//
[2007] WASAT 303
General information, not legal advice.
State Administrative Tribunal (WA)
2007-11-26
Original judgment source is linked above.
ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION : THE EXECUTOR OF THE ESTATE OF TERENCE KEITH HAIGH AND MARY PATRICIA HAIGH and WESTERN AUSTRALIAN PLANNING COMMISSION
BETWEEN : THE EXECUTOR OF THE ESTATE OF TERENCE KEITH HAIGH AND MARY PATRICIA HAIGH
THE EXECUTOR OF THE ESTATE OF TERENCE KEITH HAIGH AND MARY PATRICIA HAIGH
Town planning - Practice and procedure - Succession - Death of a party - Development approval sought for mooring poles in river - Region and local planning schemes - Peel Region Scheme - WAPC and Shire both refusing approval - Whether region scheme prevails such that refusal under it determines review - Hearing in Tribunal when applicant terminally ill - Applicant died after hearing but before decision delivered - Wife and executrix continuing with review - Relevant application to WAPC in name of applicant only - Wife co-named in application for review - Preliminary issue arising - Whether proceedings abated upon death of applicant - Nature of applications to original decision-makers - Characterisation of true applicant for review - Whether applications capable of transmission - Observations on whether applications could now be amended - Applications held to be personal to applicant and incapable of transmission
Town planning - Rivers and waterways - Development approval for private mooring poles - Policy adopted to hold the line against further despoliation of river and waterways - Policy previously upheld and applied by Tribunal - Consistency and precedent in administrative decisions - Public purposes of reservations Conservation, recreation and visual amenity aspects of proposal No evidence of material or relevant departure from policies by regulatory authorities - Weight to be given to applicant's personal circumstances - Applications for review otherwise dismissed on merits
Shire of Murray Town Planning Scheme No 4, cl 12.2.1
The reviews are dismissed because of an abatement of proceedings and also on their merits, and the decisions under review are affirmed
1 The Tribunal first dealt with this matter in 2006 when the principal applicant, Mr Haigh, applied for a review of two related decisions, both of which had denied him planning approval in relation to the installation of two mooring poles that he had had erected in the Murray River, South Yunderup.
2 The first refusal was that of the local shire under a local planning scheme; the second decision was that of the Western Australian Planning Commission under a region planning scheme, namely, the Peel Region Scheme. The grounds for refusal were broadly similar to each other.
3 Mr Haigh suffered from a terminal illness throughout the proceedings in the Tribunal. He died a short time after the final hearing, but before a decision had been delivered by the Tribunal. His widow, the executrix of his estate and sole beneficiary, sought, in effect, to continue with the review.
4 The Tribunal first determined, following an earlier decision of the Tribunal in another matter but involving similar circumstances, that a refusal with respect to the Peel Region Scheme would fully determine the matter, as that scheme prevailed over the local planning scheme.
5 The Tribunal then dealt with the main issue, namely whether the proceedings in the Tribunal had "abated" (that is, come to an end) with the death of the applicant, the review being, in effect, personal to him.
6 The application under the region scheme had been solely brought by Mr Haigh but the review to the Tribunal purported to include both Mr Haigh and Mrs Haigh as the applicants in the Tribunal. The Tribunal considered, however, that all of the applications, namely those to the Shire of Murray, to the Western Australian Planning Commission and to the Tribunal, ought to be regarded as, in truth, applications brought by or on behalf of Mr Haigh. The Tribunal acknowledged, however, that the contrary argument that Mr Haigh was the agent for Mrs Haigh could be reasonably advanced. This suggested that an assessment of the matter on its merits was warranted.
7 The Tribunal, after reviewing the various cases in the area, also concluded that the right to bring the review was, when seen in its proper context including the statutory provisions governing reviews, personal to Mr Haigh and therefore the proceedings abated with his death. However, given that the answers to these legal issues were far from straightforward, the Tribunal also thought that an assessment of the matter on its merits was warranted on this front as well.
8 The Tribunal held that the decisions of the regulatory authorities correctly reflected the application of their written policies, were consistent with the approach previously endorsed by the Tribunal and upheld the wider public interest in protecting the waterway, which is a resource under pressure, from ad hoc private development which could compromise the enjoyment of the waterway by all users. In addition, such an approval could create an undesirable precedent in respect of other applications. The refusal of the Western Australian Planning Commission was affirmed.
9 Accordingly, the applications for review were dismissed.
10 This matter has had a long history in the Tribunal.
11 The matter commenced in early 2006 as two separate reviews conducted at all material times in tandem, as both matters related to two refusals by separate public regulatory bodies, namely the Shire of Murray (Shire) and the Western Australian Planning Commission (WAPC), in relation to approvals for the erection of some wooden mooring poles in the Murray River. It is common ground that retrospective planning approval was needed from the respondents in relation to the use or development of relevant land (land owned by the State government) as regards these structures.
12 The principal applicant for planning approval was the late Terence Keith Haigh. Mr Haigh suffered from a serious illness throughout these proceedings, and died some weeks after the final hearing but before a decision of this Tribunal was delivered. The effect of Mr Haigh's death on the proceedings is the subject of the first part of this decision of the Tribunal.
13 A brief review of the procedural background to this issue is necessary.
14 Many directions hearings were held in the matter, and, likewise, several attempts at mediation were arranged. Sensibly (and compassionately), the matter also had a lengthy adjournment, by consent, as part of the mediation process during a period where Mr Haigh's illness became critical.
15 Nevertheless, the matter was eventually heard in December 2006 with a very ill Mr Haigh representing himself, but with some assistance of his local MLA, Mr M Cowper (who also gave evidence on his behalf). Nobody who witnessed this hearing could fail to be other than impressed at Mr Haigh's tenacity and drive in prosecuting his reviews, whilst suffering considerably from the effects of his cancer.
16 As has been mentioned, the matter was reserved after final submissions were received in late January 2007, but sadly, Mr Haigh passed away before a decision was delivered in the matter. That melancholy possibility was apparent to all parties during the hearing (and, of course, before then).
17 Mr Haigh passed away on 10 February 2007. The Tribunal has expressed its condolences to Mrs Haigh and her family, both in writing and again at the directions hearing held in May 2007 to consider the future disposition of the matter.
18 It became clear at that directions hearing - and for the first time - that Mrs Haigh wished to proceed with the review both in her own right and in respect of the rights, if any, vested in the estate of her late husband.
19 Up until that point, the Tribunal and the other parties had all been under the mistaken, but reasonable, impression that the death of Mr Haigh would, as a matter of practicalities, most likely terminate the proceedings. This was so if for no other reason than Mr Haigh was the prime advocate for and proposed "beneficiary" of any approval, a position reinforced by the fact that Mrs Haigh had taken very little part (if any) in the proceedings until after Mr Haigh's death. Moreover, the vast majority of the evidence was directed towards Mr Haigh's plans, motivations and desires; the proceedings in the Tribunal were influenced by the recognition of his illness. It had been assumed that the joint names appearing in some of the applications (see below) were most likely a matter of form, mainly reflecting the joint ownership of Lot 170 (land some 80 metres from the river - see below) and possibly, for practical purposes, the likelihood that Mr Haigh's illness might require some assistance from his wife. Nevertheless, Mrs Haigh does appear, for
21 Further directions were held in August 2007. Probate dated 6 June 2007 was proved in these proceedings by Mrs Haigh. Mrs Haigh became the executrix appointed under the will, and for procedural purposes, the titles to the reviews were amended to reflect these events. Mrs Haigh is the sole beneficiary of the estate of Mr Haigh under the will dated 11 October 2006.
22 Thus, the first question is whether the reviews abated upon Mr Haigh's death, and relatedly, if not, whether Mr Haigh's estate may now continue to prosecute these reviews. A further question is whether Mrs Haigh (who was, for some purposes, named as a co-applicant) has rights independent of - but possibly related to - whatever the position is now as regards the estate's separate interest in the matter (if any).
23 As will be appear from the detailed discussion below, the Tribunal is inclined to the view that the proceedings did come to an end upon Mr Haigh's death. However, given the complexity of this issue, the Tribunal has gone on to consider the matter on its merits. This was the case that Mrs Haigh wished to pursue.
24 Both Mrs Haigh and the estate of Mr Haigh have engaged solicitors, and the State Solicitor's Office has represented the respondent. The WAPC has submitted that the proceedings wholly abated upon Mr Haigh's death and that the proceedings should therefore be dismissed. The Shire has been content to adopt the WAPC's position on the abatement question. More will be said about the Shire's position later.
25 The principal legal issues that arise from the death of a party to proceedings in a court or a tribunal have been stated by Mahoney JA in the Court of Appeal of New South Wales in the following terms:
"Where a party to a proceeding dies after the proceeding has been commenced and before it has ended by a decision, at least two questions are apt to arise: (a) whether the right which the proceeding has been brought to enforce continues to exist notwithstanding the death; and (b) (if it does) how the fact of death affects the procedural aspects of the proceeding. In considering the cases in which, in respect of courts and other tribunals, the term 'abatement' has been used, it is of assistance to distinguish between these two questions and to decide which of these two questions was in issue and the significance of the answer given to it.": NSW TAFE Commission v Fines (1993) 32 NSWLR 385 at 387.
26 Extensive written submissions have been lodged on these far from straightforward issues; the last of these submissions was received in September 2007.
27 However, before dealing with these submissions, it is necessary to set out some of the factual background to the matter.
The original applications, refusals and original reviews
28 On 23 November 2005, a firm (Jetty Constructions) sought from the Shire, in effect, retrospective planning approval for the installation of two mooring poles in the Murray River "opposite" to the applicants' home at Lot 170 Foreshore Cove, South Yunderup. Lot 170 was owned by Mr and Mrs Haigh as joint tenants. Although the poles have had one or more boats (owned by Mr Haigh) moored to them and, it appears, a temporary small gangway has or had been assembled between the foreshore and at least one boat (thus resembling a compact jetty-type structure), those ancillary matters are not in issue so far as the precise scope of the planning approval which has been sought.
29 Such matters might, however, be very relevant to the central arguments of the respondents which seek to draw attention to the consequential limitations on the access of others to the (public) foreshore, the impact on visual amenity generally, and the potential for sustained interference with the natural state of the riverbank.
30 Lot 170 faces a very large lot zoned "Private Recreation" under the Peel Region Scheme (PRS). In turn, that lot abuts a smaller public recreation reserve vested in the Shire (Crown Reserve 26735). Importantly, this foreshore reserve is reserved as "Regional Open Space" under the PRS. It is presently unnecessary to discuss the related concurrent local zonings of these lands under the Shire of Murray Town Planning Scheme No 4 (TPS 4).
31 It was estimated by the applicants that there is approximately some 80 metres between Lot 170 and the eastern riverbank at the point of the poles. Notwithstanding these matters, the applicants' counsel chose to characterise the river development (that is, the mooring poles) as "contiguous" to Lot 170.
32 The development proposal was for the approval of two wooden poles parallel to the riverbank, some 6.0 metres from the shore (the eastern shore), the poles being roughly 12 metres apart. At this point in the river, it would be approximately 45 metres wide - according to the applicants. The WAPC maps show a waterway of approximately 100 metres in width. The river forms part of land vested in the Crown (that is, the State of Western Australia).
33 TPS 4 treats the proposed development as the construction or erection of a controlled structure in a floodway, for which the Shire's approval must be obtained: see cl 12.2.1 of TPS 4; Weedon and Shire of Murray [2006] WASAT 128 at [30].
34 For reasons that will become material, it is necessary to observe that the original planning application form (to the Shire) has references to both Mr and Mrs Haigh on the form, entered by hand, but then struck out by way of scoring marks, also done in hand. Presumably this was done by the applicant, Jetty Constructions. It may be assumed that Jetty Constructions installed the mooring poles on behalf of Mr Haigh.
35 On 4 January 2006, the Shire refused their approval in a letter addressed to Mr and Mrs Haigh. That letter referred to an earlier letter to Jetty Constructions dated 22 December 2005 which, in turn, referred to an instrument of refusal of planning consent dated 22 December 2005 also issued to Jetty Constructions.
36 Briefly, the reasons for refusal were allegations by the Shire as follows:
37 On 24 March 2006, Mr Haigh also sought retrospective approval from the WAPC in similar terms to that discussed above. The application was solely brought in his name and carries his signature. The Crown (or the State of Western Australia), as owner of the land, consented to the application solely for the purposes of "acknowledgement of, and to facilitate [planning] processing of [the] application".
38 The application was refused by the WAPC on 13 July 2006. The grounds for refusal included: an alleged conflict between the proposed development and an applicable policy (WS 3.4); alleged detrimental impacts in terms of public access to the waterway and visual amenity; and the creation of an undesirable precedent: cf the similar grounds discussed Weedon at [56] - [58].
39 For reasons that are material, it is necessary to observe that the application for a review to this Tribunal of the Shire's decision dated 11 January 2006 was organised by a director of Jetty Constructions but expressly, it is said in the application, "on behalf of [Mr] TK Haigh and [Mrs] MR Haigh". A statement of grounds for review was attached.
40 Jetty Constructions has in fact taken no part whatever in the proceedings, and without the need for any formal order, it has been common ground that Jetty Constructions made the application to the Shire solely as an agent for Mr Haigh, and possibly also as agent for Mrs Haigh.
41 The application for review in the WAPC matter, dated 7 September 2006, is signed solely by Mr Haigh and names him as applicant but is also expressed to extend to Mrs Haigh. The attached statement of grounds for review is very similar to that lodged with the review of the Shire's decision. Presumably it was prepared by Mr Haigh.
42 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. Relatedly, Preston J has noted: "The characterisation of the purpose of a development is an essential task for any consent authority in exercising the power to determine a development application.": Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [57].
43 This task 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].
44 With respect to Mr Steenhof, 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) (PD Act) 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).
45 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 PD Act, the terms of which are set out below.
46 Thus, all of the relevant evidence before the Tribunal was primarily directed towards support for that end or proposal. Importantly, for the reasons expressed immediately below, a refusal under the PRS, if affirmed, carries the consequence that it is not possible for an inconsistent decision to be reached under TPS 4, as the PRS prevails over the local Scheme.
47 Nevertheless, because the Tribunal might be found to be wrong about this characterisation (and reasonable minds might reasonably differ on the point) it is appropriate that the matter be assessed on its merits as if Mr Haigh was in fact at all times acting for and on behalf of and otherwise the agent for Mrs Haigh. The Tribunal will return to this assessment below.
"Scheme prevails over inconsistent local government scheme
If the Scheme is inconsistent with a local government scheme, the Scheme prevails over the local government scheme to the extent of the inconsistency."
49 In Weedon, this Tribunal as presently constituted concluded, at [17], as follows:
"In the Tribunal's view, the fate of both applications for review must be determined by the correct and preferable decision reached in relation to the applicant's application for development or planning approval under the PRS. Amongst other things, it would not seem possible, by reason of the operation of cl 7 ... for the Shire (or, on review, this Tribunal), acting under the local planning scheme, to grant an approval for development under TPS 4 which would be inconsistent with a refusal to undertake the same activity under the PRS."
50 In coming to that conclusion, the Tribunal did not find it necessary "to choose between whether cl 7's resolution of the avoidance of repugnancy operates to deny power to make or sustain an inconsistent local planning scheme (or purported acts thereunder) or whether it attributes an overriding effect to the PRS".
51 The Shire, while defending its original decision, was, in effect, content for the fate of the application to be determined by the contest between the WAPC and the applicant, both on the abatement issue and, if necessary, in relation to the main merits issue.
52 It is not uncommon for the issue of the abatement of a cause of action (or equivalent) upon the death of an applicant, and the related question of its transmissibility to the estate of an applicant, to arise in courts and tribunals. See, for example, in relation to administrative-type interests: Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 (complaint of discrimination did not abate on complainant's death); Northern Territory of Australia v Public Trustee of the Northern Territory [2001] NTSC 110; (2001) 165 FLR 42 (crimes compensation certificate survived the unrelated to the crime death of an applicant); Kamychenko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1517; (2004) 140 FCR 233 (application for a visa and application for judicial review of administrative decisions in relation to its refusal not transmissible); and Re Garraffo and Secretary, Department of Social Security (1988) 15 ALD 676 (application to the Commonwealth Administrative Appeals Tribunal by a married couple for merits review of a pension overpayment decision survived when one party died).
53 The broader detailed history of abatement and transmissibility is discussed in earlier cases such as Kalejs v Minister for Justice & Customs [2001] FCA 1769; (2001) 111 FCR 442 (where Kenny J held that judicial review rights on extradition orders abated on the death of the extradited person) and by Mildren J in Northern Territory of Australia v Public Trustee of the Northern Territory (see above). It is unnecessary to traverse that ground in this review; some of it is in any event touched upon below in the extracts taken from Bham v Medical Board of Western Australia [2007] WASC 90.
54 In Williamson v Donnelly, Estate of; Worthington v Estate of Donnelly (1953) 32 LVR 3, the NSW Land and Valuation Court allowed an appeal on the grounds that the decision-maker Board had erred in law in permitting an executor to take over an application before it in respect of an application for a special lease. Sugerman J said, at 8 (emphasis added):
"In my opinion the question here is a matter of substance rather than of procedure, arising antecedently to any proceedings before the Board. An application for a special lease is required by law to be made in the prescribed form ... In effect, it amounts to, or is analogous to, an offer to the Crown, required to be made in the prescribed way, to take a lease of the subject land. Furthermore, it involves a consideration of matters personal to the particular applicant, which will be taken into account in determining whether his application should be granted or whether he should be preferred as amongst conflicting applicants. In my opinion, upon the principle which applies to offers generally such an application lapses upon the death of the applicant."
55 Although this decision was distinguished in Re Loschiavo and Secretary, Department of Housing and Construction (1980) 2 ALD 757, the Tribunal there found that a statutory grant was not payable to the estate of a deceased applicant. However, unlike the case here, the relevant statute there under review to some extent dealt with the case of the death of an applicant, suggesting a solution by implication.
56 More recently, and closer to home, Johnson J has discussed the issue extensively in Bham. There, the appellant, Dr Bham, had appealed against a decision of the Medical Board of Western Australia that he was guilty of improper conduct in a professional respect and that his name should be removed from the register of practitioners for a period. The practitioner died after the decision of the court had been reserved, but had not yet been delivered. Her Honour held that:
the Medical Act 1894 (WA) conferred a statutory right of appeal on a medical practitioner which was not transmissible;
therefore, the proceedings abated upon death of the practitioner; andsince the appeal had abated, the court lacked the jurisdiction to hear any application for costs brought by the Board.
57 In the course of reaching those conclusions, her Honour said, at [12] - [15] (internal citations omitted, emphasis added):
"It is apparent, from a consideration of [the] authorities, that in a criminal matter an action abates on the death of the accused unless the accused's personal representatives both have an interest in the subject matter and the statute conferring the right to bring the action (or the Rules of Court made by virtue of jurisdiction given by a statute) permits the action to be pursued by another should the appellant or applicant die before the matter is heard and determined. It is the case that this principle is expressed in relation to, and in the context of, criminal cases.
However, the principle, with appropriate modifications, has also been applied in civil cases. In relation to civil actions, the rule at common law was that a personal action died with the person, whether that person was a possible plaintiff or a possible defendant ...
However, in Williams on Executors 11th ed (1921) vol 1 at 619 it was stated that the rule of the common law 'seems never to have been applied by the old authorities to causes of action on contracts'. The position at common law was that the cause of action survived so that a personal representative could sue, not only for all debts due to the deceased but for all covenants and all contracts with the deceased breached in his lifetime ... In NSW TAFE Commission v Fines [(1993) 32 NSWLR 385], Mahoney JA observed (at 387) that a right of action for breach of contract or a right of a proprietary nature generally survived, for and against the estate of the deceased person. An action in tort was covered by the rule because an executor could not obtain any benefit for the estate 'by acquiring damages which would have been given only as compensation to the living man for injury' ...
It is the case that these principles relate to the cause of action rather than to the proceeding. They explain the basis upon which an executor or personal representative may continue a cause of action. Where a proceeding is brought by a party and the party dies, the cause of action (other than one in tort) which was to be enforced in the proceeding then passes to the deceased's personal representative in the circumstances referred to above; in general terms, that is, when pursuing the cause of action has a potential financial impact on the estate: NSW TAFE Commission v Fines [(1993) 32 NSWLR 385] per Mahoney JA at 387."
58 Her Honour then proceeded to consider the "next issue" which was "whether a proceeding commenced by one party may be continued by another". Her Honour continued, at [16] - [18]:
"... Initially the courts imposed a strict attitude: the proceeding abated and a new proceeding had to be commenced by the legal personal representative ... However, that strict approach was relaxed over time to the point where abatement was not necessarily a permanent effect of the death of a party to a proceeding ...
Therefore, on [the] authorities, whilst the proceeding does abate, it is an interim abatement whilst it is established whether there is a proper party to continue the proceeding together with a power to substitute that party for the deceased. If those questions are answered in the negative then the abatement becomes permanent."
59 Her Honour then discussed, at [20], the effect of certain statutory reform in this State (see s 4 of the Law Reform (Miscellaneous Provisions) Act 1941 (WA) - provisions not relevant to this review) and the associated mechanisms provided under the Rules of the Supreme Court 1971 (WA). Johnson J then considered, at [22] - [27], the leading NSW authorities of Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139 (in effect, holding that a conditional application for a liquor licence was transmissible) and NSW TAFE Commission v Fines (holding that a right of appeal to a disciplinary tribunal was transmissible because of its financial impact); and then Kalejs v Minister for Justice (see above).
"If there is indeed a point of distinction between the relevant approach in criminal and civil matters, resolution of the issue of whether an appeal may continue despite the death of the appellant is still a matter of construing the terms of the provision conferring the right of appeal to ascertain whether the right is transmissible. Further, there is no distinction of substance when it comes to an appeal from either criminal or civil proceedings. Each is a creature of statute to be construed in accordance with the statute creating the right. Therefore, the appropriate comparison is between an appeal under the Act and any other statutory appeal in either a civil or criminal matter or any statutory proceeding. Support for that proposition can be found in Stephenson v Human Rights and Equal Opportunity Commission [(1996) 68 FCR 290] ...
It is submitted on behalf of the respondent [Board] that there is nothing in the terms of the Act or its purposes which leads to the conclusion that the legislature intended that the fact of death pending determination of the appeal should remove the rights of a party to judgment on the appeal. With respect, I do not consider that to be the appropriate way to approach the issue nor does the submission correctly identify the question to be answered. On the authorities to which I have referred, the absence of any prohibition on a personal representative substituting for the appellant is not determinative of the issue. It is whether the construction allows for it.
Also, whether the terms of the provision affect the rights of the other party to the appeal is not, in my view, the question to be determined."
61 Johnson J then analysed the nature of the statutory appeal before her and concluded, at [32], as follows:
"It is clear from the terms of [the Act] that there are two criteria to be met before an appeal may be brought. The first is that the person bringing the appeal must be a 'person who is or was registered as a medical practitioner' and the second is that this person must be aggrieved by the decision of the Board ... [T]his expression means the person's legal rights have allegedly been infringed by the Board. In my view, it is unquestionable that the right of appeal lies solely with the medical practitioner concerned.
Having considered the relevant provisions of the Act, the conclusion I have reached is that [the Act] confers a statutory right of appeal on the medical practitioner which is not transmissible. The right conferred is personal to the practitioner and there is no express or implied right in the Act for any person other than the medical practitioner to appeal the Board's decision. Further, in my view, the nature and purpose of the entire process, including the appeal, is inconsistent with the practitioner's rights being exercised by any other person. I can find no basis upon which to conclude that a personal representative would have an interest in the subject matter, in circumstances where the relevant interest must be more than an interest, arising from any relationship with the deceased, in the deceased's reputation being restored. Therefore, in my view, irrespective of whether the issue is approached as one concerning a criminal or civil matter, the result would be the same: the proceeding abates on the death of the party, in this case the appellant, because the right being exercised is personal to him."
62 In this matter, following Bham, it must be considered that the death of the applicant caused an "interim abatement" whilst the Tribunal establishes "whether there is a proper party to continue the proceeding together with a power to substitute that party".
63 In considering these issues, as appears from the extracts and authorities cited above, attention must be paid, it seems, to three interrelated issues:
the nature of the right, entitlement or interest which is to be pursued;
the corresponding benefit or interest, speaking generally, which, it is alleged, accrues to (or may accrue to) the estate or personal representative (for example, whether it "has a potential financial impact on the estate"); and, importantly,the terms of the statute authorising that right, entitlement or interest (that is, "[the] matter of construing the terms of the provision conferring the right of [review] to ascertain whether the right is transmissible").
64 Here, the grant of planning approval is solely confined to the use or development of certain land, as is required by the PRS. Such approval would "attach" itself to the land. As has been observed by this Tribunal, in GMF Contractors Pty Ltd and Shire of Serpentine-Jarrahdale (2006) 151 LGERA 74, at [67]:
"'Planning law is concerned with the use of land - not with the identity of the user': per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. Development approval is not personal to an applicant for approval, but rather runs with the land. Furthermore, where an applicant for development approval has undertaken unlawful development on a site, it is open to the responsible authority to take appropriate compliance action."
65 It is important to emphasise that this approval, in any event, is sought in relation to land owned by another person or entity. Although that situation is by no means unusual in planning applications, it might perhaps tend to reinforce the more ephemeral aspects of the nature of the personal rights associated with such applications. The situation might well be otherwise where the owner of the land and the applicant are one and the same.
66 Further, as Ms Ide points out, citing the Full Court decision of Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259 at 265, an application for development approval "has been characterised as an investigation as to whether some right should or should not be given, rather than to determine [that] a right or cause of action exists." But cf Western Australian Planning Commission and CPP Pty Ltd [2006] WASAT 379 and Miller and City of Stirling [2007] WASAT 297, which deal with the status of a planning application in other respects.
67 It may be assumed that the actual mooring poles themselves were originally the property of Mr Haigh, or possibly the property of both Mr and Mrs Haigh. Notwithstanding their unlawful erection or construction in the river, they presumably will still form part of the estate of Mr Haigh which has been or will be vested in Mrs Haigh in some capacity, either as trustee or as beneficiary. Whatever practical effects there are, planning approval would not relevantly affect the legal ownership of those mooring poles as such approval relates to the use or development of the land in respect of their erection and use. And, notwithstanding the approval for the use or development of the land (if granted), the Crown might, in theory as owner, acting through its various arms, still require either a licence (or some form of permissive occupancy) or a statutory licence or both: cf Weedon at [50]. Putting aside questions of ownership and control of the mooring poles, planning approval (if granted) could theoretically, as Ms Ide suggests, lead to any person being able to use the poles, the point being that nothing of legal substance necessarily attaches to the estate of Mr Haigh.
68 The sole applicant for that original approval from the WAPC under the PRS - in effect, the governing regime - was Mr Haigh. The review of the decision under the PRS relates solely to that refusal. The true applicant seeking a right of review of the refusal of that application is, in the Tribunal's view, and has been indicated above, the same person; any other person named in the application is probably named as an agent of that person. In any event, the characterisation of the right to a review in the present context is limited to what the governing statute provides. Section 252 of the PD Act, so far as is relevant, is in the following terms (emphasis added):
for review of exercise of discretionary power under a planning scheme
(a) under a local planning scheme or a region planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of a responsible authority;
(b) a person has applied to the responsible authority for such a grant; and
the applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of the responsible authority's decision."
69 On its face, this statutory right seems confined to a personal, specific and identified applicant.
70 Neither the PD Act nor the PRS relevantly deals with the situation where a party dies (cf s 140 and s 141 of the PD Act which deal with certain transactions where, amongst other things, the death of a party occurs). Neither the PD Act nor the PRS has a provision expressly saving an application upon the death of an applicant such as occurs in the First Home Owner Grant Act 2000 (WA): see s 23.
71 In the Tribunal's view, although the matter is not free from doubt, the statutory provisions in the PD Act set out above, considered in the light of the actual application originally made here under the PRS (which effectively controls the outcome of the review); the status generally of a planning application (in relation to another's land); the legal effect of any planning approval (if it were ever to be granted); and the legal impact of any refusal on the estate, all suggest that the right to apply for planning permission under the PRS in this case was, when exercised by him, purely personal to Mr Haigh, and that any review of that application and any refusal of it cannot alter its essential character as also personal to him. Thus, if this view is correct, it follows that both the application and the review are not transmissible and the proceedings abated on the death of Mr Haigh because the right being exercised was personal to him.
72 Likewise, it would not seem open for this Tribunal to "amend" any of the original applications: cf McRae v Coulton (1986) 7 NSWLR 644 at 667 (per Hope JA).
73 Again, as with the question of presumed agency, reasonable minds might differ as to the conclusions on these matters. For example, it might be concluded that both Mr and Mrs Haigh were the owners of land that stood to "benefit" from this application, albeit that the mooring poles were not on their land. The poles might be seen as relevantly related to the enjoyment of the land owned by Mr and Mrs Haigh, giving either of them a sufficiency of interest. The analysis in Bham might be possibly wide enough to support such an interest as transmissible.
74 Alternatively, as Mrs Haigh was named in some documents as an applicant; has "participated" in the proceedings with her husband (even to a limited extent); as she or the estate potentially stand to benefit from the outcome; and she could rely upon the material in this review in any fresh application she might make to the respondent, in pursuit of the Tribunal's statutory objectives (see s 9 of the State Administrative Tribunal Act 2004 (WA)), it might be that Mrs Haigh could be substituted as the applicant in the review.
75 As any of these approaches could reasonably be advanced, it is appropriate therefore to go on to consider the matter upon its merits.
76 The substance of the planning framework has already been alluded to above. The reasons for refusal of both respondents have also been summarised above. Reference has also been made to Weedon. That case dealt with the construction of a private jetty for recreational purposes on the banks of the Murray River in South Yunderup. The Tribunal held, at [78], as follows (original emphasis):
"[T]he nature of the proposed facility is essentially a private facility to be constructed mainly in a public reserve, a reserve that has several public objectives (including conservation, access and recreation). On its face, the jetty would have limited social benefit beyond its use by the applicant. There is no doubt that it would benefit the applicant, but the various public purposes of the reserve would not be relevantly advanced. Necessarily, the construction of a private jetty reduces public access to the river, whether or not there is any alienation of the land. Secondly, the construction of the jetty would necessarily damage some part of the existing river foreshore in its natural state. It would appear from the applicant's photographs that the river foreshore's current natural state is neither pristine nor particularly attractive in places. Nevertheless, the construction of yet another jetty would not relevantly improve that situation; arguably it would worsen it. Next, there can be little doubt that the addition of yet another private jetty would adversely affect visual amenity, so far as the natural state of the river (such as it is) is concerned. Even if this were only marginal in effect given what already exists the situation may nevertheless be avoided by not granting planning approval."
77 Importantly, the conclusions there reached are in large part based upon both the same written policy (WS 3.4) as is applicable here, and the same general approach of the two regulatory agencies. That policy expressly extends to "boating facilities, jetties and [other] structures". It applies to such structures "on or adjacent to waterways". The cumulative impact of such structures as "obstructions to floodways" or as they might affect "vessel navigation" or be "visual obstruction[s]" are also considerations: see cl 2. Clearly, the subject mooring poles are covered or contemplated by that policy and its presumption against the approval of such structures adjacent to public land (here, zoned regionally as "Open Space"): see cl 4.1; cf cl 4.2 ("mooring envelopes"); see also Weedon at [67].
78 No arguments of any substance were directed towards weakening either the premises of, the reasoning of or the general applicability of that decision. Unsurprisingly, the WAPC relied upon Weedon. The policy was adopted to hold the line against further despoliation of the river and surrounding waterways. Its application here for the sake of consistency of administrative decision-making, amongst other reasons, presents as a formidable obstacle to the applicants' success in these proceedings. In any event, its central tenets of respect for the public nature of the waterways and the adjacent public foreshore and the need for careful management and access to both ought to be given considerable weight.
79 The Tribunal has had regard to the evidence given by Mr Haigh and his witnesses Mr I Baird (a neighbour and a director of the nearby "Tatham Road Owners' Association") and Mr M Cowper MLA. No expert evidence was called by the applicants; the WAPC produced expert evidence to rebut Mr Haigh's various assertions and to confirm the policy intent discussed above.
80 Mr Haigh's main arguments, some of which overlap, may be summarised as follows:
81 Much of the applicants' supporting evidence in effect deals with the personal circumstances and convenience of Mr Haigh and others who might be in a similar position to him. As is well established in planning law, such personal considerations, with respect, count for little when abstract issues of land use and development approval are to be considered. In particular, they do not outweigh the broader public interest and policy intent discussed above.
82 Further, the Tribunal is not entitled to rewrite government policy. The Tribunal is not the regulator or the primary decision-maker. Its duty is to have regard to such policy. In Weedon, at [66], the Tribunal said:
"Notwithstanding [the] presumptions against approvals for private jetties [and other structures], the [Policy itself] contemplates that a case might be made for approval. This position reflects the position of administrative policies in law: see the discussion of policies in JB Investments Pty Ltd and Valuer General [2006] WASAT 55 at [80] [84]. And, as that case demonstrates, the creation, publication and use of such policies 'serves to promote consistent and rational decisionmaking.'"
83 The Tribunal accepts the evidence of the WAPC's expert witnesses Mr AC Parker and Mr D Sanderson (and the subsequent submission made by Mr J Pride) to the effect that any comparable structures either pre-date the current policy framework or regulatory approach, or are unauthorised (or both), or if they have been authorised, they were the subject of a legitimate or rational exception from the standards sought to be applied to Mr Haigh's circumstances. And, even if it could be established to the contrary on any of these points (which is doubtful), the Tribunal would not depart from the correct and preferable decision here, which is to give effect to the presumption against approval for the sound policy reasons discussed above.
84 The evidence presented by Mr Haigh demonstrated that many others would seek the same access to the waterway as him. This also demonstrates the potential pressure on a valuable resource which Mr Cowper, MLA, with respect, correctly identified as a precious asset to the State. It is also a fragile resource.
85 Precedent, in the sense of consistency of administrative decision-making, is a value recognised in both administrative law and public administration. An approval given by the Tribunal upon review in this case would naturally lead to an expectation on the part of others in the same position as Mr Haigh that their private access to the waterway would be similarly enhanced, wholly contrary to the policy settings already endorsed by the Tribunal. This situation should be avoided.
86 In the Tribunal's view, there are no arguments of any substance or relevance as regards either planning principle or planning law that would warrant departure from the policies and planning framework applied in Weedon which are equally applicable to the circumstances here.
87 Consequently, in the Tribunal's view the proceedings must be dismissed either as a matter of law (as to abatement) or, in any event, on the merits of the application.
88 As the result of the review so far as it relates to the PRS also determines the outcome of the second TPS 4 review, for the reasons already given, it follows that the review of the Shire's decision must also be dismissed. In any event, any decision under TPS 4 alone (were that possible) would lead to the same result, as the Shire's case is based upon the same concerns and issues raised by the WAPC.
I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(2007) 151 LGERA 400
(1996) 68 FCR 290
(2001) 165 FLR 42
(1993) 32 NSWLR 385
(2004) 140 FCR 233
(2001) 111 FCR 442
(2006) 151 LGERA 74
(1986) 7 NSWLR 644