Review by judicial member of determination of Tribunal upon a matter involving a question of law ­ Town planning ­ Two­lot subdivision of 'Agriculture' zoned land ­ Whether any question of law raised ­ Consideration of costs application ­ Consideration of planning framework ­ Consideration of adverse planning precedent ­ No question of law raised ­ Costs of application for review by judicial member where no question of law disclosed

Planning and Development Act 2005 (WA), s 135, s 244

Shire of Busselton District Planning Scheme No 20

State Administrative Tribunal Act 2004 (WA), s 3(1), s 87(1), s 87(2)

Application for review of Tribunal's determination dismissed

Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246

Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116

Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341

Zampatti and Western Australian Planning Commission [2009] WASAT 70

1 Mr Lloyd Zampatti sought review by a judicial member of a determination of the Tribunal in which it refused Mr Zampatti's application for a two-lot subdivision of land in Eagle Bay. However, the application for review did not raise any question of law concerning the determination. Rather, Mr Zampatti sought, in substance, a different merits result from that arrived at by the Tribunal.

2 The President, therefore, dismissed the application for review and affirmed the determination of the Tribunal.

3 The President also determined that, as a review of a determination of the Tribunal by a judicial member was only available upon a 'matter involving a question of law', where an application for review does not disclose any, or any arguable, question of law, the commencement and prosecution of the application would normally be unreasonable. Consequently, while the Tribunal is a generally no-costs jurisdiction, it would normally be an appropriate exercise of the Tribunal's discretion to make a costs order against an applicant for review by a judicial member whose application does not disclose any, or any arguable, question of law. However, as the respondent did not seek costs in this case, the President did not make a costs order.

4 Mr Lloyd Zampatti has made an application under s 244 of the Planning and Development Act 2005 (WA) (PD Act) for a review by a judicial member of the determination made by the Tribunal on 17 April 2009 in Zampatti and Western Australian Planning Commission [2009] WASAT 70 (reasons). In its determination, the Tribunal affirmed the decision of the Western Australian Planning Commission (Commission) to refuse Mr Zampatti's application for subdivision approval, under s 135 of the PD Act, of his land at Lot 51 Eagle Bay Road, Eagle Bay (site) into two lots of 14.66 hectares and 18.27 hectares.

5 The site is zoned 'Agriculture' under the Shire of Busselton District Planning Scheme No 20. Approximately two-thirds of the site is used for grazing. The remainder of the site comprises natural vegetation and dams associated with an intermittent creek line.

6 In the determination, the Tribunal also refused Mr Zampatti's application for an order that the Commission should compensate him for the cost of a witness statement of Mr David Kaesehagen, a biological and environmental scientist, which contained a viewshed analysis of the proposal for the purpose of determining its visual impact.

7 Section 244 of the PD Act enables a judicial member to review a determination upon a 'matter involving a question of law' that was made by the Tribunal when constituted without a legally qualified member as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The determination in question was made by the Tribunal when constituted by Senior Sessional Member Lloyd Graham, who is not a legally qualified member.

8 However, Mr Zampatti's application for review does not disclose any question of law. Rather, the application seeks, in substance, a different merits outcome to that arrived at by the Tribunal. The application for review must, therefore, be dismissed.

(i) the issues between the parties were expressly limited by the [Commission] abandoning reliance on visual impact prior to the date fixed for the exchange of evidence,

(ii) there was no cogent issue before the Tribunal adduced by the [Commission] with respect to visual impact,

(iii) the relevant element of the case for the [Commission], as a consequence, lacked substance,

(iv) it was unreasonable for the [Commission] to raise the issue in a manner requiring evidence to be adduced and then not itself address the matter by the tendering of evidence,

(v) there being no live issue between the parties, it was not necessary for the evidence to be adduced and, as a consequence, it was not necessary for [Mr Zampatti] to bear the cost of the provision of that evidence; and

(vi) the Tribunal erred in finding that [Mr Zampatti] used the arguments of Mr Kaesehagen to advance its position and that the Tribunal was assisted by Mr Kaesehagen's work.

(b) It found that the application should fail because there is no relevant policy provision that would support the proposal.

(c) It found that the proposed subdivision is 'not unobjectionable' and therefore contrary to orderly and proper planning.

11 This ground does not involve any question of law. Rather, it seeks to challenge the Tribunal's exercise of its discretion in relation to costs under s 87(2) of the SAT Act. The Tribunal exercised its discretion in relation to costs by declining to make a costs order on the basis that Mr Zampatti had himself used Mr Kaesehagen's evidence to advance his case and the Tribunal was assisted by that evidence (reasons at [96]).

12 Furthermore, it was reasonably open for the Tribunal to exercise its discretion in relation to costs in the way in which it did. At the time the Commission lodged its statement of issues, facts and contentions with the Tribunal on 27 October 2008, the Commission considered, on its own assessment, that the proposed subdivision would adversely affect the rural landscape values of the site and surrounding locality. The Commission, therefore, expressly raised the issue of visual impact in its statement of issues, facts and contentions. However, in preparation for the hearing, the Commission engaged Ms Stephanie Clegg, a senior environmental planner with the Department for Planning and Infrastructure, to assess the extent of the perceived adverse impact of the proposed subdivision. Ms Clegg advised the Commission that any adverse impact could be obviated by conditions. In consequence of this advice, the Commission, promptly, filed an amended statement of issues, facts and contentions, withdrawing its contention that the proposed subdivision should not be approved because of its adverse visual impact.

13 The Commission acted reasonably in raising the issue of visual impact in the first place, having regard to the characteristics of the site and locality. The Commission also acted reasonably in promptly withdrawing the issue when it received advice from Ms Clegg that it was not determinative.

14 Mr Zampatti submitted that Mr Kaesehagen's statement of evidence was filed with the Tribunal 'because, by that time, it had been prepared and it represented the only substantive evidence on the point, to the extent that the point could be said to remain live between the parties at all'. However, it is clear that Mr Zampatti chose to rely on Mr Kaesehagen's evidence and that this evidence assisted his case, although not sufficiently to warrant approval of the subdivision application.

15 Mr Zampatti emphasised the following words in the reasons at [90]:

[T]here is no relevant policy provision that would support the proposal other than a circumstance where subdivision would represent an opportunity to diversify or intensify the agricultural use of the land as outlined in [37] above.

16 Mr Zampatti submitted that the Tribunal erred in law:

... in that it took into account an irrelevant consideration (namely, the need for there to be a relevant policy provision supporting the proposal) and failed to take into account a relevant consideration, (namely, that the policy framework adverted to by the Tribunal makes it clear that the policies are intended to achieve outcomes which are irrelevant having regard to the nature of the proposed subdivision of the Land).

17 However, the words in the reasons at [90] emphasised by Mr Zampatti cannot be read in isolation and must be understood as part of the reasons expressed at [81] - [91]. It is clear, when those paragraphs are read as a whole, that the Tribunal properly considered the principal elements of the planning framework and determined that the proposal was inconsistent with the framework and, therefore, contrary to orderly and proper planning. It is apparent from [86] - [87] that the Tribunal understood that the policy framework could be departed from in appropriate circumstances. However, it found no cogent reason to do so.

18 It is also apparent from [90] that the Tribunal did not refuse to grant subdivision approval because it considered that there was a need for there to be a relevant policy provision supporting the proposal, but rather, the Tribunal was considering whether there was a reason within the policy framework to support the proposal. Had there been such a reason, then, presumably, it would have been a consideration in favour of subdivision approval. However, it was within the planning discretion of the Tribunal to both consider whether there was a planning provision in favour of the proposal and to determine that the proposal was contrary to the planning framework and, therefore, warranted refusal.

19 At [67] of the reasons, the Tribunal correctly identified the circumstances in which adverse planning precedent is a relevant planning consideration. At [93], the Tribunal found that the proposal is 'not unobjectionable' 'in that it is contrary to orderly and proper planning'. At [94], the Tribunal found that there was more than a mere chance or possibility that there might be other undistinguishable subdivision applications, because the subdivisional pattern in the locality showed 'a series of lots in the same order of size or bigger than the subject land where an approval in this instance could encourage those other landowners to unnecessarily attempt to subdivide'.

20 It is apparent that Mr Zampatti seeks, in substance, to challenge the Tribunal's findings in relation to whether adverse planning precedent was a relevant planning consideration. However, having correctly identified the test for relevance, it was within the sole province of the Tribunal to make the findings. Furthermore, the findings made at [93] and [94] of the reasons were reasonably open, having regard to the discussion and findings in relation to the planning framework at [81] - [91] and the existence of other lots of comparable or larger size in the locality.

21 None of Mr Zampatti's 'grounds' of review disclose any question of law. The Tribunal did not err in law in its determination.

22 It follows that the application for review by a judicial member should be dismissed and the determination of the Tribunal should be affirmed.

Costs of application for review by a judicial member

23 In Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74; (2006) 150 LGERA 116, Justice Barker said, at [57], that:

I would ... take the view that ordinarily s 87(1) of the SAT Act applies to [an application for review by a judicial member] and, accordingly, costs should not be awarded against a party that is unsuccessful on this type of review proceeding.

24 It is clear from s 87(1) of the SAT Act that the Tribunal is a generally no-costs jurisdiction. Furthermore, although the Tribunal has a discretion under s 87(2) of the SAT Act to make an order for the payment by a party of all or any of the costs of another party, the Tribunal's established practice in its review jurisdiction is that, normally, each party should bear its own costs: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246; Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 341.

25 However, an application for review by a judicial member may only be brought under s 244 of the PD Act 'upon a matter involving a question of law'. Where an application for review under s 244 of the PD Act does not disclose any, or any arguable, question of law, it may be unreasonable for an applicant to commence and prosecute the application, and it may be appropriate that the Tribunal's discretion under s 87(2) of the SAT Act should normally be exercised so as to compensate the respondent for its reasonable professional costs of having had to defend the application.

26 However, as the respondent did not seek its costs in this case, it is not necessary to consider whether, in this case, the applicant's conduct in bringing the application was unreasonable.

The application for review is dismissed and the determination of the Tribunal in Zampatti and Western Australian Planning Commission [2009] WASAT 70 is affirmed.

I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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