Atlas Point Pty Ltd v Western Australian Planning Commission
[2014] WASC 26
•31 JANUARY 2014
ATLAS POINT PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2014] WASC 26
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 26 | |
| Case No: | GDA:1/2013 | 19 AUGUST 2013 | |
| Coram: | SIMMONDS J | 31/01/14 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal on all grounds granted Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ATLAS POINT PTY LTD PRO INVESTMENTS AUSTRALIA PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Administrative law Review of decision of State Administrative Tribunal on questions of law Deemed refusal of application for approval of proposed development to permit location of major department store at shopping centre in Bunbury outside Bunbury CBD Whether Tribunal had regard to matter that was not a relevant planning consideration Whether Tribunal applied planning framework inflexibly Whether Tribunal failed to take into account relevant planning consideration |
Legislation: | Planning and Development Act 2005 (WA), s 241, s 27, s 252, s 253 State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 105 |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262; [1999] NSWLEC 246 Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 Craig v State of South Australia (1995) 184 CLR 163 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 Goldrange Pty Ltd and Western Australian Planning Commission [2010] WASAT 52 J M Watson & Associates v Auburn Municipal Council [1972] 1 NSWLR 84 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Khan v Minister for Immigration and Ethnic Affairs (Unreported, FCA, 11 December 1987) Kouflidis v City of Salisbury (1982) 29 SASR 321 Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Penley v Development Assessment Commission (1995) 88 LGERA 102 R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 R v Westminster City Council; Ex parte Monahan [1989] 2 All ER 74 Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119; [2005] NSWCA 205 Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116 Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281 Tah Land Pty Ltd and Western Australian Planning Commission [2008] WASAT 227; (2008) 60 SR (WA) 280 Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 Tesco Stores Ltd v Dundee City Council (Scotland) [2012] UKSC 13 Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259 Zampatti v Western Australian Planning Commission [2010] WASCA 149 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Appellant
PRO INVESTMENTS AUSTRALIA PTY LTD
Second Appellant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR P McNAB (SENIOR MEMBER)
- MR P DE VILLIERS (SENIOR SESSIONAL MEMBER)
Citation : ATLAS POINT PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2013] WASAT 33
File No : DR 391 of 2011
Catchwords:
Administrative law - Review of decision of State Administrative Tribunal on questions of law - Deemed refusal of application for approval of proposed development to permit location of major department store at shopping centre in Bunbury outside Bunbury CBD - Whether Tribunal had regard to matter that was not a relevant planning consideration - Whether Tribunal applied planning framework inflexibly - Whether Tribunal failed to take into account relevant planning consideration
Legislation:
Planning and Development Act 2005 (WA), s 241, s 27, s 252, s 253
State Administrative Tribunal Act 2004 (WA), s 17, s 27, s 105
Result:
Leave to appeal on all grounds granted
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : Mr C G Colvin SC
Second Appellant : Mr C G Colvin SC
Respondent : Mr C S Bydder
Solicitors:
First Appellant : Hotchkin Hanly
Second Appellant : Hotchkin Hanly
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33
City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262; [1999] NSWLEC 246
Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276
Craig v State of South Australia (1995) 184 CLR 163
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
Goldrange Pty Ltd and Western Australian Planning Commission [2010] WASAT 52
J M Watson & Associates v Auburn Municipal Council [1972] 1 NSWLR 84
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Khan v Minister for Immigration and Ethnic Affairs (Unreported, FCA, 11 December 1987)
Kouflidis v City of Salisbury (1982) 29 SASR 321
Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Penley v Development Assessment Commission (1995) 88 LGERA 102
R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322
R v Westminster City Council; Ex parte Monahan [1989] 2 All ER 74
Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119; [2005] NSWCA 205
Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116
Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511
Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281
Tah Land Pty Ltd and Western Australian Planning Commission [2008] WASAT 227; (2008) 60 SR (WA) 280
Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196
Tesco Stores Ltd v Dundee City Council (Scotland) [2012] UKSC 13
Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259
Zampatti v Western Australian Planning Commission [2010] WASCA 149
- SIMMONDS J:
Introduction
1 This is an appeal by application for leave to appeal against a decision of the State Administrative Tribunal (SAT). That decision was to dismiss an application to SAT to review the (deemed) refusal of a proposal made by a development application to significantly expand an existing shopping centre in Bunbury in this state to accommodate the addition of a major department store to the centre. The reasons for that decision were published as Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33 (Atlas Point WASAT). The shopping centre was Bunbury Forum. Bunbury Forum was located outside the Bunbury Central Business District (the Bunbury CBD).
2 The applicable policy framework was to the effect that such a development in Bunbury should take place in the Bunbury CBD.
3 I begin these reasons by describing the background, including the applicable policy framework.
4 Then I describe SAT's reasons, focussing upon its summary of its findings and its statement of its conclusions as well as matters in those reasons those conclusions directly refer to.
5 Then I describe the proceedings before me, including the modified grounds of appeal.
6 I then consider each of the grounds.
7 The final section of these reasons is my conclusion and call for orders.
Background: the applicable policy (planning) framework
8 The matters here and in the next section of background are not in contest and are largely drawn from Atlas Point WASAT. The appellants before this court were the applicants before SAT. The respondent before this court was the respondent before SAT.
9 Bunbury Forum is about 3 km from the Bunbury CBD.
10 The site of Bunbury Forum at all material times was zoned Urban under the Greater Bunbury Region Scheme (GBRS). That site at all material times was also zoned Shopping Centre under the City of Bunbury Town Planning Scheme Number 7 (TPS 7).
11 The Bunbury CBD at all material times was zoned Regional Centre under the GBRS and City Centre under TPS 7.
12 As quoted in Atlas Point WASAT [24] the GBRS in cl 12(a) and (c) respectively describes the 'purposes' of the Urban and Regional Centre zones as:
(a) Urban to provide for residential development and associated local employment, recreation and open space, shopping, schools and other community facilities;
…
(c) Regional Centre the Bunbury [CBD] within which commercial, civic, cultural, service and administration activities serving the region are located[.]...
13 As quoted in Atlas Point WASAT [22] the GBRS cl 5(e) describes certain 'purposes' of the scheme it provides for as including:
... [the provision of] a mechanism for certain development of regional significance, and development in areas of regional significance, to be considered and approved by the Commission; ...
14 As quoted in Atlas Point WASAT [23] the GBRS in cl 6(a) sets out certain of its 'aims' as including:
... [the promotion of] sustainable development of land taking into account relevant environmental, social and economic factors;
15 As quoted in Atlas Point WASAT [36] TPS 7 in cl 4.2.1.3 sets out the 'broad objectives' of the Shopping Centre zone as:
4.2.1.3 Shopping Centre zone To accommodate suburban shopping centres and such other uses as the local government considers appropriate to the suburban shopping centre function including, but not limited to, retail shopping, office, other approved commercial development, social, recreational and community activities and facilities.
16 As quoted in Atlas Point WASAT [36] TPS 7 sets out the 'broad objectives' of its City Centre zone as:
4.2.1.2 City Centre zone To provide for a broad range of uses including administrative, civic, cultural, entertainment, educational, residential, recreational, retail and hospitality/tourist as well as other commercial functions and activities which assist in maintaining and promoting the primacy of the Bunbury [CBD]
(a) within the local government area; and
(b) as the Regional Centre within the Bunbury Wellington Region.
As a general principle, the LPSACN favours maintaining unrestricted development potential in the Bunbury CBD, with appropriate restrictions placed on the type and intensity of development in all other commercial locations. Importantly, the LPSACN suggests, at 45, that 'it will be absolutely essential for any full line department store to be located within the Bunbury CBD' [38].
18 On 16 March 2012 the respondent adopted the Activity Centres for Greater Bunbury Policy (the ACGBP). As quoted in Atlas Point WASAT [26] the ACGBP says:
The Activity Centres for Greater Bunbury Policy is based on the principles of State Planning Policy 4.2 Activity Centres for Perth and Peel. The Activity Centres for Greater Bunbury Policy will be included in the State Planning Framework as set out in Statement of Planning Policy No. 1 State Planning Framework Policy and will apply to the area within the boundaries of the Greater Bunbury Region Scheme. It will specify broad planning requirements for the planning and development of new activity centres and the redevelopment and renewal of existing centres within the City of Bunbury and the Shires of Capel, Dardanup and Harvey. The policy is mainly concerned with the distribution, function, broad land use and urban design criteria of activity centres and with coordinating their mixed land uses and infrastructure planning.
19 As quoted in Atlas Point WASAT [27] the ACGBP refers to an 'activity centre' as follows:
[They are] community focal points within cities and towns. They are the central nodes that provide a diverse range of services, facilities and activities to enable residents, workers and visitors to participate as part of the community.
20 As quoted in Atlas Point WASAT [28] the ACGBP establishes policy objectives for an 'activity centre hierarchy' (cl 2, Table 1) as to:
[d]istribute activity centres to meet different levels of community needs and enable employment, goods and services to be accessed efficiently and equitably by the community.
21 As quoted in Atlas Point WASAT [29] the ACGBP also says its objectives include to:
[a]pply the activity centre hierarchy as part of a long-term and integrated approach by public authorities and private stakeholders to the development of economic and social infrastructure.
22 As quoted in Atlas Point WASAT [30] (emphasis added), the ACGBP says in cl 3.1:
(3) The responsible authority should consider the main role/function and typical characteristics for each centre type outlined in Table 2 [see below] and should not support activity centre structure plans or other structure plans, scheme amendments or development proposals that are likely to:
• undermine the activity centre hierarchy or the policy objectives;
- …
(4) The responsible authority shall not approve major development of activity centres unless a retail sustainability assessment and an activity centre structure plan have been prepared and endorsed in accordance with clause 3.2 and clause 3.3, respectively …
(5) This policy has identified the Bunbury central business district (CBD) as the only centre within the City centre hierarchy as it is considered to be the prominent focal point for Greater Bunbury. Proposals for any of the other centres that would undermine the primacy of the CBD would need to be justified in accordance with this policy.
23 As noted in Atlas Point WASAT [32] ACGBP Table 2 sets out functions and typical retail types in various centres:
'Department Stores' are included in typical retail types for the Bunbury CBD but are not included in typical retail types of any other centres.
Background: the development application
24 The appellants are developers.
25 In February 2007 the appellants began negotiating with a national department store for a lease for a department store to be added to the Bunbury Forum (the department store project). The negotiations were subject to obtaining the required planning approval.
26 On 13 May 2011 an application (the development application) was lodged with the City for planning approval of an expansion of the Bunbury Forum to accommodate the department store project (the proposed development). The proposed development required determination by the City under TPS 7.
27 On 26 May 2011 the City referred the development application to the respondent. Its determination in accordance with the GBRS was required, as the proposed development had 'regional significance'. That determination under the GBRS was required to be made within 90 days of receipt of the development application.
28 The appellants agreed to two extensions of that period. However, the appellants refused the respondent's further request for a further extension sought to enable the respondent to undertake a number of supplementary investigations.
29 This had the effect that on 21 October 2011 the development application was deemed to have been refused (the deemed refusal).
30 On 18 November 2011 the appellants applied to SAT for a review of the deemed refusal (the application for review).
31 On 25 September 2012 the City resolved to approve the proposed development (the City's approval).
32 On 29 and 30 November and 3 and 4 December 2012 hearings of the application for review were held before Senior Member Mr P McNab and Senior Sessional Member Mr P De Villiers of SAT.
33 On 5 March 2013 SAT delivered Atlas Point WASAT. The decision was to dismiss the application for review and to affirm the deemed refusal (the decision).
34 The decision was implemented by orders made on 6 March 2013.
SAT's reasons
35 Here I describe those reasons in sufficient detail to enable an understanding of the modified grounds of appeal before me, as well as to collect in one place those matters from the decision which the parties accept are fundamental to the outcome of this appeal.
36 After describing the factual background and the planning framework in terms from which my background above is drawn (Atlas Point WASAT [6] - [39]), SAT described the parties' positions as to the issues [40] - [41], and provided its statement of the 'substantive issue' as follows:
As the ACGB Policy is a policy to be applied in the context of decisionmaking under the GBRS, the essential differences between the parties on the issues to be decided are perhaps more apparent than real. And, having now received all of the evidence and having considered the matter, the Tribunal can restate the substantive issue under review here as: whether, based on the circumstances of this particular case, the relevant provisions of the ACGB Policy should be departed from and, if so, on what basis. In other words, should the proposed department store be permitted to be developed at Bunbury Forum?
Essentially, the applicants' case revolves around the more or less positive commercial indications of a major department store operator; the practical and economic advantages of the Bunbury Forum site; and the various difficulties that potentially exist with the location of such a store in the Bunbury CBD. In short, the applicants seek to show that a good case can be made out for departing from the respondent's planning framework [42] - [43].
- As will be seen the appellants find in those paragraphs a 'hint' of what they say is the underlying error in law made by SAT.
37 SAT then described the principles it identifies as applicable to making its decision (Atlas Point WASAT [44] - [47]), by reference to McLeod D (ed), Planning and Development WA [18.921.56] referring to Goldrange Pty Ltd and Western Australian Planning Commission [2010] WASAT 52 from which SAT noted [76]; Tesco Stores Ltd v Dundee City Council (Scotland) [2012] UKSC 13 [28]; and Tah Land Pty Ltd v Western Australian Planning Commission [2009] WASC 196 (Tah Land WASC), reversing Tah Land Pty Ltd and Western Australian Planning Commission [2008] WASAT 227; (2008) 60 SR (WA) 280 and the summary of Tah Land WASC in McLeod [18.140.10].
38 SAT then provided a review of the 'experts' evidence' (Atlas Point WASAT [49] - [84]). The witnesses whose evidence is reviewed included a Mr Cuzens, the Managing Director of Atlas Point, called by the applicants; a Mr Rumbold, a 'retail expert witness' [52], called by the respondent; a Mr Dimasi, a 'retail expert witness' [57], called by the applicants; a Mr Collins, a quantity surveyor [69], called by the applicants; a Mr Bownes, an architect [67], called by the applicants; and a Mr Caddy, an 'expert planning witness' [76], called by the applicants.
39 SAT then provided the following analysis and findings [85]:
Having visited the two competing sites and their surrounds, and having carefully analysed and considered the extensive evidence that we have received in the review, the Tribunal is satisfied, for the reasons which appear below, as to the following matters:
1) At present, there is unlikely to be any realistic prospect of a large department store being established anywhere in Bunbury in the foreseeable future. This period may extend out as far as five years: see, for example, the evidence of Mr Cuzens set out above (referring to the advice that he had received as at May 2012 from a major department store operator) and the evidence on the same point, which was consistent with this position, from Mr Dimasi.
2) From the current viewpoint of any potential commercial department store operator, if and when a store were to be established in Bunbury, the existing Bunbury Forum site would be likely to be the most attractive potential site for the establishment of such a store: on this point, see the concessions made by Mr Rumbold, referred to above in the summary of his evidence, in relation to the practical limitations of applying the aspirations of the current policy framework. Further, there is the evidence of Mr Collins, which was that the construction costs were likely to be higher within the Bunbury CBD than at Bunbury Forum. He was not relevantly contradicted on this aspect of his evidence.
3) Speculation on any 'alternative' or competing site for a department store to be found in Mandurah, a possibility which was raised by some witnesses, carries next to no weight in relation to the critical issues concerning Bunbury which are actually before the Tribunal.
4) At present, the Bunbury CBD has a number of evident, site-specific limitations (which include the need to 'reorganise' access, car parking and traffic flow; potential difficulties in integrating into or with existing commercial operations; and the limited number of available sites of an appropriate size within the retail core of the CBD). The logistics and the public and private costs of overcoming these restrictions or impediments are likely to be not inconsiderable: see, for example, the evidence of Mr Bownes, referred to above, on the 'deficiencies' of the CBD area which did not affect the Bunbury Forum site. We have already drawn attention to the related concessions made by Mr Rumbold on this issue (see paragraph 2 above).
5) If a department store were to be eventually established, other than in the Bunbury CBD, there would be a net negative economic effect (in terms of diminished retail activity) on commercial/business activity in the CBD. This net negative effect could be initially in the range of 9% to 15%: see the relevant estimates in this area of somewhat imprecise 'science' found in the respective evidence of Messrs Rumbold and Dimasi, summarised above.
6) The extent of the negative economic and social impacts on the CBD was a key point of difference between these two experts. For present purposes, it is unnecessary to say which of these figures (that is, the lowest or the highest, or something else) is to be preferred. This is because, on any view, the impact could be fairly regarded as significant on a centre showing some signs of vulnerability, and the policy framework is predicated, at least in part, upon preventing the risk of such an impact.
7) There is also a consequential and related concern about the general undermining of confidence in the retail future of the CBD and its ensuing effects: see, for example, the evidence of Mr Rumbold, summarised above. Such a loss of confidence may well start from around the time that any announcement were to be made that the published goal of siting a department store in the CBD had effectively been abandoned.
8) The regional planning framework is soundly based on providing an activity centre hierarchy, the theory of which is wellestablished in planning law and practice. Regulators are entitled to establish such goals. Thus, the notion that the Bunbury CBD could be identified as having, in effect, presumptive priority in terms of relevant development is a logical and rational planning goal. This is so, notwithstanding that there may be short- to mediumterm site specific limitations concerning the CBD that appear to hinder the effective implementation of this goal. However, we can assume that such matters would have been well-known to both the authors of, and the organisations issuing, such policies.
9) In short, the relevant, specific planning framework with which we are presently concerned seeks to enhance longer term planning for both the City and the wider region, partly to prevent the potential damage to the CBD's economic activity by competing development occurring outside the CBD which may undermine the hierarchy of identified centres.
10) Any development decision of any relevant decision-maker (including the Tribunal) must acknowledge these firm, soundly-based planning and policy goals but, absent any statutory prohibition, regard must also be had to matters of commercial likelihood and any 'on the ground' practical limitations (if significant).
40 It was not put to me that those findings could not properly be drawn from the evidence on which SAT relied.
41 SAT then set out its conclusions as follows [86] - [89]:
Weighing all of these matters, the Tribunal has concluded that, absent a firm commitment to develop a major department store by a relevant operator, and given the likelihood that no such store would be, in any event, established anywhere in Bunbury in the foreseeable future (nor, it seems, in the medium term), and further given the potentially adverse impacts on Bunbury CBD retailing activity if planning approval were to be given, we are not satisfied that, at present, a sufficient case has been made out for what must be seen, on any view, as a significant departure from the planning framework, a departure that would not only deviate from two critical policies but would also tend to undermine the regional zoning of the CBD site. And this is so notwithstanding the currently acknowledged CBD site-specific constraints.
As is well understood, the public planning process includes resolving these last-mentioned issues so that the legitimate aspirations found in the planning framework may be translated into reality. This is at the heart of orderly and proper planning. Thus, we respectfully do not accept Mr Caddy's view 'that an outcome in accordance with the policy is [not] possible'.
In the circumstances then, this case is not about the decision-maker and this Tribunal 'inflexibly' applying planning policy. It is more a case where the factors and extensive material put forward by the applicant to date, which have been carefully considered, do not negate the well-recognised presumptive authority of soundly based, transparent and directly applicable planning policies aimed at a wider public interest and reflected in the planning framework. As was recognised by this Tribunal in Hawkins and City of Joondalup [2008] WASAT 64 at [38] [39]:
'… it is axiomatic that modern planning laws contain many restrictions "which they have long imposed upon an owner's right to develop and use land without regulation (including the development which is most financially beneficial)": Tolocorp Pty Ltd v Noosa Shire Council [2007] 3 QPELR 362, at 365, per Fryberg J. Similarly:
"[T]he bundle of rights involved in a fee simple are greatly modified by social considerations imposed under planning laws and by many restrictions upon ownership under local government laws, health and taxing laws."
CBC Properties Limited v Parramatta City Council, (unreported, [BC9202770], Land and Environment Court of New South Wales, Bannon J, 20 November 1992), emphasis added. So too, Jacobs J in Church of England Collegiate School of St Peter v St Peters Town Council (No 2) (1990) 71 LGRA 309 at 312 (emphasis added [none appears in Atlas Point WASAT, however] ):
"Planning law is essentially for the protection of the public interest and restricts private rights only to the extent necessary to protect the public interest as expressed in the [planning framework]." '
The proceedings before me
42 By appeal notice dated 28 March 2013 the appellants appealed against the decision.
43 The appeal was under State Administrative Tribunal Act 2004 (WA) (SAT Act), s 105(1), which with s 105(2) provides that appeals to the Supreme Court from decisions of SAT lie only by leave of the court, and only on a question of law. As the decision was made by SAT constituted otherwise than by including a judicial member, by s 105(3)(b) the appeal of the decision lay only to the Supreme Court exercising its jurisdiction other than as the Court of Appeal.
44 By orders made by Hall J under the Rules of Supreme Court 1971 (WA) O 65 r 4 inter alia the application for leave to appeal was referred to the hearing of the appeal.
45 At the hearing before me on 19 August 2013 the appellant applied to amend its grounds of appeal and there being no objection to the proposed amendments I granted the application.
46 The amended grounds of appeal are as follows (the amended grounds).
1. [SAT] erred in law in considering the likelihood as to whether and if so when the development approval for a department store sought by the appellants would be acted upon by undertaking the proposed development and in doing so:
(a) failed to exercise the jurisdiction entrusted to [SAT] according to law; and
(b) took into account an irrelevant consideration.
2. [SAT] erred in law in inflexibly applying a planning policy relating to activity centres for the Greater Bunbury area and identified Bunbury CBD as the only regional centre in Bunbury and the only centre in which department stores were included as typical retail types (and other policies to similar effect) without having regard to planning considerations that would justify a departure from the policy in the particular circumstances of the case, particularly the evidence to the effect that it was unlikely that the Bunbury CBD could accommodate a department store at any time in the foreseeable future by reason of CBD site-specific constraints and the evidence as to the critical importance for the Greater Bunbury area of a department store being located in Bunbury.
3. [SAT] erred in law in failing to take into account the critical importance for the Greater Bunbury area of a department store being located in Bunbury which was a relevant planning consideration that [SAT] was required to take into account.
47 It was not put to me that any of the amended grounds did not allege an error of law for the purposes of SAT Act s 105. I consider each ground should be so viewed.
48 I should now indicate why I so view each ground, and what from the hearing before me I see to have been the nub of the question of law raised by each ground.
49 Ground 1 puts an error of law as indicated by Craig v State of South Australia (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron & McHugh JJ). Whether the matter of the likelihood of the proposed development going ahead was a relevant consideration was the nub of the question raised by ground 1.
50 Ground 2 puts an error of law as indicated in Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522, 525 - 527, 529 - 530 (Nicholson J, Pidgeon J agreeing), 540 (Ipp J); see also Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276 [26] - [28] (Barker J); and Tah Land WASC [40] ff, esp [52] (Simmonds J). Whether SAT inflexibly applied the planning policy referred to in the ground was the nub of the question raised by ground 2.
51 Ground 3 puts an error of law of the kind as indicated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 - 41 (Mason J); see also Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 [57] (Buss JA, Wheeler & Pullin JJA agreeing). Whether SAT was bound to take into account the consideration referred to in the ground was the nub of the question raised by ground 3.
52 I turn now to consider each of the amended grounds in the order listed.
The amended grounds: 1 - taking account of the likelihood of the proposed development going ahead
53 It was not in question that SAT took account in the decision of its assessment of the likelihood of a department store being established in Bunbury, including under the proposed development as well as in the Bunbury CBD. There were findings of fact in those regards by SAT and express reference to those findings in SAT's conclusions.
54 As to the findings of fact in those regards so referred to, see Atlas Point WASAT [86], first five lines, read with [85] 1), referring to the evidence of Mr Cuzens (see [49]) and Mr Dimasi (see [57]).
55 Those findings of fact were that there was unlikely to be any realistic prospect of a large department store being established anywhere in Bunbury in the foreseeable future, where that period might extend out as far as five years. See Atlas Point WASAT [85] 1).
56 It was not in contest that this was a finding open to SAT on the evidence before it. Had such a finding not been open to SAT, in that it made a finding which was manifestly unreasonable, in the sense no reasonable tribunal could have made that finding, there would have been an error of law: Paridis [56]. No such error was alleged.
57 It was not in contest that in making the decision SAT was exercising its review jurisdiction by virtue of Planning and Development Act 2005 (WA) s 253(3) read with s 252(2) requiring it to proceed by way of a hearing de novo to produce the correct and preferable decision: see SAT Act s 17 read with s 27(1) and (2).
58 Nor was it in contest that in determining the application by making that decision SAT was required by Planning and Development Act s 241(1) to have 'due regard to relevant planning considerations' with the specific inclusions in that sub-section. The term 'planning considerations' is one of 'broad import' which is not limited to those inclusions: see Zampatti v Western Australian Planning Commission [2010] WASCA 149 [121] (source of quotations) - [123] (Kenneth Martin J).
59 It was also accepted that the term is capable of including all considerations relating to the use and development of land, and is not limited to matters relating to amenity. See Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, 1294 - 1295 (Cooke J) (QBD).
60 However, for the appellants it was contended that SAT's finding was not capable of being a relevant planning consideration.
61 That contention rested on a body of authority to which senior counsel for the appellants directed my attention. That body of authority, as I understood the submission, was said to support the proposition that the prospect of a proposed development the subject of an application not being carried out was a relevant consideration only if there were some consequence for the planning aspects of the proposed development.
62 My attention was directed in particular to authorities which state that 'financial hardship, economic feasibility and similar considerations and evidence respecting them, as a matter of law are inadmissible': J M Watson & Associatesv Auburn Municipal Council [1972] 1 NSWLR 84, 88 (Else-Mitchell J) (citation omitted) (Land and Environmental Court); and that the conduct or motivation of an applicant are not relevant planning considerations, and decision makers like SAT are not equipped to deal with allegations as to those matters: Low v Swan Cove Holdings Pty Ltd [2003] WASCA 115 [181] (Roberts-Smith J), referring to Kouflidis v City of Salisbury (1982) 29 SASR 321, from which see 323 - 324 (King CJ) as quoted in Low [174].
63 However, in my view, as other authorities including those cited by the appellants indicate, considerations like those of the likelihood of a proposed development going forward are capable of being a planning consideration if such considerations go to a planning aspect of the proposed development. Indeed, I understood the submissions for the appellants so to accept, as I have indicated.
64 An example of a case so indicating in my view is that of a proposed development which it was probable or likely could not be effectively maintained with the result that the amenity of its locality would be substantially impaired. See Penley v Development Assessment Commission (1995) 88 LGERA 102, 108 - 109 (Prior J, Cox & Lander JJ agreeing) (SA Supreme Court, Full Court).
65 Another example of such a case is that of a proposed development which was otherwise desirable but could not be effectively maintained without a feature that considered on its own was not desirable. See R v Westminster City Council; Ex parte Monahan [1989] 2 All ER 74, 96 (Kerr LJ), 102 - 103 (Nicholls LJ), 104 (Staughton LJ) (CA).
66 True it is that there is clear authority that on its own economic competition feared or expected from a proposed development is not a relevant planning consideration: Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 681 (Barwick CJ), 687 (Stephen J). At the same time that authority indicates that some prospect of an adverse effect on the amenity of the locality from the proposed development not made good by the proposed development itself would be capable of being a proper consideration: see (687).
67 In my view that body of authority, and others cited by the respondent which I will shortly reach, support the proposition contended for by the appellants.
68 However, it was common ground in this case that a planning aspect of the proposed development was the planning framework which it was common ground the appellants by seeking the approval of the proposed development sought to have the respondent depart from. See Atlas Point WASAT [42].
69 The appellants as I understood their submissions sought to meet the contention, made by the respondent, that the likelihood of the proposed development going forward was on the reasons of SAT matter going to that planning aspect in the following way.
70 The appellants submitted that SAT had refused the application simply on the basis of SAT's view that the application was 'pointless'; and on SAT's view the application was pointless because the proposed development was not likely to proceed. This in the language of ground 1 was not only SAT taking into account an irrelevant consideration, namely, the likelihood of the proposed development going ahead without regard to any consequences for the planning aspects of the proposed development, but was also SAT failing to exercise its jurisdiction by failing to consider, if the approval were given and acted upon, what would be the consequences.
71 However, in my view, on a fair reading of SAT's conclusions considered with its findings, in Atlas Point WASAT [85] - [89], SAT did not take into account the likelihood of the proposed development going ahead without regard to the planning aspects of the proposed development as I have identified those aspects.
72 There was no contest that the proper approach for the court to take to reading the reasons of SAT is that the court should not be 'concerned with looseness in the language … nor with unhappy phrasing'; and it should not construe those reasons 'minutely and finely with an eye tuned to the perception of error': Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259 [5] (Edelman J) (citing authorities).
73 On that approach, particularly having regard to Atlas Point WASAT [89], I consider SAT took account of its view of the likelihood of the development going ahead having regard to the planning aspects of the proposed development in the respect I have indicated, as a departure from the planning framework.
74 Further, it seems to me, on the authorities cited by the appellants of Penley, Westminster City Council and Kentucky Fried Chicken, that SAT did not err by failing in those circumstances to proceed on the assumption that planning approval would be acted upon. A requirement for it to do so is, on my reading of those authorities, inconsistent with them.
75 Further support for the view that there is no such requirement is in my view to be found in the additional authorities cited by the respondent of City West Housing Pty Ltd v Sydney City Council (1999) 110 LGERA 262; [1999] NSWLEC 246 [128] - [147] (Bignold J); and Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119; [2005] NSWCA 205 [33] - [39] (Basten JA, Giles & Santow JJA agreeing).
76 I further note Planning and Development Act s 27(a), which indicates that 'demographic, social and economic factors and influences' are capable of being relevant planning considerations.
77 I further consider that the authorities cited in the paragraph before last support the view that at least in some circumstances the court will be equipped to make a determination of the likelihood referred to in Atlas Point WASAT [86]. As I have noted it was not contended here that that determination was not open to SAT.
78 It follows I would not uphold ground 1.
The amended grounds: 2 - inflexible application of planning policy
79 I did not understand it to be in contest that SAT applied as the applicable planning framework the planning policies and the regional centre zoning of the Bunbury CBD it identified. The planning policies it identified were those identifying the Bunbury CBD as the only activity Centre in Bunbury in which department stores were identified as typical retail types and stating it was 'absolutely essential for any full line department store to be located within the Bunbury CBD'. See Atlas Point WASAT [86] ('two critical policies') read with [32] (ACGBP) and [38] (LPSACN) (source of other quotation). The regional centre zoning of the Bunbury CBD SAT identified was that defined in the GBRS. See [86] ('undermine the regional zoning of CBD site') and [73].
80 I further understood it not to be in contest that the matters just referred to were relevant planning considerations.
81 It was not in contest that SAT indicated in the decision a preparedness to be persuaded to depart from the planning framework: see Atlas Point WASAT [5].
82 However, as the submissions for the appellants indicated, it is clear law such an indication will not prevent a determination being made that the merits of a departure from planning policy had not been given consideration in a real sense.
83 The appellants drew my attention in this regard to certain passages from Falc, Clive Elliott Jennings and Tah Land WASC. I consider it is only necessary to set out the passages referred to from the first two of those authorities.
84 From Falc (526 - 527) I note the following quotation with evident approval from Khan v Minister for Immigration and Ethnic Affairs (Unreported, FCA, 11 December 1987) 11 - 12 (Gummow J), as follows:
[W]hat was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy: … The assertion by a decision-maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense: (citations and statement of application of the principle to the case omitted)
85 I also note from Falc the following:
On the face of the Tribunal's reasons it was prepared to be persuaded to depart from what it regarded as the applicable policy. However, in reaching the conclusion that proper controls can only be achieved by application of the policy, the Tribunal failed to give proper, genuine and realistic consideration to the merits of the case in that it did not properly consider whether the requisite level of control could be achieved by other means (529).
- See also Tah Land WASC [43], [52].
86 I further note Clive Elliott Jennings as follows.
In some cases, the Commission may have adopted a set of planning principles which it, for the sake of convenience, has called a 'policy' and which is stated to be relevant to subdivision applications. In such cases, the document is not a 'policy' given force by the Town Planning and Development Act, but, nonetheless, it may be relevant to the exercise of its discretion to approve or reject a particular plan of subdivision lodged with it. If the Commission has adopted such a 'policy', and it is relevant to the application, the policy will be expected to guide the exercise of discretion. However, the existence of such a 'policy' is not intended to replace the discretion of the Commission in the sense that it is to be inflexibly applied regardless of the merits of the particular case before it. Notwithstanding this understanding, the relevant consideration in many applications will by [sic be] why the 'policy' should not be applied; why the planning principles that find expression in the 'policy' are not relevant to the particular application. Good public administration demands no less an approach [24].
87 For the appellants it was submitted that when the decision was properly analysed SAT had not given proper, genuine and realistic consideration to the merits of the appellants' case before them. That case was the reasons why the planning framework should be departed from. Those reasons were the practical limitations in applying a policy consistent with the planning framework; and the substantial benefit to the amenity of Bunbury of having a department store located at Bunbury Forum. Proper, genuine and realistic consideration of those reasons required an assessment by SAT of the degree of likelihood of the location of a department store in the Bunbury CBD in light of those practical limitations; an assessment by SAT of whether there was, and the extent of, a benefit to the Bunbury area of the location of a department store at Bunbury Forum; and the weighing by SAT of those assessments against the policy framework.
88 For the appellants it was submitted that there was no statement in the decision of either assessment. Absent such an assessment it could not be said there was any weighing of those matters.
89 The appellants accepted that the weight to be given to such assessments was a matter for SAT, absent assignment of such little or such great weight as to make the decision based on such weight manifestly unreasonable. I consider that the matter of such weight is to be so viewed: see Tah Land WASC [48], citing authority. The appellants did not contend that there was any manifest unreasonableness in that sense here.
90 I accept that a failure to make a sufficient statement of an assessment of either of the two kinds referred to in the appellants' submissions would indicate a failure to take such matters into account. See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 [5] (Gleeson CJ).
91 As I understood the submissions for the appellants they were that, in the absence of a statement of either assessment in the decision (see in particular Atlas Point WASAT [85]), when taken with what might be drawn from [42] (see also [47], distinguishing Tah Land WASC), the underlying error in the decision was revealed. That error on those submissions was for SAT to look at why the policy framework should be applied and not to look at why the policy framework should not be applied. As I further understood the submissions it was that SAT had made the same kind of error as I found in Tah Land WASC: see [52].
92 However, in my view, there was no such error in this case. When the decision is read as I have indicated Narcom Holdings requires, there is a sufficient statement by SAT to indicate its assessment of each kind, assessments of which were open on the evidence before it. Further, there is a sufficient statement that those assessments were weighed against the policy framework.
93 As to the matter of SAT's assessment of the likelihood of the location of a department store in the Bunbury CBD in light of the site-specific constraints there, I locate that assessment in Atlas Point WASAT [87], where SAT states it 'did not accept' the view of Mr Caddy 'that an outcome in accordance with the policy is [not] possible', when that is read with the reference in [85] to the 'currently acknowledged CBD site-specific constraints' and with the reference in [89] to the possibility
in a future case, it was demonstrated, for example, that despite the apparent optimism of the City's officers, in fact, no substantial progress had been, or could be, made on resolving these site-specific constraints in the CBD.
94 I take the quoted passages as a statement that the assessment of SAT was that there was some possibility greater than nil that a department store would be located in the Bunbury CBD, notwithstanding the site-specific constraints.
95 There is also an (oblique) indication of that assessment in the finding in Atlas Point WASAT [85] 2) that, if and when a department store were to be established in Bunbury 'the existing Bunbury Forum site would be likely the most attractive potential site for the establishment of such a store' (emphasis added). See also [63] (evidence of Mr Shrapnel); and [82] (evidence of Mr Karaszkewych, Director of Planning and Development Services at the City, who was also the 'author of a report entitled "Investment Ready - Department Store Location Analysis", which identified a number of potential sites for a department store in the Bunbury CBD').
96 See further the evidence of Mr Rumbold in the transcript of the hearing before SAT (ts 224 - 225).
97 The appellants accepted that an assessment of the likelihood of the location of a department store in the Bunbury CBD as greater than nil was open to SAT. However, their contention was that SAT was required, if it was to give proper, genuine and realistic consideration of that likelihood, to state its assessment, by reference to its findings as to the site-specific constraints, of the quantum of that likelihood. Only in that way could it state an assessment capable of being weighed against the planning framework.
98 In my view, SAT was not so required.
99 It set out its findings as to the site-specific constraints in Atlas Point WASAT [85] 4). In my view it was not, and could not be, suggested those findings were not open to it: see [67] - [68] (evidence of Mr Bownes); and [54] (evidence of Mr Rumbold).
100 It also indicated that it assessed that there was 'unlikely to be any realistic prospect' of the location of a major department store anywhere in Bunbury 'in the foreseeable future' being a period that 'may extend out as far as five years' [85]. I discussed this assessment under ground 1 above. It seems to me that in view of that finding SAT allowed there was a possibility that in 'a future case' it might be 'demonstrated … in fact no substantial progress had been, or could be, made on resolving these site-specific issues' [89].
101 In view of that assessment of that prospect and that possibility, it is not apparent to me SAT was required, if it was to give proper, genuine and realistic consideration of the matter of the likelihood of the location of a department store in the Bunbury CBD in view of the site-specific constraints, to state its assessment of the quantum of that likelihood greater than nil.
102 As to the matter of SAT's assessment of whether there was, and the extent of, benefit to the Bunbury area from the location of a department store at Bunbury Forum, I locate that assessment in Atlas Point WASAT [89], read with [86].
103 In my view Atlas Point WASAT [89] so read clearly indicates the assessment of SAT that there was a benefit from such location sufficient so that, if no substantial progress had been, or could be, made on resolving site-specific constraints in the Bunbury CBD, and a firm commitment by a major department store operator emerged, a case might be made for SAT to depart from the policy framework.
104 In view of SAT's rehearsal of evidence of economic benefit to Bunbury and its region of establishing a department store at the Bunbury Forum, it is not apparent to me such a finding was not open to or made by SAT. See [56] (evidence of Mr Rumbold); [59] (evidence of Mr Dimasi); [63] (evidence of Mr Shrapnel); and [80] (evidence of Mr Caddy).
105 In my view Atlas Point WASAT [89], when read with [86], and with [85] 1) (the assessment of the prospect of the location of a major department store anywhere in Bunbury in the foreseeable future), clearly also indicates that the benefit was not sufficient to outweigh the policy framework, at least absent the indication of a realistic prospect of large department store being established anywhere in Bunbury within the foreseeable future, such as an indication of the firm commitment of a major department store operator.
106 In view of those indications of that assessment, it is not apparent to me SAT was required, if it was to give proper, genuine and realistic consideration of the matter of whether there was, and the extent of, benefit to the Bunbury region of having a department store located at Bunbury Forum, to state its assessment of the nature or quantum of that benefit to any greater extent than I have described.
107 As to the matter of SAT weighing the assessments described against the policy framework, it seems to me, in view of Atlas Point WASAT [86] and [89], it cannot be contended, if the assessments were brought to account, that SAT did not weigh them. It did not appear to me from the submissions for the appellants that they strongly contended otherwise if I did not agree with their submissions as to SAT not bringing the assessments described to account.
108 It follows I would not uphold ground 2.
The amended grounds: 3 - failure to take account of the critical importance of a department store in Bunbury
109 As the appellants put this ground to me, it drew on the same material from ground 2 as to the matter of the assessment of the benefit to the Bunbury region of the location of a department store at Bunbury Forum.
110 In my consideration of that ground, I have indicated that I consider SAT brought that matter to account in its reasoning, and how in my view it did so.
111 Senior counsel for the appellants did not, as I understood him, contend the matter was one which as a matter of construction of s 241 of the Planning and Development Act was required to receive a particular weight in SAT's decision-making process. However, in view of the reference to 'critical importance' in respect of this matter in the formulation of ground 3, I consider I need to deal with the matter of the weight of the consideration.
112 It seems to me that any submission the matter should have been taken into account as one of 'critical importance' - as opposed to simply one of which account should have been taken, that is, brought into account - must fail, for the reasons set out in Zampatti [131] - [137] (Kenneth Martin J) which I reproduce. In those paragraphs his Honour refers to Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511; R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; and Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116, as well as Peko-Wallsend, as follows:
The well-known approach as explained by Sir Anthony Mason in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24 applicable to weighing of multiple considerations, in my view, remains of force and guidance in the present context. His Honour said:
'It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: [citations omitted] I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene MR in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it (41 - 42).'
Of course there may be legislation which, by its express terms, specifically allocates a designated degree of priority to one or other identified criteria, within the overall decision-making process that must be followed: see, for example, Re Michael; Ex parte Epic Energy (WA Nominees) Pty Ltd. In particular statutory contexts it may become necessary in the overall analysis for the decision-maker to identify a 'fundamental element' within the evaluation process: see R v Hunt; Ex parte Sean Investments. But that is not this case.
These conclusions arise as a matter of the statutory construction of s 241(1), read in the overall context of the P&D Act 2005. They are confirmed in the statutory history of the provisions that preceded and, over time, evolved prior to the enactment of s 241, in the P&D Act 2005. The statutory evolution was helpfully explained in the written submissions of counsel for the respondent, tracing back to the Town Planning & Development Amendment Act 1976 (WA), and to a 'due regard' provision which first found its way into s 53 of the Former Planning Act.
Examination of the Parliamentary debates preceding the 2002 Amendment Act also confirms this conclusion. In dealing with the significance of Statements of Planning Policy (now SPPs) within a regime of Pt 3 of the new P&D Act 2005, the Minister for Planning and Infrastructure made the following observations in the Legislative Assembly on 21 August 2001: see Western Australia, Parliamentary Debates, Legislative Assembly, 21 August 2001.
The Minister said:
'I therefore move -
page 21, line 23 - To insert after "due regard to" the words "relevant planning considerations including".
The amendment will ensure that these are not the only policies to be included. We anticipate the provision will include, for example, council policies that do not have statutory force but policies that should be considered if relevant to the issue at hand.
…
we want the tribunal to have due regard to all relevant planning considerations. We believe the policies, such as community design guidelines and built form policies that various councils have in force from time to time, should also be taken into account (2448 - 2449).'
The Minister proceeded to observe:
'We recognise that there is a difficulty with the framing of this clause because it suggests that these policies are the only ones to be considered. We are therefore trying to broaden the clause by using the words "all relevant considerations". I hope the discussion tonight will provide some further guidance to the tribunal in that regard. (2449).'
The Former Planning Act was repealed, when the P&D Act 2005 came into force. However, s 241(1)(a) is in materially identical terms to s 61(1)(a) of the Former Planning Act, as it read, prior to repeal.
The extrinsic materials confirm that s 241(1)(a), correctly understood, does not carry any statutory indication as to a level of particular weight to be attached to SPPs, or for that matter, to any other factor which could qualify as a 'relevant planning consideration', in the overall decision-making process. A flexible weighing process in overall context, as was classically explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend above, is the applicable approach required for s 241(1), in my view. To the extent that any observations in Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [72], might be read to suggest a contrary evaluation approach is required by the decision-maker under s 241(1)(a) of the P&D Act 2005, I would respectfully disagree, based on the statutory analysis above, and applying Peko as the guiding rationale of legal principle.
113 It may be accepted, as is recognised in Zampatti [132] (see also [19] (Pullin JA, Buss JA agreeing)), that legislation may by its express terms or otherwise on its proper construction indicate that a decision-maker is to regard a particular consideration as a 'fundamental element' (or I would add of critical importance) in the decision-making process: see Hunt; Ex parte Sean Investments (329) (Mason J).
114 However, it cannot be said that a consideration which is not expressly or by implication, necessary or otherwise, indicated by Planning and Development Act s 241 to require special weight or importance in SAT's decision-making is such an element.
115 It follows I would not uphold ground 3.
Conclusion and call for orders
116 I conclude that, although I would give leave to appeal all three grounds, I would dismiss this appeal, as I would not uphold any of those grounds.
117 I will hear from the parties as to any other orders I should make.
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