SATCHWELL -v- TOWN OF CLAREMONT [2026] WASC 281

[2026] WASC 281 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : SATCHWELL -v- TOWN OF CLAREMONT [2026] WASC 281 CORAM : PALMER J HEARD : 9 JULY 2026 DELIVERED : 9 JULY 2026 PUBLISHED : 9 JULY 2026 FILE NO/S : CIV 2359 of 2025 BETWEEN : IAN DAVID SATCHWELL Applicant AND TOWN OF CLAREMONT Respondent AND THE PANTRY GROUP PTY LTD First Other Party Catchwords: Judicial review - Application to amend judicial review application pursuant to O 56 r 5(2)(h) - Relevance of O 56 r 2(4) - Turns on own facts -- 1 of 8 -- [2026] WASC 281 Page 2 Legislation: Rules of the Supreme Court of Western Australia 1971 (WA) O 56 r 2(4), O 56 r 5(2)(h) Result: Application allowed Category: B Representation: Counsel: Applicant : K M Pettit SC Respondent : B Moharich First Other Party : D Leigh Solicitors: Applicant : McLeod Fisher & Hamdorf Respondent : Moharich & More First Other Party : Lavan Case(s) referred to in decision(s): -- 2 of 8 -- [2026] WASC 281 PALMER J Page 3 PALMER J: Introduction 1 In these proceedings the applicant (Mr Satchwell) seeks the judicial review of a decision (the Decision) made by the Town of Claremont (the Council) on 27 May 2025 to approve a development application (the Development Application) relating to external renovations and increased seating at 93 Shenton Road, Swanbourne (the Property). 2 The Development Application was lodged by the first other party (Pantry Group) who operates a business from the Property. 3 Mr Satchwell filed his application for judicial review on 27 November 2025 (the Judicial Review Application). The Judicial Review Application sought the judicial review of the Decision on a single ground. 4 On 17 June 2026, Mr Satchwell filed a minute of proposed amended application for judicial review, seeking to amend the Judicial Review Application to include three further judicial review grounds. 5 The proposed amendments were not opposed by the Council. 6 Pantry Group did not oppose the amendment application insofar as it sought to introduce two of those grounds, but it opposed the grant of leave to amend to introduce proposed Ground 4. 7 At the hearing of Mr Satchwell's application for leave to amend to introduce Ground 4, I said that I would grant Mr Satchwell leave to amend to include that ground and I would publish reasons for my decision. These are those reasons. 8 These reasons concern whether Mr Satchwell should be permitted to amend the Judicial Review Application to introduce Ground 4. When an application to amend a judicial review application will be allowed 9 Mr Satchwell seeks leave to amend the Judicial Review Application pursuant to O56 r 5(2)(h) of the Rules of the Supreme Court of Western Australia 1971 (WA) (Rules of the Supreme Court). -- 3 of 8 -- [2026] WASC 281 PALMER J Page 4 10 Order 56 r 5(2)(h) of the Rules of the Supreme Court provides that on an application for judicial review the court may allow the applicant to amend the application. 11 Order 56 r 2(4) provides that if a judicial review application is made outside the limitation period, it must include an application for leave to proceed and be supported by an affidavit explaining why the application was not made within the limitation period. The limitation period is the later of 6 months from the decision being made, or the applicant becoming aware of the decision.1 12 The Pantry Group contended that where an application is made to amend the grounds of a judicial review application, the amendment application must be treated as a fresh judicial review application, such that O 56 r 2(4) applies to the amendment application. This argument appeared to rely on the text of O 56 r 5(2)(h) which (when read with the definition of 'application' in O 56 r 1(1)) reads: On an [application for judicial review of a reviewable decision or of reviewable conduct], the Court may do one or more of the following — … (h) allow the applicant to amend the [application for judicial review of a reviewable decision or of reviewable conduct]. 13 I have difficulty accepting the Pantry Group's submission. The text of O 56 r 5(2)(h) certainly does not expressly state that where an application is made to amend the grounds of an existing application for judicial review, the amendment application is to be treated as a fresh application for judicial review. Nor is such an intention evident to me from the text of the order. 14 Rather, it seems to me that the reference to 'application' in the chapeau to O 56 r 5(2) has the effect of conditioning the jurisdiction to make any one of the orders in O 56 r 5(2) conditional upon an application for judicial review already being made. The reference to application in the chapeau seems to me to be a reference to the application that has already been made to initiate the judicial review proceedings, not to an amendment application. 1 See the definition of 'limitation period' in O 56 r 1(1) of the Rules of the Supreme Court. -- 4 of 8 -- [2026] WASC 281 PALMER J Page 5 15 That said, the court has a discretion as to whether to permit an amendment to a judicial review application. This is evident from the use of the word 'may' in the chapeau to O 56 r 5(2). 16 Although O 56 r 5(2) does not expressly identify the matters relevant to the exercise of that discretion, in my view, whether a limitation period has expired, the circumstances of that expiry and the consequences of any delay would seem to me to be relevant to the exercise of the discretion. The original grounds of the Judicial Review Application 17 It is useful to begin by saying something about the original terms of the Judicial Review Application. 18 Originally, the Judicial Review Application was limited to one ground. It claimed that when the Council considered the Development Application it considered that it related to an alteration to an existing 'Shop (Intermediate)' use and that this use was 'non-conforming'. It asserted that the Decision was unlawful because the proposed use of the Property was not: (a) a continuation of an existing non-conforming use; or (b) otherwise capable of approval under the Town of Claremont Local Planning Scheme No. 3 (the Town Planning Scheme). 19 The Judicial Review Application contended that in considering an application for a non-conforming use, the Council was required to determine whether the proposed use of the Property was in fact non-conforming. It was claimed that there was no information to conclude that the Council satisfied itself that the use of the Property prior to the gazettal of the Town Planning Scheme in 1999 was the same use that has 'continued since that time'. 20 The Judicial Review Application claimed that as a result the Council did not have the power to approve the Development Application on the basis that it was a non-conforming use and the decision to approve the Development Application was made without taking into account the accuracy of the 'non-conforming' status of the use of the Property. 21 The Judicial Review Application contended that even if it were found that the Property had historical non-conforming use rights, cl 24(1)(a) of the Town Planning Scheme provided that a -- 5 of 8 -- [2026] WASC 281 PALMER J Page 6 non-conforming use may continue 'for that identical purpose, but no other'. It was claimed that the Development Application cannot be said to be for an identical purpose as the previous use of the Property. 22 It was argued that the Decision was invalid because the Council incorrectly concluded that the Property was subject to non-conforming use rights and the proposed use of the Property was consistent with the historic use of the Property. How Ground 4 proposes to amend the Judicial Review Application 23 Proposed Ground 4 states that from 5 November 2022 until late May 2023: (a) the Property was not used continuously for the non-conforming use; and (b) that non-use of the Property for the non-conforming use was not exempted from cl 24(1)(b) by Ministerial Notice, with the consequence that use of the Property after 5 May 2023 for the relevant non-conforming use became unlawful. Why Mr Satchwell says he should have leave to amend 24 Mr Satchwell submitted that Pantry Group would not be prejudiced by the grant of leave to amend. He asserted that if leave to amend were granted now, Pantry Group would be in the same position as if Ground 4 had formed part of the original application. Further, he argued that the new ground did not raise any new cause of action, or seek any new relief. 25 Mr Satchwell contended that there had not been any undue delay. In this regard, he relied on evidence that he had only recently become aware that the Property had been closed for a period of six months and had not been exempted from cl 24(1)(b) by Ministerial Notice. Why I allowed the amendment application 26 In my view, it is in the interests of justice to permit Mr Satchwell to amend to rely on Ground 4. This is for five reasons. 27 First, the Judicial Review Application in its original terms contended that the use of the Property was not a continuation of an existing non-conforming use. While it is true that in its original terms, the Judicial Review Application referred to cl 24(1)(a) and not -- 6 of 8 -- [2026] WASC 281 PALMER J Page 7 cl 24(1)(b), the wording of cl 24(1) means that the two clauses are necessarily interconnected. The two clauses are worded as follows: NON-CONFORMING USES 24. (1) (a) Notwithstanding any other provision of the Scheme, if on the date when the Scheme comes into operation, any land or building or part of a building is being lawfully used for a purpose other than is permitted under this Scheme, it shall be lawful, subject to this Clause, and to any statute or By-law, to continue to use that land or building or that part of a building and any land directly ancillary thereto for that identical purpose, but no other. (b) If any premises entitled to a non-conforming use under this Clause are not used for a period of six (6) months continuously for the purpose authorised by this Clause those premises shall not thereafter be used otherwise than in conformity with this Scheme. (emphasis added) 28 It seems to me that the intention behind the use of the words 'subject to this Clause' in cl 24(1)(a) is that the operation of the sub- clause is subordinated to the operation of the balance of cl 24. Thus, if cl 24(1)(b) operates, cl 24(1)(a) does not. This means that consideration of the operation of cl 24(1)(a), necessarily requires consideration of the operation of the other subclauses of cl 24(1), including cl 24(1)(b). 29 Secondly, Mr Satchwell filed the Judicial Review Application within time. Mr Satchwell has proffered an explanation for his delay in seeking its amendment on oath. 30 The Pantry Group has sought to dispute the merit of that explanation. It contended that the evidence suggested that Mr Satchwell always knew of the facts upon which his claim relied, even if he might not have fully appreciated the legal consequences of those facts. Even if this is true, in the particular circumstances of this case, I do not consider that this is a case in which the delay is unexplained. 31 Thirdly, the point raised by Ground 4 seems relatively narrow to me. The resolution of the ground is likely to turn mostly on legal argument. 32 Fourthly, it did not seem to me that the Pantry Group would be in any different position if the amendment were allowed now than if Mr Satchwell had included the ground from the outset. For example, -- 7 of 8 -- [2026] WASC 281 PALMER J Page 8 there is no suggestion that evidence has been lost, or that a hearing would need to be delayed if the amendment were granted. 33 Fifthly, I do not consider that the new issues raised by Ground 4 are so devoid of merit to warrant refusal of leave to amend. 34 The Pantry Group disputes Mr Satchwell's entitlement to the relief he seeks. The issues raised are not unique to Ground 4 and arose in relation to the relief sought by the Judicial Review Application in its original terms, however. Even if leave to amend in terms of Ground 4 were refused it would be necessary to address those issues later. Given this, I do not consider it appropriate to express any concluded view about the merits of those arguments at this stage. 35 The Pantry Group also sought to advance arguments regarding the merit of Ground 4 that it will no doubt advance at the final hearing of the Judicial Review Application, if leave is given to include Ground 4. I did not consider that any of the arguments advanced were so unassailable or undoubtedly correct as to warrant the refusal of leave to amend. 36 Ultimately, it is sufficient to note that I do not consider that any of the arguments advanced warranted Mr Satchwell being precluded from amending the Judicial Review Application in the particular circumstances of this case. Conclusion 37 For all of these reasons, I allowed Mr Satchwell to amend the Judicial Review Application to include Ground 4. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SK Associate to the Hon. Justice Palmer 9 JULY 2026 -- 8 of 8 --