RE APPLICATION FOR A WRIT OF CERTIORARI AGAINST THE STATE ADMINISTRATIVE TRIBUNAL; EX PARTE SOLOMON [2009] WASC 116 (6 May 2009) - WASC 2009 case summary — Zoe

[6]

A draft management statement has been submitted to the respondent.

At the time that this application for review was lodged there were, it appears, two current planning approvals each purporting to be valid in respect of the site: one for 34 units expiring in October 2008 and one for 32 units expiring in September 2009.

In February 2008, the Shire issued a building licence for an upgrade and extension to the existing building. The facilities proposed were consistent with the conditions of the 34 unit development approval and included a five-bed respite facility, community facilities, a doctor's room, a gymnasium, craft room, dining room and lounge.

In May 2008, the Shire granted approval for site works associated with the overall development of the site.

It is unnecessary in these proceedings to resolve any questions that may arise out of these apparently 'competing' approvals. For present purposes, it is sufficient to observe that no party suggests that any development approval (particularly, say, for the 34 lots reflected in the building licence) or support for a corresponding surveystrata, is somehow invalid administrative action on the part of the Shire.

Finally, we note that Mr AA Stewart, an expert planner appearing as a witness for the applicant, stated that he had visited the site and that he had observed these works under construction.

The proposed subdivision

The proposed subdivision is to create 34 survey-strata lots varying in size from 310 square metres to 479 square metres. This is in addition to the common property which will contain the facilities such as the access road and the central building.

The significant difference between this application and the earlier approval by the respondent in 2005, in respect of a built strata application, is that the survey-strata titles will enable the lots to be sold as vacant lots; that is, without any buildings on the individual lots.

The respondent's decision

The respondent received the application on 7 January 2005 but, as has been mentioned, deferred a decision until after the result of the Supreme Court action referred to above. On 18 March 2008, the respondent refused the application for the following three reasons:

[18]

The Western Australian Planning Commission refused to grant its consent for subdivision, as Commercial Properties had sought a survey-strata. However, the Western Australian Planning Commission would have approved a built strata subdivision.

The Tribunal noted that 'survey strata titles [would] enable the lots to be sold as vacant lots; that is, without any buildings on the individual lots'.

The Western Australian Planning Commission was concerned that without buildings being in place prior to subdivision there might be an amenity impact arising from the existence of separate titles (and vacant lots), leading to uncoordinated construction occurring over time, and endangering the funding and maintenance of communal facilities.

The Commission did not have in place any written policy governing such a case.

The Tribunal decided that on the facts of the case there was insufficient justification in terms of underlying planning values or principles 'to warrant the imposition of a significant restraint upon the owner/developer's otherwise lawful and approved use of its land'.

Therefore, the Tribunal set aside the decision under review and surveystrata subdivision approval was given by the Tribunal upon extensive conditions.

...

The unique nature of the proposed development and the site's drawn out (and, perhaps, peculiar) context and history makes the application of the respondent's broad land use policies' objectives in this area problematic. The respondent's specific policy on strata titles (DC 1.3) does not address this particular situation. Accordingly, Mr Logan properly concedes that either strata path is legally and administratively available for the land. He also thought, however, that this context meant that it might be difficult to regulate such cases by a written policy; in any event, notions of proper and orderly planning were a sufficient basis to underwrite the respondent's concerns.

On the formulation of a written policy, we are not so sure. It can be reasonably imagined that the Commission might wish to formulate guidelines (for itself and local government) wherever questions arise about staged development and amenity and infrastructure concerns, especially perhaps given the growth market of facilities for aged and frail persons. The notion of orderly and proper planning is an overarching principle that might be the basis for such a policy exercise, but it does not offer much direct assistance in addressing the specific issues in this case.

Accordingly, absent such considered work, the matter boils down to an exercise of discretion as to whether in this case sufficient justification in terms of underlying planning values or principles has been advanced to warrant the imposition of a significant restraint upon the owner/developer's otherwise lawful and approved use of its land.

In Woodlands v Sutherland Shire Council [1994] NSWLEC 28, Bannon J said (emphasis added):

[31]

'The applicants [the third party here] did not rely on any evidence or clearly identify the basis for their assertion that a survey-strata title development is inconsistent with the permissible primary uses or their related claim that a strata title development was incapable of satisfying condition 18 ["To preserve the character of the development as a rest home ..."] of the approval. As I understand the submission, the substance of the objection is to individual ownership of the units (and any associated limitations on management and control) not the means for achieving ownership.

I am not satisfied that owner occupation of the proposed units is inconsistent with an aged and dependent persons' home, rest home or retirement centre. The conditions of [development] approval of the proposed development, in particular conditions 18 and 20 ["All occupants of each grouped dwelling unit shall be aged over 55 years"], give the development the requisite status. Further, there is no necessary inconsistency between ownership of the units and ongoing compliance with conditions 18 and 20 upon which the continuing occupation of the development will depend. Regardless of who owns the units, all the occupants will no doubt be called upon, directly or indirectly, to bear the cost of the facilities the subject of condition 18 whether or not the occupants choose to avail themselves of their entitlement to use them.

I accept that the mechanism for securing continued compliance with condition 18 will in due course require close consideration. That mechanism will be the detailed management statement in which issues of ongoing use and management will be addressed (see s 5C, s 6, s 6A and s 42 of the Strata Titles Act). Whether the proposed survey-strata scheme (including the detailed management statement) is adequate to ensure continuing compliance with the conditions of planning approval is a relevant consideration in determining whether to approve any proposed survey-strata scheme. However, the application considered by the Council of the Shire was an application for planning approval. It was not an application to approve a survey-strata scheme. The Council does not have the power to approve such an application. Further, the planning approval does not endorse or approve the development on the basis that it is to be strata titled. The subdivision of land by a survey-strata scheme requires approval by the Western Australian Planning Commission ('Commission'): s 25B of the Strata Titles Act. The Shire's role is to provide comment to the Commission on the scheme which would include the scheme's ability to secure continuing compliance with the conditions of planning approval.'

[61]

Mr MS Logan, a senior town planner and team leader of the respondent's planning appeals unit, submitted expert opinion evidence on behalf of the respondent. He told the Tribunal that the respondent accepted that the proposal was capable of subdivision as had been proposed, but he nevertheless argued in favour of a built strata rather than a survey-strata.

Mr Logan acknowledged during the hearing that the respondent did not have a written policy that dealt specifically with this issue, namely when it was appropriate to favour the use of a built strata over a surveystrata. However, Mr Logan argued that the lack of a written policy was not so significant because, in this particular case, the land use was unusual because of both its special zoning (that is, special purpose - rest home) and because it adjoined another lot with land use that was also unusually zoned (that is, special purpose - meditation). Consequently, the situation was created where amenity had itself become a very significant issue. The lack of a written policy was less important because the unusualness of the situation would have been unlikely to have ever been contemplated by such a policy.

...

One of the trustees, Mr DH Solomon, provided extensive written submissions on questions of both the law and the practicalities of the proposed development, mainly centred on the enforceability of certain conditions of the subdivision. In this context, there were concerns with the management of the operation, its facilities and related amenity issues. The concerns advanced by the trustees are not, speaking generally, inconsistent with the respondent's arguments, although the trustees were critical of the respondent's presentation or view of certain of the issues. The third party also sought to have certain conditions made in its favour, if the subdivision were approved.

...

Mr AA Stewart, a senior town planner employed by Greg Rowe and Associates, gave expert evidence for the applicant. In summary, he told the Tribunal that:

[90]

In this context, Alinta relied on Rathborne v Abel (1964) 38 ALJR 293 where the issue was whether, in the determination of the fair rent of prescribed premises under the Landlord and Tenant (Amendment) Act 1948-1961 (NSW), the current capital value of the premises might properly be taken into account even though this was not among a list of matters that by s 21(1) the Board was 'to have regard to', and even though it was regarded by the members of the Court as 'truly material to the fairness of a determination', per Kitto J at 301. As is apparent from the reasons of Barwick CJ at 295 there was a marked contrast between earlier legislation which for this purpose prescribed what his Honour described as almost a mechanical process of calculation, and the scheme of the 1948 Act which was to give a wide discretion 'doing no more than to require the Tribunal, the Board, "to have regard to" a number of matters, which include "the justice and merits of the case" and "the circumstances and conduct of the parties"'. The generality of such matters and the breadth of discretion which they contemplated, together with the contrast with the previous legislation, were clearly factors which persuaded the Court that the specified matters were not intended implicitly to exclude a factor which was truly material or necessarily central to the legislative task in question. The decision in Rathborne v Able is strongly influenced by the particular statutory scheme which had a 'rather different scope and purpose' from the present Code, to borrow the words and view expressed by Gummow J of Rathborne v Able in Australian Capital Television Pty Ltd v Minister for Transport and Communications & Ors (1989) 86 ALR 119 at 145. In that case, in the context of s 94M(1) of the Broadcasting Act 1942 (Cth), in respect of the matters which the Minister was required 'to have regard to' when considering whether or not to approve a television license, Gummow J was persuaded that the matters specified were required to be taken into account by the Minister and to be given weight as fundamental elements in his decision. His Honour reached a similar view of the requirement in the Schedule to the Health Insurance Act 1973 (Cth) that the Minister's Advisory Committee 'shall have regard to' certain matters when undertaking a general or fee review in Queensland Medical Laboratory & Ors v Blewett & Ors (supra) at 623.

It is clear that an expression such as 'have regard to' is capable of conveying different meanings depending on its statutory context. In s 2.24 the phrase 'must take the following into account' is apt to convey as an ordinary matter of language that the Regulator must not fail to take into account each of the six matters stipulated in (a) to (f), and by (g) any other matter the Regulator considers relevant. If anything, 'take into account appears, as a matter of language, little different from 'have regard to'. Indeed, in R v Hunt the expression 'have regard to' was understood as requiring that the specified matters be taken into account. The matters specified in (a) to (f) appear, by their nature, to be highly material to the task of assessing a proposed Access Arrangement, given the legislative purpose and objects of the Act and the Code in this regard. It is difficult to conceive that it could have been intended that the Regulator might decide to give no weight at all to one or more of the factors stipulated in s 2.24(a) to (f). In my view, in the context of the Act and the Code, the Regulator is required by s 2.24 to take the stipulated factors into account and to give them weight as fundamental elements in assessing a proposed Access Arrangement with a view to reaching a decision whether or not to approve it.

A similar issue arises with respect to s 8.10 which requires that factors (a) to (k) 'should be considered in establishing the initial Capital Base' for a pipeline. Given the scheme of s 8 with respect to the Total Revenue and the relevance to that of the Capital Base, and the nature of the factors identified in s 8.10, including (k) which enables the Regulator to also consider any other factor the Regulator considers relevant, I am persuaded that the Regulator is required by s 8.10 to take into account factors (a) to (k) and to give weight to them as fundamental elements in his decision in establishing the initial Capital Base.

[97]

The Development Plan is the focal point of the planning regime instituted by the 1982 Act. Its central importance is emphasized by the disappearance of regulations from the scheme. The Plan provides the objectives and principles upon which development planning is to be based. It is the charter by whose guiding principles future development is to be planned. The mandate 'to have regard to' the provisions of the Plan requires the authority to give to the plan the weight which is due to it as the focal point of the planning regime. I indorse what was said about the status purpose and importance of the Plan by Wells J in Hassen v District Council of Murray Bridge and Onsoy [(1984) 35 SASR 448] and by Jacobs J in the present case. As was pointed out by Wells J in Hassen's case, however, the Plan is in the nature of a planning document and is couched in the language of planning objectives and principles rather than that of legal obligation. Jacobs J in the judgment appealed from in this case described the language of the principles in the Plan as 'advisory'. Perhaps that word read out of context does not attach sufficient force to the language of the principles, but it is nevertheless language appropriate to the expression of goals and guiding principles rather than to the expression of legal mandates. If the provisions of the Plan were understood as binding norms to which all planning decisions must conform, it would indeed 'find action in the front line a responsibility for the discharge of which neither its language nor its structure is appropriate' (Hassen's case, at p 459). That, however, is not its function, as the Full Court has indicated in Dorrestijn's case [(1984) 36 SASR 355]. For all the importance of the Plan, there is a discretion, ultimately unfettered, in the Planning Authority to take other considerations into account and to make decisions which are not in conformity with the Plan.

The discretion of the Planning Authority, although unfettered, must, like all discretions, be exercised for the purpose for which it is given. It must therefore be exercised for the purpose of attaining the planning objectives of the Act. Although the authority, having given proper consideration and due weight to the provisions of the Development Plan, may depart from it in the exercise of its discretion, it may do so only upon grounds which are properly related to the planning objectives of the Act. If the discretion were exercised arbitrarily or upon grounds not properly related to planning objectives, the exercise would miscarry.

This appeal to the Supreme Court is from a decision of the Planning Appeals Tribunal. If in reaching its decision the Tribunal failed 'to have regard to' the provisions of the Plan, it would have erred in principle and its decision would be vitiated. The Tribunal purported to consider the Plan. In the course of the reasons for its decision it said:

Legislation Cited (13)

Development Act 2005

Villages Act 1992

Administrative Tribunal Act 2004

Titles Act 1985

Titles Amendment Act 1995

Development Act 2003

Land Act 1893

Western Australia Act 1990

Land Act 1978

Titles Act 1973

Land Rights (Northern Territory) Act 1976

Tenant (Amendment) Act 1948

Insurance Act 1973

Cases Cited (35)

RE APPLICATION FOR A WRIT OF CERTIORARI AGAINST THE STATE ADMINISTRATIVE TRIBUNAL; EX PARTE SOLOMON [2009] WASC 116 (6 May 2009)

Commercial Properties Pty Ltd and Western Australian Planning Commission [2008] WASAT 278

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 56 ALR 295

Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615

Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501

Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511

Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132

Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342

Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152

Teller Properties Pty Ltd v Randwick City Council [1994] NSWLEC 97

In ... Carey ... Martin CJ (with whom Wheeler JA and, relevantly, McLure JA agreed (at [143] and [158]), respectively), having considered the relevant provisions of the SAT Act [State Administrative Tribunal Act 2004 (WA)], concluded (at [110]) that the Administrative Tribunal 'was ... given jurisdiction to determine questions of law wrongly, and that error of law would not, of itself, take ... [it] outside jurisdiction'. There is no challenge to the correctness of that decision. It is common cause that, in determining the scope of jurisdictional error, the test to be applied in this case is the same as that which is ordinarily applied in the case of an inferior court.

There will consequently be a jurisdictional error only if the Administrative Tribunal makes a decision outside the limits of the functions and powers conferred on it, or if it does something which it lacks power to do: Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163] per Hayne J. There will be no jurisdictional error if all that the Tribunal has done is to decide something, which it is authorised to decide, incorrectly. In Craig (at 177 - 178), the High Court identified five categories of jurisdictional error in this narrower sense. These are not exhaustive: ... Yusuf ... at [82] per McHugh, Gummow and Hayne JJ. They are conveniently summarised by McLure JA in Carey (at [181]) as follows:

(1985) 38 SASR 161

(1995) 184 CLR 163

(1984) 56 ALR 295

(2005) 64 NSWLR 695

(1986) 162 CLR 24

(2001) 206 CLR 323

(1998) 194 CLR 355

(1988) 84 ALR 615

(2006) 32 WAR 501

(2002) 25 WAR 511

(2007) 34 WAR 342

(2001) 109 FCR 152

(1984) 36 SASR 355

(2000) 204 CLR 82

(1979) 25 ALR 497

(1981) 35 ALR 388

(1979) 180 CLR 322

(1982) 158 CLR 327

(1964) 38 ALJR 293

(1989) 86 ALR 119

RE APPLICATION FOR A WRIT OF CERTIORARI AGAINST THE STATE ADMINISTRATIVE TRIBUNAL; EX PARTE SOLOMON [2009] WASC 116 (6 May 2009)

At a glance

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Catchwords

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Judgment (120 paragraphs)

Legislation Cited (13)

Cases Cited (35)

RE APPLICATION FOR A WRIT OF CERTIORARI AGAINST THE STATE ADMINISTRATIVE TRIBUNAL; EX PARTE SOLOMON [2009] WASC 116 (6 May 2009)