One of the strengths of the State Administrative Tribunal (SAT) is that is more informal than a Court and therefore has a greater scope to resolve issues rather than simply impose fines. However this informality can sometimes mean that it is necessary to look at previous decisions of SAT to predict what is likely to happen in a given case. The issue of extensions of time to lodge review applications before SAT is one such example.
So what will SAT look at when deciding whether to grant an extension of time for a review to be lodged? There are four main principles which you will need to be prepared to make submissions on in SAT. These are discussed in many cases but can be found in Hartwig and City of Canning  WASAT 243. The four principles are:
- length of delay;
- reason for delay;
- whether there is an arguable case; and
- the extent of any prejudice to the respondent.
The decision made by SAT will depend on the circumstances of each case so it is worth examining a few of the cases.
Goedhart and Western Australian Planning Commission  WASAT 49
In this case:
- a delay of between 81 and 87 days was found to be considerable;
- the reasons for the delay which were serious illness and injury to the party seeking the review where found to explain the delay and to be reasonable;
- there was found to be an arguable case;
- there was considered to be no prejudice to the Western Australian Planning Commission if the extension was granted; and
- the extension of time was granted.
Hartwig and City of Canning  WASAT 243
In this case a notice to clean up the property was issued under the Health Act 1911, SAT found:
- a delay of 155 days (approximately 5 months) was found to be “clearly significant”;
- the reasons for delay were not considered to be reasonable;
- there appeared to be an arguable case; and
- there appear to be no prejudice to the Respondent;
- the application for extension of time was dismissed.
The reasons for delay given by the Applicant were (summarised at paragraph 17 of the case):
“1) the respondent induced the applicant to believe the time was not of the essence;
2) the applicant was proceeding on the basis of a reasonable but mistaken belief that the house was occupied until late November 2007; and
3) the applicant could not enter upon and effect repairs to the house, given the violent and aggressive nature of the tenant, until the house was vacant.”
In that case SAT found that the applicant was:
- a landlord with a significant number of properties with access to a significant number of contractors and “handymen” who could have assisted with this job;
- experienced in evicting tenants through the Court system but took no action to do so during the period of the notice;
- when the tenant did vacant the property, (prior to November 2007) the applicant subsequently decided to demolish the property but there was a delay in submitting the demolition licence application which was not submitted until February 2008;
- a prosecution notice was served in December 2007 and default judgement obtained but still no review of the notice was sought until the day before reinstated prosecution proceedings in April 2008; and
- it was found that although there was an arguable case and no prejudice to the Respondent that the length of delay and the lack of adequate or acceptable reasons for that delay meant that the application for extension of time should be refused.
It is important to note that prejudice to the Respondent may include actions such as contracts entered into or funds spent, assuming that the time for an application for a decision to be reviewed has expired. For example in a recent, as yet unreported, SAT case:
- a City had issued a Planning and Development Act 2005 Direction Notice and
- entered into a contract to have an unauthorised development removed from the site; and
- the removal of the unauthorised development had commenced (and was ongoing) after the Applicant had failed to comply with the notice.
On the 128 day after the time to apply for a review expired, an application for review was lodged and an extension of time was sought. SAT rejected the application for extension of time on the ground that:
- the delay was considerable;
- there were no acceptable or adequate reasons for the delay;
- there was no arguable case; and
- there was considerable prejudice to the Respondent who had already incurred costs in the removal of the development having relied upon the time for applying for review having long since expired.
Extensions of time cases will always depend on the circumstances of the case and will most likely be argued at the first appearance, so make sure you think about the four principles and how your case fits within those principles when commencing or defending an “extension of time to apply for review of decision” case.
For more information on this update or any other local government matter please contact Anne Wood on (08) 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.