BETWEEN : LAKES ACTION GROUP ASSOCIATION (INCORPORATED)

Town planning - Enforcement of scheme - Reference to Tribunal of representation - Scope of enquiry - Validity of approval not within scope

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

Town Planning and Development Act 1928, s 18(2), s 18(2a)

Lakes Group Association (Incorporated) and the Shire of Northam and Another [2004] WATPAT 195

Swadling v Sutherland Shire Council [1994] NSWLEC 45; (1994) 82 LGERA 431 at 436

JUDGE CHANEY, MR D R PARRY (SENIOR MEMBER),

MS M CONNOR (MEMBER):

REASONS FOR DECISION:

1 This matter comes before the Tribunal by reason of a reference by the Minister for Planning and Infrastructure under Section 18(2a) of the Town Planning and Development Act 1928 (WA) ("the Act"). It concerns a quarry operated by the Second Respondent within the Shire of Northam.

2 Planing for the area is covered by the Shire of Northam Town Planning Scheme (No 2) ("TPS 2").

3 Subsections 18(2) and 18(2a) of the Act provide that:

"(2). A person may make representations to the Minister if the person is aggrieved by a failure of a local government to -

(a) enforce effectively the observance of a town planning scheme in force under this Act, or any of the provisions of the scheme; or

(b) execute any works which under the scheme or this Act, the local government is required to execute.

(2a) The Minister may determine not to take any action in response to the representations, or if the Minister considers it appropriate to do so, the Minister may refer the representations to the State Administrative Tribunal for its report and recommendations."

4 The reference in this case was initially made to the Town Planning Appeal Tribunal, which was abolished as of 1 January 2005, when its functions were transferred to this Tribunal - see the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004.

5 An issue as to the scope of the enquiry was the subject of a previous hearing and decision by the then President of the Town Planning Appeal Tribunal Mr P McGowan, in November 2004 - see Lakes Group Association (Incorporated) and the Shire of Northam and Another [2004] WATPAT 195. That issue arose because the Minister purported to request the Town Planning Appeal Tribunal to address certain matters additional to the particular representation made to her. Those additional matters were raised in questions posed in a letter from the State Solicitor's Office to the Minister commenting on the representations made. The then President of the Town Planning Appeal Tribunal concluded that that Tribunal did not have jurisdiction to review matters going beyond the representations made under s 18(2). With respect we agree.

6 Mr McGowan determined the issue for review at [12] in his reasons when he said:

"..... the representation that is made is, put simply, that the quarry in question requires planning approval and no planning approval has been obtained. The quarry has been operating for nearly 15 years and no action seems to have been taken by the first respondent to deal with what the appellant contends is an issue of non-compliance with TPS 2. In that sense, I am satisfied that it does constitute a representation as to whether in fact the first respondent has effectively enforced its scheme."

7 Following Mr McGowan's decision, and the subsequent case management conference before the Town Planning Appeal Tribunal, the parties corresponded about the scope of the enquiry. In a letter dated 18 November 2004 from the second respondent's solicitors Hotchkin Hanly to the applicant's representative, the Environmental Defender's Office, Hotchkin Hanly said:

"It became evident during the course of that conference that you were now intending to assert that although the representation to the Minister was that our client had commenced and continued to operate the quarry without planning approval, you now intend to assert that it did so without valid planning approval, which again is a very different representation, and one which is inconsistent with Section 18.

The inquiry can only be into whether our client is in breach of the Town Planning Scheme, not whether the Shire of Northam validly gave its approval, which requires an assessment of the Shire's conduct in 1990, not the conduct of BGC in 1990 (or thereafter).

The documents show that our client applied for approval of the quarry use, the Council resolved to approve it and our client was informed accordingly. The Scheme at that time did not require the application to be in any form, nor the approval to be given in any form."

8 The Environmental Defender's Office replied on 22 November 2004 in the following way:

"• Our case is that there is no planning approval and that we have not seen any evidence of one;

• Although in your letter you assert - and you have asserted earlier in the Tribunal - that there was an application for a quarry use, in fact, the only application made was expressly stated to be in relation to an exploration licence;

• The documents of which we are currently aware - namely, the application for exploration licence, resolution of the Works Committee in relation to same, resolution of Council in relation to same and the subsequently issued licence - cannot in law constitute a planning approval. There is much law in support of our contention;"

9 On 30 November 2004 the Environmental Defender's Office wrote to the Town Planning Appeal Tribunal in compliance with a Direction to file a statement of issues. That letter said:

"The Appellant says that there is no planning approval for the quarry on Lot 7 Great Southern Highway under the Shire of Northam's Town Planning Scheme No. 2 ("TPS 2"). The particulars of that are as set out in the letter to the Minister of 15 January 2004 see also paragraph 9 of the decision of President McGowan, namely that the quarry is an extractive industry use in a Rural 3 zone, which thus requires approval from the Shire as an AA use. ...

As we understand the Respondents' case, they do not dispute that a planning approval is required. However they assert that the excavation licence obtained by Merman (a predecessor of BGC) pursuant to the Municipal Bylaws in 1990 is a planning approval."

10 On 1 December 2004 Hotchkin Hanly wrote to the Environmental Defender's Office and set out a chronology of events, in which they asserted that a resolution of the Council of the Shire on 4 May 1990 constituted a planning approval, notice of which was given by the Shire to their client on 21 May 1990.

11 Against that background, the matter was set down for hearing by the State Administrative Tribunal on 27 January 2005. In accordance with Directions for the filing of submissions prior to hearing it, the Applicant lodged written submissions. It had earlier lodged a witness statement of Mr Stephen Jennings, the Head of the Department of Urban and Regional Planning at the Curtin University of Technology. Mr Jennings carried out a review of documents in the possession of the First Respondent, and on the basis of those documents, expressed an opinion as to whether there had been a planning approval granted for the quarry. He analysed the provisions of TPS 2, and concluded that a planning approval was required under that Scheme for the establishment of the quarry. That is not a fact now in issue between the parties. He identified the provision of the Scheme which sets out the requirements applicable to an application for approval under TPS 2, but then expressed an opinion as to information which, in accordance with best practice in 1990, should have been included in an application to commence development. He then in his witness statement, carries out an analysis of various documents and reaches an opinion that no planning approval was given.

12 In its outline of submissions, the Applicant argues that there was no planning approval given, but says that if the resolution of Council on the matter "was intended to constitute an approval, then the Council resolution does not circumscribe the planning use with reasonable particularity" with the result that the approval is invalid. The submissions make the claim that there was inadequate information upon which the Council could have assessed any planning application "to any competent standard". They complain of a failure to have regard to the objectives for the relevant zone under TPS 3 and complain of a lack of evidence as to discussion of the possible impacts arising from the establishment of a quarry.

13 Although the Applicant's submissions tend to blur the distinction between a contention that there was no planning approval given, and the contention that, if there was a planning approval given, it was invalid, it is clear that the submissions do encompass both propositions. There is an important distinction between the two propositions for the purposes of the present proceedings.

14 The original representation made to the Minister which commenced these proceedings complained that the Second Respondent "has not obtained the planning approval under TPS 2 necessary to commence quarrying at that site". That was the issue determined by Mr McGowan to be the issue that had been referred by the Minister. The correspondence between the parties leading up to the hearing confirmed that to be the issue. The question for determination in relation to that issue is whether, as the Respondents contend, the resolution of Council in April 1990 amounts to a planning approval or not. That question will undoubtedly involve an examination of the documents submitted to Council in relation to that resolution, and the treatment of those documents by Council. That may involve an examination of events both before and after 4 May 1990 although we express no concluded view as to that. But that examination is directed to the question of whether what the Council did amounted to an approval under TPS 2.

15 The question of whether, if what Council did was to approve, or purport to approve, the quarry under TPS 2, that approval was valid is a different question. It is not one susceptible to examination in the course of these proceedings. There are several reasons for that. The first is that no representation was made to the Minister to the effect that an approval given was invalid. If it had been, then that representation would not appear to fit the description of a "failure of a local government to enforce effectively the observance of a town planning scheme in force under" the Act. It would not, therefore, be amenable to reference by the Minister to this Tribunal under Section 18(2a) of the Act. An attack on the validity of the Council's actions could only be by way of an application for prerogative relief by way of a writ of Certiorari or for declatory relief. Proceedings referred under sub section 18(2a) of the Act do not empower the Tribunal to grant relief of that nature. A person who holds an approval, is entitled to rely on the validity of that approval until such time as it is quashed or declared invalid by a Court of competent jurisdiction - see Swadling v Sutherland Shire Council ([1994] NSWLEC 45; 1994) 82 LGERA 431 at 436.

16 As has already been determined by Mr McGowan in the Town Planning Appeal Tribunal, the issue in these proceedings is whether or not the use of the quarry by the Second Respondent was or was not subject of an approval under TPS 2. If the First Respondent has, by its actions, purported to approve the use, it is not open for the Tribunal to go behind that approval to determine whether the process leading to it renders it valid or invalid. What the Tribunal can do is look at the documents submitted to the First Respondent, the steps taken by the First Respondent in relation to those documents, and the precise terms of resolutions of and correspondence from the First Respondent to determine whether an approval was given.

17 The consequence of this decision is that expressions of opinion by Mr Jennings as to what generally may be the prerequisites of a valid planning approval are irrelevant to the issue before us. The Tribunal will not entertain submissions as to whether, if the first respondent granted a planning approval it did so validly. What will be examined is whether, in fact, the first respondent did approve the quarry for the purposes of TPS 2.

I certify that this and the preceding 7 pages comprise the reasons for decision of the Tribunal.