McKimm and Western Australian Planning Commission and ANOR

[2007] WASAT 193

McKIMM and WESTERN AUSTRALIAN PLANNING COMMISSION & ANOR [2007] WASAT 193

Last Update :07/08/2007

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 193
Published:
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:189/2007	Heard:	27 JULY 2007
Coram:	JUDGE J CHANEY (ACTING PRESIDENT)	Delivered:	30/07/2007
No Pages:	9	Judgment Part:	1 of 1
Result:	Leave to intervene granted
Category:	B

Parties & Catchwords


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : McKIMM and WESTERN AUSTRALIAN PLANNING COMMISSION & ANOR [2007] WASAT 193 MEMBER : JUDGE J CHANEY (ACTING PRESIDENT) HEARD : 27 JULY 2007 DELIVERED : 30 JULY 2007 FILE NO/S : DR 189 of 2007 BETWEEN : ROGER McKIMM

Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent

CITY OF FREMANTLE
Second Respondent

Catchwords:

Practice and procedure - Application for joinder as intervener or to make submissions - Nature of applicant for intervention's interest - Local government undertaking specific planning measures for subject land - Outcome of substantive application likely to effect planning processes - Whether local government should have leave to intervene

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Legislation:

Australian Heritage Commission Act 1975, s 23
City of Fremantle Local Planning Scheme No 4
City of Fremantle Town Planning Scheme No 3
Heritage of Western Australia Act 1990 (WA), s 45
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 242
State Administrative Tribunal Act 2004, s 27(2), s 37, s 38

Result:

Leave to intervene granted

Category: B

Representation:

Counsel:

Applicant : Mr MJ Hardy
First Respondent : Ms C Ide
Second Respondent : Mr C Slarke

Solicitors:

Applicant : Hardy Bowen
First Respondent : State Solicitor's Office
Second Respondent : McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319
Levy v State of Victoria (1997) 189 CLR 579
State Administrative Tribunal; Re; Ex parte McCourt [2007] WASCA 125

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr Roger McKimm proposes to develop land known as Lot 5 (No 92) South Terrace, Fremantle. The land is located on the corner of South Terrace and Parry Street. It is in a prominent location within the Fremantle city centre.

2 At the time Mr McKimm applied for approval, the land was reserved under the Metropolitan Region Scheme for civic and cultural purposes. As a result, it was not then zoned or reserved pursuant to the City of Fremantle's Town Planning Scheme No 3. For that reason, the planning approval was required from the Western Australian Planning Commission under the Metropolitan Region Scheme, rather than from the local government.

3 The Commission refused approval, and Mr McKimm sought a review of that decision before the Tribunal. The day before the Commission refused the proposal, an amendment to the Metropolitan Region Scheme had the effect of removing the civic and cultural reservation from the land, and zoning the land "Central City Area" for the purposes of the Metropolitan Region Scheme.

4 The change to the classification of the land required the City of Fremantle to take steps to bring its Scheme into line with the Metropolitan Region Scheme. The City of Fremantle has a number of policies which apply to the area in which the subject land is located, and proposes to amend its Scheme to introduce development controls for the land. It has also embarked upon preparation of a conservation management plan which would apply to the land.

5 Against that background, the City of Fremantle applied to intervene in the proceedings so that it could have input into the decision of the Tribunal. The City of Fremantle argued that the outcome of the proceeding has the potential to substantially predetermine the planning criteria that might be applied to the land under the local planning scheme. The City of Fremantle's application was opposed by the applicant.

6 The Tribunal considered that the circumstances surrounding the planning for this particular piece of land were quite unusual, and that it was in the public interest that the City of Fremantle should be able to participate in the proceedings. The Tribunal had regard to the potential for the proceedings to determine the form of development on the land for

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the foreseeable future, and thus effectively foreclose on the range of options that might be considered by the City of Fremantle in its planning processes for the land. Accordingly, leave to intervene was granted.

Background

7 The City of Fremantle (City) seeks leave to intervene in these proceedings, or alternatively to make submissions pursuant to s 242 of the Planning and Development Act 2005 (WA) (PD Act). The proceedings are concerned with an application to partially demolish, renovate and extend the historic building known as the Fremantle Synagogue, located at Lot 5 (No 92) South Terrace Fremantle. The extension comprises a proposed construction of a three storey addition. It is also proposed that the land be used for what is described as "mixed use development, entertainment, commercial shopfront and short term accommodation".

8 The application for approval was lodged on 29 November 2005. At that time, the land was reserved under the Metropolitan Region Scheme (MRS) for the purpose "civic and cultural". As a consequence, the land was not zoned or reserved pursuant to the local planning scheme then in operation, being City of Fremantle Town Planning Scheme No 3 (TPS 3), and the land did not require planning approval under TPS 3. The application was immediately referred to the Western Australian Planning Commission (WAPC), which is the responsible authority to determine the application under the MRS. The City advertised the proposal and nine submissions were received, all opposing the proposal.

9 The subject land has heritage significance. It is in a prominent location within the Fremantle city centre. It is on the State Register of heritage places adopted pursuant to the Heritage of Western Australia Act 1990 (WA), and is included in the City's Heritage List and the City's Municipal Heritage Inventory kept pursuant to s 45 of the Heritage of Western Australia Act. It is included in the Register of the National Estate kept pursuant to s 23 of the Australian Heritage Commission Act 1975 (WA). It is within the proposed Fremantle Prison Buffer Zone to be applied pursuant to UNESCO Operational Guidelines relating to the Fremantle Prison site.

10 The City of Fremantle Local Planning Scheme No 4 (LPS 4) was gazetted on 8 March 2007, thereby repealing TPS 3. The subject land is not at present the subject of any zoning or reservation under LPS 4.

11 On 1 May 2007, an amendment to the MRS had the effect of removing the civic and cultural reservation from the land, and zoning the

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land "Central City Area" for the purposes of the MRS. On the following day, 2 May 2007, the WAPC resolved to refuse the development application for the purposes of the MRS for the reasons that:
"( 1) The proposed development, in particular the new commercial and residential components, would adversely affect the local west end urban landscape and amenity by reason of its inappropriate height, scale, bulk, form and visual presentation in and into the built environment;

(2) having regard to (1) above, the appearance and character of the site and locality will be permanently changed in an unacceptable manner contrary to orderly and proper planning and the public interest."

12 In view of the zoning of the land as Central City Area effective 1 May 2007, the Tribunal was advised that the City is taking steps to impose appropriate planning controls via zoning of the land under LPS 4, and the adoption of the proposed Synagogue Precinct Conservation Management Plan. The City submits that the outcome of these proceedings have a significant effect on the efficacy and content of any amendment to LPS 4, and the Synagogue Precinct Conservation Management Plan, because the proposal is for a major redevelopment of the land which would establish the nature of development on the land for a significant period into the future.

Should intervention be granted?

13 The City submitted that, on the proper construction of LPS 4, it is at least arguable that an approval by the City for this development is required under LPS 4, notwithstanding that the land is not presently zoned or reserved under LPS 4. The applicant contends that no approval is required. It is not necessary, for present purposes, to resolve that issue.

14 In my view, there are unusual circumstances in this case which lead to the conclusion that the City should have leave to intervene, whether or not it is presently a decision-maker in relation to the proposal. At the time the application was made, the planning regime was such that the WAPC was the sole decision-maker. While that may, if the applicant's submission is correct, remain the case, the planning landscape is in the process of change. The inevitable consequence of the removal of the reservation from the land, and its replacement with a Central City Area zoning, is that, when the process of amendment of LPS 4 runs its course, the City will become the relevant decision­maker in relation to proposals

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for the land, both under its own Scheme, and as delegate of the WAPC under the MRS.

15 The framework of decision-making in respect of the land in future will be determined by the planning framework established under the relevant amendments to LPS 4, and by the content of the Conservation Management Plan proposed for the land. The present proposal is for a major development of the site. If approved, the building will be constructed, and any more limited development controls which may be desired by the City as a result of undertaking the full planning processes, will be substantially ineffective for the foreseeable future. That potential fetter on the scope for planning for the land by the City is sufficient, in my view, to establish that the Tribunal should have the benefit of the City's full perspective on the proposal in order to make the correct and preferable decision on the development application.

16 Mr Hardy, counsel for the applicant, argues that the Statement of Issues, Facts and Contentions filed by the WAPC already indicates that it proposes to bring before the Tribunal the considerations which the City would wish to bring forward in the review. In particular, he refers to the references to the City's Planning Scheme and Policy, the responses to advertisement by the City and the draft Conservation Management Plan. He contends that this case is no different from any other in which the WAPC is the decision-maker in respect of land within a local planning scheme area, such as when it deals with subdivision applications. He submits that the City has not been ignored in this planning process, and that the Tribunal will be able to take account of its position in the materials put forward by the WAPC. He submits that there is nothing in the materials put for the Tribunal in relation to the application for intervention to suggest that there is likely to be any gap in the WAPC's presentation of the case as to the overall planning merits.

17 In State Administrative Tribunal; Re; Ex parte McCourt [2007] WASCA 125, the Court of Appeal discussed the principles applicable to intervention under s 37 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and its relationship to joinder as a party under s 38. At [41], the Court said:

" … the importance of the distinction between s 37 and s 38 rests in another respect of the concept of intervention, as that concept has traditionally been understood, being that, in the absence of any statutory intention to the contrary, an intervener, unlike a party, will ordinarily be allowed only to support or

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oppose a position contended for by one or other of the parties to the proceedings and will not be permitted to expand the issues to be decided; Hocking v Southern Greyhound Racing Club (1993) 61 SASR 213 at 216 per King CJ (who also provides a useful history of the concept of intervention) and at 221 per Debelle J."

18 On the other hand, the court recognised that it is a material consideration militating against leave that a proposed intervener may wish to argue on the very same basis as a party – see Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 330 per Gavin Duffy J and Rich J: Levy v State of Victoria (1997) 189 CLR 579 at 603 – 604 per Brennan CJ.

19 It is those propositions upon which Mr Hardy relies in suggesting that no cause for permitting intervention by the City has been demonstrated.

20 The site is one of particular significance to the central city and west end areas of the City. The City is the body charged with planning decisions within its scheme area although its scheme presently does not zone this land. It may have a differing perspective and emphasis on aspects of planning for this site from that taken by the WAPC, whose responsibilities are at a broader regional level. That difference in perspective may assist the Tribunal to fully understand and appreciate the local issues associated with the proposed development. It is likely that the rejection of the application by the WAPC was significantly influenced by concerns expressed to it by the City. To the extent that the issues in the proceedings turn on the City's policies and other planning instruments, the City may now be in a better position to assist the Tribunal in its deliberations on those issues. The different perspective of the City will render its involvement more than a mere repetition of the WAPC's case.

21 Given leave, the City will not be broadening the scope of the proceeding, because it will support the position propounded by the WAPC. The decision for the Tribunal will remain whether or not the application for development should be approved. To the extent that the City introduces planning issues going to that question, it will do no more than ensure that the Tribunal is fully apprised of issues concerning the site, so as to enable it to reach the correct and preferable decision.

22 In Levy, at 603, Brennan CJ observed that jurisdiction to grant leave to intervene to persons whose legal interests are likely to be substantially

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affected by a judgment exists in order to avoid a judicial affection of that person's legal interests without that person being given an opportunity to be heard. He noted that "nevertheless, an indirect affection of legal interests enlivens no absolute right to intervene" and said that "the principles of natural justice which control the exercise of curial power must take account of the nature of the jurisdiction to be exercised" (citations omitted).

23 The nature of the jurisdiction being exercised by the Tribunal is that of a decision-maker acting de novo. The Tribunal is charged with the task of "reaching the correct and preferable decision at the time of the decision upon the review – SAT Act s 27(2). I accept the City's submissions that the outcome of these proceedings will have a significant effect on the scope for the planning in relation to the land which it is presently embarking upon.

24 In my view, to refuse the City the opportunity of being heard on the application, when the outcome will potentially significantly limit the scope for future planning decisions by it, would be unfair to the City and not in the public interest.

25 The difference between this case, and others where planning decisions are made only by the WAPC is that the removal of the reservation from the land involves, in effect, a recognition that responsibility for planning decisions concerning the site should in future rest with the City rather than the WAPC.

26 For those reasons, the City should be given leave to intervene.

27 I am mindful in reaching this decision that the final hearing is set down for two days commencing 16 October 2007. Programming orders are in place to ensure that the matter is ready for hearing at that time. No delay in that timetable will be necessary as a result of the grant of leave to intervene, and directions will need to be made to ensure that all steps are taken in relation to intervention to enable the hearing to proceed on those dates. Directions will be made accordingly.

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

___________________________________

JUDGE J CHANEY, ACTING PRESIDENT

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