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When a tribunal decision is not reviewable by the Supreme Court

Angus McLeod

Wattelup Road Development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104

The Appellant (Wattelup) applied to the first respondent, the Western Australian Planning Commission (WAPC) for approval to subdivide 3 lots of land at Wattleup Road, Hammond Park (Land). The Land is in close proximity to land used by the second respondent, Alcoa of Australia Ltd (Alcoa), for the drying, disposal and storage of bauxite residue from its alumina production facility.  Wattleup proposed to subdivide the Land into, inter alia, 147 residential lots. Another party, Primewest (Wattleup) Pty Ltd, applied to the WAPC for approval to subdivide two adjoining lots.

Under s 253 of the Planning and Development Act 2005 (WA) (PD Act), there was a deemed refusal of the subdivision applications which enlivened an entitlement to apply to the State Administrative Tribunal (SAT) for a review of the deemed refusals.

After the SAT had received the review applications, the Minister for Planning (Minister) ‘called in’ the application under s 246(2)(b) of the PD Act. The provision directed the SAT to hear the applications but, without determining them, to refer them with recommendations to the Minister for determination.

The SAT heard the applications and recommended:

  1. the applications for review be dismissed; and
  2. the deemed refusals of the subdivision applications by the WAPC be set aside and in their place decisions are substituted that   subdivision approval is refused for each of the proposed subdivisions.

Wattleup commenced an appeal in the Supreme Court from the SAT’s recommendation. The preliminary question was whether the SAT’s recommendation is a ‘decision’ for the purpose of s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 105 of the SAT Act is the source of the Supreme Court’s jurisdiction to hear and determine appeals from the SAT.

Wattleup contended that the SAT’s conclusion and its recommendation are a ‘decision’ within the meaning of s 105(1) of the SAT Act. It submitted that ‘decision’ should be given its natural and ordinary meaning of ‘a conclusion or resolution reached after consideration’ or a ‘choice or judgment’.

The WAPC submitted that the meaning of in s 105(1) of the SAT Act is not sufficiently broad to encompass a recommendation to the Minister made under s 246(2)(b) of the PD Act. Alcoa relied on the decision of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. ‘Decision’, when used in the context of judicial or administrative proceedings, refers to a determination that effectively disposes of a matter in hand, that is, has an operative effect.  Accordingly, Alcoa submitted that a recommendation under s 246(2)(b) of the PD Act, which is merely advisory, is not a decision.

A Proceeding before the SAT commences when an application under s 42(1) of the SAT Act is accepted by the Executive officer of the SAT. The SAT Act makes provision for the enforcement of decisions of the SAT in s 85 and s 36. The term ‘decision’ is defined in s 3(1) as including an order, direction, or determination of the Tribunal.

The SAT Act is not generally the source of the SAT’s jurisdiction to review particular decisions. That jurisdiction comes from enabling Acts, such as the PD Act, which specify the particular reviewable decisions to which the SAT’s general functions and powers will apply.

The appellant’s subdivision application was made under pt 10 of the PD Act, which prohibits subdividing any lot without the approval of the WAPC.  Section 251 of the PD Act enables an applicant to apply to the SAT for a review of a decision by the WAPC. The reviewable decision in this case was the deemed refusal by the WAPC to approve Wattleup’s plan of subdivision.

Section 246 and 247 of the PD Act deal with the ‘call in’ system, which applies to an application made to the SAT if the Minister considerers that the application raises issues of such State or regional importance that it would be appropriate for the application to be determined by the Minister. The Minister may direct the SAT to hear the application but without determining it, to refer it with recommendations to the Minister for determination.

But for s 246(2)(b) of the PD Act the SAT would not have jurisdiction or power to make recommendations of the type in issue in this case. An enabling Act may nominate any conduct of a decision maker. The direction of the Minister under s 246(2) of the PD Act takes what was a reviewable decision outside the scope of the SAT’s final review powers.

The PD Act empowers the SAT to perform an advisory function that is otherwise outside the scope of its functions and powers under the SAT Act and does not make express provision for an appeal from the exercise of that advisory function.

The outcome of this case is governed by the meaning of the expression ‘decision of the Tribunal in the proceeding’ from s 105(1) of the SAT Act. The terms defined in s 3 of the SAT Act are wide enough to capture most of the outcomes of the exercise of the decision making powers conferred on the SAT. The definition would extend to rulings and other similar adjudications made by the SAT. However, a recommendation is not an order, direction, determination or other similar outcome.  In McLure P’s view the definition is not wide enough to include a recommendation. 

The decision confirms that a recommendation to the Minister following a 'call in' is not reviewable by the Supreme Court for the purposes of s 105 of the SAT Act. The Minister is yet to make a decision regarding the recommendation.