Aznavour Pty Ltd v City of Mandurah

[2002] WASCA 320

AZNAVOUR PTY LTD & ORS -v- THE CITY OF MANDURAH & ANOR [2002] WASCA 320

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 320
Case No:	CIV:1378/2002	Heard:	7 OCTOBER 2002
Coram:	PARKER J MILLER J ROBERTS-SMITH J	Delivered:	2/12/02
No of pages:	23	Judgment Part:	1 of 1
Result:	Applications refused
Category:	B
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Parties:	AZNAVOUR PTY LTD (ACN 009 301 179) HOWSON NOMINEES PTY LTD (ACN 008 787 817) UNIVERSAL PTY LTD (ACN 009 445 425) THE CITY OF MANDURAH CENTRO PROPERTIES LTD (ACN 006 378 365)
Catchwords:	Administrative law Prerogative writ Certiorari Declaration Town planning Local council approval Whether rescission or variation of earlier condition of approval Whether revocation or variation of condition within power Whether relief sought futile Considerations of discretion in relation to prerogative relief
Legislation:	Nil
Case References:	Aznavour Pty Ltd & Ors v The City of Mandurah [2002] WASC 95 Jungar Holdings v Eurobodalla Shire Council & Anor (1989) 79 LGRA 70 Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd (1996) 91 LGERA 31 Mison & Ors v Randwick Municipal Council & Ors (1991) 23 NSWLR 734 R v Berri District Council; Ex parte H L Clark (Berri) Pty Ltd [1984] SASR 404 Re City of Perth; Ex parte Lord & Ors [2002] WASCA 254 Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254 Scott v Wollongong City Council (1992) 75 LGRA 112 Transport Action Group Against Motorways Inc v Roads and Traffic Authority & Anor (1999) 46 NSWLR 598 Varney v Parole Board (WA) (2000) 23 WAR 187 Auburn Municipal Council v Szabo & Anor (1971) 67 LGRA 427 Corporation of the City of Adelaide v City of Salisbury (1998) 100 LGERA 160 Drummoyne Municipal Council v Lebnan (Page) (1974) 131 CLR 350 Hawkins v Permarig Pty Ltd [2001] QPLER 414 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334 Matijesevic v Logan City Council [1984] 1 QdR 599 McBain v Clifton Shire Council [1996] 2 QdR 493 Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66 Sydney Serviced Apartments v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Talbot v Lane (1994) 14 WAR 120 Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 University of Western Australia v City of Subiaco (1980) 52 LGRA 360 Winn v Director General of National Parks & Wildlife [2001] NSWCA 17

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : AZNAVOUR PTY LTD & ORS -v- THE CITY OF MANDURAH & ANOR [2002] WASCA 320 CORAM : PARKER J

MILLER J
ROBERTS-SMITH J

HEARD : 7 OCTOBER 2002 DELIVERED : 2 DECEMBER 2002 FILE NO/S : CIV 1378 of 2002 MATTER : Application for Writ of Certiorari and for a Declaration against the CITY OF MANDURAH BETWEEN : AZNAVOUR PTY LTD (ACN 009 301 179)

HOWSON NOMINEES PTY LTD (ACN 008 787 817)
UNIVERSAL PTY LTD (ACN 009 445 425)
Applicants

AND

THE CITY OF MANDURAH
First Respondent

CENTRO PROPERTIES LTD (ACN 006 378 365)
Second Respondent

Catchwords:

Administrative law - Prerogative writ - Certiorari - Declaration - Town planning - Local council approval - Whether rescission or variation of earlier condition of

(Page 2)

approval - Whether revocation or variation of condition within power - Whether relief sought futile - Considerations of discretion in relation to prerogative relief

Legislation:

Nil

Result:

Applications refused

Category: B

Representation:

Counsel:

Applicants : Mr L A Stein & Mr G S French
First Respondent : Mr D W McLeod
Second Respondent : Mr R L Le Miere QC

Solicitors:

Applicants : Gadens Lawyers
First Respondent : McLeods
Second Respondent : Clayton Utz

Case(s) referred to in judgment(s):

Aznavour Pty Ltd & Ors v The City of Mandurah [2002] WASC 95
Jungar Holdings v Eurobodalla Shire Council & Anor (1989) 79 LGRA 70
Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd (1996) 91 LGERA 31
Mison & Ors v Randwick Municipal Council & Ors (1991) 23 NSWLR 734
R v Berri District Council; Ex parte H L Clark (Berri) Pty Ltd [1984] SASR 404
Re City of Perth; Ex parte Lord & Ors [2002] WASCA 254
Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254
Scott v Wollongong City Council (1992) 75 LGRA 112


(Page 3)

Transport Action Group Against Motorways Inc v Roads and Traffic Authority & Anor (1999) 46 NSWLR 598
Varney v Parole Board (WA) (2000) 23 WAR 187

Case(s) also cited:

Auburn Municipal Council v Szabo & Anor (1971) 67 LGRA 427
Corporation of the City of Adelaide v City of Salisbury (1998) 100 LGERA 160
Drummoyne Municipal Council v Lebnan (Page) (1974) 131 CLR 350
Hawkins v Permarig Pty Ltd [2001] QPLER 414
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334
Matijesevic v Logan City Council [1984] 1 QdR 599
McBain v Clifton Shire Council [1996] 2 QdR 493
Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66
Sydney Serviced Apartments v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404
Talbot v Lane (1994) 14 WAR 120
Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
Winn v Director General of National Parks & Wildlife [2001] NSWCA 17

(Page 4)

1 PARKER J: I have had the advantage of reading in draft the reasons of Miller J and Roberts-Smith J.

2 For reasons adequately expressed by their Honours I am of the view that for relevant purposes the only application for planning approval of the second respondent to the first respondent ("the City") was in respect of stage 1 of the development at the Halls Head Shopping Centre in Mandurah. Thus, the approval given by the City by the resolution of its Council on 20 February 2001, including condition 2.2 of that resolution, was in respect of stage 1 only of that development. This is so even though it is apparent that later that year an officer of the City, Mr Clayden, was under the misapprehension that condition 2.2 related to the total development, a misapprehension which was perpetuated in resolutions of the City of 25 October 2001.

3 I am also persuaded, for reasons expressed by Roberts-Smith J, that condition 2.2, which required a traffic management plan directed to all access and traffic management issues (in respect of stage 1) to be demonstrated to the satisfaction of the "Works and Services Section" of the City, had in fact been met prior to 25 October 2001. This was by virtue of the satisfaction in that regard of the Director of Works and Services of the City, to whom the Council had delegated the authority to be so satisfied by the resolution of 20 February 2001.

4 It follows in my view, essentially for the reasons expressed by Roberts-Smith J, that the resolution of the Council of the City on 20 February 2001 approving stage 1 was not invalidated by virtue of condition 2.2. As his Honour has indicated, the resolution was not lacking in finality or certainty and did not involve any invalid delegation of the power of approval. That power lay in the Council of the City. It was exercised by the Council, in a way which finally determined the development application, by the resolution of 20 February 2001. Of course condition 2.2 left the detailed resolution of an ancillary issue to be decided to the satisfaction of the Works and Services Section of the City. That could not lead to any change in the nature, extent or characteristics of the development, however, or result in any change to the core purpose of stage 1. Such a condition did not detract from the finality and legal competence of the decision of the City, by its Council, given on 20 February 2001.

5 I also agree with the reasoning and the conclusion of Miller J that the resolutions of 25 October 2001 were not effective to revoke or vary the resolution of 20 February 2001 and, further, that no good purpose would

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be served by a grant of prerogative or declaratory relief in the circumstances of this case.

6 I am persuaded, therefore, that the order nisi should be discharged and declaratory relief should be refused.

7 MILLER J: This is the return of an order nisi for a writ of certiorari and an application for a declaration. The order nisi was granted by Roberts-Smith J on 30 April 2002 and at the same time his Honour directed that the application for a declaration be heard by the Full Court. His Honour gave extensive reasons in making the order nisi, setting out the factual background to the proceedings and many of the relevant legal principles. Those reasons (as Aznavour Pty Ltd & Ors v The City of Mandurah [2002] WASC 95) should be read in conjunction with these reasons.

8 The proceedings arise out of a planning consent given by the first respondent to the second respondent on 20 February 2001 for stage 1 of the development of a proposed supermarket and speciality shops at Halls Head Shopping Centre in Mandurah. The exact address is Lot 504 Glencoe Parade, Halls Head. The approval of stage 1 of the development in question was stated to be subject to a number of modifications which related particularly to questions of design, car parking requirements, bin storage and the provision of an infant's changing room. Clause 2.2 of the resolutions of the first respondent on 20 February 2001 was in the following terms:

"(2.2) All access and traffic management issues including public transport provision associated with the proposal are to be demonstrated through a traffic management plan, to the satisfaction of the City of Mandurah (Works and Services Section)."

9 Although in cl 2.2 of the resolutions of 20 February 2002 the first respondent imposed requirements in relation to traffic management issues, there were also two other resolutions which went directly to traffic management issues. They were cl 2.20 and cl 2.21 which were in the following terms:

"2.20 The main entrance and boulevard shall be relocated to the northern section of Guava Way adjacent to the existing Mitre 10 store (Lot 501) as shown in red on the approved plans.

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2.21 The proposed internal access road and entrance from Glencoe Parade to be deleted as shown in red on the approved plans. (Any access from Glencoe Parade shall be subject to an overall precinct plan for the site.)"

10 It is of some significance that in relation to the traffic management issues dealt with in cl 2.2, the requirement was that all issues should be demonstrated through a traffic management plan to the satisfaction of the City of Mandurah (Works and Services section). By this resolution the first respondent therefore delegated to the relevant section the responsibility for resolving "all access and traffic management issues, including public transport provision". The delegation was permissible under cl 9.7 of the City of Mandurah Town Planning Scheme No 3 which is in the following terms:

"9.7.1 The Council may, either generally or in a particular case or cases, by resolution passed by an absolute majority of the Council, delegate to the following eligible persons the authority to deal with an application for Planning Approval made under this Scheme:-

(a) a member of the Council being the Chairman of the Committee required at the direction of Council to consider and report upon all applications for planning approval within its municipal district, and being qualified by experience with the work of any such Committee; and/or

(b) that senior employee of the Council, for the purpose of the Local Government Act with overall responsibility for the planning functions of the Council or appointed by the Council to supervise the development control functions of the Council,


or those persons who from time to time occupy the positions referred to in (a) and (b) above."

11 Clause 9.7.5 of the Scheme added:

"9.7.5 Without affecting the generality of the provisions of this clause, where in the exercise of any power under this Scheme the Council is required to form any opinion or view or have any state of mind or to consider to have due regard to any matter, then that requirement shall be

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satisfied if a person exercising delegated authority in respect of that power performs the function."

12 As a matter of fact, it appears that Allan John Claydon, Director of Works and Services of the first respondent, was the person to whom the delegation was made. Nothing turns on the fact that it was he rather than the "'section" who dealt with the traffic management issues.

13 A threshold question which arises is whether the first respondent could lawfully delegate to the Works and Services section the responsibility for access and traffic management issues. It was the contention of counsel for the applicant that such delegation was without lawful authority, reliance being placed upon Jungar Holdings v Eurobodalla Shire Council & Anor (1989) 79 LGRA 70 (at 89) Hemmings J said:

"It is also well-settled that a development consent must be final in the disposition of the application and with reasonable particularity circumscribe the use to which the land may be put pursuant to that consent. The determination of the Council and the conditions imposed on the consent do not, in my opinion, leave determination of such issues as merely 'an administrative matter': see Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61; Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 and J Mison v Randwick Municipal Council (Land and Environment Court, 29 August 1989, unreported). In my judgment, each of the above conditions in the subject approval postpones determination of an essential matter for the assessment of impact. Condition (d) also purports to reserve the right to make a further assessment, and is clearly ultra vires.

For the above reasons I am satisfied that the Council has left to others the adjudication of matters unresolved by the consent that it has granted, and has abrogated such responsibility: see King v Great Lakes Shire Council (1986) 58 LGRA 366 at 384-385."

14 Much reliance was placed upon the decision in Mison & Ors v Randwick Municipal Council & Ors (1991) 23 NSWLR 734, a case in which the Court of Appeal of New South Wales held in the circumstances of the particular case that the local authority had not finally disposed of an application for development in circumstances where it had delegated to its planner the power to make a further decision, which, depending upon the

(Page 8)

view that the planner took, could fundamentally alter the development. This being so, it was held that the local authority had not finally disposed of the planning application, with the result that the consent to permit development in the case in question was not a true consent within the meaning of the relevant legislation.

15 Counsel for the second respondent sought to distingush the decision in Mison v Randwick Municipal Council (supra) and relied upon the decision of the Court of Appeal in New South Wales in Transport Action Group Against Motorways Inc v Roads and Traffic Authority & Anor (1999) 46 NSWLR 598. There, Mason P made these observations (at par 117 et seq) about the decision in Mison and the power generally of delegation of planning conditions attached to a development consent:

"117 Even in its own area of application (that is, Pt 4), Mison does not invalidate every development consent containing conditions which leave matters open for later decision. The Court recognised that questions of degree are involved. Priestly JA pointed out (at 737-738) that the impugned condition in Mison necessarily involved a purported conferral of power to the chief town planner to require even significant alterations to the room and floor layout of a single dwelling, being alterations departing from the plans approved by council. Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development is prohibited: see also Malcolm v Newcastle City Council (1991) 73 LGRA 356 at 364-365, per Stein J; Leichhardt Municipal Council v Minister Administering Environmental Planning and Assessment Act 1979 (1992) 77 LGRA 64 at 75-76, per Talbot J.

118 In Scott v Wollongong City Council (1992) 75 LGRA 112, it was pointed out that the principle deriving from Mison requires it to be shown that the impugned condition leaves open the possibility of a significantly different development. Samuels A-P pointed out (at 118) that:


'… it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later

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and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision.'

119 The conditions challenged in Scott were held valid because the particular use of the land had been finally resolved by the development consent, notwithstanding that a number of matters ancillary to that use had been generally stipulated, with details left for later determination.

120 These principles were applied in Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (at 94-96). Conditions of a development consent relating to a massive mining project provided for a landscape management plan, imposed a requirement to comply with council requirements for visual amenity, and stipulated for an environmental plan proposed in consultation with the Environment Protection Authority and other statutory authorities, being a plan that included a comprehensive water management plan: see at 68-69, 94-95.

121 At first instance, Stein J held that, judged by Mison and Scott, none of the conditions were capable of resulting in any change to the core purpose of the development. They were ancillary to that purpose, albeit addressing important matters. Because they did not leave to the council the power to determine matters which may effect a change in the nature, extent or characteristics of the development, they did not offend: see (1996) 90 LGERA 1 at 38. The Court of Appeal agreed. Although the judgments of Stein J and the Court of Appeal refer to s 91(3A) which has no counterpart in Pt 5, nothing suggests that this departed from the principles in Mison and Scott.

122 The Mison principle has been invoked to indicate the limits to use of management plans in the Pt 4 context: see CSR Ltd v Wingecarribee Shire Council (Land and

(Page 10)

Environment Court, Stein J, 17 December 1990, unreported). However, it has been recognised that the Mison principle is not contravened merely because a consent condition requires a management plan to address some issue: see, eg Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 228-231; Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434 at 458-461, 464-466; Friends of Hinchinbrook Society Inc v Minister for Environment [No 3] (1977) 77 FCR 153 at 189; 95 LGERA 229 at 264."

16 In my view, the delegation to the Works and Services section of Access and Traffic Management Issues by the first respondent in this case was not the delegation of a condition capable of resulting in any change to the core purpose of the development. To the contrary, the resolution of access and traffic management issues through an appropriate traffic management plan was, in my view, ancillary to the development, albeit addressing important matters. The fact that the first respondent, in resolutions 2.20 and 2.21 specifically dealt with certain aspects of traffic management, particularly access to and egress from Stage 1 of the development, confirms my view that what was being left to the Works and Services section was ancillary to the core purpose of the development.

17 It transpires that Mr Claydon received from the second respondent on 20 July 2001 a Traffic Management Report which, he has deposed by affidavit sworn 9 April 2002 and admitted in the proceedings, satisfactorily addressed traffic management issues. He has sworn that the various traffic access issues had been dealt with sufficiently to allow Stage 1 to open on 24 November 2001 and he gave advice to that effect to the first respondent at a briefing prior to a special meeting held by it on 23 October 2001.

18 The affidavit of Mr Claydon reveals that he understood the intent of condition 2.2 to be not only to identify traffic management solutions available for the Stage 1 development, but also to deal with more long-term traffic access and management issues for the total development. As pointed out by counsel for the second respondent, this was an erroneous understanding of the position. Clearly condition 2.2 was limited to Stage 1 of the development and Stage 1 alone.

19 However, in the end result it matters little. The fact is, and I so find, that prior to 23 October 2001 the Director of Works and Services of the

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first respondent was satisfied that all access and traffic management issues had been demonstrated as required by condition 2.2 of the first respondent's resolutions of 20 February 2001. As the authority to be so satisfied had been validly delegated to the Director, there was, in my view, a final disposition of access and traffic management issues related to the approval given to Stage 1 of the proposed development. To the extent that the applicants argue to the contrary, I reject those arguments.

20 At a meeting of the first respondent on 29 May 2001, a shortfall in car parking bays required in accordance with condition 2.1(b) of the approval relating to Stage 1, was the subject of resolution by which the first respondent approved the shortfall and required the preparation and submission of a suitable legal agreement, stating that Stages 1 (the supermarket) and 2 (the specialty shops) at the shopping centre development, could not be occupied until such time as the first respondent had approved the modified car parking layout for the associated shops and the required traffic management report.

21 Counsel for the applicants contended that this resolution was evidence of the fact that the first respondent, not the Director of Works and Services, had to be satisfied with all traffic access and management issues. However, in my view, the fact of the resolution of 29 May 2001 does not, in my view, change the position. It seems evident (as submitted by counsel for the second respondent) that the first respondent was labouring under the misapprehension that the traffic management plan required in condition 2.2 for approval of Stage 1 was a plan required for not only that stage but subsequent stages. The first respondent was under the same misapprehension as was Mr Claydon.

22 The next relevant resolutions of the first respondent were those of 25 October 2001 when, at a special Council meeting, consideration was given to an application on the part of the second respondent to open the Halls Head shopping Centre on 24 November. The Council passed five resolutions as follows:

"1. That the owners of Lot 504 Glencoe Parade, Halls Head (Halls Head Shopping Centre) be permitted to open the centre as scheduled with interim access to and from the Centre through Guava Way South and Guava Way North turning off Peelwood Parade only and access and egress (left turn only) via Bunbury Road.

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2. That the City of Mandurah and the landowner of Lot 504 Glencoe Parade, Halls Head share the costs on a 50/50 basis for a revised Traffic Management Plan to be prepared by a consultant agreed to by both parties. That both parties will use their best endeavours to ensure that the Traffic Management Plan is conducted within four months of the date of this resolution and is to address the options of access being provided on to both Glencoe Parade and Peelwood Parade for the shopping centre.

3. That the City of Mandurah and the landowner of Lot 504 Glencoe Parade, Halls Head enter into an Agreement (with each party meeting its own legal expenses), which will require that upon acceptance of the Traffic Management Plan by Council (this may involve a public consultation process),the landowner of Lot 504 Glencoe Parade, will fund the necessary modifications to the road network as requested by Council. Both parties are to use their best endeavours to ensure that the legal agreement is executed within 6 weeks of the date of this resolution.

4. Compliance with resolution 2 and 3 will be deemed by Council as the landowner being compliant with condition 2 of the Planning Consent dated 7 March 2001 which reads as follows:


All access and traffic management issues including public transport provision associated with the proposal are to be demonstrated through a Traffic Management Plan, to the satisfaction of the City of Mandurah (Works and Services Section).

5. That Council officers continue to work with the owners of Lot 504 Glencoe Parade, Halls Head and the other affected landowners to prepare a precinct plan for the area surrounding the Halls Head Shopping Centre."

23 As I have previously pointed out, the first respondent was labouring under the misapprehension that the traffic management plan required by condition 2.2 of the Stage 1 approval was required to address all access and traffic management issues, not only for Stage 1 but for subsequent stages. Jayson Paul Miragliotta, a town planner with the first respondent,

(Page 13)

has by affidavit sworn 27 September 2002 and admitted in the proceedings, pointed out that at a meeting of the first respondent on 20 August 2002, the first respondent noted that the Director of Works and Services section had confirmed that all access and traffic management issues associated with the first stage of the development had been demonstrated through the traffic management plan received by the first respondent on 31 July 2001. The first respondent confirmed this to be so, although requiring a further traffic management plan before it could be satisfied that all access and traffic management issues had been addressed for development be on the first stage. According to Mr Miragliotta, the first respondent is presently well aware of the need to establish a comprehensive precinct plan for the Halls Head Neighbourhood Precinct, of which traffic management planning is one of the key elements. The traffic management issues associated with the development of Stages 1 and 2 of the Halls Head central shopping centre seem to be an important part of traffic management issues involving the precinct plan for the Halls Head Neighbourhood Precinct as a whole. However, one thing is clear. Stage 1 of the Halls Head central shopping centre development is complete. The centre is operating. The first respondent is satisfied that all traffic management issues associated with it have been met and condition 2.2 of the approval for Stage 1 has been satisfied.

24 The resolutions of 25 October 2001 must therefore be seen in this light. Contrary to the submissions of the applicants, they are not in truth resolutions which

(a) permitted the commencement and carrying out of the use of the land without the satisfaction of the first respondent of the traffic management land as required by condition 2.2;

(b) postponing for later consideration a fundamental aspect of Stage 1 of the development;

(c) varying condition 2.2 of the approval for Stage 1 development.

25 The submissions of the applicants that in the absence of the legislative provision allowing revocation or variation of a planning approval, a purported revocation or variation is invalid are undoubtedly correct. It is unnecessary to refer to the cases cited in support of that proposition, because in my view, the resolutions of 25 October 2001 did not constitute a revocation or variation of condition 2.2 of approval to Stage 1 at all. To the extent that the first respondent thought on 25 October 2001 that it was varying in any way condition 2.2 of the

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approval to Stage 1 development, it was in error and, in my view, the resolutions cannot affect the fact that at the special meeting on 25 October 2001 (wrongly referred to by Mr Claydon as a meeting on 23 October 2001) the fact of satisfaction on the part of the Director of Works and Services with all traffic access issues sufficient to allow Stage 1 to open on the scheduled date of 24 November 2001, was communicated to the first respondent. As I have found, the communication was valid and from the point of view of the second respondent, had the result that condition 2.2 of the conditional approval of 20 February 2001 for Stage 1 had been met. It follows in my view that resolutions 1, 2, 3 and 4 of 25 October 2001 are not void as contended for by the applicants and the relief sought is unavailable to the applicants.

26 Even if I was wrong in this conclusion, I am of the view that it would be futile to grant the relief sought by the applicants. Futility is a clear basis upon which the remedy of certiorari will be refused. For the same reasons, the declaration sought should also be refused if it is futile to grant it. A short statement of the relevant principles is set out by Ipp J in Varney v Parole Board (WA) (2000) 23 WAR 187 at [87]:

"It is settled that certiorari is a discretionary remedy: see Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158 at 177-178, per Malcolm CJ. As a matter of discretion, an order for the issue of a writ of certiorari will not ordinarily be made if the court considers that that would be a futile remedy: see R v Aston University Senate; Ex parte Roffey [1969] 2 QB 538 at 554-555; Malloch v Aberdeen Corporation [1971] 1 WLR 1578; Re Brown; Ex parte Savage (unreported, Supreme Court, WA, Library No 7260, 31 August 1988), per Nicholson J; Hodgens v Gunn; Ex parte Hodgens [1990] 1 QdR R 1 at 6-9. It is this consideration that leads me to conclude that a writ of certiorari should not issue."

27 I hold the view that it would be futile to grant the remedies sought, because

(a) the Director of the Works and Services section of the first respondent has expressed clear satisfaction with the traffic management plan for Stage 1 of the development;

(b) all other conditions in relation to Stage 1 of the development have apparently been met;

(c) Stage 1 of the development opened on 24 November 2001;

(Page 15)

(d) the second respondent has been trading since 20 November 2001;

(e) the first respondent is presently seeking to resolve traffic management issues associated with Stages 2 and 3 of the development and the Halls Head Neighbourhood Precinct as a whole.

28 In other words, matters have progressed so far since 25 October 2001 that there would be no utility in granting the relief which the applicants seek. Although counsel for the applicants contended that the grant of such relief (if available to it) would mean that the planning process would have to begin again and the applicants would have greater opportunity to make submissions to the first respondent in relation to traffic management issues (and in particular, the safety of traffic flow in the area behind the premises where the applicants conduct business), I consider this to be an unrealistic submission. The first respondent has approved Stage 1 of the second respondent's development in every respect and many months have passed since that stage opened. Even if the first respondent was called upon to reconsider the matter, it is apparent that under cl 7.10 of the City of Mandurah Town Planning Scheme No 3, it could grant approval to the development insofar as Stage 1 is concerned. Clause 7.10.1 makes this clear:

"7.10.1 The Council may grant approval to a development already commenced or carried out regardless of when it commenced or was carried out. Such approval shall have the same effect for all purposes as if it had been given prior to the commencement or carrying out of the development, but provided that the development complies with the provisions of the scheme."

29 If, therefore, the applicants had made out their case that the resolutions of 25 October 2001 were invalid, the practicalities are that the first respondent would be at liberty to re-approve the development in precisely the same terms approved in relation to Stage 1. No good purpose would be served, in my view, by the grant of prerogative relief or the making of a declaration.

30 Counsel for the applicants placed great importance upon the decision of Templeman J in Re City of Perth; Ex parte Lord & Ors [2002] WASCA 254 (with which Parker and Hasluck JJ agreed), where his Honour (at [104] et seq) said:

(Page 16)

"104 The respondents submit that even if the appellants have made out a case for the grant of writs of certiorari, the Court should not make such orders. The respondents rely on two related grounds: delay by the appellants in prosecuting the proceedings and consequential prejudice to the respondents.

105 This is a somewhat bold submission because we are not here concerned only with private rights. The conclusion that Council did not exercise its discretion properly in relation to either approval, means that there were breaches of the substantive law. That being so, the respondents would need to make out a compelling case against the grant of writs of certiorari.

106 I accept that even in these circumstances, the Court has a discretion whether to grant writs of certiorari. However, as the Full Court held in Re Smith and the West Australian Development Corporation; Ex parte Rundle & Ors (1992) 5 WAR 295 great weight should be given to strict compliance with the requirements of the law. Malcolm CJ (at 320) cited with approval a passage from Wade (op cit), in relation to the Court's discretion:


'Such a discretionary power may make inroads upon the rule of law and must therefore be exercised with the greatest care. In any normal case the remedy accompanies the right. But the fact that a person aggrieved is entitled to certiorari ex debito justitiae does not alter the fact that the court has power to exercise its discretion against him …

Nevertheless distinctions may have to be drawn according to the nature of the remedy sought, and according to the differences between public and private law remedies. Certiorari and prohibition have as their primary purpose the preservation of order in the legal system by preventing excess and abuse of power, rather than the final determination of private rights … ' "

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31 However, the present case is not concerned with public law remedies and is not limited insofar as discretionary considerations are concerned to matters of delay and prejudice. The question of futility, upon which I place significance, was not the subject of consideration in Re City of Perth; Ex Parte Lord & Ors by Templeman J. It follows that even if the applicants were able to make out a case that the first respondent's resolution to 25 October 2001 were invalid, I would not, as a matter of discretion, be prepared to grant the relief sought.

32 For these reasons I would discharge the order nisi granted by Roberts-Smith J on 30 April 2002 and refuse the application for the declaration sought.

33 ROBERTS-SMITH J: The applicant seeks an order absolute for a writ of certiorari quashing certain resolutions of the respondent made on 23 October 2001 giving planning approval for a development on certain conditions and for a declaration that the resolutions are ultra vires.

34 The application for the order nisi for certiorari and declaration came before me on 30 April 2002. The factual background is set out in the reasons I gave for granting the order nisi and referring the application for a declaration to the Full Court (Aznavour Pty Ltd & Ors v The City of Mandurah [2002] WASC 95). I will not repeat all that here. The following reasons should be read in conjunction with what I said then.

35 I have had the benefit of reading in draft the reasons of Miller J. Whilst I agree with his Honour's reasons and conclusions as to satisfaction of condition 2.2, that the resolutions of 25 October 2001 did not constitute a revocation or variation of condition 2.2 of the approval for Stage 1 and as to the futility in the circumstances of granting the order absolute for certiorari and making the declaration, I do have a different view about whether there was a delegation within the meaning of cl 9.7 of the City of Mandurah Town Planning Scheme No 3.

36 Clause 9.7 authorises a council to delegate the authority to deal with an application for planning approval. That is not what was done here. The first respondent granted the approval subject to a condition. The condition was to be met to the satisfaction of the Works and Services Section. The requisite satisfaction was expressed by the Director of that section. No point is taken about the fact that it was the Director who expressed it and one would normally expect it would be through the Director that the section would speak. The question whether someone

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else charged with a specific responsibility within the section could do so, does not arise on the facts of this case.

37 This brings directly into focus the applicant's submission that the approval was not a true approval because it lacked finality, or alternatively, was invalid as being ultra vires.

38 It was common ground that there is no legislative provision which would enable the first respondent to revoke or vary a planning approval once given. It may be accepted that in the absence of such legislative authority, a purported revocation or variation is invalid: R v Berri District Council; Ex parte H L Clark (Berri) Pty Ltd [1984] SASR 404; Remove All Rubbish Co Pty Ltd v Munno Para City Council (1991) 56 SASR 254.

39 In my view, the resolutions of 25 October 2001 did not purport to revoke or vary the approval subject to condition 2.2 given on 20 February 2001. The condition required a traffic management plan directed to all access and traffic management issues associated with "the proposal". The proposal then before the first respondent was a proposal for Stage 1 of the development. The condition applied only to Stage 1. I agree with Miller J that Mr Clayden appears to have been under the misapprehension that condition 2.2 was directed also to long term traffic access and management issues for the total development and that misapprehension was communicated by him to the first respondent and perpetuated in its resolutions of 25 October 2001. That understanding of condition 2.2 was erroneous. The fact is, as Miller J has pointed out, that the Director of the Works and Services Section was satisfied that condition 2.2 had been met and he communicated that satisfaction to the first respondent. The resolutions of 25 October 2001 are not void on that account.

40 I cannot accept the applicant's submission that the conditional approval given on 20 February 2001 was void for lack of finality. In support of that submission, the applicant relied upon Mison & Ors v Randwick Municipal Council & Ors (1991) 23 NSWLR 734. In that case the Randwick Council had resolved to approve an application for development of residential land facing a waterfront reserve in a way to which neighbours had objected. The approval was expressed to be subject to six conditions. The first condition was that the development be carried out "generally in accordance with" the plans submitted by the owner and with the other conditions then stated. The fifth condition was: "overall height of the dwelling house being reduced to the satisfaction of the Council's Chief Town Planner".

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41 The New South Wales Court of Appeal held the resolution was not a valid consent to the development.

42 Priestley JA (with whom Clarke and Meagher JJA agreed) said (at 737):

"In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application. It does not seem to me to be necessary to consider the different and harder to establish test that compliance with the condition will make the application an 'entirely different development'.

The test I have stated is not complete. Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made."

43 His Honour recognised that the introduction of the word "significantly" into the test, imported into the decision-making process a judgmental factor incapable of precise statement, but observed there would be some cases in which the effect of the condition clearly either would or would not significantly alter the development and there would be others which could only be assessed on a case by case basis. That last situation is not novel to decision-makers, tribunals or courts.

44 Priestley JA saw it as important that condition 5 did not require the Chief Town Planner to reduce the overall height of the dwelling house only in a way which made no significant alteration to the development of the site in accordance with the specified plans. There was no satisfactory answer to the question what the council could do if its Chief Town Planner required a height reduction which was inconsistent with the development of the site in accordance with the specified plans.

45 Finally, his Honour concluded (at 738):

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"More importantly, however, when the plans were considered together with the nature of the site, a sloping one, it became apparent that it would be possible to develop the site generally in accordance with those plans, with significant variation to the positioning and height of the building. This consideration, taken with the earlier one, left the position so fluid that, in my opinion, it could not be said that the actual application made by the second respondent, and no other, had, as a matter of fact, and consequently, in the circumstances of the present case, of law also, been consented to."

46 His Honour also accepted that the consent was void for lack of finality or certainty. The height of the building and its positioning on the block were both of importance to the appellants. Condition 5 was a response to their concerns. However, not only did that condition leave unknown what the height of the block would be (which of itself would not mean finality and certainty were lacking) but it could not even be said within what range the height of the building would be. That was fatal, as not revealing sufficient finality and certainty to what was an important aspect of the development.

47 In examining this question, Clarke JA pointed out that what must be decided is whether the consent finally determines the development application. His Honour said (at 740):

"Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final."

48 As to the facts, Clarke JA concluded (at 740):

"That this aspect of the development was of critical importance was beyond question. The height, and positioning of the building on the site were, arguably, the two most critical features of the development, as the Council was well aware. In reserving to its planner the power to decide the height question without imposing strict guidelines the Council left an important aspect of the development for later decision by its planner. In the light of the importance of the height factor and the relative lack of restriction upon the planner's discretion I do not think it can be said that the Council finally disposed of the application."

49 Meagher JA agreed with both Priestley and Clarke JJA.
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50 The effect of Mison v Randwick Municipal Council was discussed in Transport Action Group against Motorways Inc v Roads and Traffic Authority & Anor (1999) 46 NSWLR 598. There the Roads and Traffic Authority proposed to construct a four lane motorway. An environmental impact statement had been prepared and considered. Subsequently, the Authority purported to modify the activity so as to reduce its detrimental environmental effect without a fresh environmental impact statement. Proposed changes included realignments, construction of new tunnels, and the replacement of three planned exhaust stacks with a single stack in a different locality. The appellants argued that in view of the nature of the changes, a new environment impact statement should have been prepared. The appeal was dismissed. The court held that the changes were a modification within the relevant statutory provisions as they did not radically transform the original activity but represented altered means of carrying out the same proposal.

51 One argument put on behalf of the appellants was that the modification lacked necessary finality and specificity. Mason P (with whom Sheller JA expressly agreed on this point) distinguished Mison. He observed first that the requirement of finality and certainty held to exist in Mison derived from a stipulation in the relevant statutory provision applicable to that case, that the granting of a consent was an act in law which represented the final disposition of the development application, whereas the statutory provision with which the court was concerned in Transport Action Group directed a determining authority not to "carry out" the activity unless and until certain steps had occurred. Be that as it may, Mason P noted (at 629) that even in its own statutory area of application, Mison does not invalidate every development consent containing conditions which leave matters open for later decision; the court in Mison itself recognised that questions of degree are involved. Further, Mison does not stand for a proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development is prohibited. His Honour referred to Scott v Wollongong City Council (1992) 75 LGRA 112 in which it was pointed out that the principle deriving from Mison requires it to be shown that the impugned condition leaves open the possibility of "a significantly different development". His Honour also referred to Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd (1996) 91 LGERA 31 in which Stein J at first instance, had held that none of the conditions to which approval for a large mining project was subject, were capable of resulting in any change to the core purpose of the development. They were ancillary to that purpose, although addressing important matters.

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Stein J had held that because they did not leave the power to determine matters which might affect a change in the nature, extent or characteristics of the development, they did not offend. The New South Wales Court of Appeal agreed. Mason P saw nothing in either the judgment of Stein J or that of the Court of Appeal to suggest that the decision departed from the principles in Mison, and further noted (at 630) that it has been recognised that the Mison principle is not contravened merely because a consent condition requires a management plan to address some issue. Reference was also made by the learned President to Scott v Wollongong City Council, supra, in which similar view of the Mison principle was taken.

52 I accept the submission made by senior counsel on behalf of the second respondent, that in the present case, what was left to the satisfaction of the Works and Services Section by condition 2.2 was not something that was capable of resulting in any change to the core purpose of the Stage 1 development but was ancillary to that; it did not leave to the Section, power to determine matters which would or could possibly effect a change in the nature, extent or characteristics of the development approval.

53 That brings me to the issue whether or not there was a delegation of the approval power.

54 To my mind it is simply a question of construction of the resolution. The first respondent had turned its corporate mind to the application for development approval in respect of Stage 1 and had resolved to approve the application subject to conditions. There was no reason in principle why the first respondent could not impose a specific requirement which had to be met to the satisfaction of the Works and Services Section. The requirement was specific. To my mind, properly read, this was not a delegation of authority to approve the application. If the Works and Services Section was satisfied that the condition had been met, then the approval took effect; if the Section was not so satisfied, then the approval did not take effect. The evidence was that the Section was so satisfied and that satisfaction was communicated to the Council by the Director. The approval accordingly thereupon took effect.

55 As I have indicated, in these circumstances, I respectfully agree with the reasoning and conclusion of Miller J that the quashing of the impugned resolutions would have no practical legal effect and would be of no practical benefit and that in those circumstances, afford a further reason for refusing the relief sought, as a matter of discretion.