[50] Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430, 440 - 441.

[51] Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 [58].

[56] Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178 [35].

[57] Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161 and The Colonial Sugar Refining Co Ltd v Irving [1905] AC 369, both cited at Esber (440).

[58] See, for example, Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, 825 - 826 and Director of Public Works v Ho Po Sang [1961] UKPC 22; [1961] AC 901, 919 - 920, both cases being cited in Esber (440), and Dubler [36].

[59] See also Shire of Augusta-Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55 [38] - [40], [84], [164].

[60] Attorney-General (Queensland) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485 [50].

[61] LS v Mental Health Review Board [2013] WASCA 128 [93] - [94].

[62] Under s 5 of the Interpretation Act, the term 'repeal' includes to 'rescind, revoke, cancel, or delete'.

[63] As to which see Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93, [5] - [10], [118] - [119] and the recent decision in UBS AG v Tyne [2018] HCA 45; (2018) 92 ALJR 968 [1], [83], [126].

[65] Respondent's Submissions, par 82 - 84; appeal ts 99 - 101.

[66] See Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 [130] - [131].

Planning and Development Act 1928

Government Employees) Act 1971

Interpretation Act 1901

Development (Development Assessment Panels) Regulations 2011

Development Act 2005

Administrative Tribunal Act 2004

Development (Local Planning Schemes) Regulations 2015

PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL -v- DCSC PTY LTD [2018] WASCA 213 (3 December 2018)

Citation : PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL -v- DCSC PTY LTD [2018] WASC 145

Attorney General (WA) v Marquet [2003] HCA 67; (2003) 217 CLR 545

Attorney-General (Queensland) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485

Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161

Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134

DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2016] WASAT 104

DCSC Pty Ltd and Presiding Member of the Southern Joint Development Assessment Panel [2017] WASAT 114

Director of Public Works v Ho Po Sang [1961] UKPC 22; [1961] AC 901

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1

Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWCA 424; (2004) 137 LGERA 178

Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430

LS v Mental Health Review Board [2013] WASCA 128

Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83

Owners of Strata Plan 18449 v City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346

Re Minister for Planning; Ex parte City of Canning [1998] WASCA 339; (1998) 101 LGERA 284

Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819

Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4; (2015) 48 WAR 93

Shire of Augusta-Margaret River v Gray [2005] WASCA 227; (2005) 143 LGERA 55

Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14

The Colonial Sugar Refining Co Ltd v Irving [1905] AC 369

The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50; (2014) 200 LGERA 227

Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379

(2004) 137 LGERA 178

(2005) 150 LGERA 346

(1998) 101 LGERA 284

(2014) 200 LGERA 227

PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL -v- DCSC PTY LTD [2018] WASCA 213 (3 December 2018)

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PRESIDING MEMBER OF THE SOUTHERN JOINT DEVELOPMENT ASSESSMENT PANEL -v- DCSC PTY LTD [2018] WASCA 213 (3 December 2018)