Coast Ward Ratepayers Association (Inc) v Town of Cambridge

[2016] WASC 239

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   COAST WARD RATEPAYERS ASSOCIATION (INC) -v- TOWN OF CAMBRIDGE [2016] WASC 239

CORAM:   PRITCHARD J

HEARD:   10 FEBRUARY 2016

DELIVERED          :   9 AUGUST 2016

FILE NO/S:   CIV 2330 of 2015

BETWEEN:   COAST WARD RATEPAYERS ASSOCIATION (INC)

Applicant

AND

TOWN OF CAMBRIDGE
Respondent

Catchwords:

Judicial review - Application for certiorari and declaration to quash resolutions of local government to adopt amendment to local planning scheme - Application to dismiss grounds of review summarily - O 56 r 5(2)(j) Rules of the Supreme Court 1971 (WA) - Meaning of 'no reasonable prospect of succeeding'

Judicial review - Standing - Standing requirements for certiorari - Whether there is a standing requirement for certiorari - Whether applicant had special interest in subject matter of action for purposes of equitable relief - Whether applicant must have special interest in relation to individual grounds of review or simply in relation to subject matter of action generally

Statutory interpretation - Construction of s 5.67 Local Government Act 1995 (WA) - Purposive construction - Where construction advanced is at odds with statutory text - Circumstances in which words may be read into legislation

Judicial review - Failure to comply with statutory procedure - Planning and Development Act 2005 (WA) s 79 - Where failure to seek advice of Heritage Council on amendment to local planning scheme - Whether s 79 prohibition on proceeding without Heritage Council advice applies in relation to entirety of amendment or only part thereof - Where advice subsequently sought from Heritage Council by Department of Planning - Whether failure to comply with statutory procedure - Whether grant of relief would be inutile

Local government - Town planning - Where advertisement of amendment to local planning scheme alleged to be misleading - Whether recognised ground of review - Where ground of review involved possible jurisdictional error - Where important not to stifle development of the law

Legislation:

Criminal Appeals Act 2004 (WA)
Heritage of Western Australia Act 1990 (WA)
Interpretation Act 1984 (WA)
Local Government Act 1960 (WA)
Local Government Act 1995 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Planning and Development Act 2005 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Rules of the Supreme Court 1971 (WA), O 56 r 5(2)(j)
Town Planning Regulations 1967 (WA)

Result:

Application allowed in part

Category:    B

Representation:

Counsel:

Applicant:     Mr M Cuerden SC

Respondent:     Mr K M Pettit SC

Solicitors:

Applicant:     Glen McLeod Legal

Respondent:     McLeods Barristers & Solicitors

Cases referred to in judgment:

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493

Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117

Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49; (1998) 194 CLR 247

Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256

Beckwith v The Queen (1976) 135 CLR 569

Bridgetown‑Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) LGERA 380; (1997) 18 WAR 126

Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Davison v Commonwealth [1998] FCA 529

El Cheikh v Hurstville City Council [2002] NSWCA 173; (2002) 121 LGERA 293

Ex parte Helena Valley / Boya Association (Inc); State Planning Commission and Beggs [1989] 2 WAR 422

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617

JJ Richards and Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297

Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202

Levenstrath Community Association Inc v Council of the Shire of Nymboida (1999) 105 LGERA 362

Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91

McKay v Commissioner of Police [2006] WASC 189

Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R (Kides) v South Cambridgeshire District Council Ltd [2003] 1 P & CR 19

R v Justices of Surrey (1870) LR 5 QC 466

R v Lavender [2005] HCA 37; (2005) 222 CLR 67

R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681

Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264

Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372

Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150

Robinson v Western Australian Museum (1977) 138 CLR 283

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Seddon v Medical Assessment Panel [2011] WASC 237

Shilkin v Taylor [2011] WASCA 255

Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) [ 1995] HCA 11; (1995) 183 CLR 552

Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Talbot v Lane (1994) 14 WAR 20

Taylor v The Owners of Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531

Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591

Waterside Workers' Federation of Australia v Gilchrist, Watt and Sanderson Ltd [1924] HCA 61; (1924) 34 CLR 482

Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156

Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480

Woodley v Minister for Indigenous Affairs [2009] WASC 251

Table of Contents

1.    The salient facts and the legislative scheme for amending a local planning scheme

The Proposed Amendment
The legislative scheme for amending a local planning scheme

Advertisement and public notice of the Proposed Amendment
The Council's vote on the resolutions
The former mayor is alleged to have a financial interest in the Proposed Amendment
The Town fails to refer the Proposed Amendment to the Heritage Council
The judicial review application

2. The application to dismiss under O 56 r 5(2)(j) RSC
3.    Whether the Association has standing to bring the judicial review application

The Town's contention in relation to the Association's standing to apply for certiorari
The Town's contention that the Association does not have standing to seek declaratory relief

4.    Why grounds 1 and 2 of the judicial review application have no reasonable prospects of succeeding

Participation in decisions in which a councillor has a financial interest

5.    Why ground 3 of the judicial review application has no reasonable prospects of succeeding
6.    Why ground 4 of the judicial review application has a reasonable prospect of succeeding...

Conclusion

1. PRITCHARD J:  On 24 February 2015, the council of the Town of Cambridge (the Council) resolved to initiate an amendment (the Proposed Amendment) to the Town of Cambridge Town Planning Scheme No 1 (the TPS), and resolved that the Proposed Amendment be publicly advertised (the February resolution).  On 1 July 2015, the Council resolved to modify the Proposed Amendment, to adopt it, and to request the Western Australian Planning Commission (WAPC) to consider it and to seek the final approval of the Minister for Planning (the Minister) for the Proposed Amendment (the July resolution). 

2. The Coast Ward Ratepayers Association (Inc) (the Association) commenced an application for judicial review seeking a writ of certiorari and declaratory relief to set aside the February resolution and the July resolution (the judicial review application).  The Association advances five grounds for the judicial review application. 

3. The Town of Cambridge (the Town) now applies for an order that grounds 1 to 4 of the judicial review application be dismissed. It makes that application pursuant to O 56 r 5(2)(j) of the Rules of the Supreme Court 1971 (WA) (RSC).

4. For the reasons set out below, grounds 1, 2 and 3 of the application for judicial review have no reasonable prospects of succeeding and those grounds of the application for judicial review should be dismissed.  I am, however, satisfied that ground 4 of the application for judicial review has a reasonable prospect of succeeding.  Notwithstanding the submission by counsel for the Town that I should make a final determination in respect of ground 4 at this stage, I am not persuaded that it is appropriate to do so.  Rather, ground 4, together with the remaining ground of the judicial review application (ground 5, which was not the subject of the present application) should be heard together at a final hearing.

5. In these reasons for decision, I deal with the following matters:

   1.The salient facts and the legislative scheme for amending a local planning scheme;

   2.The application to dismiss under O 56 r 5(2)(j) RSC;

   3.Whether the Association has standing to bring the judicial review application;

   4.Why grounds 1 and 2 of the judicial review application have no reasonable prospects of succeeding;

   5.Why ground 3 of the judicial review application has no reasonable prospects of succeeding; and

   6.Why ground 4 of the judicial review application has a reasonable prospect of succeeding.

1. The salient facts and the legislative scheme for amending a local planning scheme

1. The facts relevant to the present application were set out in the affidavit of Jason Richard Buckley, the Chief Executive Officer of the Town.  I did not understand there to be any dispute in relation to those facts, at least for the purposes of the present application.  The facts set out below are drawn from Mr Buckley's affidavit.

The Proposed Amendment

1. There were two planks to the Proposed Amendment.  First, the Proposed Amendment was, broadly speaking, intended to permit certain kinds of additional housing to be constructed on residential lots located within the Town (the additional uses).  The Proposed Amendment would permit the development of lots of prescribed minimum sizes, located within certain areas of the Town, to a higher density, through the construction of multiple dwellings or apartment complexes. 

2. Secondly, the Proposed Amendment would remove the requirement under the TPS for a minimum street boundary setback from the primary street of 7.5 m for lots in the City Beach precinct and 9 m for lots in the Floreat Precinct (the setback requirement).  Mr Buckley's evidence was that this amendment was initiated after a survey of residents in early 2014 revealed that a majority of the respondents supported a reduction in the setback requirement.  Following that survey, amendments to the Town's streetscape policy were made, which enabled the Council, in the exercise of its discretion, to approve a development application which did not comply with the TPS, so as to permit a setback reduction identical to that which is proposed as a result of the Proposed Amendment.  Mr Buckley's evidence was that in so far as the Proposed Amendment dealt with the setback requirement, it would simply formalise and codify the policy position which had previously been adopted by the Town. 

3. Mr Buckley's evidence was that the purpose of the setback requirement was to 'give landowners the opportunity to build closer to the street and, in turn, prevent dwellings from encroaching into the rear setback area.  The existing large front setbacks have resulted in front setback areas being utilised as the primary outdoor living space … which in turn has led to front yard security fencing with a negative effect on the streetscape.'[1]  The removal of the minimum front setback requirement under the TPS would affect 4,100 rateable properties in the Town. 

The legislative scheme for amending a local planning scheme

[1] Affidavit of Jason Richard Buckley affirmed 16 November 2015 [39].

1. Before dealing further with the salient facts, it is convenient to mention the key features of the legislative scheme which applies to the amendment of a local planning scheme.

2. The power for a local government to amend a local planning scheme derives from s 75 of the Planning and Development Act 2005 (WA) (PD Act). That section relevantly provides:

   A local government may amend a local planning scheme with reference to any land within its district … by an amendment ‑

   (a)prepared by the local government, approved by the Minister and published in the Gazette ; …

3. The process by which an amendment may be made to a local planning scheme is set out in both the PD Act, and in the Regulations made under the PD Act.  In the present case, although the Town Planning Regulations 1967 (WA) (TP Regulations) have since been repealed,[2] they applied at the time the February resolution and the July resolution were adopted.[3]  The TP Regulations refer primarily to the adoption of a town planning scheme (now called a local planning scheme), but an amendment to such a scheme is also required to conform with the Regulations, albeit with some modifications.[4] 

   [2] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) reg 78.

   [3] The TP Regulations were repealed on 19 October 2015.

   [4] Town Planning Regulations 1967 (WA) reg 25(1).

4. If a town planning scheme amendment meets certain criteria,[5] a truncated process for securing the amendment, set out in reg 25(2) of the TP Regulations may be adopted.[6]  There was no evidence before the Court in respect of the relevant criteria but senior counsel for the parties agreed that the truncated process applied in this case and I have proceeded on that basis.  Broadly speaking, the applicable procedure in a case of this kind is set out below.

   [5] Town Planning Regulations 1967 (WA) reg 25(2).

   [6] For example, the approval of the WAPC is not required to advertise the amendment:  see Town Planning Regulations 1967 (WA) reg 25(2)(h).

5. The local government is required to prepare certain documents setting out the amendment.[7] It must then resolve to proceed with the amendment, and if it does so, must adopt the amendment in accordance with the PD Act.[8]

   [7] Town Planning Regulations 1967 (WA) reg 25(2)(e).

   [8] Town Planning Regulations 1967 (WA) reg 13(1), reg 25.

6. A local government is required 'to have due regard' to a variety of considerations in amending a local planning scheme, including state planning policies.[9]

   [9] Planning and Development Act 2005 (WA) s 77.

7. In certain cases, the local government must seek the advice of the Heritage Council. The requirement to do so is set out in s 79 of the PD Act.

8. The local government is also required to make reasonable endeavours to consult public authorities and persons likely to be affected by the amendment.[10]

   [10] Planning and Development Act 2005 (WA) s 83.

9. In addition, the local government must comply with any requirement of the Environmental Protection Authority (EPA) for an environmental review of the local planning scheme.[11] 

   [11] As required under s 48C(1)(a) of the Environmental Protection Act 1986 (WA), see Planning and Development Act 2005 (WA) s 82.

10. After there has been compliance with any requirement made by the EPA for an environmental review, an amendment to a local planning scheme is to be advertised for public inspection in accordance with the applicable Regulations.[12]  An amendment is not to be advertised for public inspection unless the directions of the EPA have been complied with.[13]

    [12] Planning and Development Act 2005 (WA) s 84.

    [13] Town Planning Regulations 1967 (WA) reg 25(2)(i).

11. The local government is required to advertise the amendment and make it available for public inspection. The requirements for that process are set out in reg 25(2)(j) of the Regulations and include:

    (i)the local government specified in the Town Planning Scheme Amendment as such shall become the responsible authority under the Act and ‑

    (I)notice of the Amendment shall be advertised in the Form No. 3 in Appendix A in accordance with paragraph (iii);

    (II)the responsible authority shall take such other steps, if any, as it considers necessary to make public the details of the Amendment;

12. A person who wishes to make a submission on an amendment must submit a signed, written submission to the local government, by a notice in the form of Form No 4 in Appendix A to the TP Regulations.[14]

    [14] Town Planning Regulations 1967 (WA) reg 16(1).

13. Within six weeks from the date by which submissions are to be received,[15] the local government is required to consider all submissions received and, in respect of each, is required to consider whether the amendment should be modified, or whether the submission should be rejected.[16]

    [15] Town Planning Regulations 1967 (WA) reg 17(1), as modified by reg 25(2)(l).

    [16] Town Planning Regulations 1967 (WA) reg 17(1).

14. After considering any submissions, the local government must pass a resolution either that the amendment be adopted with or without modification, or that it does not wish to proceed with the amendment.[17]

    [17] Town Planning Regulations 1967 (WA) reg 17(2).

15. After the amendment has been advertised and any submissions received have been considered by the local government, the amendment is to be submitted to the Minister for the Minister's approval.[18]  The process by which that occurs is that within 28 days of passing a resolution to proceed with the amendment, the local government is to forward the amendment to the WAPC, together with certain other documents,[19] namely a schedule of submissions made on the amendment, the local government's recommendations in respect of those submissions, particulars of the modifications (if any) to the amendment which are recommended by the local government, a copy of its resolution to adopt the amendment, and particulars of the steps taken to advertise the amendment.

    [18] Planning and Development Act 2005 (WA) s 87.

    [19] Town Planning Regulations 1967 (WA) reg 18(1), read with reg 25(2)(m).

16. After the WAPC has examined the amendment and the submissions made in respect of it, and the comments, recommendations and modifications made by the local government, it must submit its recommendations to the Minister.[20]

    [20] Town Planning Regulations 1967 (WA) reg 19.

17. If the Minister is not satisfied that the steps taken to advertise the amendment have been adequate, the Minister may direct the local government to take such steps as the Minister considers necessary to make public the amendment, and the local government is required to comply.[21]

    [21] Town Planning Regulations 1967 (WA) reg 25(2)(o), and see also reg 25(2)(p).

18. The Minister may approve the amendment, require the local government to modify the amendment in a manner specified by the Minister and then resubmit the amendment to the Minister for approval, or may refuse to approve the amendment.[22] 

    [22] Planning and Development Act 2005 (WA) s 87(2).

19. If the Minister approves the amendment, the WAPC is required to publish the amendment in the Government Gazette.[23]  The local government is also required to advertise the amendment in accordance with the Regulations, and to ensure that copies of the amendment are available to the public.[24]

    [23] Planning and Development Act 2005 (WA) s 87.

    [24] Planning and Development Act 2005 (WA) s 87(4B).

1. It is only once the amendment has been approved by the Minister and published in the Government Gazette that the amendment 'has full force and effect as if it were enacted by this Act'.[25]

Advertisement and public notice of the Proposed Amendment

[25] Planning and Development Act 2005 (WA) s 87(4).

1. As I have already mentioned, the February resolution had two parts.  First, pursuant to pt 5 of the PD Act, the Council resolved to initiate an amendment to the TPS to permit the additional uses, and to remove the setback requirement.  Secondly, the Council resolved that the Proposed Amendment be publicly advertised in accordance with the provisions of the TP Regulations and that 'additional consultation with affected landowners and community members be undertaken including the preparation and release of a housing options brochure and information sessions'.[26] 

   [26] Affidavit of Jason Richard Buckley affirmed 16 November 2015, Attachment 1, 31.

2. The Proposed Amendment was advertised by the publication of a notice in the form required by Form 3 of the TP Regulations in newspapers on two dates.  The Proposed Amendment was also the subject of advertisements in local newspapers on seven other dates.  In addition, a letter was sent to all residents within the City Beach and Floreat Precincts enclosing a submission form (Form 4) for the making of a formal submission under the TP Regulations (the submission form), an information brochure (the information brochure), and a survey form (the survey form) prepared by the Town and Catalyse Pty Ltd (Catalyse), a professional survey company.  Letters inviting comment on the Proposed Amendment were also sent to public utilities and authorities.  The Town's website had a page dedicated to advertising the Proposed Amendment, which featured links to the Proposed Amendment, the information brochure, and to an online version of the survey form.  Copies of the text of the Proposed Amendment were also available for viewing at the Town's offices.  In addition, the Town maintained a Facebook page to provide updates and answer questions in relation to the Proposed Amendment, information sessions for members of the public were hosted by the Town's planning staff on three occasions, and a briefing for local real estate agents was held on another occasion.

3. The Town received a total of 2,518 submissions on the submission form, comprising submissions from 2,390 individual submitters.  Eighty‑two percent of the submission forms contained an objection to the Proposed Amendment.  The Town received 1,948 responses on the survey forms.  The majority of those responses also opposed the Proposed Amendment. 

4. According to Mr Buckley, the submissions made on a submission form were analysed by officers of the Town, and the content of those forms was summarised and discussed at the Council's meeting on 1 July 2015.  Also before the Council at that meeting was a written response by the Town to the submissions.  In addition, a detailed report of the survey form responses was prepared by Catalyse and was attached to the minutes of the Council's meeting on 1 July 2015. 

5. Mr Buckley's evidence was that at its meeting of 1 July 2015, the Council considered the public submissions which had been made, and proceeded to make the July resolution.[27]

The Council's vote on the resolutions

[27] Affidavit of Jason Richard Buckley affirmed 16 November 2015 [26].

1. The Council comprises one mayor and eight councillors.  According to the minutes of the Council's meeting of 24 February 2015, four members of the Council declared a financial interest in the subject of the Proposed Amendment 'as they own property in the affected area' and did not participate in the discussion of, or vote on, the February resolution.  Consequently, five councillors participated and voted on the February resolution.  One of those councillors was the then mayor of the Town.  The resolution was passed unanimously. 

2. The minutes of the Council's 1 July 2015 meeting indicate that while eight members of the Council were present during discussion of the Proposed Amendment, and the proposed modifications thereto, three members of the Council left the meeting before the vote on the Proposed Amendment took place.  The minutes also indicate that the motion to adopt the Proposed Amendment, subject to modifications, was passed by four votes to one.  One of the Councillors who voted in favour of the July resolution was the then mayor of the Town. 

3. There is no dispute that the required quorum for each resolution of the Council was five members.

The former mayor is alleged to have a financial interest in the Proposed Amendment

1. At the time of the February resolution and the July resolution, the then mayor of the Town owned a developed residential lot in the City Beach precinct of the Town.  The removal of the setback requirement under the TPS would have meant that a residential building could have been constructed on that lot (if it were vacant) 1.5m closer to the front road reserve than would have been permitted without the Proposed Amendment.  However, Mr Buckley noted that the reduction in the setback requirement would not affect the maximum building area on the lot, which would continue to be limited by the Residential Design Codes. 

2. The former mayor did not disclose any financial interest in the Proposed Amendment at or prior to the Council's meetings of 24 February 2015 or 1 July 2015. 

3. In about June 2015, a complaint was made to the Department of Local Government and Communities (the LG Department) that the mayor had breached provisions of the Local Government Act 1995 (WA) (the LG Act) because he had not declared that he had a financial interest in the initiation of the Proposed Amendment, namely that the proposed change to the setback requirement would apply to his lot in the City Beach precinct.  The LG Department advised the mayor that he did not have a financial interest in the decision to initiate the Proposed Amendment and that, consequently, the LG Department did not propose to take any further action in relation to the matter.

The Town fails to refer the Proposed Amendment to the Heritage Council

1. Two residential lots in Floreat (the Floreat lots) are listed in the Register of Heritage Places (Register) compiled and maintained by the Heritage Council of Western Australia (the Heritage Council) pursuant to s 46 of the Heritage of Western Australia Act 1990 (WA) (HWA Act). The Floreat lots are also listed in the inventory compiled and maintained by the Town under s 45 of the HWA Act (the Municipal Inventory). In addition, the Games Village Precinct within the Town is listed in the Municipal Inventory, although the Precinct is not included in the Register. (In 2004, the Heritage Council expressly declined to recommend the inclusion of the Games Village Precinct in the Register.) None of the properties in the Games Village Precinct is individually listed in the Municipal Inventory or the Register.

2. Mr Buckley's evidence was that if the Proposed Amendment is gazetted in the form adopted by the Council in the July resolution, the additional uses permitted by the Proposed Amendment will apply to the Floreat lots, and to 19 properties within the Games Village Precinct. 

3. The Town did not refer the Proposed Amendment to the Heritage Council for advice prior to the July resolution.

4. In August 2015, the Council resolved to make a request to the Minister that the Proposed Amendment be modified so as to exclude the two Floreat lots from the area which would be subject to the changes effected by the Proposed Amendment.  It also wrote to the WAPC to formally request that it make the same modification to the Proposed Amendment. 

5. Mr Buckley's evidence was that the Department of Planning requested the advice of the Heritage Council in relation to the Proposed Amendment.  The Heritage Council's response to that inquiry was that it did not support varying the Proposed Amendment to exclude the two Floreat lots.  The basis for that view was that:[28]

   As a general principle, the Heritage Council is of the view that heritage places should be subject to planning provisions that aim to retain and enhance the cultural significance of the place but should otherwise enjoy the same opportunities as non-heritage sites.

   [28] Affidavit of Jason Buckley, Attachment 16, 365.

6. However, the Heritage Council was opposed to the grant of approval for the Proposed Amendment more generally, because it considered that the TPS did not make adequate allowance for the consideration of heritage.  The Heritage Council therefore recommended that approval of the Proposed Amendment be deferred until the Town was able to demonstrate that the TPS included a heritage list that accurately reflected the cultural heritage significance of places within the locality, and until the Town had completed an assessment of the potential for any areas to be declared as conservation areas under the TPS (due to their heritage significance as garden suburbs).  Furthermore, in relation to the setback requirement, the Heritage Council was of the view that if the Proposed Amendment were to be progressed, wider primary setback requirements should apply to lots which were to be subject to particular additional uses under the Proposed Amendment.

The judicial review application

1. The Association seeks a writ of certiorari or a declaration that the February resolution and the July resolution are invalid, on five grounds.  Grounds 1 and 2 contend that the February and July resolutions, respectively, are ultra vires because the relevant Council meetings were inquorate.

2. Ground 3 contends that the July resolution is invalid because the Town failed to comply with the requirements of s 79 of the PD Act.

3. Ground 4 contends that the July resolution is ultra vires because the various means by which the Town advertised the Proposed Amendment and, in particular, its invitation to residents to participate in a survey which, it is said, misled, or was likely to mislead, residents as to the method by which they should make submissions in respect of the Proposed Amendment.

4. For completeness, I note that the Association advances a further ground (ground 5) for challenging the validity of the July resolution but that ground was not the subject of the present application.  Ground 5 contends that the July resolution was ultra vires, as the Town failed to advertise the Proposed Amendment in accordance with reg 15 of the TP Regulations.  Regulation 15(5) provides that the advertisement of a proposed amendment must set out a brief description of the purposes of the amendment. Ground 5 contends that the purpose of removing the setback requirement was not mentioned, and that omission was misleading or likely to mislead in that it would create the impression that no changes were proposed to the setback requirement under the TPS.

1. The application to dismiss under O 56 r 5(2)(j) RSC

1. The present application is brought pursuant to O 56 r 5(2)(j) RSC, which relevantly provides that on an application for judicial review the Court may 'refuse the whole or a part of the application if it has no reasonable prospect of succeeding'.

2. At the outset, it is appropriate briefly to set out the history of these proceedings. The present application (which, as I have noted, pertains only to grounds 1 to 4 of the grounds of review) was heard following an application by the Town for an order that it be listed for hearing at a special appointment. I made that order notwithstanding the objection by counsel for the Association that to hear the application under O 56 r 5(2)(j) would not be an efficient way to proceed.

3. Leaving to one side the question (which was not argued) as to whether it is open to a party, as of right, to make an application under O 56 r 5(2)(j) RSC, there is no doubt that in the ordinary course, applications under O 56 r 5(2)(j) are likely to be uncommon. Because applications for judicial review tend to be largely confined to legal questions, rather than factual disputes, it will generally be more expedient simply to proceed to a final hearing of the application for judicial review. To pursue an interlocutory application of the present kind will inevitably involve additional expense, delay, and the potential for an interlocutory appeal. The prospect of adverse costs orders in respect of unsuccessful applications under O 56 r 5(2)(j) will also, no doubt, be an important factor for parties considering such an application.

4. However, this case was rather unusual. The parties, through their counsel, foreshadowed that the application for judicial review would involve the need to adduce expert valuation evidence in relation to the issues raised by grounds 1 and 2 of the grounds of review, namely whether the former mayor had a financial interest in the Proposed Amendment. It was anticipated that any such evidence adduced by the Association would be countered by the Town with its own expert valuation evidence, and that cross examination of expert witnesses would probably be required. There was, however, no dispute that if the application under O 56 r 5(2)(j) RSC succeeded, at least in respect of grounds 1 and 2, then the need for any such evidence (together with all the attendant implications for the cost and duration of the final hearing) would fall away. It was primarily because of that consideration that I was persuaded that the present application should be heard and determined, rather than adopting the more usual course of proceeding to a final hearing.

5. I turn to consider the test which must be applied to determine an application made under O 56 r 5(2)(j) RSC. The content of the test, and the way in which it is to be applied, depend, of course, on the proper construction of the words used in O 56 r 5(2)(j).

6. The task of statutory construction begins and ends with the words of a legislative provision, but those words must be considered in their context, which includes the legislative history, and the general purpose and policy of the provision.[29]  The starting point in that exercise of construction is to give the words used their ordinary meaning.  The meaning of the word 'reasonable' when used as an adjective includes 'within the limits of what it would be rational or sensible to expect; not extravagant or excessive; moderate; in accordance with reason; not irrational, absurd, or ridiculous; just, legitimate; due, fitting'[30] and 'endowed with reason; agreeable to reason or sound judgment; not exceeding the limit prescribed by reason'.[31] 

   [29] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ); Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).

   [30] Oxford English Dictionary Online.

   [31] Macquarie Dictionary Online.

7. The word 'prospects' means 'an apparent probability of advancement, success, profit etc'[32] and 'the thing anticipated, a future occasion or event'.[33]

   [32] Macquarie Dictionary Online.

   [33] Oxford English Dictionary Online.

8. Finally, 'succeeding' is a gerund form of the verb 'to succeed' which means 'turn out successfully; have the desired result',[34] while the cognate noun 'success' means 'the favourable or prosperous termination of attempts or endeavours'[35] and 'the prosperous achievement of something attempted; the attainment of an object according to one's desire'.[36]

   [34] Macquarie Dictionary Online.

   [35] Macquarie Dictionary Online.

   [36] Oxford English Dictionary Online.

9. Having regard to the ordinary meaning of the words used, the phrase 'reasonable prospects of succeeding' directs attention to whether the possibility of the applicant for judicial review obtaining the grant of the relief sought is rational, or sensible to expect, and not irrational, absurd or ridiculous.  Beyond that elaboration, it is unhelpful, and liable to be productive of error, to attempt any restatement of the meaning of the phrase.  The High Court, and the Court of Appeal, have both cautioned against such attempts.[37]

   [37] See, for example, Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [57] (the Court); Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [58] (Hayne, Crennan, Kiefel & Bell JJ).

10. The practical operation of the 'reasonable prospect of succeeding' test will, in large part, be determined by the statutory context in which that test appears.  The test appears in many statutory contexts, for example, in the Criminal Appeals Act 2004 (WA) where it forms part of the test for securing the grant of leave to appeal to a single judge of this Court, or to the Court of Appeal.[38]  The Court of Appeal has construed the test as requiring 'a real prospect of success'.[39]  However, in that context, the test operates as a threshold requirement for the grant of leave to appeal, without which an appeal cannot proceed.  As applied in that context, the test was intended to impose a greater restriction than had previously applied in respect of appeals to this Court by persons convicted of criminal offences.[40]

    [38] Criminal Appeals Act 2004 (WA) s 9, s 18 and s 27(1).

    [39] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (the Court).

    [40] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [51] (the Court).

11. A 'reasonable prospect of succeeding' test also applies under s 18(2) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) which provides that the Magistrates Court 'may give judgment in favour of a claim without a trial if the party defending the claim does not satisfy the Court that the defence has a reasonable prospect of succeeding'. In that context, the test is the basis for a power given to the Magistrates Court to summarily terminate a proceeding in the civil jurisdiction of that Court. Within that context, the power has been construed as one which should be exercised with caution, and as a test which requires 'a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial'.[41]

    [41] Shilkin v Taylor [2011] WASCA 255 [40] (Newnes JA, Pullin JA & Buss JA agreeing).

12. The context in which the reasonable prospect of succeeding test is used in O 56 r 5(2)(j) is different from each of those examples. It is necessary to pay close attention to the statutory context of the test. There are five contextual considerations which are of particular significance to this aspect of the construction of O 56 r 5(2)(j).

13. First, the test in O 56 r 5(2)(j) does not operate as a gateway to an application for judicial review. A person who brings an application for judicial review is entitled to be heard.[42] However, O 56 r 5(2)(j) is clearly intended to apply prior to the final hearing of the application for judicial review. That much is clear both from the requirement to consider the prospects of the judicial review application, and from the fact that the Court's power under O 56 r 5(2)(j) is quite distinct from its power to finally refuse an application for judicial review under O 56 r 5(2)(k) RSC.

    [42] Rules of the Supreme Court 1971 (WA) O 56 r 5(1).

14. Secondly, the 'reasonable prospect of succeeding' test is applied as the test for whether the Court should dismiss the whole or part of an application for judicial review.  In that sense, the context in which the test will apply is analogous in some respects to an application for the summary dismissal of a civil action.  The caution with which courts will approach applications for the summary termination of civil proceedings[43] will be relevant in this context also.  In particular, it should be borne in mind that administrative law (especially the basis for judicial review, and the nature of jurisdictional error) has been a field of discourse which has seen many developments over the past 40 years.  The Court will therefore be cautious about stifling the development of the law by excluding applications for judicial review on what might appear, at first blush, to be novel grounds.

    [43] Cf, for example, Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 (Gaudron, McHugh, Gummow & Hayne JJ) [57]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256,[44].

1. Thirdly, some indication of the purpose and intended operation of O 56 r 5(2)(j) can be discerned from its legislative history, which forms part of the context relevant to the exercise of statutory construction.[44] Until about May 2013 (when an earlier version of O 56 in its current form was introduced) the RSC required that an application for prerogative relief be commenced (ordinarily at least) by an application for an order (an order nisi) calling on the decision‑maker (and the parties interested in resisting the application) to show cause why the relief sought should not be granted,[45] and setting out the grounds of the application.[46]  That application would ordinarily be heard before a judge in chambers, who would determine whether an order nisi should issue.  The purpose of requiring an applicant to obtain an order nisi was said to be:[47]

   to prevent the time of the Court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived. 

   [44] R v Lavender [2005] HCA 37; (2005) 222 CLR 67 [41] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

   [45]  Rules of the Supreme Court 1971 (WA) former O 56 r 1(5).

   [46] Rules of the Supreme Court 1971 (WA) former O 56 r 6(1).

   [47] Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 642 (Lord Diplock), referred to with approval in Talbot v Lane (1994) 14 WAR 120, 152 ‑ 153 (Malcolm CJ, Kennedy & Ipp JJ agreeing (157)).

2. The orthodox approach to the test to be applied at the order nisi stage was that it required that the applicant show an arguable case for the grant of the relief claimed.[48]  In Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc,[49] McLure J (as her Honour then was) observed that the arguable case requirement would not be satisfied if the case was so clearly untenable that it could not succeed (applying, by analogy, the test for the summary dismissal of a proceeding in General Steel Industries Inc v Commissioner for Railways of New South Wales[50]).  In later cases, Chief Justice Martin suggested that a two‑pronged test for the grant of an order nisi should be applied, namely that the applicant would need to satisfy the court that there was an arguable case, and secondly that even if there was an arguable case, it would be inappropriate to grant relief if the case had no reasonable prospect of success.[51]  His Honour advocated that approach on the basis that 'the public interest requires that the limited resources of the judicial system of this State be deployed only in respect of the resolution of arguments that have at least a reasonable prospect of success'.[52]  In subsequent cases, many judges decided to apply both tests.[53] 

   [48] Talbot v Lane (1994) 14 WAR 20, 152 ‑ 153 (Malcolm CJ, Kennedy and Ipp JJ agreeing (157)); Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282 [55] (Buss JA).

   [49] Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264.

   [50] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130 (Barwick CJ).

   [51] See McKay v Commissioner of Police [2006] WASC 189 [2] ‑ [3] (Martin CJ); Woodley v Minister for Indigenous Affairs [2009] WASC 251 [37] (Martin CJ).

   [52] McKay v Commissioner of Police [2006] WASC 189 [3] (Martin CJ).

   [53] See, for example, Seddon v Medical Assessment Panel [2011] WASC 237 [30] (Edelman J) and the cases cited therein.

3. It is not difficult to see why the reasonable prospect of success test has a role (or continues to have a role) under O 56 as amended. Given the abolition of the requirement to obtain an order nisi, at least one of the purposes of the 'reasonable prospect of succeeding' test in O 56 r 5(2)(j) RSC appears to be to permit applications for judicial review (or parts thereof) which do not have that prospect of success to be refused at an early stage, thereby ensuring that the Court's limited publicly‑funded resources are not expended on matters which are unmeritorious.

4. Fourthly, under O 56 r 5(2)(j) RSC the Court is empowered to refuse the whole or part of the application for judicial review. An application for judicial review may be brought in respect of a reviewable decision (or decisions) or reviewable conduct,[54] and a variety of forms of relief may be sought (one or more of the prerogative writs, an order having the same effect as a remedy that could be provided by means of a writ, a declaration, or an injunction).[55]  The application may be brought on one or more grounds.[56]  It appears that the Court's power to dismiss an application for judicial review is capable of being exercised in relation to any of these aspects of an application for judicial review. 

   [54] See the definition of 'application' and of 'reviewable decision' and 'reviewable conduct' in Rules of the Supreme Court 1971 (WA) O 56 r 1(1).

   [55] Rules of the Supreme Court 1971 (WA) O 56 r 2(2).

   [56] Rules of the Supreme Court 1971 (WA) O 56 r 2(3).

5. Finally, the terms of O 56 r 5(2)(j) suggest that in the event that an application under that rule is brought by a respondent to an application for judicial review, it will be incumbent on the respondent to persuade the Court that it is appropriate for the Court to exercise its power under O 56 r 5(2)(j).

6. In the present case, therefore, it is necessary for the Town to demonstrate that the prospects of the Association obtaining relief in the form of a writ of certiorari or a declaration, in respect of the February resolution or the July resolution, are not reasonable, in the sense of being rational, or sensible to expect. In the application of that test, the Court should be careful not to stifle the development of the law by dismissing an application, or one or more grounds of review, other than where there is a high degree of certainty that it does not have reasonable prospects of succeeding. However, the Court must also bear in mind that the power in O 56 r 5(2)(j) exists to ensure that applications, or parts thereof, that are unmeritorious can be weeded out at an early stage in an appropriate case.

1. Whether the Association has standing to bring the judicial review application

1. The Town submitted that the Association's application for judicial review does not have a reasonable prospect of succeeding because the Association does not have standing to bring the application. 

The Town's contention in relation to the Association's standing to apply for certiorari

1. In so far as the Association seeks a writ of certiorari, the Town's contention that the Association has no reasonable prospect of succeeding because it does not have standing must be rejected, for the following reasons. 

2. The question of whether standing is required to seek a writ of certiorari has been considered in a number of recent High Court cases.  The prevailing view is that a 'stranger' to a decision ‑ that is, a person who was not a party to the decision, whose rights or interests are not affected by it, and who does not otherwise have some 'special interest' in the decision ‑ may apply for certiorari to quash that decision.[57]

   [57] Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 [70] ‑ [71] (Gummow, Hayne & Bell JJ); Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 [89] (McHugh J); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591, 669 ‑ 670 (Callinan J); Waterside Workers' Federation of Australia v Gilchrist, Watt and Sanderson Ltd [1924] HCA 61; (1924) 34 CLR 482, 517 ‑ 518 (Isaacs & Rich JJ); R v Justices of Surrey (1870) LR 5 QC 466, 473.

3. The rationale for the absence of a standing rule in relation to certiorari has been said to be that 'permitting strangers to apply for certiorari helps to ensure that "the prescribed order of the administration of justice" is not disobeyed'.[58] 

   [58] Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 [89] (McHugh J); see also Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 [70] (Gummow, Hayne & Bell JJ).

4. However, the absence of any connection to the decision under review, of the kind which would suffice to establish standing to bring an action for declaratory or injunctive relief in respect of that decision, for example, is not irrelevant in relation to an application for a writ of certiorari.  The fact that a 'stranger' to the proceedings may apply for certiorari does not mean that the writ will be granted to that person, even if an excess of jurisdiction, or an error of law on the face of the record, is established.  That is because certiorari is a discretionary remedy.

5. Although it is not the case that the court will, in the exercise of its discretion, refuse to issue certiorari simply because the applicant was not a party to the decision, the fact that the applicant for the writ is a stranger to the decision will be particularly relevant to the exercise of the Court's discretion whether to issue the writ.[59]

   [59] Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 [95] ‑ [96] (McHugh J); Waterside Workers' Federation of Australia v Gilchrist, Watt and Sanderson Ltd (1924) 34 CLR 482, 517 ‑ 518, 519 (Isaacs & Rich JJ).

6. If the Association ultimately makes out a basis for the grant of a writ of certiorari, the question whether the relief should issue will involve a consideration of all relevant factors, one of which would be the extent of the Association's interest in the subject matter of the judicial review application.

The Town's contention that the Association does not have standing to seek declaratory relief

1. Given the absence of a standing requirement in relation to an application for certiorari, it is somewhat incongruous that in the public law arena, an applicant for a declaration must establish standing to apply for that relief.  But that remains the law at present.

2. The law in relation to standing is capable of reduction to general principles, but many and vexing questions arise in its application.  Important policy considerations underlie competing views about the liberality with which standing requirements should be applied in the public law context.[60]  As Murray J observed in Bridgetown‑Greenbushes Friends of the Forest[61] the rules of standing in the public law context seek to strike a:[62]

   balance so as not to unduly fetter the capacity of interested citizens to bring public law issues before the courts, whilst at the same time, again in the interests of the community as a whole, preventing a multiplicity of actions for which no particular justification can be seen'.

   [60] See, for example, the discussion by Wheeler JA in Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 [10] ‑ [11].

   [61] Bridgetown‑Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) LGERA 380; (1997) 18 WAR 126.

   [62] See also Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49; (1998) 194 CLR 247 [83] (McHugh J).

3. Where that balance should be struck is a matter over which reasonable minds may differ, and many judges have expressed the view that legislative reform is necessary and desirable in this area.[63] 

   [63] See, for example, Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49, (1998) 194 CLR 247 [91] (McHugh J); Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 41 (Stephen J); Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 [13] (Wheeler JA).

4. For present purposes, it suffices to say that in so far as the Association seeks declaratory relief, a party seeking equitable relief to prevent or correct the violation of a public right, or to compel the performance of a public duty, must have standing to do so.  Absent a statutory right of action, a plaintiff will have no standing to bring an action for such relief if he or she has no interest in the subject matter of the action beyond that of any other member of the public.[64]  If no private right of the plaintiff is interfered with, the plaintiff must have a 'special interest' in the subject matter of the action.[65]  It is not necessary that that interest be unique to the plaintiff.[66]

   [64] Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron & McHugh JJ); Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 526 (Gibbs J), 537 (Stephen J), 547 (Mason J); Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 36 (Gibbs CJ).

   [65] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 527 (Gibbs J),

   [66] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 74 (Brennan J).

5. The requirement for a 'special interest' is a flexible one.[67]  It is a matter of fact and degree, and will depend on the nature and subject matter of the litigation,[68] including the legislation relevant to the decision.  It will involve an assessment of the importance of the concern held by the plaintiff with regard to a particular subject matter and the closeness of the plaintiff's relationship to that subject matter.[69]  Consequently, what is a sufficient interest in one case may be less than sufficient in another.[70] 

   [67] Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron & McHugh JJ); Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 36 (Gibbs CJ), 42 (Stephen J).

   [68] Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron & McHugh JJ).

   [69] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 42 (Stephen J).

   [70] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 528 (Gibbs J), referring to Robinson v Western Australian Museum (1977) 138 CLR 283, 327 ‑ 328 (Mason J).

6. Associations representing people with shared interests may be able to demonstrate a special interest sufficient to give rise to standing in some cases.  In Ex parte Helena Valley / Boya Association (Inc), an incorporated association comprised of ratepayers and electors within particular localities, who were concerned to protect the environmental condition of the land in the vicinity of their properties, was found to have a special interest sufficient to give it standing to challenge to a planning decision affecting the development of that land.[71]  Ipp J (with whom Pidgeon J agreed) took into account the representative character of the association, its history, the purpose for which it was formed, and the special interests of its members.[72]  Similar factors were also taken into account in Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc.[73]

   [71] Ex parte Helena Valley / Boya Association (Inc); State Planning Commission and Beggs [1989] 2 WAR 422, 437 (Ipp J, Pidgeon J agreeing).

   [72] Ex parte Helena Valley / Boya Association (Inc); State Planning Commission and Beggs [1989] 2 WAR 422, 437 (Ipp J, Pidgeon J agreeing).

   [73] Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 [96] ‑ [101] (McLure JA, Pullin JA agreeing).

7. Similarly, in Onus v Alcoa of Australia the interest of a particular Aboriginal community in the preservation of relics of cultural and spiritual significance to the members of that community was held to constitute a 'special interest' sufficient to give rise to standing to bring an action for injunctive relief to preserve the relics.[74] 

   [74] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27.

8. However, a 'special interest' does not mean a mere intellectual or emotional concern about a particular issue.[75]  Nor will a belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, be sufficient to give rise to a 'special interest' for this purpose.[76] 

   [75] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 539 (Stephen J).

   [76] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530 (Gibbs J), 548 (Mason J).

9. Some other factors will not, on their own, be sufficient to give rise to standing:  the fact that a plaintiff is an incorporated body with particular objects,[77] the fact that an association has voluntarily provided comments or concerns on a particular proposal,[78] or the fact that some members of an incorporated body or unincorporated association have a special interest does not mean that the association itself will necessarily have a special interest.[79]  However, those factors may still be relevant to an overall assessment of whether a plaintiff has standing.  After all, a special interest is no less sufficient if it is accompanied by an emotional or intellectual concern, for example.[80]

   [77] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 531 (Gibbs J), 539 (Stephen J).

   [78] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 531 (Gibbs J), 539 (Stephen J); Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 74 (Brennan J).

   [79] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 531 (Gibbs J). The law in Western Australia appears to have 'run ahead' of this High Court authority: see the review of the authorities undertaken by Wheeler JA in Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 [6] ‑ [8].

   [80] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 37 (Gibbs CJ), 41 (Stephen J).

10. The fact that an organisation has been provided with government funding, and accorded recognition to speak in respect of particular issues, may be a factor that signals that the association has a special interest, beyond a mere emotional or intellectual concern, in that issue[81] although others have understandably cautioned against linking standing to the provision of government funding.[82]

    [81] Bridgetown‑Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) LGERA 380; (1997) 18 WAR 126, 162 (Templeman J).

    [82] Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138 [3] (Wheeler JA); Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150 [1] (Anderson J); Bridgetown‑Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) LGERA 380; (1997) 18 WAR 126, 114 (Wheeler J); Bridgetown‑Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) LGERA 380; (1997) 18 WAR 126, 134 (Murray J).

11. In so far as its application for declaratory relief is concerned, having regard to the evidence, I am satisfied that the Association has a reasonable prospect of establishing that it has a 'special interest' over and above that of the community generally.  

12. The Town submitted that the Association has no standing because the Association does not own land, and none of the Association's rights are affected by the February resolution or the July resolution.  However, the Association does not claim a direct interest in the resolutions the subject of the judicial review application. 

13. The Town submits that the Association cannot derive standing through the interests of its members, because in respect of grounds 1, 2 or 3, there is no evidence that any of its members have any interest in the minimum setback requirement, or that they own or have an interest in the Floreat lots or land in the Games Village Precinct.  In addition, the Town contends that there is nothing to suggest that the interests or rights of members of the Association would be adversely affected by the setback requirement (particularly as the Association's case is that the change to the minimum setback requirement would increase the value of the land affected).[83]  The Town also submits that there is no evidence that any member of the Association (or any person at all) was misled by the Town's consultation in respect of the Proposed Amendments, and that the Association cannot therefore have standing in respect of ground 4.

    [83] Town's submissions [37].

1. The latter submissions appeared to proceed on the assumption that the question of standing is to be assessed by reference to each ground of review which the Association seeks to pursue.  That is not the basis on which standing is assessed.  As the authorities to which I have already referred make clear, the question is whether a plaintiff (who does not have a private interest) nevertheless has a special interest in the subject matter of the litigation, over and above that of the community generally.  If the plaintiff has a sufficient interest to give rise to standing to challenge a decision, that plaintiff is entitled to advance all grounds which may be available to do so.[84]  (Again, that is not to deny the possibility that the nature or extent of a plaintiff's interest may be relevant to the grant of discretionary relief.)

   [84] Davison v Commonwealth [1998] FCA 529; R (Kides) v South Cambridgeshire District Council Ltd[2003] 1 P & CR 19 [132] ‑ [134] (Jonathan Parker LJ, Laws & Aldous LJJ agreeing); Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, 2013) [11.10].

2. The question whether an applicant has standing is liable to be affected by the degree of precision with which the subject matter of the litigation is defined.  The Town's submissions focused on the precise factual context in which the Proposed Amendments would apply.  So, for example, in relation to ground 3, the Town noted that compliance with the requirements of the HWA Act affected only the Floreat lots, and noted that there was no evidence to suggest that those properties were owned by members of the Association.  If, on the other hand, the subject matter of the judicial review application is characterised as the town planning requirements applicable to land within the Town, then any ratepayer in the Town would arguably have an interest in the amendment of those requirements, which interest would be over and above that of other members of the community.  The proper characterisation of the subject matter of the litigation in this case will be a matter warranting further consideration at the hearing of the judicial review application.

3. The Town submits that the Association does not have standing on the basis of a special interest as a representative body.  It says that the Association has only a limited membership and does not purport to represent the rest of the ratepayers in the Town; there is no basis for concluding that it represents any interest other than those of its members; none of its members have been shown to have a special interest in the February resolution or the July resolution over and above the rest of the ratepayers in the Town; the Association has been almost inactive since 2006; and the Association made no submission about the Proposed Amendment, and was not even aware of residents' views on the Proposed Amendment until after the statutory process had been completed, and was only moved to intervene by the level of residents' dissatisfaction after that process was concluded.[85]

   [85] Town's submissions [39]; Town's submissions in reply [40] ‑ [41].

4. In my view, the following factors support the conclusion that the Association has a reasonable prospect of establishing that it has a special interest over and above that of the community, so as to entitle it to pursue declaratory relief, and which would be relevant to the question (if it arises) of discretion to grant the relief sought. 

5. First, the Association has a lengthy history of involvement in major issues that affect the residents and ratepayers of the Coast Ward.[86]  It was incorporated in 1980, when its objects were 'to establish, maintain and conduct an association for the betterment of the ratepayers of the Coast Ward of the City of Perth'.[87]  (The geographic area that was previously the Coast Ward of the City of Perth now comprises approximately half the local government district of the Town.)  The Association has 115 members, some of whom have been members of the Association since 1986. 

   [86] Affidavit of Robert David Walker sworn 15 December 2015 [3].

   [87] Affidavit of Jason Richard Buckley affirmed 16 November 2015 [63].

6. Secondly, a significant factor is that the Town itself appears to recognise the Association as a body which represents the residents and ratepayers of the Coast Ward.  The Association is referred to on the Town's website, under its Directory of Services, as a Ratepayers Association, and under the heading 'Community Groups', and the Town referred to the Association in its annual reports for every year, bar one, between 2006‑7 and 2012‑13.  Furthermore, the Town delivers copies of agendas for Council meetings to the President of the Association and provides support to the activities of the Association, including the use of its meeting facilities free of charge and photocopying services at a subsidised rate. 

7. Thirdly, the current President of the Association, Mr Robert Walker, deposed that since 1995, the Association has made representations, on behalf of its members, on a range of issues of concern to them.  He acknowledged that since the redevelopment of the Perry Lakes stadium, which had been an issue in 1995, there had been no major issues that required the Association's attention, save for the present matter.  If anything, that inactivity might suggest that the Association is far from a 'busybody' meddling in the affairs of others, but rather a representative body which does not become involved unless there is an issue which warrants its doing so.

8. Fourthly, Mr Walker deposed that although the Association itself did not make a submission to the Town using the submission form, at least 18 of its members did make submissions in that form.  Members of the Association have also asked questions regarding the Proposed Amendment at Council meetings in February, March, April, May, June and July 2015.  That suggests that the Proposed Amendment is a matter of real concern to the members of the Association.

9. Fifthly, Mr Walker's evidence was that in view of the significant opposition to the Proposed Amendment which emerged through the public consultation process, the Association formed the view that it should take up the issue on behalf of the Coast Ward ratepayers.  To that end, it has raised funds for the purpose of challenging the February and July resolutions, including by pursuing the present litigation.  In addition, the Association has engaged consultants, including traffic engineers, town planners, real estate agents and property valuers, as well as lawyers, to provide advice on the Proposed Amendment.  Its challenge to the Proposed Amendment is clearly being seriously pursued.

10. Finally, it is appropriate to mention that, looming large behind questions of standing, can be the question whether a plaintiff which represents others will be able to meet any costs orders if its action is unsuccessful.  That concern is ameliorated to some extent in the present case by the fact that security for costs has been provided by the Association. 

11. However, nothing in what I have said should be understood as representing a final conclusion on the question of standing.  In some cases, it may be convenient to deal with an objection based on an asserted lack of standing as a preliminary point, in advance of the merits of the substantive action itself.[88]  However, in my view, it is not appropriate to make a final determination as to standing in this case.  In the present case, factors relating to the question of the Association's standing to seek declaratory relief will clearly be relevant to the question whether, in the exercise of its discretion, the Court should grant a writ of certiorari if the Association makes out grounds 4 and 5 of the judicial review application.  All of those factors should be considered together, in the course of the hearing of the judicial review application.

    [88] Cf Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 532 ‑ 533 (Gibbs J), 546 (Stephen J), 552 (Mason J).

1. Why grounds 1 and 2 of the judicial review application have no reasonable prospects of succeeding

1. Ground 1 contends that the February resolution was ultra vires because the Council meeting was inquorate.  The basis for that contention is that the Association says that the then mayor had a financial interest in the Proposed Amendment in so far as it would remove the minimum setback requirement under the TPS for the City Beach precinct.  The basis for the alleged financial interest is that the mayor owned a property in the City Beach precinct which was subject to the setback requirement.  The Association contends that it was reasonable to expect that the deletion of the setback requirement from the TPS would result in a financial gain or benefit for the mayor, in that it was reasonable to expect that it would result in an increase in the land value of his property.  The Association contends that that was a financial interest to which s 5.65 of the LG Act applied.  The Association says that the mayor should therefore not be counted for the purpose of determining whether there was a quorum for the meeting of the Council at which the February resolution was passed, with the result that a quorum did not exist and the February resolution is invalid.

2. Ground 2 contends that the July resolution is invalid for the same reasons. 

3. Grounds 1 and 2 of the grounds of review have three planks, each of which is relevantly identical. 

4. The first is that having regard to s 5.19 of the LG Act, the quorum required for the February meeting and the July meeting was  five councillors eligible to vote on the Proposed Amendment.[89]  The requirement for a quorum means a quorum competent to transact and vote upon the business before the meeting,[90] including to participate in the consideration or discussion of the matter which is before the meeting.[91]  The Town concedes that the required quorum was five councillors, all of whom were eligible to vote.

   [89] See Local Government Act 1995 (WA) s 5.19.

   [90] Cf Levenstrath Community Association Inc v Council of the Shire of Nymboida (1999) 105 LGERA 362 [6], [13] (Hamilton J).

   [91] Town's submissions [15]; Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 [194] (Martin CJ).

5. Five councillors (including the mayor) participated and voted on the February resolution.  In so far as the July resolution is concerned, eight councillors, including the mayor, participated in the discussion which preceded the vote, but only five councillors (including the mayor) voted.  There is no dispute about these matters.

6. The second plank of grounds 1 and 2 is the Association's contention that as at the time of the February resolution and of the July resolution, the then mayor of the Town had a financial interest in the Proposed Amendment of the kind described in s 5.60A of the LG Act.  Under that section, a person has a financial interest in a matter 'if it is reasonable to expect that the matter will, if dealt with by the local government … or council of the local government, in a particular way, result in a financial gain, loss, benefit or detriment for some person'.

7. The basis for the Association's contention is that the mayor owned a property in the City Beach Precinct of the Town, which was subject to the minimum setback requirement under the TPS.  The Association's case is that it was reasonable to expect that the removal of the minimum setback requirement would result in an increase in the value of the major's property, and that this would constitute a financial gain or benefit for the mayor. 

8. This plank of grounds 1 and 2 would clearly require evidence as to the likely change in value (if any) of the mayor's land if the minimum setback requirement under the TPS were removed by virtue of the Proposed Amendment.  This second plank of grounds 1 and 2 was not the subject of the present application.  Instead, the present application assumed that the mayor had a financial interest in relation to the Proposed Amendments. 

9. The third plank of grounds 1 and 2, which was the subject of the present application, is that the mayor's alleged financial interest in the Proposed Amendment was one to which s 5.65 of the LG Act applied, that by virtue of that financial interest, the mayor was not to be included for the purpose of determining whether or not there was a quorum for the meeting of the Council, and that because the mayor should not have been included there was not a quorum, with the result that each of the February resolution and the July resolution were not passed in accordance with the requirements of the LG Act and are invalid.

10. This third plank of grounds 1 and 2 turns on the proper construction of relevant provisions of the LG Act.  They are discussed below.

11. Before turning to those matters, I should mention that an additional issue in respect of ground 1, which had been alluded to by counsel for the Town, but was not ultimately pursued on this application, was whether the February resolution had any legal effect after the July resolution.  Certiorari is not available in respect of an actual or purported exercise of power the legal effect of which is spent by the date of the order.[92]  However, as the issue was not the subject of argument at the hearing of this application, it is not necessary to pursue it further. 

Participation in decisions in which a councillor has a financial interest

[92] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [25] (the Court).

1. Division 6 of pt 5 of the LG Act regulates the participation by council members, members of committees, and employees of local governments, in decision making by those bodies, if the person has an interest (as defined[93]), which includes a 'financial interest', in a proposed decision. 

   [93] Local Government Act 1995 (WA) s 5.60.

2. By way of overview, in so far as councillors are concerned, the regime established under div 6 is that if the councillor has a financial interest in a decision which is to be considered by the council, the councillor must disclose that interest to the Chief Executive Officer (CEO) of the local government in writing before the meeting, or at the council meeting, immediately before the issue is discussed.

3. Following such a disclosure, the councillor is not to be present for, or participate in, discussion in relation to the decision, except in certain circumstances.  Those circumstances include that the other councillors present at the meeting decide (having regard to criteria set out in the LG Act) that the councillor should be permitted to participate in the discussion and in the vote,[94] or that the relevant Minister has acceded (again, having regard to criteria set out in the LG Act) to an application to permit the councillor to participate in the discussion and the vote.[95]

   [94] Local Government Act 1995 (WA) s 5.68.

   [95] Local Government Act 1995 (WA) s 5.69.

4. At the heart of grounds 1 and 2 is the proper construction of s 5.65 and s 5.67 of the LG Act.  It is convenient to set out those provisions in full.  Section 5.65 of the LG Act provides:

   (1)A member who has an interest in any matter to be discussed at a council or committee meeting that will be attended by the member must disclose the nature of the interest ‑

   (a)in a written notice given to the CEO before the meeting; or

   (b)at the meeting immediately before the matter is discussed.

   Penalty: $10 000 or imprisonment for 2 years.

   (2)It is a defence to a prosecution under this section if the member proves that he or she did not know ‑

   (a)that he or she had an interest in the matter; or

   (b)that the matter in which he or she had an interest would be discussed at the meeting.

   (3)This section does not apply to a person who is a member of a committee referred to in section 5.9(2)(f).

5. Section 5.67 of the LG Act provides:

   A member who makes a disclosure under section 5.65 must not ‑

   (a)preside at the part of the meeting relating to the matter; or

   (b)participate in, or be present during, any discussion or decision making procedure relating to the matter,

   unless, and to the extent that, the disclosing member is allowed to do so under section 5.68 or 5.69.

   Penalty: $10 000 or imprisonment for 2 years.

   (A 'member' in relation to a council means a council member.[96])

   [96] Local Government Act 1995 (WA) s 5.59.

6. As I have already mentioned, there was no dispute that the former mayor did not make any disclosure of an interest relevant to the Proposed Amendment pursuant to s 5.65 of the LG Act (bearing in mind, as I have said, that the Town's case is that the mayor was not required to make a disclosure). 

7. The Town's case for the purposes of the present application is that s 5.67 of the LG Act did not require the former mayor to exclude himself from the discussion and the vote, because he did not make a disclosure under s 5.65 of the LG Act.  In addition, the Town contends that the former mayor was not, in any event, required to disclose his interest, having regard to the exceptions in s 5.63(1)(a) of the LG Act.

8. Counsel for the Association submitted that it was reasonably arguable that s 5.67 was not intended to operate so that a councillor with an interest in a matter, who failed to disclose the interest under s 5.65, would be entitled to participate in discussion regarding, and to vote on, a decision in relation to that matter.  However, counsel for the Association was unable to identify how the words used in s 5.67 manifest that legislative intention.

9. In my view, the Association does not have any reasonable prospect of succeeding on the basis that on the proper construction of s 5.67 of the LG Act, the former mayor was not permitted to participate in, or be present during, any discussion or decision making procedure relating to the Proposed Amendment at the February meeting or the July meeting.  I have reached that view for the following reasons.

10. First, I commence by considering the ordinary meaning of the words used.  That meaning does not permit the construction for which the Association contends.  The operative parts of s 5.67 (namely the prohibition and the exception thereto) apply only to the subject described in the chapeau.  The subject of the section is a member who 'makes' a disclosure of the kind referred to in s 5.65.  The word 'makes' is the active form of the verb 'to make'.  When used in relation to an object or state of affairs, the meaning of the word 'make' includes 'to give rise to; occasion' and 'to do; effect'[97] and 'to cause to exist; to produce'.[98]  I do not see any basis for construing the word 'makes' in s 5.67 as meaning 'is required to make'.  Counsel for the Association did not advance such a contention.  In my view, the opening words of s 5.67 leave no room for doubt that the section applies only to a member who has actually made a disclosure under s 5.65 of the LG Act.

    [97] Macquarie Dictionary Online.

    [98] Oxford English Dictionary Online.

11. Secondly, the ordinary meaning of the words used in the chapeau is confirmed by the exception to the prohibition, which is set out in the closing words of s 5.67.  The prohibition applies 'unless, and to the extent that, the disclosing member is allowed' to participate under s 5.68 or s 5.69.  Sections 5.68 and 5.69 apply only 'if a member has disclosed' an interest in a matter pursuant to s 5.65. 

12. Thirdly, support for this construction of s 5.67 can be discerned from the legislative history.[99]  The precursor to s 5.65 and s 5.67 was s 174 of the Local Government Act 1960 (WA). Subsection 174(3) required a person with an interest in a matter to be discussed or voted upon at a council meeting to disclose that interest to the clerk of the town, in advance of the meeting, or to disclose that interest to the meeting itself, as soon as practicable after the meeting commenced. Subsection 174(3a) provided:

    Subject to subsection (5) of this section, a person who is liable to disclose the fact that he has an interest in a matter shall not vote on that matter at the meeting.

    [99] Cf R v Lavender [2005] HCA 37; (2005) 222 CLR 67 [41] (Gleeson CJ, McHugh, Gummow & Hayne JJ).

1. Similarly, s 174(4) prohibited a person 'who is liable to disclose the fact that he has an interest in a matter' from participating in the consideration or discussion of that matter at the meeting.  Subsection 174(4a) prohibited a person presiding at a meeting 'who is liable to disclose the fact that he has an interest in a matter' from taking part in any consideration or discussion of the matter, save with the agreement of an absolute majority of the members of the council.  This legislative history suggests that when s 5.67 of the LG Act was enacted, Parliament departed, quite deliberately, from the previous obligations which had applied to persons 'liable to make' a disclosure.  That change in language clearly signals a change in the scope of the prohibition.

2. Fourthly, the construction of s 5.67 advanced by the Association was, in effect, that it should be understood to operate in circumstances where a member is required to make a disclosure under s 5.65, and irrespective of whether the member in fact makes that disclosure.  In my view, the words 'a member who makes a disclosure' do not, of themselves, permit that construction.  It is not possible to overcome that textual impediment to the construction advanced by the Association other than by implying words into the chapeau of s 5.67, so that it should be understood to read 'a member who makes, or is required to make, a disclosure under section 5.65'.  Other than in cases of obvious typographical errors, it is not open to a court to imply words into a statute, even to correct an inadvertent omission by the legislature, in a way which is divorced from the construction of the words actually used.[100]  The Court is not entitled to supply words if the words actually used are not reasonably open to such a construction.[101] 

   [100] Taylor v The Owners of Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [39] (French CJ, Crennan & Bell JJ); R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 [12] ‑ [14] (Spigelman CJ).

   [101] Taylor v The Owners of Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [39] (French CJ, Crennan & Bell JJ); R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 [12] (Spigelman CJ).

3. Fifthly, the construction of s 5.67 for which the Association contends, and the process by which such a construction would need to be arrived at, has even less to commend it given that s 5.67 is a penal provision.  While the old rule that statutes creating offences should be strictly construed no longer reflects the modern approach to statutory construction,[102] the fact that a statute creates a criminal offence is nevertheless a relevant contextual consideration in its construction.[103]  In Krakouer v The Queen[104] McHugh J cautioned against construing a penal provision so as to extend the scope of criminal liability, especially if the intention of the legislature was not clear:

   A court should not disregard clear words and interpret a legislative provision so as to extend the scope of criminal liability even if it thinks that, by inadvertence, the legislature has failed to deal with a matter. That is so even if the court thinks that the legislature would probably have dealt with the matter if it had been drawn to the legislature's attention. Jordan CJ put the relevant principle succinctly in delivering the judgment of the Full Court of the New South Wales Supreme Court in Ex parte Fitzgerald; Re Gordon:

   If conduct of a particular kind stands outside the language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.

   Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion, as it is in this case.

   [102] Beckwith v The Queen (1976) 135 CLR 569, 576 (Gibbs J); Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 164.

   [103] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [57].

   [104] Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 [62] ‑ [63] (McHugh J).

4. Fifthly, counsel for the Association submitted that the construction for which he contended would be consistent with the objects and purpose of the Act.  The objects of the LG Act include better decision making by local governments, greater accountability of local governments, and more efficient and effective local government.[105]  Counsel for the Association also submitted that the purposes or objects of subdiv 1 of div 6 of pt 5 of the LG Act included the need for the appearance, as well as the actuality, of integrity in council decision making, and the object of facilitating public confidence in councillors.[106]  While that may be so, I am not persuaded that recourse to the statutory purpose assists the Association's case on grounds 1 and 2 of the Grounds of Review.

   [105] Local Government Act 1995 (WA) s 1.3(2).

   [106] Applicant's submissions [40].

5. There is no doubt that the statutory purpose is part of the context which must be taken into account in the construction of a provision.  However, it is not open to a court to construe a provision to give effect to the legislative purpose without regard to, or even in spite of, the meaning of the words used.  Yet that, with respect, is what the Association would have the Court do.  In the present case, counsel for the Association was unable to identify how the Court would be able to give the existing words used in s 5.67 the meaning which the Association contended that the legislative purpose required.[107] 

   [107] ts 109 ‑ 112.

6. The concern underlying the Association's position is that a member may fail to make a disclosure under s 5.65 (and so would not be prohibited from participating or voting in a decision, having regard to s 5.67).  But to suggest that that operation of s 5.67 would therefore not promote the purpose or objects of the LG Act would be to ignore the fact that a failure to make a disclosure under s 5.65 itself constitutes a criminal offence.  Furthermore, an alternative means by which the legislative purpose of the LG Act might have been achieved would have been to prohibit, without exception, a member from participating in a decision in which he or she has an interest.  But the Parliament chose not to adopt that approach.  Even if a member makes a disclosure, he or she will be permitted to participate and vote if permitted to do so by the members present at the meeting,[108] or by the Minister.[109]  In short, there is no basis for contending that that the construction of s 5.67, which derives from the ordinary meaning of the words, would not promote the legislative purposes or objects discussed above, simply because the Parliament might have adopted an alternative approach which the Association considers would have been more effective to achieve the legislative purpose behind div 6 of pt 5 of the LG Act.  The cautionary words of French CJ, Hayne, Kiefel and Bell JJ in Australian Education Union v Department of Education and Children's Services appear to me to be apt in this case:[110]

   In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.

   [108] Local Government Act 1995 (WA) s 5.68.

   [109] Local Government Act 1995 (WA) s 5.69.

   [110] Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 [28].

7. Finally, I note that s 18 of the Interpretation Act 1984 (WA) provides that a construction that would promote the purpose or object underlying a written law is to be preferred to a construction that would not promote that purpose or object.  However, that section does not assist the Association's case.  Provisions of that kind require a court 'to construe an Act, not to rewrite it, in light of its purposes', and are 'not a warrant for redrafting legislation nearer to an assumed desire of the legislature'.[111]

   [111] In relation to the similar Commonwealth provision, s 15AA of the Acts Interpretation Act 1901 (Cth), see JJ Richards and Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297 [52] (Flick J, Tracey J agreeing) and the cases referred to therein.

8. In view of the conclusion I have reached, it is unnecessary to address the alternative basis advanced by the Town for the contention that the Association has no reasonable prospect of succeeding on grounds 1 and 2, namely that the former mayor was not required to disclose an interest in this case, having regard to the terms of s 5.63 of the LG Act.  

1. Why ground 3 of the judicial review application has no reasonable prospects of succeeding

1. Ground 3 contends that the July resolution is ultra vires because the Town failed to comply with s 79 of the PD Act. Section 79 provides:

   If an entry in the Register or on any inventory maintained under section 45 or 46 of the Heritage of Western Australia Act 1990 relates to land … within … a local government district, the local government in … amending a local planning scheme ‑

   (a)is to refer the proposed … amendment to the Heritage Council for advice in so far as any proposal under that … amendment affects or may affect any such land …; and

   (b)is to have regard to any advice given; and

   (c)is not to proceed, without the consent of the Minister, with the proposal unless or until that advice has been received.

2. Ground 3 contends that the July resolution was ultra vires because the Town did not refer the Proposed Amendment to the Heritage Council for advice as required by s 79(a) of the PD Act, the Town therefore did not have regard to any advice from the Heritage Council in relation to how the Proposed Amendment may affect land in its district as required by s 79(b) of the PD Act, and the Town did not have the consent of the Minister to proceed with the Proposed Amendment (without the benefit of that advice) as required by s 79(c) of the PD Act.

3. The Register is established under s 46 of the HWA Act. It is a list of places which the relevant Minister has concluded are of cultural heritage significance, or possess special interest related to or associated with cultural heritage, and which are of value to the present community and future generations, and in respect of which protection under the HWA Act is appropriate.[112] The Municipal Inventory referred to in ground 3 is a reference to the inventory which each local government is required to maintain pursuant to s 45 of the HWA Act (as referred to in the chapeau of s 79). The local government is obliged to compile and maintain an inventory 'of buildings within its district which in its opinion are, or may become, of cultural heritage significance'.[113]  Each local government is required to provide the Heritage Council with a copy of its inventory, which is to be updated annually and reviewed every four years.[114]

   [112] Heritage of Western Australia Act 1990 (WA) s 47(1).

   [113] Heritage of Western Australia Act 1990 (WA) s 45(1).

   [114] Heritage of Western Australia Act 1990 (WA) s 45(2).

4. There is no issue that the Proposed Amendment, in so far as it permitted additional uses of land, would apply to the Floreat lots, and to 19 lots within the Games Village Precinct.  There was also no dispute that the Floreat lots were included in the Register and the Municipal Inventory, and that the Games Village Precinct is listed in the Municipal Inventory (but not in the Register).

5. There is also no dispute that the Town did not refer the Proposed Amendment to the Heritage Council for advice, that it did not have the advice of the Heritage Council and that it does not have the consent of the Minister to proceed with the Proposed Amendment in the absence of such advice.

6. Counsel for the Association submits that s 79 of the PD Act clearly prohibits the Town from proceeding with the Proposed Amendment in the absence of such advice, without the consent of the Minister.

7. I am not persuaded that the Association has a reasonable prospect of succeeding on ground 3 for the following reasons.

8. First, I am not persuaded that the Association has a reasonable prospect of establishing that the Town contravened s 79(c) by pursuing the Proposed Amendment as a whole. Section 79(a) requires the local government to seek advice from the Heritage Council only 'in so far as any proposal under that … amendment affects or may affect' (emphasis added) land within the Register or within a municipal inventory. The prohibition in s 79(c) is on the local government proceeding 'with the proposal' unless and until the advice has been received.

9. The ordinary meaning of the word 'proposal' includes 'a plan or scheme proposed'[115] and 'an act or (less commonly) the action of proposing that something be done, or of proposing to do something; a suggested or intended plan, scheme, or course of action; spec. one submitted formally for consideration'.[116] Section 79 thus is directed to a discrete part within an amendment of a local planning scheme as a whole.

   [115] Macquarie Dictionary Online.

   [116] Oxford English Dictionary Online.

10. The context in which the word 'proposal' is used in s 79 confirms that it is not intended to refer to the entirety of the amendment to the local planning scheme, but only to that part of the amendment which applies to the land within the Register or within a Municipal Inventory. The drafter no doubt had in mind the fact that it will commonly be the case that an amendment will seek to effect a number of changes to a local planning scheme. If one (or more) of those proposed changes will, or is likely to, affect land within the Register or within the local government's municipal inventory, then only that proposed change is required to be referred to the Heritage Council for advice. Furthermore, what is required to be referred to the Heritage Council is not the particular proposal in its entirety, but only the proposal 'in so far as' it affects land in the Register or in a Municipal Inventory. That further limitation clearly reflects an intention that the entirety of the amendment need not be referred to the Heritage Council for its advice, but only the particular part of the amendment which will, or is likely to, impact on land in the Register or within a municipal inventory.

11. The rationale for that limitation is obvious.  The Heritage Council's concern lies with the impact of local planning schemes, or amendments thereto, on land with a heritage value.  It is not part of the Heritage Council's role to comment on the merit of proposed changes to planning rules more generally, and it would make no sense to burden it with the task of reviewing the entirety of a local planning scheme, or of an amendment to such a scheme, when only some part of the changes to be effected by the scheme or amendment could be of any potential concern to the Heritage Council. 

12. Consequently, s 79(c) did not prohibit the Town from proceeding with the Proposed Amendment in its entirety, but only from proceeding with that part of the Proposed Amendment which pertained to the application of the additional uses to land in the Register or in the Municipal Inventory. For that reason, if the Town contravened s 79(c), it did so only in so far as it sought to apply the additional uses to the Floreat lots and to lots in the Games Village Precinct.

13. Secondly, in so far as the Floreat lots are concerned, I am not persuaded that the Association has a reasonable prospect of succeeding in its argument that the Town 'proceeded' with the additional uses proposal in relation to those lots.  The ordinary meaning of the word 'proceed' includes 'to go on with or carry on any action or process'[117] and 'to continue or go on with what has been started; to advance from the point already reached, go further, pursue one's course; to go on after interruption, to renew or resume action or speech'.[118] In the latter sense, it is frequently used, as it is in s 79(c), in conjunction with the word 'with'.[119]

    [117] Macquarie Dictionary Online.

    [118] Oxford English Dictionary Online.

    [119] Oxford English Dictionary Online.

14. On one view, to 'proceed with' a proposal may involve taking any step in the process set out in the PD Act and the TP Regulations for pursuing an amendment to a local planning scheme.  That construction, however, would give rise to uncertainty about what action could properly be characterised as 'proceeding with' a proposal.  Applied very strictly, it would also arguably prevent a local government from doing anything at all in relation to a proposal until the Heritage Council's advice was received.  That would, for example, preclude consultation with other public authorities, such as the EPA.

15. The better view is that to 'proceed with' a proposal is to bring it into legal effect. That requires the approval of the Minister. Accordingly, s 79(c) means that a local government is prohibited from submitting for the Minister's approval any part of an amendment about which the advice of the Heritage Council is required, but has not been obtained, unless the Minister consents to doing so. In the present case, the Floreat lots were affected by that part of the Proposed Amendment which permitted additional uses of land. However, as I have noted at [44], the Town ultimately sought to modify the Proposed Amendment by excluding the two Floreat lots from the area subject to the additional uses proposed in the Proposed Amendment. It drew that change to the WAPC's attention. It took those steps before the Minister made a determination as whether to approve the Proposed Amendment. In those circumstances, the Association does not have a reasonable prospect of succeeding with an argument that the Town proceeded with the proposal (that is, the additional uses proposal) in so far as it applied to the Floreat lots.

16. Thirdly, even if, on its proper construction, s 79(c) prohibits a local government from taking any step to pursue a proposal until such time as the advice of the Heritage Council is obtained, unless the local government has the consent of the Minister, I am not persuaded that the Parliament intended that a contravention of that section would result in the invalidity of any decision made, or action taken, by the local government prior to the Minister's consent being given.[120] That is because the prohibition in s 79(c) is not absolute. It has no application if the Minister consents to the local government proceeding without the Heritage Council's advice. And crucially, s 79(c) does not require that the Minister's consent be given prior to any decision or action to proceed with the proposal. Counsel for the Association submitted that the consent of the Minister has to be obtained before any action is taken to 'proceed with' the proposal. I am unable to agree. Section 79(c) does not require the Minister's prior consent and the context militates against that conclusion.  Obtaining the approval of the Minister for an amendment is the necessary prerequisite for an amendment to a planning scheme to be brought into legal effect.  The point in time when the Minister's approval must be sought is the only occasion, within the scheme of the PD Act and the TP Regulations, when the Minister becomes involved in the process of amending a local planning scheme.  That is clearly the logical point in time when the consent of the Minister could be obtained for the pursuit of an amendment, notwithstanding that the advice of the Heritage Council has not been obtained.  And the most obvious means by which the Minister could signal his or her consent to that course of action would be by granting approval for the amendment, notwithstanding the absence of advice from the Heritage Council.

    [120] Cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [93] (McHugh, Gummow, Kirby & Hayne JJ).

1. There was no evidence that the Minister has made a decision as to whether to approve the Proposed Amendment. Ground 3, in that sense, raises a hypothetical point. For that reason, in so far as it is based on a contravention of s 79(c), the application for judicial review is premature.

2. Finally, it would be wholly inutile to grant the relief sought by the Association, on the basis of a contravention of s 79(c) in this case. That is because although the Town failed to obtain the Heritage Council's advice, the Department of Planning did obtain the Heritage Council's advice. As I noted at [45], the Heritage Council did not agree that the Floreat lots needed to be excised from the Proposed Amendment at all. Instead, the Council's view appears to have been that heritage land should ordinarily be subject to the same planning scheme provisions as other land, save in the case of particular planning scheme provisions which seek to enhance the heritage value of that land. I note that the Heritage Council's advice to the Department did not refer specifically to the Games Village Precinct. Nevertheless, it is impossible to envisage that the advice of the Heritage Council would have been different in relation to the application of the additional use proposal to lots within the Games Village Precinct. That is because neither the Precinct, nor the individual lots of land within the Precinct, are within the Register, and in 2004, the Heritage Council declined to recommend the inclusion of the Precinct in the Register.

3. In those circumstances, nothing could be gained by granting certiorari or declaratory relief with a view to requiring the Town to either seek the Heritage Council's advice, or to specifically seek the Minister's consent to the Town proceeding without that advice.  The Association has no prospect of obtaining a writ of certiorari, or declaratory relief, in these circumstances. 

1. Why ground 4 of the judicial review application has a reasonable prospect of succeeding

1. Ground 4 contends that the July resolution is ultra vires as the conduct of the Town in advertising the Proposed Amendment was misleading, or likely to mislead persons interested in the Proposed Amendment, as to the method by which they should make submissions in respect of the Proposed Amendment, and critically, was likely to mislead persons as to the method by which they should make submissions in respect of the Proposed Amendment. At the heart of this ground is the fact that under the TP Regulations, a local government is only expressly required to consider 'the submissions made pursuant to reg 16(1)'.[121]  Consistent with that requirement is the requirement that the local government report to the WAPC on the submissions made, and its response to them.[122]  The Association contends that responses submitted on the survey form had no status under the scheme established under the PD Act and the TP Regulations in relation to the amendment of a local planning scheme, yet the results of the completed survey forms demonstrated substantial opposition to the Proposed Amendment.

   [121] Town Planning Regulations 1967 (WA) reg 17(2), read with reg 25(2).

   [122] Town Planning Regulations 1967 (WA) reg 18(1), read with reg 25(2).

2. The Town submits that the Association has no reasonable prospect of succeeding in respect of this ground because it does not identify any error of law which could provide the foundation for a jurisdictional error.

3. That submission, with respect, does not adequately reflect the contention at the heart of ground 4, which appears to be that the TP Regulations mandate compliance with a particular process for advertising an amendment, and that compliance with that process is a condition on the exercise of the power given to the local government to make a resolution to adopt an amendment[123] (which power is the basis for the July resolution).  Understood in that way, ground 4 does allege a jurisdictional error in respect of the July resolution.[124] 

   [123] Town Planning Regulations 1967 (WA) reg 17(2)(a), read with reg 25(2).

   [124] Cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

4. There is some novelty in ground 4.  But the point which it appears to advance is not wholly without precedent.  Similar arguments have been advanced elsewhere.[125]  I am, therefore, not persuaded that the Association has no reasonable prospect of succeeding on ground 4.  As I have already noted, the Court should be cautious in this area not to stifle the development of the law by too readily dismissing an application for judicial review, or part thereof, the success of which will depend on the development of the law, rather than the application of established principle. 

   [125] Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91; El Cheikh v Hurstville City Council [2002] NSWCA 173; (2002) 121 LGERA 293 [3] (Sheller JA), [31] ‑ [35] (Ipp AJA, Davies AJA agreeing); Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 [24] ‑ [29] (Basten JA, Giles JA & McFarlan JA agreeing).

5. In reaching that conclusion, I have not overlooked the fact that three difficult questions arise in relation to ground 4. The first is the interaction between the requirement of the TP Regulations, on the one hand, that a local government advertise an amendment in a particular way,[126] and on the other hand, the requirement in the TP Regulations that a local government shall 'take such other steps, if any, as it considers necessary to make public the details of the amendment'.[127] 

   [126] Town Planning Regulations 1967 (WA) reg 25(2)(j)(i)(I).

   [127] Town Planning Regulations 1967 (WA) reg 25(2)(j)(II).

6. Secondly, a fundamental issue requiring analysis in respect of ground 4 is whether ‑ if there was a failure by the Town to comply with the requirements of the TP Regulations ‑ a legislative intention can be discerned that that non‑compliance with the advertising requirements would invalidate any resolution by a local government to adopt an amendment to a local planning scheme.[128]  The discernment of any such intention would need to accommodate the fact that following the resolution of a local government to adopt an amendment, it remains open to the Minister, if he or she 'is not satisfied that the steps taken to advertise the [a]mendment are adequate' to direct the local government to take further steps to advertise the amendment so as to facilitate the receipt of submissions on it.[129] 

   [128] Cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [93] (McHugh, Gummow, Kirby & Hayne JJ).

   [129] Town Planning Regulations 1967 (WA) reg 25(2)(o) and (p).

7. Thirdly, given that there is no evidence that the Minister has in fact made a decision whether to approve the Proposed Amendment, including a decision whether to require the Town to undertake any further steps to advertise the Proposed Amendment, the question whether the July resolution is invalid may be one which is premature, or may be rendered moot or hypothetical.

8. However, as those issues were not adequately addressed in the course of the present application, it is neither necessary nor appropriate to deal with them further at this stage.  That is one reason why it is not appropriate to make a final determination in respect of ground 4 at this point.  A further reason to decline that course is the fact that ground 5 of the grounds of review is also based on an alleged failure by the Town to comply with the advertising requirements of the TP Regulations.  It is appropriate to consider all of those issues together at the hearing.

9. The application to dismiss ground 4 pursuant to O 56 r 5(2)(j) will be dismissed.

Conclusion

1. Grounds 1, 2 and 3 of the grounds of review should be dismissed.  Grounds 4 and 5 will be listed for hearing at the earliest opportunity, subject to counsel's availability.