In reasons published on 14 March 20141, Western Australia’s State Administrative Tribunal (Tribunal) determined that unusual, and in combination, exceptional circumstances called for third party intervention in two planning review proceedings.
In this article, Olivia Williamson and colleagues explain and examine those exceptional circumstances.
Key points
- A third party with reverse amenity concerns relating to a development application may have a sufficient interest to establish standing to intervene in a WA State Administrative Tribunal planning review proceeding.
- Standing is unlikely to be established unless the third party can demonstrate:
- actual or apprehended injury or damage to its business or economic interests as a consequence of an approval being granted; and
- that the intervener’s presence is necessary to enable the Tribunal to carry out its legislative objectives.
- The previous refusal of a similar development application on the basis of the precautionary principle, together with Ministerial call in of the subsequent development application, amounts to exceptional circumstances for planning review proceedings in WA.
Background
The planning review proceedings involved applications brought by Wattleup Road Development Company (Wattleup) and Primewest (Wattleup) Pty Limited (Primewest), under section 251(1) of the Planning and Development Act 2005 (WA) (PD Act) for review of the deemed refusal by the Western Australian Planning Commission (Commission) of two residential subdivision applications in Hammond Park.
The lots the subject of the subdivision applications are located within 1 to 2 kilometres of the Kwinana Industrial Area and approximately 1.2 to 1.7 kilometres north-east of a property used by Alcoa of Australia Limited (Alcoa) for drying and disposal of bauxite residue resulting from alumina production at its Kwinana refinery.
Alcoa and the Kwinana Industries Council (KIC) sought leave to intervene in the proceedings under section 37(3) of the State Administrative Tribunal Act (SAT Act) or, alternatively, to make submissions under section 242 of the PD Act.
Relevant legislation
Section 37(3) of the SAT Act gives the Tribunal a broad discretion to grant leave to a person to intervene in a proceeding. The established test for intervention has two principle elements, both of which must be established by a proposed intervener in order to be granted leave to intervene. The two principal elements are:
- The proposed intervener must demonstrate at least an interest sufficient to meet the test for standing to seek judicial review as stated in the decision of the High Court of Australia in Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493 (ACF); and
- The proposed intervener will generally need to demonstrate that its intervention is necessary to enable the Tribunal to meet the objectives of the SAT Act and of the relevant enabling Act, in this case, the PD Act.
Alcoa’s application for leave to intervene or to make submissions
Alcoa sought leave to intervene on the issue of air quality and the potential for the proposed residential lots in the subdivisions to receive dust from a number of sources in the area, including, in particular, its residue disposal area. If granted leave to intervene, Alcoa proposed to lead evidence in relation to air quality monitoring data and meteorological data.
Despite Wattleup and Primewest advancing several submissions against leave being granted to Alcoa to intervene (including concerns about increasing the costs and time of the hearing), the Tribunal was satisfied that Alcoa had sufficient interest to meet the test of standing in ACF.
A sufficient interest was established because future residential use of the land the subject of the proceedings would change the treatment of that land which, in turn, could, if the land is exposed to dust levels in excess of recognised standards, result in new conditions being imposed on Alcoa’s environmental licence. Alcoa was considered to be able to show actual or apprehended injury or damage to its business or economic interests if the subdivision approval is granted.
Turning to the second part of the test, the Tribunal held that the following particular and highly unusual circumstances of this case warranted intervention by Alcoa to meet the objectives of the SAT Act and the PD Act:
- In 2011, the Tribunal refused an earlier subdivision application in relation to the Wattleup’s land on the basis of the “precautionary principle’ having regard to the potential dust impacts from the Alcoa residue disposal area and from a nearby sand quarry2.
- The Minister for Planning “called in” the current review proceedings and directed the Tribunal to hear the applications, but without determining them, and to refer them to the Minister with recommendations for determination by the Minister.
Both of these factors were considered by the Tribunal to be unusual in planning review proceedings in themselves and that further, in combination they are exceptional in terms of planning review proceedings in the Tribunal since its establishment nine years ago.
These unusual and, in combination, exceptional circumstanced called for a properly informed hearing in relation to amenity and health impacts of dust on the proposed subdivisions and in particular from dust generated by Alcoa’s operations. For these reasons, Alcoa was granted leave to intervene under section 37(3) of the SAT Act.
KIC’s application for leave to intervene or to make submissions
KIC is an incorporated business association with membership drawn from the Kwinana Industrial Area. KIC’s goals included working towards the long-term viability of industry in the Kwinana Industrial Area. KIC sought leave to intervene in relation to issues associated with buffer areas around the Kwinana Industrial Area.
The Tribunal did not consider KIC to have sufficient interest to meet the test of standing in ACF. It could not show any actual or apprehended injury or damage to its property or proprietary interest or to its business or economic interests if the subdivision approval is granted.
KIC’s intervention was not deemed necessary to enable the Tribunal to meeting the objectives under the SAT Act and the PD Act. Further, as KIC did not have sufficient interest, leave could not be granted under section 242 of the PD Act for it to make submissions in relation to the applications.
Commentary
As pointed out by the Tribunal, the case is an unusual one. Generally there are no third party appeal or review rights in Western Australia with respect to planning decisions. However, interveners may be allowed to join a proceeding pursuant to the SAT Act, and be allowed to expand the issues to be decided in a proceeding, if it is considered necessary to enable the Tribunal to properly undertake its statutory task.
In this case, Alcoa possessed relevant monitoring and other material and experience which were particular to Alcoa and was not otherwise available to the parties or the Tribunal. As such, being in a position to offer special or particular information about whether a proposed application is acceptable will likely assist an argument that a party’s presence is necessary for a properly informed assessment of the application.
Interestingly, one of the principal submissions advanced by Primewest in opposing leave being granted to Alcoa and KIC, was that there is no contradictor in the case because the Tribunal would not be making the decision in itself but, rather, will only be making recommendations to the Minister, who will make the decision. In the Tribunal’s view, this distinction was not relevant. In making either a determination or a recommendation, the Tribunal is required to exercise a statutory function under the PD Act, having regard to the purposes of the PD Act and its own objectives under the SAT Act.
For more information or to discuss potential ‘exceptional circumstances’, please contact HopgoodGanim Lawyers' Planning team.
1. Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2014] WASAT 29
2. Wattleup Road Development Company Pty Ltd and Western Australian Planning Commission [2011] WASAT 160