Lizack and City Of Kalgoorlie-Boulder [2015] WASAT 20

In Lizack and City Of Kalgoorlie-Boulder [2015] WASAT 20 the applicant contended that the City had no lawful jurisdiction to make decisions affecting his use of the land in his certificate of title, arguments that were purported to be drawn from the common law and constitutional law. They referred to him holding his title as a registered proprietor of an estate in fee simple, which together with the Australian Constitution not recognising local government and the City having no listing as a corporation, leads to the City having no lawful jurisdiction and no lawful right to command him to comply with the local planning scheme. 

In response to this line of reasoning, the Tribunal respectfully adopted and cited to the parties at the hearing the findings of Senior Member P McNab in his decision in Chapman and City of Armadale [2011] WASAT 205 (at 29-33). Senior Member McNab stated that it was not strictly necessary to address similar arguments from that applicant which he termed ‘so­ called “constitutional arguments”‘ because of his final determination on the substance of that review. Senior Member McNab went on to state:

“I will go on to make some brief mention of [the constitutional arguments] since so much work was put into them by the parties and their assistants. They relate to the status of corporations, local government, the constitutional validity of statutory laws, the sanctity of the common law and the status of private property. In my view these arguments are untenable and have no substance whatever. They are completely devoid of any merit. These types of arguments pay no attention to historical facts or to our notions of what is considered to be law and the accepted constitutional underpinnings of our system of government. Further, they have been consistently rejected by the highest courts in this State and they include the cases cited by the respondent’s Counsel: see, for example, Pennicuik v City of Gosnells [2011] WASC 63 and Glew v Shire of Greenough [2006] WASCA 260, a decision of the Court of Appeal in respect of which the High Court of Australia denied special leave to appeal, in 2007.

I should mention that there are other similar (and unsuccessful) cases brought by Mr Glew in the Supreme Court, and they are all to the same effect. Further, if the arguments were valid then of course this Tribunal would be rendered nugatory. It is, however, a settled axiom of administrative law that the authority of a Tribunal does not in effect extend beyond presuming the validity of Parliament’s statutes: see the decision of Brennan J sitting as the President of the Administrative Appeals Tribunal in Re Adams and Tax Agents’ Board (1976) 12 ALR 239. The Tribunal informed the applicant that it was proceeding on the basis that the powers and functions of the local government in exercising its authority under its local planning scheme, and of the Tribunal in reviewing the City’s decision, are established in the Parliament’s statutes, including in the PD Act and the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 87(4) of the PD Act provides that a local planning scheme has full force and effect as if enacted by the PD Act. The parties were informed that the Tribunal would proceed on the basis that it had jurisdiction, to the extent of the authority extended to it under the statutes.”

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