Last year Lavan Legal reported on a State Administrative Tribunal (SAT) matter The Match Group v Metro South West Joint Development Assessment Panel DR 215 of 2012 in which the construction of a City of Cockburn (City) local planning scheme provision was being ruled on by the SAT as a preliminary matter.
The substantive proceeding involved the review of a condition imposed on a planning approval which required the Applicant to pay a development contribution. That Applicant had sought the deletion of the condition on the basis that it was invalid for uncertainty in the quantum payable. In mediation it was agreed that proceeding to a preliminary hearing to receive a ruling on the proper construction of an ambiguously drafted development contribution plan, enacted under the scheme, may assist the parties to avoid a substantive hearing. In particular, in the preliminary matter, SAT was asked to rule on whether the contribution should be calculated by reference to the number of dwellings or by reference to the number of lots.
SAT ruled that despite the development contribution plan stating that development contributions are to be calculated by reference to the number of lots, the intent of the drafter was that contributions should be calculated by reference to the number of dwellings, and therefore in this case they should be calculated by reference to the number of dwellings.
Unsurprisingly, Lavan Legal was instructed to challenge that ruling in the Supreme Court. The Court’s decision, handed down this month, has caught both parties and possibly also SAT by surprise.
The Court of Appeal of the Supreme Court considered that it was not required to determine the interpretation issue the subject of the appeal and instead arrived at the conclusion that SAT did not actually have jurisdiction in the first place to make the preliminary determination. In arriving at this conclusion, the Court of Appeal relied on s 29(9) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which provides:
To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision-maker.
The Court of Appeal appears to have taken a narrow and strict approach to the question of when a matter is “different in essence from the matter that was before the decision-maker” for the purposes of s 29(9) of the SAT Act.
The Court of Appeal essentially held that the power of SAT on review was confined to determining whether or not the condition in question should have been imposed and did not permit SAT to determine a question of interpretation regarding the development contribution plan or local planning scheme, even though these instruments were referred to in that condition.
The Court of Appeal stated in its judgment that if the parties disagreed as to the correct interpretation of the relevant scheme provisions, then the correct course was to commence proceedings for a declaration in the Supreme Court, rather than to commence proceedings at SAT.
Lavan Legal comment
The decision may fundamentally change and limit the way in which SAT has traditionally dealt with questions of interpretation under planning schemes, especially in the context of preliminary determinations.
In the context of SAT being an administrative body that conducts reviews on a “de novo” basis with a view to making the “correct and preferable decision”, Lavan Legal considers that SAT should be permitted to consider every matter that the original decision-maker would have considered in deciding to impose the condition the subject of the review.
This decision of the Court of Appeal suggests that going forward, SAT will have to be minded to confine its analysis to the direct scope of the application for review, without considering incidental matters. This may create difficulties for parties trying to resolve matters in a cost effective way, especially in the context of conditions of development approval that refer to particular documents, policies or legislation, or which are required to be performed to the satisfaction of a government officer or external agency.
If you are contemplating review of a condition or are currently in a similar predicament in SAT, please contact Lavan Legal.