Carcione Nominees Pty Ltd v Western Australian Planning Commission

[2005] WASCA 56

CARCIONE NOMINEES PTY LTD & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION & ORS [2005] WASCA 56

Reported Decision:	(2005) 30 WAR 97
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 56
Court:	THE FULL COURT (WA)
Case No:	CIV:2117/2004	Heard:	7 DECEMBER 2004
Coram:	MURRAY J STEYTLER J MCKECHNIE J	Delivered:	24/03/05
No of pages:	36	Judgment Part:	1 of 1
Result:	Relief sought by applicant denied Orders nisi and stay discharged
Category:	A
PDF Version

Parties:	CARCIONE NOMINEES PTY LTD (ACN 008 782 152) MANNING LAND PTY LTD (ACN 102 768 427) WESTERN AUSTRALIAN PLANNING COMMISSION MINISTER FOR PLANNING AND INFRASTRUCTURE DEPARTMENT OF PLANNING AND INFRASTRUCTURE CITY OF SOUTH PERTH
Catchwords:	Prerogative writs Certiorari and mandamus Sought against Western Australian Planning Commission, Minister for Planning and Infrastructure and Department of Planning and Infrastructure Decisions recommending or supporting changes to the zoning of the applicants' land Certiorari does not lie in respect of recommendations and "in principle" decisions having no legal effect upon rights Whether there was a failure to take into account a relevant consideration which was required to be taken into account Whether decision made for improper purpose or took into account irrelevant consideration Whether breach of "audi alteram partem" or "hearing" rule of natural justice Whether decision was unreasonable or irrational Modern formulation of "Wednesbury unreasonableness" Whether required to have regard to "pending decision" of Tribunal and evidence and submissions put before the Tribunal Whether Court should provide an "advisory opinion" to a Tribunal
Legislation:	Migration Act 1958 (Cth), s 476(2)(b) Town Planning and Development Act 1928 (WA), s 6(1), s 7(2a), s 5AA, s 7(5)(a), s 7A1, s 7A2, s 7(1) Town Planning Regulations (WA), reg 12A, reg 1213, reg 15, reg 17, reg 19, reg 19, reg 20(5), reg 25(1), reg 25(2)(j)
Case References:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 Bonton Pty Ltd v City of South Perth [1982] WAR 213 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 Donovan v City of Sale [1979] VR 461 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Foster v Minister for Customs and Justice (2000) 200 CLR 442 Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 Kruger v Commonwealth of Australia (1997) 190 CLR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 (2003) 198 ALR 59 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Sydney Municipal Council v Campbell [1925] AC 338 Ziade v Randwick City Council (2001) 51 NSWLR 342 Abebe v Commonwealth (1999) 197 CLR 510 Annetts v McCann (1990) 170 CLR 596 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bruce v Cole (1998) 45 NSWLR 163 Clarke v State of South Australia (1996) 92 LGERA 192 Craig v State of South Australia (1995) 184 CLR 163 Dilatte v MacTiernan [2002] WASCA 100 Ex parte Helena Valley/Boya Association (Inc) & Ors, State Planning Commission and Beggs (1989) 2 WAR 422 Hill v Green (1999) 48 NSWLR 161 Hillgrove Pty Ltd v Town of Claremont (1996) 18 SR (WA) 376 Kelson v Forward (1995) 60 FCR 39 Khan v Minister for Immigration and Multicultural Affairs (1987) 14 ALD 291 Kioa v West (1985) 159 CLR 550 Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111 Minister for Aboriginal & Torres Strait Islander Affairs v Minister for Lands (WA), Djaigween, Sebastian, Gilbert & Bernard (1996) 67 FCR 40 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 Parramatta City Council v Hale (1982) 47 LGRA 319 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 Shrimpton v Commonwealth (1945) 69 CLR 613 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757 Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491 Weal v Bathurst City Council (2000) 111 LGERA 181 X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319 Zhang v Canterbury City Council (2001) 51 NSWLR 589 Ace Waste Pty Ltd v Brisbane City Council [1999] 1 Qd R 233 Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 Qd R 138 Esber v Commonwealth (1992) 174 CLR 430 Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162 Lee v Department of Social Security (1996) 68 FCR 491 Ungar v City of Malvern [1979] VR 259 Dai Xing Yao v Minister for Immigration and Ethnic Affairs & Refugee Review Tribunal (1996) 69 FCR 583 Agnet Clough Ltd v Town Planning Board, unreported; WATPAT Appeal No 1 of 1979, 1 May 1980 Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296 Re City of South Perth; Ex parte Carcione Nominees Pty Ltd, unreported; SCt of WA; CIV 1666/2004, 1 June 2004 Re Town Planning Appeal Tribunal; Ex parte Environmental Protection Authority (2003) 27 WAR 374 Nirimba Nominees Pty Ltd v Town Planning Board, unreported; WATPAT Appeal No 31 of 1979; 26 September 1980

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : CARCIONE NOMINEES PTY LTD & ANOR -v- WESTERN AUSTRALIAN PLANNING COMMISSION & ORS [2005] WASCA 56 CORAM : MURRAY J

STEYTLER J
MCKECHNIE J

HEARD : 7 DECEMBER 2004 DELIVERED : 24 MARCH 2005 FILE NO/S : CIV 2117 of 2004 MATTER : Applications for Writs of Certiorari and Writs of Mandamus against the Western Australian Planning Commission, the Honourable ALANNAH MacTIERNAN in her capacity as Minister for Planning and Infrastructure and the Department of Planning and Infrastructure and Writs of Prohibition and Declarations against the Western Australian Planning Commission and the Honourable ALANNAH MacTIERNAN in her capacity as Minister for Planning and Infrastructure BETWEEN : CARCIONE NOMINEES PTY LTD (ACN 008 782 152)

MANNING LAND PTY LTD (ACN 102 768 427)
Applicants

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
First Respondent

(Page 2)

MINISTER FOR PLANNING AND INFRASTRUCTURE
Second Respondent

DEPARTMENT OF PLANNING AND INFRASTRUCTURE
Third Respondent

CITY OF SOUTH PERTH
Fourth Respondent

Catchwords:

Prerogative writs - Certiorari and mandamus - Sought against Western Australian Planning Commission, Minister for Planning and Infrastructure and Department of Planning and Infrastructure - Decisions recommending or supporting changes to the zoning of the applicants' land - Certiorari does not lie in respect of recommendations and "in principle" decisions having no legal effect upon rights - Whether there was a failure to take into account a relevant consideration which was required to be taken into account - Whether decision made for improper purpose or took into account irrelevant consideration - Whether breach of "audi alteram partem" or "hearing" rule of natural justice - Whether decision was unreasonable or irrational - Modern formulation of "Wednesbury unreasonableness" - Whether required to have regard to "pending decision" of Tribunal and evidence and submissions put before the Tribunal - Whether Court should provide an "advisory opinion" to a Tribunal

Legislation:

Migration Act 1958 (Cth), s 476(2)(b)

Town Planning and Development Act 1928 (WA), s 6(1), s 7(2a), s 5AA, s 7(5)(a), s 7A1, s 7A2, s 7(1)
Town Planning Regulations (WA), reg 12A, reg 1213, reg 15, reg 17, reg 19, reg 19, reg 20(5), reg 25(1), reg 25(2)(j)

Result:

Relief sought by applicant denied

Orders nisi and stay discharged

(Page 3)

Category: A

Representation:

Counsel:

Applicants : Mr C B Edmonds SC & Mr R E Sandover
First Respondent : Mr G T W Tannin SC & Mr C S Bydder
Second Respondent : Mr G T W Tannin SC & Mr C S Bydder
Third Respondent : Mr G T W Tannin SC & Mr C S Bydder
Fourth Respondent : Mr D W McLeod

Solicitors:

Applicants : Jackson McDonald
First Respondent : State Solicitors Office
Second Respondent : State Solicitors Office
Third Respondent : State Solicitors Office
Fourth Respondent : McLeods

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

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
Bonton Pty Ltd v City of South Perth [1982] WAR 213
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Donovan v City of Sale [1979] VR 461
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Foster v Minister for Customs and Justice (2000) 200 CLR 442
Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Kruger v Commonwealth of Australia (1997) 190 CLR 1
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24


(Page 4)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426
Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 (2003) 198 ALR 59
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Sydney Municipal Council v Campbell [1925] AC 338
Ziade v Randwick City Council (2001) 51 NSWLR 342

Case(s) also cited:

Abebe v Commonwealth (1999) 197 CLR 510
Annetts v McCann (1990) 170 CLR 596
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bruce v Cole (1998) 45 NSWLR 163
Clarke v State of South Australia (1996) 92 LGERA 192
Craig v State of South Australia (1995) 184 CLR 163
Dilatte v MacTiernan [2002] WASCA 100
Ex parte Helena Valley/Boya Association (Inc) & Ors, State Planning Commission and Beggs (1989) 2 WAR 422
Hill v Green (1999) 48 NSWLR 161
Hillgrove Pty Ltd v Town of Claremont (1996) 18 SR (WA) 376
Kelson v Forward (1995) 60 FCR 39
Khan v Minister for Immigration and Multicultural Affairs (1987) 14 ALD 291
Kioa v West (1985) 159 CLR 550
Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111
Minister for Aboriginal & Torres Strait Islander Affairs v Minister for Lands (WA), Djaigween, Sebastian, Gilbert & Bernard (1996) 67 FCR 40
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381
Parramatta City Council v Hale (1982) 47 LGRA 319


(Page 5)

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Re Patterson; Ex parte Taylor (2001) 207 CLR 391
Shrimpton v Commonwealth (1945) 69 CLR 613
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757
Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491
Weal v Bathurst City Council (2000) 111 LGERA 181
X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319
Zhang v Canterbury City Council (2001) 51 NSWLR 589
Ace Waste Pty Ltd v Brisbane City Council [1999] 1 Qd R 233
Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 Qd R 138
Esber v Commonwealth (1992) 174 CLR 430
Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162
Lee v Department of Social Security (1996) 68 FCR 491
Ungar v City of Malvern [1979] VR 259
Dai Xing Yao v Minister for Immigration and Ethnic Affairs & Refugee Review Tribunal (1996) 69 FCR 583
Agnet Clough Ltd v Town Planning Board, unreported; WATPAT Appeal No 1 of 1979, 1 May 1980
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Re City of South Perth; Ex parte Carcione Nominees Pty Ltd, unreported; SCt of WA; CIV 1666/2004, 1 June 2004
Re Town Planning Appeal Tribunal; Ex parte Environmental Protection Authority (2003) 27 WAR 374
Nirimba Nominees Pty Ltd v Town Planning Board, unreported; WATPAT Appeal No 31 of 1979; 26 September 1980


(Page 6)

1 JUDGMENT OF THE COURT: This is the return of orders nisi for prerogative relief against the first three respondents (respectively "the Planning Commission", "the Minister" and "the Department"). The fourth respondent ("the City") was joined as a party to the proceedings at its own request.

Events leading up to the hearing

2 In May 2001 the applicants purchased land on the corner of Manning Road and Ley Street in the suburb of Manning. They wanted to build a shopping centre on the land. However, the land has since 1972 been reserved for public purposes. It is presently reserved for public purposes under the City's Town Planning Scheme No 6 ("TPS 6").

3 In an affidavit sworn for the purpose of these proceedings on 20 September 2004, Mr Ross Povey, the City's Director of Strategic and Regulatory Services (he is an architect and town planner), explains how the land came to be reserved. From around 1969 until 2001 it had been owned by a telecommunications company, Telstra Ltd. Under the various planning schemes which applied during that period, the land was reserved as a public purpose reserve or similar in order to accommodate Telstra's use of the site. Although TPS 6 was not gazetted until April 2003, after Telstra had sold the land to the applicants, the drafting and preparation of that scheme, including the public submissions stage, were completed before it became known that the land was no longer required for a public purpose.

4 The City had commenced work on TPS 6 as far back as 1993. It commissioned consultants to examine the predecessor of TPS 6, the City's Town Planning Scheme No 5 ("TPS 5"). The examination encompassed community consultation and studies. Then, in 1994, the City commissioned consultants to conduct a full review of TPS 5, including the preparation of a draft Local Housing Strategy and a draft Local Commercial Strategy (contemplated by reg 12A of the Town Planning Regulations 1967 ("the Regulations")). Those strategies were to be prepared pursuant to the Town Planning and Development Act 1928 ("the Act"), and cl 9.6 of TPS 6, in order to "support and guide" the preparation of TPS 6. Strategies of this kind are designed to set out the long-term planning directions for the local government, to apply State and regional planning policies and to provide the rationale for the zones and other provisions of the town planning scheme: reg 12A(3). Although there was then no indication (so far as the City was aware) that Telstra's use of the land might end, the consultants who undertook the land use studies and

(Page 7)

who conducted the public consultations in preparing the draft Local Housing Strategy gave consideration to the most appropriate use of that land if it was not to be reserved for a public purpose. The draft Strategy, as it was adopted by the City's Council ("the Council") in 1997 for referral to the Minister for advertising, recommends that, if the site should become "surplus to government requirements", the recommended residential coding to the west of the land should be extended over the site. That coding was an "R20/R40 dual coding".

5 In late April or early May 2001 the City began receiving enquiries from potential purchasers regarding development opportunities for the Telstra site. It prepared an information handout. This said, amongst other things:

"Early discussions suggest rezoning to the Residential-R Zone would seem acceptable. A density of R20 would seem to be most appropriate, based on surrounding development. However, it may be possible for an application to argue the case for a density code of higher than R20.

There would be no support for rezoning to facilitate retail based commercial uses (ie to one of the Shopping Zones), however, there possibly could be support for a non-retail based commercial use (ie potentially one of the Commercial Zones)."

6 Mr Povey, in par 16 of his affidavit, says that the information handout was based on what planning officers then considered to be the most likely future zoning for the site, having regard to the fact that it was no longer to be used by Telstra. He also says that the view of the planning officers was consistent with the draft Local Housing Strategy and the draft Local Commercial Strategy as they existed at that time. The City's records indicate that the information handout was sent to the applicants' planning consultant prior to their purchase of the land.

7 In August 2001, after they had purchased the land, the applicants submitted a proposal to the City to rezone the land in order to permit the development of a neighbourhood shopping centre on it. As is apparent, that proposal was inconsistent with the draft Local Housing Strategy and draft Local Commercial Strategy. In his affidavit, Mr Povey says that, when the proposal was received, the City was operating under TPS 5 and was well advanced in the process of promulgating TPS 6. It was then still proposed that the site would have the same reservation, under TPS 6, as it had had under TPS 5. Because, under TPS 5 (unlike TPS 6) there was no

(Page 8)

discretion to approve any other use, a rezoning was necessary in order to allow a shopping centre to be built on the site. The City refused the rezoning application.

8 Not far from the land was the Village Green Shopping Centre, owned by Midpoint Holdings Pty Ltd ("Midpoint Holdings"). In October 2001, the Council resolved that there be an independent review of the draft Local Commercial Strategy in order to consider whether the applicants' land should be developed for the purpose of a neighbourhood shopping centre and whether or not there was capacity for a development of that type to occur in addition to the development of the Village Green Shopping Centre as a district centre containing a floor space of 12,000 square metres or similar. It was concluded by the consultants who carried out the review that the proposal for a neighbourhood shopping centre on the site should not be supported due to "the severity of its modelled impact on other centres in the district".

9 At a meeting of the Council held on 23 April 2002 a motion was passed in the following terms:

"That …

(a) the owners of the Village Green Shopping Centre be:


(i) requested to submit, by no later than 8 July 2002, an application for Planning Consent for consideration by Council at its September 2002 meeting, for a development containing a minimum of:

(A) a second major chain supermarket with a gross floor area in the order of 3000 sq. metres in addition to the existing supermarket;

(B) a minimum 1,000 sq. metres of new support retail outlets in addition to the existing floor area; and

(C) details relating to the refurbishment of the existing Centre;


in the form of a single, unstaged development;

…

(Page 9)

(ii) advised that the planning consent referred to in part (a) of this resolution, if approved by the Council, would be conditional upon substantial commencement of construction of the development within six months of the date of issue of the consent;

(iii) advised that, if the application for planning consent referred to in part (a) above is not received by 8 July 2002 and construction is not substantially commenced within six months of the date of the planning consent, the Council intends to initiate the Town Planning Scheme Amendment for the purpose of rezoning the former Telstra site on the corner of Ley Street and Manning Road, Manning, as a Neighbourhood Commercial Centre to enable development of a shopping centre to a maximum floor area of 4,500 sq. metres;

(b) dependent on the outcome of Council's request as set out in (a)(i)(A) and (a)(i)(B) above, Council give consideration to amending the draft replacement Local Commercial Strategy to depict the Village Green Shopping Centre as a major 'Neighbourhood Centre' and the Telstra site in Ley Street as a 'District Centre';

(c) upon the socio-economic demographic data being made available from the Commonwealth 2001 census, the data be examined by Council staff to determine any implications for the Local Commercial Strategy proposals;

(d) this resolution be conveyed to:


(i) Planwest (WA) Pty Ltd and Belingwe Pty Ltd to be taken into account in the finalisation of the draft revised Local Commercial Strategy;

(ii) Carcione Nominees Pty Ltd, prospective developers of the former Telstra site, Manning;

(Page 10)

(iii) Development Planning Strategies, Planning Consultants acting on behalf of Carcione Nominees Pty Ltd;

(iv) The owners of the Village Green Shopping Centre;

(v) Taylor Burrell, Planning Consultants acting on behalf of the owners of the Village Green Shopping Centre; and

(vi) Greg Rowe and Associates, Planning Consultants acting on behalf of the owners of the Welwyn Avenue Shopping Centre."

10 Thereafter, in November 2002, the Council resolved to provide the Planning Commission with all the information it had received from the proponents and to ask the Department whether it considered that there was any justification for the applicants' proposal to be incorporated into the draft Local Commercial Strategy.

11 The Department (which had also been provided with information in opposition to the applicants' proposal) responded, by letter dated 21 January 2003, advising that no new centre should undermine the viability of a centre specifically designated in the Planning Commission's Statement of Planning Policy No 9: Metropolitan Centres Policy ("MCP"), gazetted in October 2000, or prevent the development of such a centre to its full potential. The MCP provided that, in considering major shopping development proposals, the Planning Commission would not support proposals which, in its opinion, were likely to undermine the established and/or planned hierarchy of centres or adversely affect the economic viability of existing, approved and planned centres where this could result in a deterioration in the level of service to the local community or undermine public investments in infrastructure and services.

12 At its meetings on 23 September 2003 and 28 October 2003 the Council resolved to adopt the reviewed and updated draft Local Commercial Strategy for advertising.

13 Mr Povey, in his abovementioned affidavit (pars 37 and following), says that, once it had been concluded, through the review and update of the draft Local Commercial Strategy, that a neighbourhood shopping centre on the land was contrary to the City's overall planning objectives,

(Page 11)

the City formed the opinion that it had an obligation to determine, as soon as possible, what was an acceptable use for the land. Consequently, in October 2003, it sought legal advice on the planning status of the land and, in November 2003, it started work, through its planning officer, Ms Gina Fraser, on a scheme amendment relating to the land. This scheme amendment was designated as "Scheme Amendment No 4". The amendment ultimately proposed the zoning of the Telstra site to "Residential R30" because:

(a) the surrounding land was largely zoned residential;

(b) the draft Local Housing Strategy on which the residential zoning in TPS 6 was based recommended R20/R40 dual coding for the land if it became surplus to government requirements;

(c) the R30 coding was consistent with the dual coded R20/30 land nearby;

(d) the City had, from the time it became aware that Telstra was selling the land, informed prospective purchasers that the likely zoning would be Residential R20 with a potential for a higher density coding; and

(e) it had been determined that rezoning the land for shopping centre purposes would not be consistent with the draft Local Commercial Strategy.

14 On 30 October 2003, prior to the commencement of work on the amendment by Ms Fraser, the applicants applied for permission to develop the land as a neighbourhood shopping centre. The application was returned by the City as a result of perceived deficiencies in the drawings accompanying it.

15 On 24 November 2003 the applicants made a further application to develop the land as a neighbourhood shopping centre.

16 On 1 December 2003 the City wrote to the applicants, inviting comment on the proposal to initiate Amendment No 4. They responded, by letter dated 4 December 2003, asking that their application "be permitted to run its full course before a Residential rezoning is commenced".

(Page 12)

17 On 9 February 2004 the applicants lodged an appeal with the Town Planning Appeals Tribunal ("the Tribunal") against the deemed refusal by the City of the development application, no response to it having been received within the statutory period. On 20 February 2004 the City filed a respondent's statement in the proceedings before the Tribunal.

18 Notwithstanding this, at its meeting on 24 February 2004 the Council resolved to advertise Amendment No 4 for public comment and to decline to grant planning approval for the development of the land as a shopping centre. There is nothing in the evidence before us which establishes that the Council (as opposed to the City's officers) was then aware of the applicants' appeal. However, a report dated 30 January 2004 which had been prepared by Ms Fraser in respect of the amendment revealed that she, at least, did not regard the amendment as necessarily being the final word on the issue of the development of the applicants' land. After referring to the applicants' reservations as regards the amendment, her report went on to say:

"If it should occur at some future date that commercial development were supported on the site in question, then the currently proposed Amendment No 4 could be abandoned and not finalised. In that event, the Council would submit to the Minister a recommendation to this effect. Even if this Amendment becomes effective before the LCS is completed, if commercial development of the land ultimately is predicated in the LCS, a further Scheme Amendment could be considered by the Council if the owner still wishes to pursue commercial development."

19 According to Mr Rodney Bercov, the City's Manager, Development Services, Amendment No 4 was initiated in order to save time for the applicants in the event that their development application should ultimately not be approved by the Tribunal.

20 On 10 March 2004 the applicants appealed to the Tribunal against the decision of the Council made on 24 February 2004. They abandoned their earlier appeal.

21 On 23 March 2004 the Council provisionally adopted the draft Local Commercial Strategy and, two days later, referred it to the Planning Commission for endorsement pursuant to reg 12B(3)(c) of the Regulations.

(Page 13)

22 On 30 April 2004 the City, by e-mail, advised the Department that the hearing of the appeal was to commence on 28 June 2004 and that it was "most anxious" to finalise the draft Local Commercial Strategy and Amendment No 4 prior to that date. The e-mail mentioned that Mr Rodger Kohn (a senior project planning co-ordinator with the Department), to whom it was addressed, had indicated that he would deal with Amendment No 4 as a matter of priority. It also mentioned that the Council's objective was to have the amendment finally approved by the Minister by not later than Friday, 25 June 2004.

23 Mr Kohn acknowledged, in the course of his evidence given in the proceedings before the Tribunal, that he had given an undertaking to progress the Amendment as swiftly as he could. However, he denied that he had had any intention of circumventing the appeal.

24 In his affidavit (par 51) Mr Povey says that, from the City's perspective, a delay in the progression of Amendment No 4 until after the appeal had been determined would have meant that the appropriate land use for the land would be:

"determined purely on the strength and weaknesses of a particular development proposal isolated from the broader planning objectives the City aims to achieve through its determination, in conjunction with the State Government through the WAPC and the Minister of appropriate land use zoning throughout the City".

25 On 25 May 2004, the Council, then being aware of the appeal, resolved to proceed with Amendment No 4.

26 The applicants thereupon applied to the Supreme Court for an order nisi for a writ of certiorari quashing the decision of the Council initiating Amendment No 4, upon the grounds that this decision had been made without the Council being aware of the appeal or for an improper purpose. The application came before Barker J. He dismissed it on 1 June 2004. He said that, if the Council was under a misapprehension in that it was unaware that a planning appeal had been lodged, that was a misapprehension as to a question of fact which did not bear upon the Council's power to resolve to amend its Scheme. He also said that the existence of the appeal seemed to him to have been "totally irrelevant" to the question of whether or not the Council was entitled to initiate an amendment to the Scheme as it did.

(Page 14)

27 On 11 June 2004 the applicants informed the Minister that the appeal was due to commence on 28 June 2004. They asked that Amendment No 4 not be progressed until the appeal had been determined.

28 Then, on 15 June 2004, the report which had been prepared by the Department on Amendment No 4 was provided to the Planning Commission. That report referred to the Council's reliance on the draft Local Commercial Strategy in rejecting the applicants' development application and in supporting the Amendment.

29 On 15 June 2004 the Planning Commission resolved to recommend to the Minister that final approval of the Amendment be granted. The background to that recommendation was recorded in the document sent to the Minister. It refers to the appeal to the Tribunal and also mentions the Council's reliance upon the Local Commercial Strategy. It records that the Department agreed with the position taken up by the Council. The document also mentions that the proposed Amendment was consistent with Planning Commission policy and with the Council's intentions for the site. As at 15 June 2004, the Department and the Planning Commission had yet to assess the draft Local Commercial Strategy.

30 By letter dated 18 June 2004 the applicants, through their solicitors, informed the Minister that two independent expert reports had been obtained by them for the purposes of their appeal to the Tribunal. These dealt with the need for, and the viability of, their proposed shopping centre. They suggested that it would be inappropriate for the Minister to consider Amendment No 4 without the benefit of those reports and without having a discussion with representatives of the applicants. They asked for an opportunity to meet with the Minister in order to explain the reports and their implications.

31 Four days later, on 22 June 2004, the Planning Commission recommendation was presented to the Minister.

32 Then, on 28 June 2004 (the day upon which the Tribunal commenced the hearing of the appeal), the Minister wrote to the City asking, inter alia, whether or not its Council had undertaken a review of the Local Commercial Strategy. She also asked upon what basis the Council had determined that the land was no longer a suitable alternative location to the Village Green Centre.

33 The City responded a month later, on 28 July 2004. The appeal to the Tribunal had by then been heard, but not determined. Evidence and submissions had been received over the six days following 28 June 2004.

(Page 15)

34 On 9 July 2004, the applicants advised the Minister that the hearing had concluded and that a decision was expected in some weeks. They asked that Amendment No 4 not be progressed until the appeal had been decided. They also mentioned that the amendment needed to be considered in the context of the Planning Commission's "endorsement or otherwise" of the draft Local Commercial Strategy.

35 On 13 August 2004, one of the Minister's advisers met with a representative or representatives of Midpoint Holdings. On 21 August 2004 Midpoint Holdings wrote to the Minister urging her to sign Amendment No 4 as a matter of urgency. The letter mentioned that Midpoint Holdings had provided "letters and information" to the Minister in July and August 2004 and that its representatives had met with her adviser on 13 August 2004 but still did not know the Minister's response.

36 A briefing note prepared for the Minister on 30 August 2004 reveals that, on 23 August 2004, the Department informed her that it had assessed the Local Commercial Strategy, that "no issues [were] identified" and that the Local Commercial Strategy would be submitted to the Planning Commission for adoption on 31 August 2004.

37 On 24 August 2004 the Minister resolved to support Amendment No 4 "in principle", subject to further negotiation with the City and the applicants as regards the question of residential density. On the same day, the Minister's Chief of Staff wrote to the applicants' solicitors informing them that the issue of deferral of consideration of the Amendment and possible consultation over residential density would be considered by the Minister "when the Amendment is placed before her for final determination".

38 By letter dated 26 August 2004 the applicants' solicitors acknowledged receipt of the Minister's letter. They also referred to a telephone discussion on the afternoon of 25 August 2004 with the Minister's adviser and made a submission as regards what was said to be the inter-relationship between the draft Local Commercial Strategy, the applicants' development application and Amendment No 4. Their letter recited some of the history of the matter and the gist of the expert evidence led on the applicants' behalf in the Tribunal hearing (including evidence to the effect that the conclusions in the draft Local Commercial Strategy were flawed). It sought an urgent response to their request that the Minister defer her decision pending the Tribunal's determination. An urgent meeting with the Minister was also sought.

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39 On 30 August 2004 the Department forwarded to the Minister a briefing note (approved but unsigned) informing her, inter alia, that a decision of the Tribunal to uphold the appeal might result in the applicants' land being developed contrary to the intended zoning. The note also informed the Minister that the Local Commercial Strategy would be considered at a meeting of the Statutory Planning Committee on 31 August 2004 and that the Department's assessment of that strategy identified "no fatal flaws" in it and recommended that the strategy be endorsed.

40 Also on 30 August 2004, the applicants' solicitors received a telephone call from the Minister's adviser. She told them that the Minister was proposing to reconsider the matter on the following morning and that, while the Minister might decide to defer any decision in relation to Amendment No 4, it was also possible that she might decide to approve that amendment.

41 Against this background, the applicants applied to the Supreme Court for the orders nisi made in these proceedings. They also applied for, and obtained, a stay preventing the Minister from approving Amendment No 4 until the hearing of the application or further order.

42 On 3 September 2004 the Minister made a submission to the Tribunal in which she noted that the Council had established "a properly researched and advertised Local Commercial Strategy" which was inconsistent with the applicants' development application.

43 On 8 and 13 September 2004 respectively, the City and the Minister applied to defer the Tribunal's determination of the appeal until after the Supreme Court proceedings had been determined. Having heard further evidence as to the current position of each of the Minister, the Department and the Planning Commission, and having heard submissions from all parties in that regard, the Tribunal declined to stay its own proceedings. That decision provoked an application by the Minister, the Department and the Planning Commission for an order enjoining the determination of the appeal by the Tribunal until after the hearing and determination of these proceedings or until further order. An order in those terms was made by Master Sanderson, in the Supreme Court, on 21 September 2004.

The orders now sought and the grounds relied upon

44 That brings us to the orders now sought and to the grounds which are relied upon in support of them.

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45 As against the Department, the applicants seek the issue of writs of certiorari quashing "the decision made by it on about 14 June 2004 whereby it recommended to the … Planning Commission the approval of Amendment No 4 …" and "the decision made by it sometime shortly prior to 25 August 2004 whereby it recommended to the … Planning Commission the approval of the draft Local Commercial Strategy".

46 The grounds relied upon in respect of the decision made on about 14 June 2004 are that the Department failed to take into account relevant matters (which it is unnecessary to identify) and thereby misconstrued its function, that it acted for an improper purpose or took into account an irrelevant consideration (it is unnecessary to identify this purpose or consideration), that it acted in breach of the rules of natural justice and that its decision was unreasonable or irrational in the circumstances.

47 The grounds relied upon in respect of the decision made sometime shortly prior to 25 August 2004 are that the Department failed to take into account relevant matters (again, these need not be identified) and thereby misconstrued its function, that it acted in breach of the rules of natural justice and that its decision was unreasonable or irrational.

48 As against the Planning Commission the applicants seek a writ of certiorari quashing the decision made by it on about 15 June 2004 "whereby it recommended to … the Minister … the approval of Amendment No 4 …", a writ of prohibition stopping it from proceeding "to a determination of whether to endorse the draft Local Commercial Strategy" and, in the alternative, a declaration as regards the matters which must be taken into account by it in making that determination.

49 The grounds relied upon for the issue of the writ of certiorari are that the Planning Commission failed to take into account relevant matters (identified below) and thereby misconstrued its statutory function; that it acted for an improper purpose or took into account an irrelevant consideration (also identified below); that it acted in breach of natural justice in failing to have regard to the relevant matters earlier referred to; and that its decision was unreasonable or irrational in the circumstances.

50 The grounds relied upon for the issue of the writ of prohibition are that no determination whether or not to endorse the draft Local Commercial Strategy can properly be made, having regard (amongst other things) to the principles of natural justice, without taking into account the expert evidence and submissions adduced by the applicants in the hearing before the Tribunal and the pending decision of the Tribunal. The

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requirement to have regard to those matters is also sought to be made the subject of the declaration sought by the applicants in the alternative to the writ of prohibition.

51 So far as the Minister is concerned, the applicants seek the issue of a writ of certiorari quashing "the decision made on about 25 August 2004 whereby … [she] resolved to support in principle the zoning of the applicants' land to residential in accordance with Amendment No 4 …", a writ of prohibition stopping her from proceeding "to a determination of whether to finally approve Amendment No 4" and, in the alternative, a declaration as regards the matters which are a pre-requisite to the making of a "proper" decision in that respect.

52 The grounds relied upon for the issue of the writ of certiorari are that no valid recommendation was received by the Minister from the Planning Commission, that the Minister failed to take into account relevant matters (which, for reasons which will later become apparent, it is unnecessary to identify) and thereby misconstrued her statutory function; that she acted for an improper purpose or took into account an irrelevant consideration (again, it is unnecessary to identify these); that the Minister acted in breach of the rules of natural justice because she failed to have regard to the relevant matters earlier referred to and because her adviser met with representatives of Midpoint Holdings without disclosing to the applicants the representations made at that meeting, or giving them an opportunity to respond to them, in circumstances in which she refused to meet with the applicants so as to enable them to be heard on similar issues; and that the Minister's decision was unreasonable or irrational in all of the circumstances because no, or inadequate, consideration was given to the relevant matters relied upon by the applicants.

53 The grounds relied upon for the issue of the writ of prohibition are that, in order properly to make a decision, having regard (amongst other things) to the principles of natural justice, the Minister:

(a) must have received a valid recommendation from the Planning Commission;

(b) was obliged to take into account the expert evidence and submissions adduced by the applications in the hearing before the Tribunal and available in answer to the representations made by Midpoint Holdings; and

(c) was obliged to take into account, also, the pending decision of the Tribunal.

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54 The declaration sought by the applicants is essentially to the effect that, before she can make her decision, the Minister is required to have regard to the matters referred to and is also required to have received a valid recommendation from the Planning Commission.

55 Then, as against each of the first three respondents, the applicants seek "mandamus commanding … them to make a recommendation or decision in relation to Amendment No 4 and the draft Local Commercial Strategy in accordance with law".

56 Finally, the applicants seek two additional declarations. The first (in par 5 of the application) is whether, in determining the appeal, the Tribunal is to apply the law (particularly the provisions of the Town Planning Scheme) in force at the date of the notice of appeal, or that in force at the date of the orders determining the appeal or that in force at some other, and if so, what date. The second (in par 6 of the application) is:

"A declaration whether in circumstances where

(1) an appellant has appealed against a refusal of a development application and

(2) an amendment to a town planning scheme has been initiated which if it becomes law would (subject to the declaration in 5) necessarily require the Tribunal to dismiss the appeal irrespective of its merits, the Minister must await and to the extent it is relevant take into account the decision of the Tribunal before the Minister makes a final decision to approval or otherwise the amendment to the scheme."

The claims against the Department

57 We propose, first, to deal with the claims which are made exclusively against the Department. These can be disposed of briefly. That is because writs of certiorari are sought in circumstances in which there is nothing to quash.

58 In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580 Mason CJ, Dawson, Toohey and Gaudron JJ said:

"The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review."

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59 Brennan J, too, said that quashing annihilates the legal effect of the act or decision. He said that, if an act or decision has no legal effect, there is nothing to quash (page 595).

60 It is consequently quite plain, as Brennan CJ and Gaudron and Gummow JJ recognised in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159, that, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights because it is that legal effect which may be removed for quashing.

61 The decisions said to have been made by the Department on 14 June 2004 and shortly prior to 25 August 2004 had no discernible or apparent legal effect upon rights. They amounted to no more than recommendations to the Planning Commission that Amendment No 4 be recommended by the Planning Commission to the Minister for approval and that the draft Local Commercial Strategy be endorsed by the Planning Commission.

62 As to the former recommendation, there is no suggestion that the Planning Commission was bound to act upon it and nor is it said that the existence of the Department's recommendation was a condition of the exercise, by the Planning Commission, of its functions or powers in respect of the amendment. That neither of these propositions could sensibly be advanced is apparent from the relevant legislative provisions discussed later in these reasons, when dealing with the claims against the Planning Commission.

63 As to the recommendation that the Planning Commission should endorse the draft Local Commercial Strategy, it is necessary for us to say something about the relevant statutory provisions.

64 Strategies of that kind are prepared by the local government and forwarded by it to the Planning Commission: reg 12A(1) and (2) of the Regulations. Once the Planning Commission has certified that the strategy is consistent with reg 12A(3) (which requires that it set out the long-term planning directions for the local government, apply State and regional planning policies and provide the rationale for the zones and other provisions of the scheme), the local government must, amongst other things, advertise the strategy: reg 12B. Once submissions have been received as a consequence of the advertisements (and any other steps required to be taken), the local government must review the strategy in the light of those submissions (and any advice received), adopt it with such modifications as it thinks fit to give effect to the submissions and advice

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and submit a copy of it to the Planning Commission for its endorsement: reg 12B(3). If the Commission endorses the strategy, the local government must publish a notice accordingly in a newspaper: reg 12B(4). Then, in considering an application for planning approval, a council must have due regard to, and may impose conditions with respect to, a planning strategy which, in its opinion, is relevant to the proposed use or development: TPS 6, cls 7.5(f) and 7.9(1). However, a planning policy does not bind the council in respect of any application for planning approval.

65 It is quite plain from these provisions that the Department has no statutory role in respect of a Local Commercial Strategy and that its decision to recommend endorsement by the Planning Commission had no legal effect. The Planning Commission was not bound to act upon it and nor was the recommendation a condition of the exercise, by the Commission, of its power to endorse the strategy. Indeed, counsel for the applicants did not suggest otherwise.

66 It follows that certiorari does not lie against the Department in respect of either decision.

The claims against the Planning Commission

67 That brings us to the claims against the Planning Commission.

68 It is conceded by the respondents that the Commission's decision to recommend Amendment No 4 to the Minister was capable of attracting prerogative relief because it constituted a condition precedent to her exercise of the power to approve the amendment, and hence affected legal rights: regs 19 and 20(5) of the Regulations and s 7(2a) of the Act and see Hot Holdings at 164 - 165, per Brennan CJ, Gaudron and Gummow JJ. The applicants' claims consequently raise five questions. We will deal with each in turn.

Did the Planning Commission fail to take into account relevant matters and thereby misconstrue its statutory function?

69 The "relevant matters" said by the applicants not to have been taken into account by the Planning Commission are as follows:

"(i) The draft Local Commercial Strategy at least as it applied to the applicants' land, and the identified defects therein and the effect of such defects on the proposed amendment;

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(ii) Its (future) consideration and views and determination on whether to endorse the draft Local Commercial Strategy;

(iii) The decision of the Town Planning Appeal Tribunal on the appeal and based on the grounds (as above) [sic] the hearing in relation to which was due to commence on 28 June 2004."

70 The ground of failure to take into account a relevant consideration "can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision" and the factors that a decision-maker is bound to take into account in making the decision will be determined by construction of the statute conferring the discretion, having regard for its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, per Mason J. In the same case at 55, Brennan J said:

"The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power."

71 Similarly, in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35 - 36, Brennan J said that:

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

72 Consequently, the first question is whether the matter was one that the repository of the power was bound to take into account: Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 451 per Gleeson CJ and McHugh J (their Honours went on to say that, if the matter was not one that the Minister was bound to take into account, that is an end of the matter; and, if it was, then either it was considered

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adequately or it was not). See also Foster at 459 [46], per Gaudron and Hayne JJ, and at 480 [102] where Kirby J said:

"It was not disputed that the only basis upon which the appellant would be entitled to an order for judicial review was if he could show that the Minister had a duty to consider the … [consideration there arising]. It would not be sufficient that this was a consideration which the Minister might take into account. Only a failure to conform to a legal duty could, in circumstances such as the present, attract judicial intervention. The mere fact that an interested person, in the course of a submission, requests a Minister to take into account the suggested consideration would not, of itself, elevate that matter to one of obligation (Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 44)."

73 In order to answer the question whether the "relevant matters" relied upon by the applicants were matters that the Planning Commission was required to take into account it is, as foreshadowed, necessary to have regard to the provisions of the Act and Regulations. These make detailed provision for the amendment of town planning schemes.

74 Town planning schemes are the principal means of regulating land use in Western Australia. Section 6(1) of the Act provides for the general object for which schemes (or amendments of schemes) can be made. This is said to be that of:

"improving and developing … land to the best possible advantage, and of securing suitable provision for traffic, transportation, disposition of shops, residence, factory and other areas, proper sanitary conditions and conveniences, parks, gardens and reserves, and of making suitable provision for the use of land for building or other purposes and for all or any of the purposes provisions, power or works contained in the First Schedule".

75 Due regard must also be had to any relevant approved statement of planning policy prepared under s 5AA of the Act: s 7(5)(a).

76 Where a local government has prepared an amendment to a town planning scheme (as it may do under s 7(1) of the Act) then, after compliance with s 7A1 and s 7A2 (reference to the Environmental Protection Authority and pre-requisites to advertisement of the proposed

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amendment), it must advertise the amendment for public inspection in accordance with the Regulations: s 7(2)(a). The local government is obliged to consider submissions made in respect of the amendment within a specified period after the completion of the advertising process. Then, it must either adopt the amendment with or without modification or decline to proceed with it (reg 17 and reg 25(1)(fb) and (fba)). Within 28 days of passing a resolution to adopt the amendment the local government is required to forward the amendment documents to the Planning Commission together with, inter alia, a schedule of submissions made in respect of the amendment, the local government's recommendations made in respect of those submissions, particulars of any modifications to the scheme which it recommends and a copy of the resolution passed by it under reg 17(2). The schedule of submissions must contain the submissions or a summary thereof (reg 18).

77 Regulation 19 then provides that:

"The Commission shall after having examined the Scheme [reg 25(1) requires a scheme amendment to be dealt with for this purpose as if it were a scheme] and the submissions made thereon and the comments, recommendations and modifications made by the responsible authority submit its recommendations to the Minister."

78 Section 7(2a) of the Act requires the Minister either to approve the amendment or to require the local government to modify it or to refuse to approve the amendment.

79 There is nothing, either expressed or implied, in the statutory scheme which required the Planning Commission to take into account the draft Local Commercial Strategy, or the defects in it which are said to have been identified by the applicants, or to await its own determination whether or not to endorse that strategy before recommending that the Minister approve the amendment. All that it was required to consider was the amendment itself, the submissions which had been made in respect of it, the local government's comments and recommendations in respect of those submissions, particulars of any modifications to the scheme (there were none) and the local government's resolution. The evidence reveals that each of these considerations was taken into account by the Planning Commission (so much appears from the Planning Commission's written recommendation to the Minister dated 15 June 2004 and its attachments) and that, on the strength of these considerations, and given that the proposed amendment was, as the Planning Commission said, consistent

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with its own policy, the Commission resolved to recommend to the Minister that she grant final approval to it.

80 However, the applicants contend that no "proper" consideration was given to these matters. In particular, they say that the submissions before the Tribunal touched upon the draft Local Commercial Strategy and that those submissions could not adequately be evaluated without a full evaluation of the strategy and the defects in it, taking into account the latest information available at the time of the making, by the Planning Commission, of its decision.

81 We are not persuaded that there is substance to this contention.

82 There is nothing in the evidence which establishes that the submissions made by the applicants could not adequately be evaluated by the Planning Commission without a greater understanding of the draft Local Commercial Strategy than it had. We should mention in this respect that, at the time of its decision, the Planning Commission had in its possession letters dated 20 April 2004 and 28 April 2004 from the applicants' solicitors and their planning consultants respectively identifying what they saw as defects in the draft Local Commercial Strategy and also their concerns in respect of Amendment No 4, this being, for any practical purposes, the latest information available to the Planning Commission in this regard (as to which see Peko-Wallsend, above, at 44 - 45, per Mason J). There is nothing to indicate that these letters were not taken into account by the Planning Commission, other than the fact that they were not referred to in the recommendation to the Minister. However, the effect of the recommendation was that of endorsing the position taken up by the City and there was no need for the Planning Commission to say any more than it did and to address, separately, every item of correspondence received by it from the applicants. Indeed, the applicants did not suggest that their correspondence was not taken into account - their counsel contended that it was this correspondence which led to the Planning Commission's haste in making its recommendation to the Minister.

83 It is important to bear in mind that the applicants' task, under this head, is that of establishing that there has not been a real performance of the duty imposed by law upon the Planning Commission. That does not involve this Court in an examination of the correctness of the Commission's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it. These are matters more pertinent to a merits review: R v War Pensions Entitlement Appeal

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Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242 - 243, per Rich, Dixon and McTiernan JJ, and Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 443 - 444. In our opinion, the applicants have failed to show that there was no real performance of the duty imposed by law upon the Planning Commission. There is insufficient evidence to demonstrate that the Commission did not genuinely take into account the matters required to be taken into account by it in a manner sufficient for the purposes of a judicial review as opposed to a merits review.

84 Next, there is nothing in the statutory scheme which either expressly or impliedly required the Planning Commission to await the decision of the Tribunal before making its recommendation to the Minister.

85 The making and amendment of town planning schemes is entrusted to local governments, the Planning Commission and the Minister. The making and amendment of local planning strategies is entrusted to local governments and the Planning Commission. The Tribunal has no role to play in any of these respects (other than as an arbiter of disputes in respects entrusted to it by statute). Thus, in Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission (2002) 122 LGERA 433 Barker J, at 451 [87] and [88] referred with approval to the decision of Hardie J in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 at 125 in which his Honour had found that, pending a decision upon a planning proposal incorporated in a draft amending scheme, a court should "avoid as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take". Hardie J went on to say that this principle made eminent sense and that planning options seriously entertained by planning authorities should not be peremptorily cut off.

86 One of the purposes of the State's executive government is that of regulating land use through the administration of various planning statutes and the development of planning policy and, as we have said, much of this work is entrusted to such entities as local governments and the Planning Commission. Moreover, the advertising requirements imposed by the Regulations (see regs 15, 25(1)(fa) and (faa) and reg 25(2)(j)) are designed to ensure that relevant public authorities, owners and other members of the public are given an opportunity to consider and make submissions in respect of a scheme amendment. Consequently, it is not surprising that we have been referred to nothing in the scheme of the legislation as it relates to local authorities, to the Planning Commission and to the Tribunal, which would require that, before making a planning

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decision entrusted to it, the Planning Commission must have regard to the decision of the Tribunal on an appeal against a refusal of a development application or of an application for the rezoning of particular land. Of course, in a particular case or cases the Planning Commission might choose to await the decision of the Tribunal if that should seem to it to be appropriate. However, it is not required to do so.

Did the Planning Commission make its decision for an improper purpose, or take into account an irrelevant consideration?

87 The power to amend a scheme must, of course, be exercised for the purposes of the Act: Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1 at 6 [6], per Anderson J.

88 In contending that the Planning Commission acted for an improper purpose, or took into account an irrelevant consideration (as to which see, for example, Sydney Municipal Council v Campbell [1925] AC 338; Donovan v City of Sale [1979] VR 461 and Ziade v Randwick City Council (2001) 51 NSWLR 342), the applicants rely upon the fact that its decision to recommend the approval of the Amendment was "taken at the time and in the manner it was at the express request of the City … for the express purpose of stultifying the applicants' appeal to the Tribunal".

89 While it may be that the Planning Commission believed that its recommendation, if acted upon by the Minister, would effectively result in the dismissal of the applicants' appeal to the Tribunal, this does not mean that its decision to make the recommendation was taken for an improper purpose. The point is illustrated by what was said by Brinsden J in Bonton Pty Ltd v City of South Perth [1982] WAR 213. In that case, the City had gazetted an amendment to a town planning scheme, valid for six months, which provided that height restrictions were to apply to buildings within a certain area the subject of the scheme. After that period had expired, the plaintiff lodged an application for approval to commence development of a building exceeding the height limit previously enforced by the amendment. The application was refused and the plaintiff appealed to the Tribunal. The City thereupon gazetted a further amendment which imposed a further height limitation which would expire in six months time. The plaintiff applied for a declaration that the further amendment was invalid. Amongst other arguments, the plaintiff contended that the amendments were ultra vires the powers conferred by the Act in that they were not made in good faith or were made for irrelevant purposes. Brinsden J said (at 219 - 220):

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"Now it is quite true the city at all times has been keen to avoid any period of time during which a height restriction in the form of [the] Amendment … was not in force and indeed, because of the gap in operation between [the two] Amendments … it became possible for the plaintiff to makes its application for development with a prospect of obtaining approval. I have also no doubt the city desires to prevent the plaintiff's appeals to the Tribunal reaching a satisfactory conclusion from the plaintiff's point of view, and to further that aim is prepared to do what it can to make certain that at the time the Tribunal is called upon to give its decision on the merits there will be in lawful existence a blanket prohibition in the form of [a further] Amendment … . But to accept all that does not require the conclusion that the city's true or dominant purpose in participating in the events leading up to the gazettal of [the second] Amendment … was to avoid appellate decisions which would not be inhibited by a blanket height restriction. In my view the city's dominant purpose at all times … has been to achieve blanket control for an indefinite period of time in respect of the height of buildings in the affected area. It is not for me to pass judgment on the wisdom of a height restriction … . If that was the dominant purpose as I so find then [the] Amendment … was not put forward in bad faith. Furthermore, if the city had so acted for the purpose of gaining more time so it could eventually make a further town planning scheme affecting the … area, that purpose would not have been an exercise of power for an improper or irrelevant nature. It seems to me clearly within the nature of town planning that at times a point must be held during which the planning authority has time to consider future development."

90 By analogy of reasoning, it seems to us that a decision, genuinely based upon proper planning considerations, to recommend that the Minister should approve a scheme amendment, even if hastily made in order to avoid the possibility that a pending decision of the Tribunal will result in the approval of a development which is seen to be inimical to proper planning principles, could not be said to be made in bad faith or to take into account an irrelevant consideration.

91 We should also reiterate that, in the application which was made before him on 1 June 2004, Barker J regarded the fact that there was an appeal pending in the Tribunal against a deemed refusal as having been

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totally irrelevant to the question whether or not the Council was entitled to initiate an amendment to the scheme as it did.

Was the decision to make the recommendation made in breach of the rules of natural justice?

92 The basis for the contention that the Planning Commission's recommendation was made in breach of the rules of natural justice is that it failed to take into account the "relevant matters" identified above.

93 The rule of natural justice which the Planning Commission is said to have breached is presumably the so-called "audi alteram partem" rule or, in more modern terminology, the "hearing" rule (the terminology adopted by Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed, (2004) at 370). This requires a decision-maker to hear a person before making a decision affecting that person's interests. There is no suggestion in this case that any entitlement by the applicants to be heard by the Planning Commission was defeated or denied. Nor is it easy to see how a "failure" by the Planning Commission to take into account its own "future" consideration of the draft Local Commercial Strategy or to await the decision of the Tribunal before making its own decision could amount to a failure of natural justice. While a failure to respond to "a substantial, clearly articulated argument relying upon established facts" may amount to a failure to accord natural justice: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, this is not a case in which any such thing happened. The mere fact that the Planning Commission made a recommendation of which the applicants disapproved does not mean that it ignored their position, as articulated in the letters sent to it by them, assuming that they were entitled to make those submissions to the Planning Commission and that it was obliged to have regard to them in the circumstances of this case.

94 Consequently, no breach of the rules of natural justice by the Planning Commission has been made out.

Was the decision of the Planning Commission unreasonable or irrational?

95 In contending that the Planning Commission's recommendation was unreasonable, the applicants rely upon what they say was the unseemly haste with which the Planning Commission acted, its failure to give mature consideration to alternative uses of the land and to the draft Local Commercial Strategy (and to that strategy's alleged defects) and its failure to consider other pertinent matters available at the date of the decision,

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including the pending decision of the Tribunal and the various submissions which had been made in the proceedings before the Tribunal.

96 The applicants rely, under this head, essentially on so-called "Wednesbury unreasonableness", that terminology coming from the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. They contend that, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised (citing Brennan J in Kruger v Commonwealth of Australia (1997) 190 CLR 1 at 36 and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 100 - 101 [40]) and that, for the reasons given, the Planning Commission did not make a reasonable decision.

97 However, as Brennan J pointed out in Quin at 36 - 37:

"Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined. As Professor Wade explains (Administrative Law, 6th ed (1988), p 407) in a passage cited with approval in Reg v Boundary Commission; Ex parte Foot [1983] QB 600 at 626:

'The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.'"

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98 More recently, in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Appellant S106/2002 (2003) 198 ALR 59 ("S20") the High Court appears to have taken the view that Wednesbury unreasonableness cannot be used to challenge grossly unreasonable fact finding. In Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Santow JA suggested (at [58]) that S20 was the culmination of a number of High Court and other judgments which had doubted whether Wednesbury unreasonableness could be used in that way (notwithstanding what had been said by Mason J in Peko-Wallsend at 41): see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 273, per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; and the other cases cited by Santow JA at [58].

99 While S20 turned, to some extent, on the provisions of the Migration Act 1958 (Cth), which forbade challenge on the ground of breach of natural justice and also on the ground that "the decision involved an exercise of a power that [was] so unreasonable that no reasonable persons could have so exercised the power" (s 476(2)(b)), there are indications in the judgments that Wednesbury's scope is limited in the manner suggested: see Aronson, Dyer and Groves: Judicial Review of Administrative Action, 3rd ed (2004) at 338 - 339. In S20 the Court applied what it must necessarily have seen as the different criterion of whether the decision was "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds" (at [34] and [37]). Review upon this ground appears to rely either upon an implied statutory requirement or upon resort to an aspect of natural justice: see Gleeson CJ at [9], McHugh and Gummow JJ at [54] and Kirby J at [116], [127] and [161]. While the scope of the ground remains to be worked out (Aronson, Dyer and Groves suggest, at 266, that "we still await guidance on … just how irrational or illogical a decision must be to fall foul of S20's standard"), the threshold for interference seems to be high. Indeed, in Bragg, at [59], Santow JA regarded it as "a more demanding or higher threshold for review" than Wednesbury unreasonableness (although there is debate as regards the interpretation of the judgments in S20: see, in this respect, Aronson, Dyer and Groves at 249 - 250 and the cases there cited).

100 Returning to the aspect of unreasonableness, Gleeson CJ and McHugh J had said, in Eshetu at 626 [40], the following:

"The essence of the suggested illogicality or unreasonableness in the Tribunal's decision, as observed by Hill J, and accepted

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by Davies and Burchett JJ, although strongly contested by Whitlam J, is said to lie in the process of reasoning by which the Tribunal came to regard the information given by Mr Eshetu as to the December 1991 incident which led to his departure from Ethiopia as implausible. It was considered by Hill J that the Tribunal failed to give sufficient weight to certain information before it, especially information from EHRC, and attached unwarranted importance to the absence of any independent record of the alleged occurrences. Whitlam J was of the view that the reasoning displayed no error. Even if it did, however, there is a serious question whether the suggested error is of the kind to which the Wednesbury principle is directed. We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Tribunal's decision, even on Hill J's view of it, as an abuse of power. Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable', or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence."

101 (See also at 628 [45], per Gleeson CJ and McHugh J, and 649 - 650 and 654, per Gummow J and Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 and Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424).

102 There is nothing in what has been advanced on behalf of the applicants in this case to suggest that the Planning Commission's decision fell within the concept of Wednesbury unreasonableness, as explained in the case law.

103 The applicants contend, in effect, that the Planning Commission's reasoning (and hence its decision) was wrong, essentially because it did not adopt their view of the planning considerations which might best be applied to the land (rather than what they said was the mistaken approach adopted in the draft Local Commercial Strategy) and because the Commission's haste led it not to give more "mature" consideration to the issue and to the pending decision of the Tribunal. Even if the applicants were to be right in those contentions, that is insufficient to bring the decision of the Planning Commission within the concept of Wednesbury unreasonableness. It cannot be said that no reasonable repository of the

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power could have made that decision. Nor can it be said that the decision amounted to an abuse of power. We have already said that the decision to make the recommendation was, on the face of it, a bona fide planning decision based upon ordinary planning considerations and there is no evidence to the contrary.

104 There is also insufficient in what has been submitted on behalf of the applicants to justify a categorisation of the decision as irrational or illogical and as not being based upon findings or inferences of fact supported by logical grounds (if, as we assume to be the case, this is put forward as an alternative submission on the applicants' behalf). There is nothing irrational or illogical about the decision, even if it can be said to be wrong. It was based upon findings which were supported by logical grounds even if, as the applicants contend, these findings were wrong. Moreover, as we have stressed, the decision was made (and made quickly) for what the Planning Commission took, in good faith, to be valid planning reasons.

Is the Planning Commission obliged, before making a decision whether to endorse the Local Commercial Strategy, to have regard to the expert evidence and submissions advanced by the appellants before the Tribunal and the "pending decision" of the Tribunal?

105 Two questions remain. The first is whether a writ of prohibition should issue, preventing the Planning Commission from deciding whether or not to endorse the draft Local Commercial Strategy without first awaiting the decision of the Tribunal and taking into account that decision and the evidence and submissions placed before the Tribunal. The second is whether there should be a declaration that the Planning Commission is required to take these matters into account before making its decision.

106 In our opinion no sufficient basis has been made out for relief of either kind. We have already said that the making of local planning strategies is entrusted to local governments and to the Planning Commission and we have set out the relevant statutory provisions bearing upon the making of these strategies. We have also said that the Planning Commission is aware of the fact of the appeal to the Tribunal and of the defects in the Local Commercial Strategy which are said by the applicants to exist. It is consequently aware of the attitude of the appellants as expressed in the appeal and of the gist of the evidence and submissions placed before the Tribunal. Whether it will or will not await the decision of the Tribunal seems to us to be a matter for the Planning Commission itself to decide, having regard for its statutory obligations and for the

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issues which fall to be determined by the Tribunal. We can see no reason to pre-empt its decision, either by way of the issue of a writ of prohibition or by the making of a declaration in the terms sought.

107 We would consequently decline to grant the relief sought.

The claims against the Minister

108 The application for a writ of certiorari against the Minister can be disposed of quite simply. It contains the seeds of its own destruction. It describes the Minister's decision to support Amendment No 9 as being one "in principle". It is plain that the Minister's "in principle" decision (which was not a decision for the purposes of s 7(2a) of the Act or of regs 20 and 21 of the Regulations) had no discernible or apparent legal effect upon rights. Indeed, it is apparent from the background facts to which we have earlier referred that the applicants understood this to be so. We have said that, after this "decision" was made, they made a detailed written submission to the Minister and asked her whether or not she proposed to defer her decision. That the Minister herself regarded her "in principle" decision as not having any final effect is apparent from the fact that, on 30 August 2004, after it had been made, she made it known that she was to consider the matter on the following morning and that she might yet decide to defer any decision in relation to Amendment No 4.

109 Certiorari consequently cannot lie against that "in principle" decision.

110 The application for a writ of prohibition (against the making, by the Minister, of a "final determination") and the application for a declaration raise two questions. The first is that of whether the Minister received a valid recommendation from the Planning Commission (all parties accepted that this was a statutory prerequisite to the Minister's decision). The second is that of whether the Minister failed to have regard to relevant matters.

111 As to the first question, the only contentions advanced in support of the proposition that there was no valid recommendation from the Planning Commission are those with which we have already dealt. It follows that no basis has been made out for a finding of invalidity.

112 As to the second question, the "relevant matters" relied upon are the expert evidence and submissions adduced by the applicants before the Tribunal and the Tribunal's pending decision.

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113 Just as the Planning Commission was not bound to await the decision of the Tribunal, so, too, for similar reasons, the Minister was not bound to do so.

114 As to the evidence and submissions adduced before the Tribunal, it is enough to say that the background facts to which we have earlier referred reveal that the Minister did take into account what is said to have been the material gist of the evidence and submissions placed by the applicants before the Tribunal, if it be assumed that she was bound to take that evidence and those submissions into account. We have said that the letter written to the Minister by the applicants' solicitors on 26 August 2004 set out, in support of their submissions to the Minister (which appear to have been to the same effect as those made by them before the Tribunal), the gist of the expert evidence led on the applicants' behalf in the Tribunal, including that of evidence to the effect that the conclusions in the draft Local Commercial Strategy were flawed. That being so and given, also, that the only natural justice ground raised in support of the application for a writ of prohibition is to the effect that the Minister was required to have regard to this evidence and these submissions in answer to the representations which had been made to her by Midpoint Holdings (we add that the evidence reveals that the applicants, too, appear to have had unilateral conversations with the Minister's adviser), it follows that no basis has been made out for the relief claimed.

The application for writs of mandamus

115 It follows that no basis has been made out for the issue of writs of mandamus.

The claimed declaration as to the law applicable in the Tribunal

116 As to the declaration claimed in par 5 of the originating motion, no good reason has been shown why this Court should (if it can) provide an advisory opinion to the Tribunal, in circumstances in which none has been sought by it, as to the law which it should apply in the course of making its determination. It is not the function of this Court, least of all on the application of one party only, to provide gratuitous advice to the Tribunal, in advance of its decision, as to how it should go about its task.

117 The submissions which have been made to this Court by all parties as regards the applicable law can, and should, be made to the Tribunal, if that has not already been done. We consequently decline to make the declaration sought.

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The declaration whether the Minister must await the decision of the Tribunal

118 It follows, from what we have earlier said, that there is no obligation upon the Minister to await the decision of the Tribunal before making her decision. If it were necessary for the Court to make a declaration accordingly, we would have been prepared to make it. However, there is no need for any such declaration.

Conclusion

119 The applicants have consequently failed to make good their contentions. We would accordingly deny them the relief sought by them and discharge the orders nisi and stay ordered or made on 30 August 2004.