DiCarlo v The Honourable Rita
[2020] WASC 270
•22 JULY 2020
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| IN CHAMBERS | ||
| CITATION | : | DICARLO -v- THE HONOURABLE RITA SAFFIOTI MLA [2020] WASC 270 |
| CORAM | : SMITH J | ||
| HEARD | : 23 MARCH 2020 | ||
| DELIVERED | : 22 JULY 2020 | ||
| FILE NO/S |
| ||
| BETWEEN | : ANTHONY BERNARD DICARLO |
First Applicant
CHRISTINE MARGARET DICARLO
Second Applicant
ANTONI JOSEF HUBYCKI
Third Applicant
AMANDA JANE HUBYCKI
Fourth Applicant
PHYLLIS SOKLICH
Fifth Applicant
DANIEL SOKLICH
Sixth Applicant
AND
THE HONOURABLE RITA SAFFIOTI MLA
Respondent
[2020] WASC 270
Catchwords:
Administrative law - Application for judicial review - Application for declarations and writs of certiorari and mandamus - Planning and Development Act 2005 (WA) - Decisions of Minister to approve an amendment to a local planning scheme
Administrative law - Whether failure to take into account relevant considerations established - Whether Minister's decisions were unreasonable
Statutory interpretation - Whether compliance with reg 55(c) Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (provision of documents to the Minister by the Western Australian Planning Commission pursuant to reg 53(1)) a statutory precondition to exercise of Minister's powers pursuant to s 87 Planning and Development Act
Statutory interpretation - Regulation 56 Planning and Development (Local Planning Schemes) Regulations - Discretion of Minister to direct a local government to advertise modifications to a proposed standard amendment to a local planning scheme
Legislation:
Land Administration Act 1997 (WA), s 3(6), s 41, s 74
Planning and Development (Local Planning Schemes) Regulations 2015 (WA),
reg 50(3), reg 50(5), reg 53, reg 53(1), reg 55(b), reg 55(c), reg 56
Planning and Development Act 2005 (WA), s 77A, s 87, s 87(1), s 87(2),
s 258(1)(c)
Rules of the Supreme Court 1971 (WA), O 56 r 1(1)
Result:
Applications to apply for judicial review out of time dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | Ms V E Long-Droppert |
[2020] WASC 270
Second Applicant : Ms V E Long-Droppert Third Applicant : Ms V E Long-Droppert
| Fourth Applicant | : Ms V E Long-Droppert | ||
| Fifth Applicant | : Ms V E Long-Droppert | ||
| Sixth Applicant |
| ||
| Respondent |
|
Solicitors:
First Applicant : Justice Legal Pty Ltd Second Applicant : Justice Legal Pty Ltd Third Applicant : Justice Legal Pty Ltd
| Fourth Applicant | : Justice Legal Pty Ltd | ||
| Fifth Applicant | : Justice Legal Pty Ltd | ||
| Sixth Applicant |
| ||
| Respondent |
|
Case(s) referred to in decision(s):
Apache Northwest Pty Ltd v Department of Mines and Petroleum [No 2] [2011]
WASC 283
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion,
Minister for Mines and Petroleum [2018] WASCA 32
Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC
350
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
(2018) 264 CLR 123
Hossain v Minister for Immigration and Border Protection [2018] HCA 34;
(2018) 264 CLR 123
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
Johnson v The Minister for Planning [2018] WASC 334
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14
ALD 291
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Leighton v The Honourable Mr John Day MLA [2014] WASC 164
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3;
(2019) 264 CLR 421
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA
17; (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30;
(2001) 206 CLR 323
[2020] WASC 270
Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC
346
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28;
(1998) 194 CLR 355
Tickner v Chapman (1995) 57 FCR 451
[2020] WASC 270
Table of Contents
1.0 Application for judicial review and the result ...................................................................... 6
2.0 Background to Amendment 174 and the applicants' 'interest' .............................................. 8 2.1 Proposed Amendment 174 following advertising with endorsed modifications approved by the City prior to being considered by the Minister ............................................................ 8
| 2.2 Relevant recommended modifications made to the Minister by the Commission about proposed Amendment 174 .................................................................................................... 12 2.3 The modifications required by the Minister to proposed Amendment 174 .................... 13 2.4 The submissions made by the applicants to the City in response to the advertisement of proposed Amendment 174 .................................................................................................... 14 |
3.0 Grounds of review .............................................................................................................. 15 3.1 Ground 1(b) - Regulation 55(c) of the Planning and Development (Local Planning Schemes) Regulations - Documents required to be provided to the Minister by the Commission .......................................................................................................................... 16
3.1.1 - The issues raised by the applicants about the construction of the effect of reg
55(c) of the Regulations ................................................................................................... 16
3.1.2 - Was reg 55(c) of the Regulations complied with? ................................................ 18
3.1.3 - Was the effect of non-compliance by the Commission with reg 55(c) ajurisdictional error?........................................................................................................... 22
3.2 Ground 1(a) - Was the Minister required to exercise her discretion pursuant to reg 56 to
advertise the modifications proposed by the Commission? ................................................. 41
3.3 Ground 2 - Whether the Minister made a jurisdictional error in making the first and
second decision by failing to take into account relevant considerations .............................. 44
3.4 Ground 4 - Whether the first and second decisions could be found to be vitiated by
unreasonableness .................................................................................................................. 48
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SMITH J:
1.0 Application for judicial review and the result
Each of the six applicants are owners of land who seek judicial review of two decisions made by the respondent, in her capacity as Minister for Planning, concerning an amendment to a local planning scheme to the City of Gosnells' Local Planning Scheme No 6 (Amendment 174) affecting the rezoning of land that abuts the Bickley Brook.
The first decision was made by the Minister, on 5 July 2018, requiring the City of Gosnells (City) to modify proposed Amendment 174 in the terms of a schedule of modifications attached to a letter dated 10 July 2018. The second decision was made by the Minister, on 22 August 2018, to finally approve Amendment 174 (as modified).
The applicants seek declarations that each of the first and second decisions are void, and of no effect. They also seek writs of certiorari quashing each of the decisions, and a writ of mandamus to compel the Minister to remake her first decision pursuant to s 87(2) of the Planning and Development Act 2005 (WA) (Planning Act).
The applicants also seek to challenge what is said to be the third decision, namely, publication of Amendment 174 (as modified) in the Gazette on 14 September 2018.
As the Minister points out, it was the Western Australian Planning Commission (Commission) that caused Amendment 174 to be published in the Gazette, not the Minister. The Commission is not named as a respondent to the application for judicial review. However, the Minister accepts that if the first and second decisions are quashed by way of a writ of certiorari due to being vitiated by jurisdictional error, then the gazettal of Amendment 174 would also need to be quashed.
The applicants seek an extension of time for judicial review of the first and second decisions.
The limitation period for an application for judicial review of a reviewable decision is six months after the later of: the date on which
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the decision is made; or the date on which the applicant became aware
of it.[1][1] Rules of the Supreme Court 1971 (WA) O 56 r 1(1).
By letters dated 7 September 2018 (received by the first applicant in the week of 17 September 2018), the applicants were informed that the amendment had been approved by the Minister (that is, that the second decision had been made) and that gazettal would then occur.[2]
[2] Affidavit of Anthony Bernard DiCarlo, sworn 2 May 2019 [16] and annexure ABD 2.
By email of 11 October 2018, the first applicant was provided with a copy of the Minister's letter (dated 10 July 2018) requiring modifications as set out in the schedule of modifications attached to the letter.[3] The schedule of modifications set out that the Composite Residential/Light Industry zoning would be removed from three Crown reserves which included Crown Reserves 36328 and 42830.
[3] Affidavit of Anthony Bernard DiCarlo, sworn 2 May 2019 [22] - [23] and annexure ABD 3.
Consequently, the first applicant must be taken to have been aware of the first decision, including the fact and the material details of the relevant modification, as of 11 October 2018. Therefore, at the latest, the six month time period in relation to the first decision and the second decision commenced on that date.[4]
[4] The same timelines apply to the other applicants: affidavit of Daniel Soklich sworn 22 May 2019
Six months from 11 October 2018 is 11 April 2019. The application in this matter was brought on 24 May 2019. Accordingly, the application in relation to the first and second decisions was brought out of time and an extension is required.
The issue of whether when Amendment 174 was gazetted and came into effect on 14 September 2018 constituted a decision, is not necessary to be determined as the only basis on which it is alleged that the gazettal may be quashed relies upon the application for judicial review succeeding in relation to the first and second decisions. However, a submission is put, on behalf of the Minister, that if the gazettal does constitute a decision, the limitation period for this decision could be said to have commenced when the applicants were informed of the content of the first and second decisions on 11 October 2018. In these circumstances, it is argued, on behalf of the Minister, that an extension of time would also be required for review of this decision.
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The Minister also argues that the applicants are unable to show sufficient special interest in the first and second decisions to provide sufficient standing to apply for the declarations, and a sufficient interest to justify the issue of the writ of mandamus that they seek.
I do not find it necessary to determine whether the applicants have shown that they have standing to apply for the declarations and writ of mandamus going to the first and second decisions. This is because, for the reasons that follow, none of the applicants' grounds for judicial review can be established. For this reason also the applications for extensions of time to seek review of the first and second decisions should be dismissed.
Although it is not necessary to decide, it is my view that the third decision, the publication of Amendment 174 (as modified) in the Gazette is not a decision of the Minister. However, as the Minister concedes, if the first and second decisions were found to be invalid then it would necessarily follow that the gazettal of Amendment 174 (as modified) would have no effect at law, as the gazettal is simply a publication (notification) of the Minister's second decision (that is, to finally approve Amendment 174 (as modified)) on 22 August 2018.
2.0 Background to Amendment 174 and the applicants' 'interest'
2.1 Proposed Amendment 174 following advertising with endorsed modifications approved by the City prior to being considered by the Minister
Amendment 174 relates to an area of the Bickley Brook between Tonkin Highway and Myola South Place in Maddington, and the rezoning and reservation of land that affected at least three Crown reserves and more than 20 private properties that abut the Bickley Brook.
The first and second applicants are the registered proprietors of the land at 234 Maddington Road, Maddington (Lot 8). The third and fourth applicants are the registered proprietors of the land at 236 Maddington Road, Maddington. (Lot 4). The zoning of Lot 8 and Lot 4 was changed by Amendment 174. The fifth and sixth applicants are the registered proprietors of the land at 232 Maddington Road, Maddington (Lot 17). The zoning of Lot 17 was not changed by Amendment 174.
In 2017, the City began investigating unapproved land uses and developments on land bordering Bickley Brook and potential
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environmental impacts on the Bickley Brook by surrounding
development.
The City commissioned an environmental assessment of the Bickley Brook to determine a consistent, rationalised and scientifically sound approach to the management and use of Bickley Brook, and an appropriate buffer between the Bickley Brook and adjoining private land. The resulting report (Bickley Brook Biophysical Assessment report) recommended that:[5]
[T]he City should seek to achieve an optimum minimum 15 m foreshore buffer to Bickley Brook in the study area through appropriate amendment(s) to the existing LOS [Local Open Space] zone. The foreshore buffer should seek, where possible, to retain existing remnant native vegetation.
[5] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, page 10, Town Planning Scheme
Following receipt of the report, the City prepared an amendment to its town planning scheme, which became Amendment 174. In the report to the Council of the City, for its meeting on 11 April 2017, to initiate the scheme amendment, it was stated that the purpose of proposed Amendment 174 was:
To rezone various lots abutting Bickley Brook, Maddington, between Myola South Place and Tonkin Highway, as shown on the scheme amendment map. The amendment will effectively formalise a scientifically sound designation of developable land and LOS [Local Open Space] reservation and will facilitate the progression of other processes that will serve to better protect Bickley Brook from the impacts of industrial development.
Between 1 August 2017 and 13 September 2017, proposed Amendment 174 was advertised in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) and submissions from the public were sought. Annexed to these reasons and marked with the letter A, is a copy of the proposed scheme amendment map as advertised.
Amendment 174 as first initiated by the City would have affected the zoning of part of three Crown reserves. Two of these are proximate to the north-west of the land of the applicants, and are:[6]
[6] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [16].
(a)
Reserve 36328 which is deemed to be reserved under s 41 of the Land Administration Act 1997 (WA) for the purpose of public
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recreation. The management body of this reserve is the City. Relevant lots within Reserve 36328 are Lot 3141 and Lot 3708.
(b) Reserve 42830 which is deemed to be reserved under s 41 of the Land Administration Act for the purpose of drainage. The management body of this reserve is the Water Corporation. Reserve 42830 comprises Lot 3845.
Prior to Amendment 174, all of the land of Crown Reserves 36328 and 42830 were zoned 'Local Open Space', with the exception of a very small triangle of Crown Reserve 42830 (Lot 3845) that was zoned 'Composite Residential/Light Industry'.
As initially proposed by the City, Amendment 174 would have extended the Composite Residential/Light Industry zone north-west into Crown Reserve 36328 (Lot 3141) and rezoned the small triangle of Crown Reserve (Lot 3845), Local Open Space.
During the advertising period, the applicants and Samuel and Annett Bara (owners of 230 (Lot 16) Maddington Road, Maddington) commissioned a report from Strategen Environmental to undertake a review of the Bickley Brook Biophysical Assessment report, in light of proposed Amendment 174, and subsequent rezoning proposed for Lots 4, 8, 16 and 17 Maddington Road, Maddington.
Prior to Amendment 174, part of Lot 8 and Lot 4 (the first, second, third and fourth applicants' land) was zoned 'Local Open Space' and the remainder 'Composite Residential/Light Industry'.
On 8 September 2017, Strategen Environmental provided its report to the applicants (Strategen Report). Each of the applicants and Samuel and Annett Bara attached a copy of the Strategen Report to their written submission to the City.
The Strategen Report proposed the Composite Residential/Light Industry zone be further extended north-west into Crown Reserve 36328 (Lots 3708 and 3141) and into Crown Reserve 42830 (Lot 3845), that is closer to the path of the Bickley Brook.
The Strategen Report made the following findings:[7]
[7] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, page 58, Strategen Report.
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(a) the Bickley Brook Biophysical Assessment report accurately represented the biological and physical environment within the survey area; (b) the current proposed Local Open Space boundary is located, in some areas, more than 50 m south of the proposed buffer whilst also extending onto areas of private property. Current landowners have historically used parts of this land for light industry and semirural purposes and implementing proposed changes, including fencing, would impact on the current land uses; and (c) the Local Open Space proposed by the City is considered excessive and excludes current land use. A suggested boundary provides a compromise between the existing land uses and protection for waterway habitat and function. This largely remains outside of the 15 m buffer from the top of the bank and will enable current land uses to continue without adversely impacting or limiting the recovery of riparian vegetation, which remains the City's ultimate intent for this area.
The Strategen Report made the following recommendations and observations regarding the extent of Local Open Space within the survey area:
• LOS [Local Open Space] extent to remain outside the areas of existing land use; • Potential for the realignment of the northern boundary of Lots 4, 8, 16, and 17 Maddington Road to that proposed in Figure 1 without impacting or limiting the recovery of riparian vegetation; • The proposed LOS extent is consistent with waterway foreshore policy requirements. The proposed LOS extent does not exclude any riparian vegetation from the LOS and provides for the maintenance of waterway function and rehabilitation. The proposed LOS extent maintains an approximate 50 m setback from the main channel of Bickley Brook. The proposed LOS extent is generally consistent with the LOS extent provided for the Brook, downstream of the subject area.
The City adopted in part the Strategen Report recommendations, and on 14 November 2017, endorsed proposed modifications to Amendment 174 and resolved to forward the proposed Amendment 174 (including modifications) to the Commission.
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The effect of the City's proposed modifications, insofar as they related to the rezoning of the Crown Reserves 36328 and 42830 proximate to the applicants' land, was that the proposed boundary between the land to be zoned Local Open Space and Composite Residential/Light Industry was to be moved closer to the Bickley Brook 15 m buffer that was proposed when the City first initiated the amendment. If the Minister had adopted the City's proposed modifications the boundary between the zones would have moved further away from the Bickley Brook 15 m buffer (closer to Lot 8) than recommended by the Strategen Report. The City's modifications were proposed to provide an opportunity for revegetation to offset the loss of Local Open Space from the reserves.
The effect of the boundary proposed by Strategen and by the City (it by its proposed modifications) was that land that was part of Crown Reserves 36328 and 42830 that immediately abutted each of the applicants' land would be rezoned from Local Open Space to Composite Residential/Light Industry.
2.2 Relevant recommended modifications made to the Minister by the
Commission about proposed Amendment 174
After the City forwarded proposed Amendment 174 to the Commission including the modifications it had recommended, Mr Lissiman, a senior planning officer within the Department of Planning, Lands and Heritage, consulted with the Water Corporation (being the management body of Crown Reserve 42830)[8] and the Land Use Management section of the Department of Planning, Lands and Heritage (Lands section) regarding the rezoning of the Crown reserves.[9]
[8] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [18]; annexure SMLD, page 167 - 176.[9] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [19]; annexure SMLE, page 177 - 183.
An officer of the Water Corporation informed Mr Lissiman that the Water Corporation objected to any rezoning of Water Corporation vested reserves from Local Open Space.[10] An officer of the Land Use Management section of the Department of Planning, Lands and Heritage informed Mr Lissiman that the use of the reserves for other purposes than Local Open Space was inconsistent with the purpose of the reserves.[11]
[10] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLE, page 179.
[11] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLE, page 178. 12 Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [21] - [22]; annexure SMLG.
A report and recommendations were subsequently prepared for consideration by the Commission, which recommended that the
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Commission recommend to the Minister that she require certain
(further) modifications be made to Amendment 174.12
Insofar as the recommended further modifications relates to this application, it was recommended that the boundary between the Local Open Space reserve and the Composite Residential/Light Industry zones should be modified so that it followed the cadastral boundaries between freehold land (some of which is owned by the applicants) and the lots comprising Crown Reserve 36328 and Crown Reserve 42830.[13]
[13] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019; annexure SMLG, page 209.
Mr Lissiman consulted the City by email in relation to the proposed further modifications to be put to the Minister, but the City made 'no comment' in relation to the modifications relevant to the application.[14]
2.3 The modifications required by the Minister to proposed
[14] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [20]; annexure SMLF; affidavit of Samuel
The Minister made the first decision on 5 July 2018 and in doing so accepted the Commission's recommendation in relation to the proposed modifications that affected the boundary between the Local Open Space reserves abutting the applicants' land and the Composite Residential/Light Industry zones.
Amendment 174 (as finally made) rezoned the following two properties owned by four of the applicants:
(a) the first and second applicants are the registered proprietors of the land at 234 (Lot 8) Maddington Road, Maddington; and (b) the third and fourth applicants are the registered proprietors of the land at 236 (Lot 4) Maddington Road, Maddington.
The effect of the modifications of Amendment 174 as gazetted, insofar as it relates to this application, were that:
(a)
the parts of the land of Lot 8 (the first and second applicants' land) and Lot 4 (the third and fourth applicants' land) that were zoned 'Local Open Space' were rezoned to 'Composite Residential/Light Industry' so that the whole of each property were zoned 'Composite Residential/Light Industry', which
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zoning reflected the actual use of the whole of the land of each
property;
(b) the zoning of Lot 17 (the fifth and sixth applicants' land) was not changed. Prior to Amendment 174 the whole of Lot 17 was zoned 'Composite Residential/Light Industry'; and (b) the small triangle of Crown Reserve 42830 Lot 3845 that abutted Lot 4 (the third and fourth applicants' land) was zoned from Composite Residential/Light Industry to 'Local Open Space', which had the effect of removing the Composite Residential/Light Industry overlay from the Crown reserve.
Insofar as Amendment 174, as modified by the Minister, affected the zoning of land of the first, second, third and fourth applicants, and the two Crown reserves, the effect was that the rezoning reflected the cadastral boundaries of the ownership of each of the parcels of land.
Thus, the result of Amendment 174, as gazetted, is that all of the applicants' parcels of land are all zoned Composite Residential/Light Industry and all of the two Crown reserves are zoned Local Open Space.
Annexed to these reasons and marked as Annexure A is a copy of a plan which shows the boundary between the zoned and reserve land prior to being amended, the original proposal for Amendment 174 as advertised, the proposal put by the applicants in their Strategen Report, the City's proposed modifications, and the boundary as finally made by the Minister's decision to finally adopt Amendment 174 (as modified by the Minister).
2.4 The submissions made by the applicants to the City in response to the
advertisement of proposed Amendment 174
In these proceedings, the applicants have filed affidavits in which they have indicated that they have had ongoing and long-time problems associated with the management and use of the Bickley Brook and that they each wish to purchase part of the Crown land that immediately abuts each of the lots.[15]
[15] Affidavit of Amanda Jane Hubycki sworn 22 May 2019; affidavit of Anthony Bernard DiCarlo sworn
By memorandum dated 24 September 2009 (received by the City in September 2009) each of the applicants informed the City that they,
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together with the owner of Lot 16, were interested in each separately purchasing a small wedge of land in Crown Reserve 36328, being part of Lots 3141 and 3708 that adjoins the rear of all four properties, to 'square up' each of the properties, as the original historical course of the Bickley Brook is now a lot further away from the back boundaries.[16]
[16] Affidavit of Donna Maree Shaw sworn 15 November 2019, DS 1, page 13.
However, apart from the attachment of the Strategen Report to each of the applicants' submissions on the proposed scheme amendment, as advertised, no submission was made by any of the applicants as to why each of them were of the opinion that the rezoning of Local Open Space of part of the Crown reserves that were proximate to their land should be changed to the use of Composite Residential/Light Industry.
Whilst the City received the memorandum dated 24 September 2009 in September 2009, there was no reference to the fact that the applicants desired to purchase part of the land that is reserved as Crown land in any of the material that was considered by the City prior to forwarding the proposed amendment to the Commission. Nor was this information brought to the attention of the Minister.
Also of importance, there is no evidence before the court that any of the applicants have made enquiries of the relevant authorities in whom the management of the reserves are vested, other than the City (namely, the Minister for Lands through the Department of Planning, Lands and Heritage and the Water Corporation) as to whether they would be willing to sell the desired portions of the Crown reserves.
3.0 Grounds of review
At the hearing of the application for judicial review, grounds 1, 2, 4 and 5 were pressed on behalf of the applicants.
In ground 1, the applicants claim that the Minister made a jurisdictional error in making the first decision and the second decision in that the following conditions for the proper exercise of jurisdiction by the Minister had not been satisfied, or were otherwise disregarded:
(a)
the Minister failed to consider whether the modifications to Amendment 174 required by the Minister should be advertised in accordance with reg 56 of the Regulations and otherwise failed to direct the City to advertise the modifications; and
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(b) the Minister failed to take into account the documents provided to the Commission under reg 53(1) of the Regulations as required by reg 55(c) of the Regulations, or the first decision and second decision were otherwise tainted by the failure of the Commission to submit the documents to the Minister as required by reg 55(c) of the Regulations.
In ground 2, the applicants claim that the Minister made a jurisdictional error in making the first decision and the second decision by failing to take into account relevant considerations.
In ground 4, the applicants claim the Minister made a jurisdictional error in making the first decision and the second decision because the decisions were unreasonable.
In ground 5, the applicants claim if the first decision and the second decision are vitiated by jurisdictional error, the gazettal of Amendment 174 (as modified by the Minister) is invalid because it was a condition of the exercise of power to cause the gazettal of Amendment 174 that Amendment 174 was a valid amendment to the City's Local Planning Scheme No 6.
For the reasons that follow, I have found that the first and second decisions are not vitiated by jurisdictional error. Consequently, it is not necessary to consider ground 5.
3.1 Ground 1(b) - Regulation 55(c) of the Planning and Development (Local Planning Schemes) Regulations - Documents required to be provided to the Minister by the Commission
3.1.1 - The issues raised by the applicants about the construction of the
effect of reg 55(c) of the Regulations
The applicants claim that the first decision of the Minister to require Amendment 174 to be modified by the City, and the second decision of the Minister to finally approve Amendment 174 as modified, were ultra vires because the Minister did not have before her the documents the City provided to the Commission under reg 53(1) of the Regulations, as required by reg 55(c).
The effect of the applicants' argument is that:
(a)
the Commission has an obligation under reg 55 to submit to the Minister the documents the City is required to provide to the Commission pursuant to reg 53(1); and
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(b) the provision of those documents to the Minister is a statutory precondition of the Minister's jurisdiction under s 87(1) of the Planning Act to approve an amendment to a local planning scheme prepared or adopted by a local government.
Pursuant to reg 53(1), after the passing of a resolution under reg 50(3) (to support a standard amendment to a local planning scheme (without modification or with proposed modifications) or not to support the amendment) the local government must provide the advertised amendment to the local planning scheme to the Commission together with a number of classes of documents or information.
The applicants claim that the following documents provided to the Commission by the City were documents that were required to be provided to the Minister, and were not provided to her prior to making the first and second decisions:
(a)
the information contained within the Strategen Report, or an accurate summary of the submissions contained in the Strategen Report;
(b)
the particulars of each modification to the amendment proposed by the local government in response to the submissions made during public consultation;
(c) Confidential Annexure 16.2A; (d)
the Bickley Brook Biophysical Assessment (being a document required by the Commission);[17]
(e)
the endorsement of the Bickley Brook Biophysical Assessment by the Department of Water, (being a document required by the Commission);[18]
(f)
the endorsement of the Bickley Brook Biophysical Assessment by the Department of Parks and Wildlife, being a document required by the Commission;[19] and
(g)
a copy of the resolution dated 14 November 2017 passed by the City to support the proposed amendment with modifications, being a copy of the resolution made pursuant to reg 50(3).
[17] This was a document provided to the Commission by the City following a request to provide.[18] This was a document provided to the Commission by the City following a request to provide.
[19] This was a document provided to the Commission by the City following a request to provide.
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The applicants argue that the Regulations require that these particular documents are to be provided to the Minister in conjunction with the scheme amendment proposal under s 87(1) of the Planning Act. Further, that non-compliance with the Regulations meant that the Minister's power under s 87(2) of the Planning Act was not enlivened and any decision purportedly made thereunder is ultra vires.
This ground of review requires the determination of two issues.
The first is a factual enquiry as to whether the Commission did or did not provide to the Minister all of the documents provided to it by the City which were documents required to be provided pursuant to reg 53(1).
The second issue only arises if it can be established that the Commission did not provide to the Minister the documents provided to it by the City, which were documents required to be provided to the Minister pursuant to reg 53(1). This issue raises the question of whether compliance with reg 55(c) is an essential precondition to the exercise of the Minister's discretion to approve an amendment to a local planning scheme.
3.1.2 - Was reg 55(c) of the Regulations complied with?
Regulation 55 of the Regulations provides:
55. Commission to submit standard amendment and recommendations to Minister
Unless the Commission makes a direction under regulation 54, the Commission must, within 60 days of receiving the documents provided to it under regulation 53(1), or within such longer period as the Minister or an authorised person allows -
(a) consider the documents; and (b) make any recommendations to the Minister in respect of the amendment that the Commission considers appropriate; and (c) submit the documents and the recommendations to the Minister in accordance with section 87(1) of the Act.
Regulation 53(1) of the Regulations provides:
53.
Information on standard amendment to be provided to the Commission
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(1) After passing a resolution under regulation 50(3) the local government must provide the advertised amendment to the local planning scheme to the Commission together with the following -
(a) a schedule of submissions made on the amendment; (b) the response of the local government in respect of the submissions; (c) particulars of each modification to the amendment proposed by the local government in response to the submissions; (d) if any proposed modification to the amendment was advertised - (i) an explanation of the reasons for advertising the modification; and
(ii) particulars of how the modification was advertised; and
(iii) a schedule of submissions made on the proposed modifications; and
(iv) the recommendation of the local government in accordance with regulation 51(7)(c) in respect of each submission;
(e) a copy of the resolution passed under regulation 50(3); (f) if that resolution was a resolution under regulation 50(3)(c) - a summary of the reasons why the local government does not support the amendment; (g) details of any provision in the local planning scheme that varies or excludes a provision set out in Schedule 1; (h) details of any provision in the local planning scheme as it will be amended that supplements a provision set out in Schedule 2; (i) any relevant maps, plans, specifications and particulars required by the Commission.
It is clear that some of the documents claimed by the applicants not to have been provided to the Minister are not documents that are
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prescribed to be provided by the City to the Commission by the
operation of reg 53(1).
I do not agree that the documents requested by the Commission and referred to in [60](d) - (f) were required to be submitted to the Minister. Although these documents were provided to the Commission by the City, none of these documents can properly be said to be documents of the classes of documents required by reg 53(1) to be submitted by a local government to the Commission.
Pursuant to reg 53(1)(a) to (c) the City, after passing a resolution under reg 50(3) to support proposed Amendment 174 to address issues raised in the submissions it received after the proposed amendment was advertised, the City was required to provide to the Commission the following:
(a) a schedule of submissions made on the amendment; (b) the response of the City in respect of the submissions; and (c) particulars of each modification to the amendment proposed by the City in response to the submissions.
I do, however, agree that some of the categories of information prescribed by reg 53(1) were not provided to the Minister.
In his affidavit affirmed on 9 October 2019, Mr Lissiman states that the documents forwarded to the Minister included the Commission's report and recommendation (and eight attachments). These documents were attached to his affidavit and marked SMLH.[20]
[20] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [23], annexure SMLH pages 221 - 250.When the documents provided to the Minister are reviewed, it is apparent that whilst a schedule of submissions made on the proposed amendment as advertised was provided to the Minister, the information contained in the schedule did not provide information which could properly be said to describe the response of the City in respect of the submissions and contain particulars of each modification to the amendment proposed by the City in response to the submissions.
This is because the schedule provided to the Minister set out a summary of the submissions made by each of the applicants by simply stating under the 'Submitter Details' for each of Lot 4, Lot 8 and Lot 17 (the applicants' land) under the heading 'Submission Comment':
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It is suggested, following a biophysical assessment conducted by Strategen that the LOS extent remains outside the area of the existing land use. The proposed boundary is as per Figure 1 of the assessment.
Under the heading 'City of Gosnells Comment', for each Lot 4, Lot 8 and Lot 17 the schedule stated, 'See Proposed Modification section of the report'. However, no proposed modification section of the report was attached. This report is the document referred to by the applicants as 'Confidential Appendix 16.2A' (Appendix 16.2A), and is a document forwarded to the Commission by the City, together with other documents that the City was required to submit to the Commission pursuant to reg 53.[21] It is a report to the City's Council and was a document that it had before it when it approved the proposed modifications to Amendment 174 on 14 November 2017. This document was not forwarded to the Minister.
[21] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [12], annexure SMLA pages 22 - 36.
Appendix 16.2A is a document that can be properly characterised as a document that the City was required to provide to the Commission pursuant to reg 53(1)(a), (b) and (c) as it is a report to the City's Council which sets out a schedule of submissions made on proposed Amendment 174, as advertised, the response of the City to each of the submissions and the particulars of the modifications to the amendment proposed by the City.
Regulation 53(1)(e) required the City to provide to the Commission a copy of the resolution passed under reg 50(3), being a copy of the resolution made on 14 November 2017 passed by the City's Council to support the proposed amendment with modifications. As the applicants point out, a copy of this resolution was not provided to the Minister.
However, as counsel for the Minister points out, the City appears to have provided 'particulars' of the City's proposed modification to Amendment 174 to the Commission in the form of two maps within the scheme amendment document. One map is marked 'superseded' and reflects the initial advertised proposal[22] and the other reflects the amendment following the City's proposed modifications.[23] The City also provided the report to the Council meeting at which the Council
[22] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [23], annexure SMLA pages 11 and 12.
[23] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [23], annexure SMLA page 26.
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considered the modifications;[24] and an extract from the minutes of that
Council meeting.[25][24] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [23], annexure SMLA pages 22 - 37.[25] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [23], annexure SMLA page 82.
Some of the maps were provided to the Minister by the Commission, but not the Council report or minutes. The maps provided to the Minister included detailed maps showing where the City's proposed modifications to Amendment 174 proposed to expand the Composite Residential/Light Industry zone in the area to the rear of the applicants' land by rezoning parts of the Crown reserves abutting the applicants' land to Composite Residential/Light Industry.[26]
[26] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [23], annexure SMLH pages 241.
In the absence of the information contained in Appendix 16.2A under the heading, 'Proposed Modifications' being submitted to the Minister, and a copy of the resolution made by the City's council on 14 November 2017, it cannot be said that the Commission submitted all of the documents provided to it under reg 53(1)(a) to (c) and (e) to the Minister, within the meaning of reg 55(c) of the Regulations.
On behalf of the Minister, it is argued that reg 55(c) was complied with in substance. I do not agree. Clearly, when copies of the documents submitted to the Minister are reviewed, it cannot be found that the Minister was provided with the categories of documents and information prescribed by reg 53(1)(a) to (c) and a copy of the document prescribed by reg 53(1)(e).
At the hearing of the application for judicial review, a submission was put by counsel for the Minister that if it is found that reg 55(c) was not complied with, the failure to provide this information to the Minister was immaterial to the decision made by the Minister.[27] I now turn to this point, and whether reg 55(c) is a precondition to the exercise of statutory power under s 87(2) of the Planning Act.
3.1.3 - Was the effect of non-compliance by the Commission with reg 55(c)
In answering this question two issues are raised.
Firstly, whether the compliance with reg 55(c) is a statutory precondition to the Minister's powers to approve an amendment to a local planning scheme without modifications or to require the local
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government concerned to modify the amendment in such manner as the
Minister specifies, pursuant to s 87 of the Planning Act.
The second issue arises in the event that the first question is answered affirmatively. The second issue is whether the failure to comply with reg 55(c) was a material breach of the valid exercise of the decision-making power of the Minister.
Regulation 55 provides:
55. Commission to submit standard amendment and recommendations to Minister
Unless the Commission makes a direction under regulation 54, the Commission must, within 60 days of receiving the documents provided to it under regulation 53(1), or within such longer period as the Minister or an authorised person allows -
(a) consider the documents; and (b) make any recommendations to the Minister in respect of the amendment that the Commission considers appropriate; and (c) submit the documents and the recommendations to the Minister in accordance with section 87(1) of the Act.
In Johnson v The Minister for Planning, I observed in respect of a complex amendment to a local planning scheme, that:[28]
The 1967 Regulations and the 2015 Regulations require that the Minister, when making a decision pursuant to s 87, is to have before her or him the documents the local government authority is required to submit to the Commission and any recommendations the Commission makes to the Minister.
[28] Johnson v The Minister for Planning [2018] WASC 334 [92]. (footnotes omitted)I did not, however, consider in Johnson v The Minister for Planning, what the effect would be if the Minister did not have before him or her the documents the local government authority is required to submit to the Commission. In particular, I did not express a view as to whether the submission of the documents was an express or implied condition of the valid exercise of the Minister's decision-making power conferred by s 87 of the Planning Act.
In Project Blue Sky Inc v Australian Broadcasting Authority, the majority said:29
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An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
Subsequent to the delivery of my decision in Johnson v The Minister for Planning on 2 November 2018, the Chief Justice published his reasons in Goldrange Pty Ltd v Western Australian Planning Commission, in which his Honour found that the requirement in reg 55(b) of the Regulations, that the Commission provide to the Minister a recommendation, was not a statutory precondition to the exercise of the Minister's discretion under s 87(1) and (2) of the Planning Act.30
In determining this issue, the Chief Justice in Goldrange Pty Ltd v Western Australian Planning Commission, applied the established principle of statutory construction that the issue turned upon whether it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid.31 His Honour then said:32
Section 87 forms part of Part 5 of the Act, which makes provision in respect of the Minister's powers in relation to local planning schemes (in Division 2); relevant considerations in the preparation or amendment of planning schemes (in Division 3); and the advertisement and approval of planning schemes (in Division 4).
The final step in that process is approval, which is governed by s 87.
Section 87(1) and s 87(2) provide:
29 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91]
(McHugh, Gummow, Kirby & Hayne JJ). (footnotes omitted)
30 Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350.
31 Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350 [58] - [59]; applying
the principle considered in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (2018) 264 CLR 123 [27] (Kiefel CJ, Gageler & Keane JJ) and [66] (Edelman J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69], [91] - [93] (McHugh,
Gummow, Kirby & Hayne JJ).
32 Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350 [63] - [72], [74],
[77] - [78], [81] - [83], [85] - [87] and [93] - [95].
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87. Approving and publicising scheme or amendment
(1) Subject to section 83, after advertisement under section 84 and compliance with sections 85 and 86, a local planning scheme prepared or adopted, or an amendment to a local planning scheme prepared or adopted, by a local government is to be submitted to the Minister for the approval of the Minister.
(2) The Minister may, in relation to a local planning scheme or
amendment submitted to the Minister under subsection (1) -
(a)
approve of that local planning scheme or amendment; or
(b)
require the local government concerned to modify that local planning scheme or amendment in such manner as the Minister specifies before the local planning scheme or amendment is resubmitted for the Minister's approval under this subsection; or
(c)
refuse to approve of that local planning scheme or amendment.
A number of textual matters are immediately apparent.
First, s 87 expressly refers to certain conditions to be met prior to the submission of a planning scheme, or amendment to a planning scheme being submitted to the Minister for the approval of the Minister. For example, s 87(1) opens, 'subject to section 83, after advertisement under section 84 and compliance with sections 85 and 86'.
It is therefore apparent that there are incorporated, arguably (and, in my view, most likely) as statutory preconditions, requirements of compliance with other provisions of the Act before the Minister's powers are enlivened.
Significantly, the other provisions which must be complied with include:
(a)
s 83, which provides that the Local Government must make reasonable endeavours to consult with respect to any amendment such public authorities and persons as appear to be likely to be affected;
(b)
s 84, which requires that an amendment be advertised for public inspection; and
(c)
s 85 and s 86, which include certain duties arising in relation to the Environmental Protection Act 1986 (WA).
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The Act, therefore, expressly provides for certain preconditions to the exercise of the Minister's powers under s 87(2).
The Act does not, in this context, expressly refer to any recommendations by the Commission. Section 87(1) and s 87(2) do not refer, in the context of the Minister's decision, to any provision which contemplates, or incorporates, a requirement for recommendations by the Commission. The statutory power is therefore not conditioned by the Act itself on the formation or expression of any recommendation by the Commission.
The question, then, is whether Regulation 55 can, and does, constitute a precondition to the statutory discretion of the Minister under s 87(2).
…
That regulation is made pursuant to s 258 of the Act, a matter relied upon by counsel for the applicants. In that regard, s 258(1)(c) specifically contemplates that the Minister may make regulations for regulating the procedure to be observed with respect to the review, amendment or repeal of a local planning scheme.
…
I agree that a statutory power cannot be cut down, or interpreted by reference to, a regulation.
That does not, however, quite answer the question in the present case. The real question in the present case is whether the regulation can condition the statutory power and give rise to a condition which affects the relevant statutory power. That question turns both on a construction of the regulation itself, to determine whether it manifests an intention to create condition, and on a construction of the regulation-making power, to determine whether the regulation-making power allows that to occur.
…
The status of regulations prescribing the procedure raises difficult questions. Being regulations, they are law and define a procedure. They are required to be complied with. It may be, for example, that, in a particular case, if the procedure prescribed by the delegated legislation were not followed, a writ of prohibition might issue in order to prevent further departure from the prescribed procedure.
In that sense, in my view, it is arguable that there could be cases where a requirement in regulations may validly condition a statutory power.
Nevertheless, in my view, Regulation 55 cannot, and does not, do so.
…
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A number of features of that regulation are notable. While accepting that the obligations imposed by Regulation 55 are preceded by the word 'must', it is apparent that Regulation 55 only refers to obligations of the Commission. It imposes no obligation on the Minister. Indeed, the only obligation imposed on the Minister in this context is the obligation imposed by s 87 of the Act.
Moreover, the obligation which Regulation 55 imposes on the Commission in relation to recommendations is an obligation to make any recommendations to the Minister in respect of the amendment that the Commission considers appropriate. That is a facilitative provision enabling the Commission to make recommendations should it choose to do so.
Regulation 55 does not, however, in my view, impose any obligation to make a recommendation, nor, in particular, does it impose an obligation to make a recommendation about any particular matter.
…
The present Regulation (Regulation 55) does not require that the Commission make a recommendation, nor does it specify in any way what it is that the Commission might make recommendations about (beyond, obviously, being in relation to the amendment, and being made if the Commission considers it appropriate). That, in my view, does not give rise to a statutory precondition within the meaning of the authorities.
Not only is it the case that a recommendation need not be made under Regulation 55; there is no provision requiring the Minister to take a recommendation made into account or identifying any particular matter to which any recommendation must relate.
In my view, Regulation 55 does not evince an intention to create a statutory precondition in relation to any recommendation and cannot be construed as giving rise to any binding obligation on the Minister to receive such a recommendation before exercising the powers under s 87(1). Accordingly, in my view, it cannot be said, as a matter of statutory construction, that it constitutes a statutory precondition.
The Chief Justice's decision in Goldrange makes it clear that the Commission does not have any obligation pursuant to reg 55(b) to make a recommendation to the Minister, as the language of this provision is a facilitative provision which enables the Commission to make any recommendations that it considers appropriate (or not to make a recommendation).
However, the direction to the Commission (to provide documents) by the operative words of reg 55(c) are of a different character. The
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statutory direction in reg 55(c) is to submit the documents and the
recommendations if made to the Minister.
Regulation 55(b) and (c) does not impose an obligation on the Minister to take into account the matters stated in the documents or any recommendations made by the Commission when making a decision whether to approve an amendment to a local planning scheme, with or without modifications, pursuant to s 87 of the Planning Act.
In Johnson v The Minister for Planning, I found that when making a decision whether to make or approve an amendment to amend a local planning scheme pursuant to s 87, the Minister is entitled to make the decision by regard to matters of policy.[33]
[33] Johnson v The Minister for Planning [2018] WASC 334 [93].As his Honour the Chief Justice pointed out in Goldrange Pty Ltd v Western Australian Planning Commission, reg 55 is made pursuant to s 258(1)(c) of the Planning Act which provides that the Minister may make regulations for regulating the procedure to be observed with respect to the review, amendment or repeal of a local planning scheme.[34] However, neither the text nor context of s 258(1)(c) indicates that a failure of the Commission to comply with a procedural requirement will invalidate the exercise of power by the Minister.
[34] Goldrange Pty Ltd v Western Australian Planning Commission [2018] WASC 350 [74].In Project Blue Sky Inc v Australian Broadcasting Authority, the majority also, relevantly, observed that when 'a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity'.[35]
[35] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [95]
Whilst there is no express direction that the Minister carry out his or her power under s 87(1) and (2) of the Planning Act, in accordance with the Regulations, it is to be implied that the Minister's power under s 87(1) and (2) may be carried out in accordance with policy. This interpretation arises from the context of the Minister's power conferred under s 77A of the Planning Act to order a local government to amend a local planning scheme for the purpose of rendering the local planning scheme consistent with a specified State planning policy.
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In Johnson v The Minister for Planning, I found:[36]
[36]Johnson v The Minister for Planning [2018] WASC 334 [88] - [96]. (footnotes omitted)The considerations that the Minister must take into account are, in part, expressly set out in s 87(1) of the Planning Act which provides as follows:
(1)
Subject to section 83, after advertisement under section 84 and compliance with sections 85 and 86, a local planning scheme prepared or adopted, or an amendment to a local planning scheme prepared or adopted, by a local government is to be submitted to the Minister for the approval of the Minister.
The requirement in s 84 (advertising the proposed amendment), s 85 and s 86 (matters relating to an assessment of a proposed amendment by the EPA) are not raised in this application as relevant considerations that were not taken into account by the Minister when making the decision to approve Amendment 57.
Pursuant to s 123(1) of the Planning Act, the Minister is prohibited from approving a local planning scheme if the provisions of the scheme are not in accordance with and consistent with each relevant region planning scheme.
Other than the considerations expressly stated in s 84, s 85, s 86 and s 123 of the Planning Act, the discretion of the Minister to approve an amendment or require a local government authority to modify an amendment or to refuse to approve an amendment is conferred in very broad terms. In particular, the Planning Act does not specify any circumstances in which the power to approve an amendment to a local planning scheme must be exercised, or confine the discretion to refuse to approve an amendment to particular circumstances.
The 1967 Regulations and the 2015 Regulations require that the Minister, when making a decision pursuant to s 87, is to have before her or him the documents the local government authority is required to submit to the Commission and any recommendations the Commission makes to the Minister.
In making a decision, the Minister is entitled to make a decision whether as a matter of policy an amendment, with or without modifications, should be approved or refused.
Along with the conferral of a broad discretion on the Minister, the legislative power to make and amend planning schemes is also conferred in very broad terms. A local planning scheme may be made 'with the general objects of making suitable provision for the improvement, development and use of land', and for the 'zoning of the
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scheme area for appropriate purposes' and the 'designation of uses in
zones as permitted, prohibited or requiring approval'.The general objects in s 69 of the Planning Act impliedly contemplate that the Minister, in exercising a discretion to determine whether an amendment should be made to a local planning scheme may take into account matters of policy that relate to the objects. Thus, the power to approve an amendment to a local planning scheme by s 87 allows a broad range of planning policy considerations to be taken into account by the Minister, including broader government policy and other political considerations. In Leighton v Day, Allanson J pointed out:
'It is relevant that the power to approve is vested in a Minister of the Crown. In particular, due allowance must be made to the fact that a minister, in exercising a discretion, may take into account broader policy considerations: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd; Minister for Immigration v Jia Legeng (2001) 205 CLR 507, 529, 565; Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 [50].
The Act expressly requires a local government to have due regard to any State planning policy which affects its district when preparing or amending a local planning scheme. Policy issues more generally, even if not formalised into a State planning policy, are matters to which a Minister may properly have regard. The decision being policy based, the question for the Minister was not whether he could approve Amendment 18 - he was advised that he could. The question was whether he should approve it, and his statement of reasons should be read as informing why he decided that he should not.
Finally, many of the major developments in administrative law, particularly over the last 15 years, have arisen out of proceedings under the Migration Act 1958 (Cth). Many of those cases arise out of the particular requirements imposed upon a tribunal that is conducting the function of review of an administrative decision: see, for example, Minister for Immigration and Citizenship v Li [10], [93]; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 [25]. That is not the nature of the function performed by the Minister under s 87 of the Act. He was required to decide whether to exercise a power that, on the completion of formal processes, would result in the creation of delegated legislation that has effect as if enacted. This is an area of policy in which the court should hesitate to intrude: see West Australian Field and Game Association Inc v Pearce (1992) 8 WAR 64, 87; and see Minister for Immigration and Citizenship v Li [108], [111] (Gageler J).'
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Where a legislative power vests in a Minister who, as a matter of policy, exercises a decision of whether to promulgate delegated legislation, in general terms the area of determination of policy is an area which the court will not intrude.
It is my view that the obligation of the Commission to submit the categories of documents and information specified in reg 53 provided to the Commission by a local government authority to the Minister pursuant reg 55(c), does not give rise to a statutory precondition on the Minister, requiring him or her to receive those documents before exercising the powers under s 87(1) and (2) of the Planning Act. This is because the Minister may have regard to matters that are not contained within the documents and information the City is required to provide the Commission when making a decision whether to approve an amendment to a local planning scheme.
The consequence of this finding is that, in this matter, whilst the failure to submit to the Minister the documents as required by reg 55(c) is a breach by the Commission of reg 55(c); compliance with reg 55(c) is not an express or implied condition of the Minister's valid exercise of the decision-making power conferred by s 87(1) and (2) of the Planning Act.
If I am wrong on this point, and compliance with reg 55(c) is an express or implied condition of the valid exercise of the Minister's decision-making power conferred by s 87(1) and (2), unless the breach of this condition constitutes a material error of law, the breach will not constitute a jurisdictional error.
In Hossain v Minister for Immigration and Border Protection,[37] the High Court held that the nature, and degree and gravity of an error of law will inform its legal consequences. The plurality explained this principle as follows:[38]
That a decision-maker 'must proceed by reference to correct legal principles, correctly applied' is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily
[37] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.[38] Hossain v Minister for Immigration and Border Protection [29] - [31] (Kiefel CJ, Gageler & Keane JJ)
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to be interpreted as incorporating a threshold of materiality in the event
of non-compliance.Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of 'the possibility of a successful outcome', or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was 'so insignificant that the failure to take it into account could not have materially affected' the decision that was made.
Thus, as it was put in Wei v Minister for Immigration and Border Protection, '[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act'. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
The applicants claim that the Minister did not have before her the documents that contained information relevant to the consideration of:
(a) the nature, scope and purpose of Amendment 174; (b) the City's proposed modifications; and (c) the Commission's proposed modifications.
In particular, the essence of the applicants' complaint is that the material placed before the Minister did not contain an accurate or fulsome summary of the information contained within those documents, and the summary of the submissions of the applicants in the Commission's report to the Minister did not encapsulate the detail of the Strategen Report.
As to the Strategen Report, I do not agree that the documents submitted to the Minister did not adequately summarise the material provisions of the Strategen Report. To the contrary, the report to the Minister did summarise the reasons stated in the Strategen Report as to why the authors of the report recommended that the Local Open Space extent remain outside the area of existing land use. In particular, the
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report summarised why the authors of the Strategen Report suggested that the boundary proposed by Amendment 174 as advertised should be shifted to enable current land uses (for light industry and semi-rural purposes) to continue without adversely impacting or limiting the recovery riparian vegetation.
I also do not agree that the material placed before the Minister did not contain information relevant to her consideration of the nature, scope and purpose of Amendment 174, or the City's proposed modifications, or the Commission's proposed modifications.
The Minister had before her a copy of proposed Amendment 174, as advertised, being a report prepared by the City which was adopted by the Council of the City on 11 April 2017. In the City's report, the purpose of the amendment was stated to be:[39]
Proposal
To rezone various lots abutting Bickley Brook, Maddington, between Myola South Place and Tonkin Highway, as shown on the scheme amendment map. The amendment will effectively formalise a scientifically sound designation of developable land and LOS [Local Open Space] reservation and will facilitate the progression of other processes that will serve to better protect Bickley Brook from the impacts of industrial development.
[39] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLA page 9.
The nature and scope of proposed Amendment 174 and the reasons for its introduction was further explained in the City's report as follows:[40]
1.0 INTRODUCTION AND BACKGROUND Over a number of years, the City has been seeking to resolve various compliance issues on land abutting Bickley Brook. This has included compliance action associated with unauthorised development within the existing Local Open Space (LOS) reservation, considering site-specific applications for planning approval for uses already commenced (without prior approval) and the consideration of associated environmental reports regarding the impact of those developments. It is also considered that the ability of the LOS reservation to provide an adequate separation distance between Bickley Brook and adjacent industrial land use is compromised by its inconsistent width, which ranges from non-existent to in excess of 60 metres.
[40] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLA page 10.
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To address the broader need for a properly defined LOS reservation along Bickley Brook, the City commissioned a Biophysical Assessment for Bickley Brook, between Myola South Place and Tonkin Highway. The Biophysical Assessment was undertaken in 2012 and 2013, with the resulting Bickley Brook Biophysical Assessment (BBBA) (Greencap ENV, 2013) being endorsed by the Department of Water in 2014 and Department of Parks and Wildlife in 2016.
In relation to the LOS reservation, the BBBA recommended that 'the
City should seek to achieve an optimum minimum 15m foreshore buffer to Bickley Brook in the study area through appropriate amendment(s) to the existing LOS zone. The foreshore buffer should seek, where possible, to retain existing remnant native vegetation.'
The 15m recommended minimum buffer is measured from the surveyed top of the bank of the Brook and is considered a minimum separation distance. Although it provides a justified basis for a revised LOS zone, closer analysis of the recommended minimum 15m buffer identifies that:
• The demarcation, in some instances, encompasses existing, approved developments and activities. • Practicalities regarding boundary definition by way of survey and (future) fencing require the curved 15m line to be rationalised to straight segments. • The line approximates in some instances to existing cadastral boundaries, and could be rationalised in those instances to match the existing boundary. 2.0 PROPOSAL In response to the above, the City has prepared an amended buffer boundary based on the recommended minimum 15m separation from top of bank, but taking into account the practicalities of future lot boundaries and fencing whilst seeking to achieve the minimum 15m separation distance. That amended buffer boundary forms the basis of the subject proposal.
3.0 CONCLUSION The proposed Scheme Amendment will effectively formalise a scientifically sound designation of developable land and LOS reservation and will facilitate the progression of other processes that will serve to better protect Bickley Brook from the impacts of industrial development.
Part of the City's report were two maps which depicted the existing zoning and the proposed rezoning of the land that abutted the
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Bickley Brook between Myola South Place and Tonkin Highway. Annexed to these reasons as Annexure B is a copy of the map which shows the proposed rezoning by proposed Amendment 174, as advertised.
In the Commission's report to the Minister, the following matters
were stated:
(a) under the heading 'Summary':[41] [41] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLH page 221.
•
The City of Gosnells (the City) proposes to amend Local Planning Scheme No. 6 (LPS 6) by transferring portions of various lots abutting Bickley Brook from:
• Local Open Space to General Industry;
• Local Open Space to Composite Residential/Light Industry; and
•
Composite Residential/Light Industry to Local Open Space.
• The purpose of the amendment is to provide a minimum separation distance of 15 metres to protect Bickley Brook from the impacts of adjoining industrial development. The proposed buffer is derived from the recommendations of the Bickley Brook Biophysical Assessment (BBBA), commissioned by the City in 2013. • The amendment generally accords with the state planning framework, including the draft Perth and Peel Green Growth Plan for 3.5 million, Sub-regional Planning Framework for South Metropolitan Peel, State Planning Policy 2 - Environment and Natural
Resources Policy (SPP 2), State Planning Policy 2.9 - Water Resources (SPP 2.9) and State Planning
Policy 2.10 - Swan and Canning River System
(SPP 2.10).
•
It is recommended the amendment be supported subject to modifications.
(b)
under the heading 'Details of Proposal', that LPS 6 was to be amended (by rezoning), 2,054 m² of Local Open Space to General Industry, 4,950 m² of Local Open Space to Composite Residential/Light Industry, and 6,734 m² of Composite
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Residential/Light Industry to Local Open Space.[42] Attached to the Commission's report were five maps. The first was the existing scheme zoning and the proposed scheme amendment map. The second and third maps depicted on a larger scale the areas of land upon which showed how each of the general industry zones, parks and recreation reserves and composite/light industry zones would be expanded. The fourth and fifth maps depicted nominal 15 m and 30 m buffers for the Bickley Brook;
[42] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLH page 222.
(c) under the heading 'Background':[43] [43] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLH page 222.The amendment area includes portions of nineteen lots along the southern bank of Bickley Brook, and one lot on the northern bank of the brook. The locality is characterised by lot sizes between 1600m2 and 1.65 hectares, a mix of industrial land uses and residential dwellings.
The subject land is zoned Urban Deferred (southern bank) and Industrial (northern bank) under the Metropolitan Region Scheme (MRS) and Local Open Space, Composite Residential/Light Industry (southern bank) and General Industry (northern bank) under LPS 6 (Attachment 3 - Location and TPS zoning plan). The land is bound by Residential Development zoned land to the south, General Industry zoned land to the north and west, and General Rural zoned land to the east of Tonkin Highway.
The BBBA, which informs the proposal, was undertaken in 2012 and 2013, and endorsed by the Department of Water in 2014 and the Department of Parks and Wildlife in 2016. The BBBA was commissioned by the City to address the broader need for a defined Local Open Space reservation along Bickley Brook (Attachment 4 - Bickley Brook Biophysical Assessment Buffer).
(d)
under the heading 'Key Issues', and the subheading, 'Consultation', it was stated that following the submission of the amendment for final approval, advice was sought on the proposed zoning of portions of three Crown reserves and that support for the zoning of these reserves was not forthcoming. It also stated under the same subheading that the Water Corporation also considered the proposal due to impacts on two Crown reserves vested in the authority for ongoing
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management, and the Water Corporation was not supportive of
the zoning of these reserves; [44]
[44] Affidavit of Samuel Mark Lissiman affirmed on 9 October 2019, annexure SMLH pages 222 - 223; see
(e) under the heading 'Planning Assessment', and the subheading 'State Planning Policy context', an opinion was expressed (in effect) that the proposed amendment was consistent with State Planning Policy 2 - Environment and Natural Resources Policy, and State Planning Policy 2.9 - Water Resources, and State Planning Policy 2.10 - Swan and Canning River System; (f) under the heading 'Modifications', the City's modifications were summarised. Some of the City's modifications did not relate to the applicants' land or land abutting the applicants' land. However, in respect of the proposed modified boundary between the applicants' land and the Crown reserves, it was stated:[45] [45] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLH page 224.
The amendment also proposes the expansion of the Composite Residential/Light Industry zoning into various Crown reserves abutting Bickley Brook (Attachment 6 - Crown reserve encroachments and Attachment 7 - Comparative plans). The affected reserves are vested in the Water Corporation and/or the City of Gosnells for ongoing management. The Water Corporation and the Land Use Management Division of the Department do not support the proposed zoning of Crown reserves. The amendment should be modified accordingly to remove these proposals.
In addition to the above, a small portion of Crown allotment 3845 is currently zoned Composite Residential/Light Industry zoning. It is recommended that this anomaly be corrected by the amendment to formalise the Local Open Space reservation boundary (Attachment 6 and Attachment 7).
(g) under the heading 'Recommendation', it was stated:[46] That the Western Australian Planning Commission resolves to recommend that the Minister:
1. determines the submissions in accordance with the attached Schedule of Submissions (Attachment 5); and
[46] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLH page 225.
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2. requires the Council to modify the amendment documents in accordance with the attached Schedule of Modifications (Attachment 8) before final approval is given.
Attachment 5 to the Commission's report included a submission made by the Environmental Protection Authority (which is not relevant to the disposition of issues raised in this application for review) and a summary of submissions made to the City including the applicants' submissions on the proposed amendment, as advertised, and the City's comment (which referred back to the Appendix 16.2A, being the report before Council at its meeting on 14 November 2017 and not a document that was before the Minister).
What the Minister did not have before her was Appendix 16.2A. In Appendix 16.2A, under the heading 'Proposed Modifications', it was relevantly stated that:[47]
[47] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLA pages 25 - 26.During the consultation period, the City received submissions suggesting modifications to the extent of the zones and reservations recommended by the BBBA. The suggestions are based on a review of the BBBA conducted by Strategen, with the modifications relating specifically to Lots 4, 8, 16 and 17 Maddington Road, as follows:
• LOS extent to remain outside the areas of existing land use • Potential for the realignment of the northern boundary of Lots 4, 8, 16 and 17 Maddington Road to that proposed in the following Detail Plan without impacting or limiting the recovery of riparian vegetation • The proposed LOS extent is consistent with waterway foreshore policy requirements. The proposed LOS extent does not exclude any riparian vegetation from the LOS and provides for the maintenance of waterway function and rehabilitation. The proposed LOS extent maintains an approximate 50m setback from the main channel of Bickley Brook. The proposed LOS extent is generally consistent with the LOS extent provided for the Brook, downstream of the subject area. In considering the above, the City is generally supportive of the boundary modifications proposed by Strategen. However, it is suggested that for the area north of Lot 8 Maddington Road, the boundary be moved further away from the 15m buffer so as to provide an opportunity for revegetation to offset the loss of LOS.
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A detailed map of the modification follows, with a modified Scheme
Amendment map contained as Attachment B.
It is this information which provides the City's response to the submissions it received on proposed Amendment 174, as advertised, and explains the summary of the applicants' submissions set out in the schedule of submissions provided to the Minister that, 'It is suggested, following a biophysical assessment conducted by Strategen that the LOS extent remains outside the area of the existing land use. The proposed boundary is as per Figure 1 of the assessment'.[48]
[48] It is noted that the map in Figure 1 was not included in any other documents attached to Appendix 16.2A.The information under the heading 'Proposed Modifications' in Appendix 16.2A also explained why the City did not entirely accept that the boundary proposed by Strategen be accepted and instead adopted proposed modifications which would have (if adopted by the Minister) resulted in the boundary of land zoned 'Open Space' and 'Composite Residential/Light Industry' between the reserved land that abutted Lot 8 (the DiCarlo land) being moved closer to the Bickley Brook buffer. However, the Appendix 16.2A report did not address why the City was generally supportive of the Strategen boundary proposal. Nor did the Appendix 16.2A report refer to any reason why the City was of the view that revegetation was necessary.
However, included in the documents, provided to the Minister, by the Commission, was a large-scale map of the applicants' land and the abutting reserves which showed clearly the extension of the area of land that the City proposed should be rezoned Composite Residential/Light Industry over Lots 3141, 3708 and 3845 and the existing Residential Composite/Light Industry zone over Lot 3845, which map reflected the modifications to the boundary proposed by Strategen and the modifications proposed by the City to the amendment.[49] A copy of this map is annexed to these reasons as Annexure C. When regard is had to this map it is clear that the substance of the changes to the boundary proposed by the City and Strategen were before the Minister.
[49] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLH page 241.The question is whether the absence of information about the contents of the Strategen Report (as summarised in Appendix 16.2A), from the documents provided to the Minister, could be said to be material to the Minister's decision to approve Amendment 174, with the modifications recommended by the Commission.
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Importantly, there was no information before the City's Council which it could have provided to the Commission which in turn could have been provided to the Minister as to why the applicants were of the view that part of the reserves that abutted their land, zoned as Local Open Space should be rezoned Composite Residential/Light Industry. The Strategen Report was a biophysical assessment. The Strategen Report was obtained by the applicants to provide advice on appropriate foreshore setback from the Bickley Brook only. Nor was there any information before the City's Council when it considered the applicants' submissions that they wish to purchase part of the reserves.
The Minister did, however, have before her in the information contained in the Commission report that the Water Authority and the Land Use Management Division of the Department of Planning, Lands and Heritage did not support the proposed rezoning of any part of the reserves. As counsel for the Minister points out in written submissions, that reserved land is managed, but remains unalienated Crown land. A management body may have conferred upon it the power to lease a managed reserve for its reserved purpose,[50] but the power to sell Crown land rests with the Minister for Lands.[51]
[50] Land Administration Act 1997 (WA) s 74.
[51] Land Administration Act 1997 (WA) s 3(6).
Notably, the modifications made by the Minister did not affect the applicants' land. Before Amendment 174, as modified, was finally made, the first, second, third and fourth applicants' land (Lot 8 and Lot 4) was mostly zoned Composite Residential/Light Industry and partially reserved for Local Open Space. Amendment 174 as initially advertised, as recommended by the City and as finally made, removed the Local Open Space zoning from Lot 8 and Lot 4, with the result that the whole of this land was zoned Composite Residential/Light Industry.
In the absence of any information before the Minister that the applicants had any interest in the reserved land that abutted their land, it cannot be found that the contents of the Strategen Report (as summarised in Appendix 16.2A) could be said to be material to the Minister's decision to approve Amendment 174, with the modifications recommended by the Commission.
There is nothing before the court that the reasons why the Strategen Report made the recommendation about the location of the boundary, and the reasons why the City were of the view that the boundary proposed by Strategen should be partially adopted, would
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have resulted in a different decision being made by the Minister. This is because there was nothing in the Strategen Report which indicated that the applicants' land would be affected by a change to the proposed boundary of land that abutted or was nearby to the applicants' land between land rezoned Composite Residential/Light Industry and Local Open Space, as proposed by the Commission compared to what was proposed by Strategen or by the City.
Consequently, the failure to comply with reg 55(c) cannot be found to be a material error of law, as in the absence of this information it cannot be found that compliance would have made a difference to the Minister's decision to make the first or second decisions.
3.2 Ground 1(a) - Was the Minister required to exercise her discretion pursuant to reg 56 to advertise the modifications proposed by the Commission?
The applicants claim that a jurisdictional error was made by the Minister in that she failed to consider whether the modifications to Amendment 174 (as recommended by the Commission) should be advertised and in doing so failed to exercise her discretion to direct the City to advertise the (Commission's recommended) modifications.
The effect of the applicants' submissions on this point is a contention that the Minister's power to approve an amendment to a local planning scheme is conditioned by the operation of reg 56 of the Regulations.
Regulation 56 provides:
Minister or authorised person may direct modifications to standard amendment be advertised
(1)
Before a decision is made under section 87 of the Act, the Minister or an authorised person may direct the local government to advertise modifications to a standard amendment to a local planning scheme if -
(a)
the local government proposes, or the Commission recommends, that the amendment that was advertised under regulation 47(2) be modified; and
(b)
the Minister or authorised person is of the opinion that the modification is significant.
(2) The direction must include details of the process to be followed
in respect of the advertisement including timeframes for -
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(a)
the making and consideration of submissions on the modifications; and
(b)
providing recommendations to the Minister or authorised person following the advertisement.
(3) If a local government is given a direction under subregulation (1) the local government must advertise the modification to the amendment to the local planning scheme as directed by the Minister or authorised person.
The applicants argue that the Minister has a duty to exercise the power to require the modifications recommended by the Commission be advertised because:
(a) the Commission's proposed modifications were significant and clearly affected the applicants' land; and (b) the Water Corporation recommended that the Commission's proposed modifications be readvertised.
For the reasons I have already given, I do not accept that there was any information before the Minister upon which it could be found that the Commission's proposed modifications affected the applicants' land (or before the City's Council when it made its decision to approve Amendment 174 with the modifications that it recommended).
When pressed on the point as to what was it about the Commission's proposed modifications that were 'significant', counsel for the applicants:
(a) was only able to point to the affidavit material of the applicants that they each had an intention to purchase part of the reserved land, which will be difficult if the parts they wish to purchase retain the zoning of Local Open Space; and (b) made a submission that the applicants had incurred costs in preparing a submission on the proposed Amendment 174.
In the absence of any information in respect of their desire to purchase part of the Crown reserves being put by the applicants to the City's Council, when the applicants made their written submissions on the amendment, it cannot be found that these issues (which may be significant to the applicants) were issues that invoked any requirement by the Minister to consider whether the Commission's proposed modifications to Amendment 174 should be advertised.
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The Water Corporation did make a submission to the Commission that it objected to the proposed rezoning of part of any parts of its vested land from Local Open Space to Composite Residential/Light Industry, and that the proposed amendment should be readvertised taking this into account.[52] The Minister was informed of the Water Corporation's objection to the proposed rezoning but not its view that the proposed amendment should be readvertised. However, the Water Corporation also informed the Commission that it would be acceptable if land vested in the Water Corporation could be excluded from the zoning encroachment in the amendment modification, thereby retaining the existing Local Open Space zoned reservation.[53]
[52] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLD page 170.
[53] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLD page 168.
In circumstances where the Commission recommended to the Minister that the City's modifications relating to the rezoning of the reserves abutting the applicants' land from Local Open Space should not be accepted, (as the Water Corporation's vested land was effectively removed from the proposed rezoning), the Water Corporation's request that the proposed amendment should be readvertised fell away.
In any event, as counsel for the Minister points out, reg 56 does not purport to impose a precondition on the Minister's power under s 87(2) of the Planning Act. To the contrary, reg 56 when properly construed is a facilitative provision which confers a discretion on the Minister to direct a local government to advertise proposed modifications recommended by the Commission in the event that she or he forms the opinion on the material before her or him that the recommended modifications are significant. Even if, on the material before the Minister, recommended modifications may be regarded objectively as significant, the Minister retains a discretion as to whether those modifications should be advertised.
This is because as counsel for the Minister points out, Amendment 174 is an example of proposed modifications, even if considered significant, may not warrant being considered for advertising. This is because the proposed modifications (relevant to this application for review) only related to the Crown reserves and not to alienated land or land in which members of the public had an interest. The relevant bodies (the Lands section on behalf of the Minister for Lands, the City and the Water Corporation as management bodies) had been given a direct invitation to comment on the proposed modifications proposed by the City. The public had already generally had the opportunity to
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make submissions as to the appropriate boundaries of the Local Open Space zoning of the reserves and the Commission's proposed modifications did not relate to the rezoning of the applicants' land or any other privately held land that is relevant to this application.
3.3 Ground 2 - Whether the Minister made a jurisdictional error in making the first and second decision by failing to take into account relevant considerations
The parties agree that judicial review on the ground of failure to have regard to relevant considerations is essentially concerned with whether the decision-maker has properly applied the law, and not with the process of making the particular findings of fact upon which the decision-maker acts.[54]
[54] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 [74]
In Jacob v Save Beeliar Wetlands (Inc),[55] McLure P explained the effect of a failure by a decision-maker to take into account a relevant mandatory consideration. Her Honour said:[56]
A relevant consideration is one which the decision-maker is obliged to take into account in the course of reaching the decision or conduct under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. The legislation imposing the obligation to decide (or in this case, report and recommend) may expressly identify particular matters that must be considered or the obligation to consider may arise by implication from the subject matter, scope and purpose of the legislation. Any obligation to take into account a relevant consideration relied on as giving rise to jurisdictional error must of necessity be a condition of the validity of the decision.
Thus, in order to constitute a jurisdictional error that entitles a court to quash an administrative decision, the consideration not taken into account must be (1) relevant, (2) mandatory and (3) result in invalidity.
[55] Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313.
[56] Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313 [50] - [51] (Buss &
If a matter is identified as being a mandatory relevant consideration, a decision-maker is required to give 'proper, genuine and realistic consideration' to the particular matter.[57] This does not mean that a court on reviewing a decision of a decision-maker can embark upon a merits review, which is impermissible. However, a
[57] Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, 292
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decision-maker must engage in an active intellectual process directed to
the relevant considerations.[58][58] Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ); Minister for Immigration and Multicultural
Yet, it is not necessary for a decision-maker to refer to every matter to which it gave consideration.
In Leighton v The Honourable Mr John Day MLA, Allanson J applied these principles. His Honour then observed that the Minister (when exercising his or her powers pursuant to s 87 of the Planning Act) where the complaint is that the Minister failed to have regard to relevant considerations, that the material presented to the Minister by the officer (who put to the Minister a summary document together with the Commission's amended recommendation and accompanying report and another document) is important.[59] His Honour then said:[60]
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA
40; (1986) 162 CLR 24, 30 - 31, Gibbs CJ said:'Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.'
See also Brennan J at (65 - 66).
[59] Leighton v The Honourable Mr John Day MLA [2014] WASC 164.
[60] Leighton v The Honourable Mr John Day MLA [2014] WASC 164 [45].
In this matter, there is no formal statement made by the Minister as to why she made the first and second decisions. Mr Lissiman deposes that the Minister considered (proposed) Amendment 174 in meetings held on 22 May 2018, 15 June 2018 and 2 July 2018.[61]
[61] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [24].As to the matters that the Minister considered, all that the court has before it is the report prepared by the Commission for the
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Minister.[62] On the report the Minister made a notation by her signature that she approved the recommendation made to her in the report that she determine the submissions in accordance with the attached Schedule of Submissions (that were attached as Attachment 5 to the Commission's report) and require the City to modify the amendment documents in accordance with the attached Schedule of Modifications before final approval is given (that were attached as Attachment 8, being the modifications that were finally approved by the Minister by her second decision on 22 August 2018).[63]
[62] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019 [24] - [25], annexure SMLH pages 221 - 250.[63] Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, annexure SMLH page 225.
The applicants submit that:
(a) a failure by the Commission to provide the documents referred to in reg 53(1) to the Minister, pursuant to reg 55(c), had the effect that the Minister failed to take into account relevant considerations in her decision-making; (b) the documents referred to above contained information relevant to the consideration of, among other things, the nature, scope and purpose of Amendment 174, the City's proposed modifications, and the Commission's proposed modifications; (c) the material placed before the Minister did not contain an accurate or fulsome summary of the information contained within those documents. In particular, the summary of the submissions of the applicants in the Commission's report did not encapsulate the detail of the Strategen Report, and failed to outline the full recommendations made by the Water Corporation that the City's proposed modifications be advertised; and (d) the inaccurate summary of submissions tainted the Minister's ability to take into account all relevant considerations in the making of her decisions.
For the reasons given in 3.1.3, the applicants' contentions in respect of the documents referred to in reg 53(1) of the Regulations cannot be made out. Further, it cannot be found that the Minister should have been provided with a copy of the Water Corporation's submission that the proposed modifications as recommended by the City should be advertised. This is because when all the information
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before the Minister is considered, I am satisfied that a sufficient summary of the substance of the documents required to be provided to the Minister pursuant to reg 53(1) was set out in the Commission's report, and it can be inferred from the Water Corporation's email correspondence that it was of the view that only if the part of the reserve that was vested in it was to be rezoned Composite Residential/Light Industry, the proposed modifications should be advertised.
In ground 2, the applicants also claim that the Minister failed to take into account relevant considerations by failing to take into account the matters set out in the Bickley Brook Biophysical Assessment report, as that document was not a document put before her.
This submission necessarily fails because all the information before the City and the Minister proceeded on the basis that the recommendations made in the Bickley Brook Biophysical Assessment report was accepted. As counsel for the Minister points out, the acceptance of the recommendations made in that report were uncontroversial. As counsel for the Minister also points out, the Commission's report summarised the recommendations made in the Bickley Brook Biophysical Assessment report and the fact that there was no dispute that those recommendations should be accepted.
In support of this ground, the applicants also contend that as Amendment 174 was intended to provide a consistent, rational and scientifically sound approach to the management and use of the land known as Bickley Brook in respect of both developable land and local open space that, without rezoning of the reserves, this land was not capable of meaningful use to the abutting landowners such that they would derive any benefit from purchasing the land. In the clear absence of any information that was put by the applicants to the City in respect of this point, it is not open to argue that such a contention was a relevant consideration that the Minister failed to have regard to when making the first and second decisions.
For this reason, ground 2 is not made out.
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3.4 Ground 4 - Whether the first and second decisions could be found to
be vitiated by unreasonableness
In Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum, the Court of Appeal pointed out that:[64]
An unreasonableness ground invites attention to whether the decision lacks an intelligible justification; the enquiry is not directed to whether the justification is persuasive or cogent. Were it otherwise, the court would be embarking on merits review.
[64] Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines andThere are two categories of unreasonableness which if established may vitiate a decision and amenable to judicial review. These are process unreasonableness and outcome unreasonableness. The difference between process unreasonableness and outcome unreasonableness was explained by McLure P in Jacob v Save Beeliar Wetlands (Inc):65
The head note in Li appears to accurately capture the position of the plurality, being that:
'The legal standard of unreasonableness is not limited to a decision so unreasonable that no reasonable person could have arrived at it. The standard is addressed to whether the statutory power, on its true construction, has been abused. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.'
It is clear from the judgment of the plurality and of French CJ and Gageler J, that a discretionary decision infected by 'irrationality grounds' such as, inter alia, the failure to take into account relevant considerations, taking into account irrelevant considerations, improper purpose, and serious irrationality in the sense used in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 625, 643 and 648, is legally unreasonable. These are process-related examples of legal unreasonableness. Otherwise, unreasonableness in the Li sense is 'outcome' focused. That is, legal reasonableness provides the boundaries of the area within which a decision-maker has a genuinely free discretion: Li [66]. To determine the boundary, regard must be had to the scope, subject matter and purpose of the statutory discretionary power: Li [67].
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As Edelman J pointed out in Pilbara Infrastructure Pty Ltd v Economic Regulation Authority, historically at common law a finding of fact, however unreasonable, is not an error of law. The only exception to this is where findings of fact or inferences of fact are based upon no evidence.[66] His Honour also pointed out:[67]
[A]s Kirby P observed in the New South Wales Court of Appeal in Azzopardi v Tasman UEB Industries Ltd, in the context of administrative law there developed a long line of Australian authority that 'if there is evidence to support a conclusion [of fact] ... no amount of perversity or unreasonableness will elevate a decision on a question of fact to one manifesting such an error of law'. Although Kirby P dissented on that point in Azzopardi and deprecated that conclusion on many occasions, it was a conclusion supported in the same case by Glass JA (with whom Samuels JA agreed). Their Honours spoke of the conclusion as one of fact, not law:
'To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of the jury is vitiated in this way, it will be set aside because it is wrong in fact.' (Emphasis added).
Glass JA explained that this was not an approach which could be taken under the legislation under consideration in Azzopardi because the legislation did not allow the correction of errors of fact.
On this approach, the question of law is only whether there is any evidence of a fact. Hence, it will be an error of law, and a ground of judicial review, only where an administrative decision maker decides a
question of fact when there is no evidence to support that fact …
[66] Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [156] and [159];[67] Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [157] - [159].
In ground 4, the applicants claim that the Minister made a jurisdictional error in making the first decision and the second decision because the decisions were unreasonable on grounds that:
(a)
the Minister failed to take into account the nature, scope and purpose of Amendment 174 and the available evidence in
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support of the rezoning of the land (as proposed by the City by
its modifications);
(b) there does not appear to be any genuine reason favouring the land being retained in its current form; and (c) the land is zoned urban deferred under the Metropolitan Region Scheme.
In support of this argument, firstly, it is contended on behalf of the applicants that it is open to infer that the Minister based her first decision on the recommendation contained in the Commission's report that the Department of Planning, Lands and Heritage and/or the Water Corporation did not support the proposed zoning of portions of Crown reserve from Local Open Space to Composite Residential/Light Industry.
It is pointed out by the applicants that neither the Water Corporation nor the Department of Planning, Lands and Heritage provided the Commission with a reason as to their opposition to the rezoning of Crown land. In circumstances where the area of the land in question was reserved to the Crown for a public purpose, and the state government department and the Water Corporation vested with the care, control or management of the reserves, had objected to part of the reserves being rezoned, it is open to infer that to rezone the land for a use that would not be considered to be for a public use. On this basis it is not open to find that the Minister's decisions lacked any evident or intelligible justification.
The second part of the applicants' argument on this point is that, as the areas of the reserves that abut the applicants' land is zoned urban deferred under the Metropolitan Region Scheme, the first and second decisions are unintelligible in the context of this zoning.
Despite the fact that the majority of the applicants' land was zoned Composite Residential/Light Industry all of the applicants' land is also zoned urban deferred under the Metropolitan Region Scheme this submission does not go anywhere. Firstly, the Minister was informed by the matters stated in the Commission's report that the land on the southern bank of Bickley Brook was zoned urban deferred under the Metropolitan Region Scheme. Secondly, the difference between being zoned urban and urban deferred under the Metropolitan Region Scheme is that cl 27 of the Metropolitan Region Scheme requires that before land included within the urban deferred zone is transferred to the urban
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zone the Commission is to agree to the transfer by making a resolution to that effect, and the resolution is notified in the Gazette. This is an issue that affects development but not zoning under a local planning scheme.[68] The fact that land is zoned urban or urban deferred under the Metropolitan Region Scheme does not affect zoning under a local planning scheme.
[68] It is noted that in the Strategen Report under the heading Planning Context that: The survey area is zoned
For these reasons, ground 4 is not made out.
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Annexure A
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Annexure B
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Annexure C
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I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith
23 JULY 2020
[12] - [20]; affidavit of Amanda Jane Hubycki sworn 22 May 2019 [12] - [20].
Amendment No 174 Report (to the Council of the City).
Mark Lissiman affirmed 20 December 2019 [6] - [7].
2 May 2019; affidavit of Daniel Soklich sworn 22 May 2019.
(McHugh, Gummow, Kirby & Hayne JJ). (footnotes omitted)
see also [68] - [72] (Edelman J) (footnotes omitted); applied in Minister for Immigration and Border
Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 [44] - [45].
also the second paragraph under the subheading, 'Conclusion'. It is to be noted that in these proceedings the
Water Corporation's opinion is only relevant to one reserve, Reserve 42830.
(McHugh, Gummow & Hayne JJ).
Newnes JJA agreeing).
(Gummow J); Leighton v The Honourable Mr John Day MLA [2014] WASC 164 [74] (Allanson J).
Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [105]; Minister for Immigration and Citizenship
v Khadgi (2010) 190 FCR 248 [57].
Petroleum [2018] WASCA 32 [108].
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313 [67] - [68] (Buss JA
agreeing).
in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390; Hayne, Heydon, Crennan & Kiefel JJ observed 'Whether there was no evidence to support a factual finding is a question of law, not a question of fact' [91]. See also the observations of Edelman J in Apache Northwest Pty Ltd v Department of Mines and Petroleum [No 2] [2011] WASC 283 [81] - [82].
(footnotes omitted)
Urban Deferred under the Metropolitan Region Scheme (MRS). This is described as 'Land suitable for future urban development. Various planning, servicing and environmental requirements need to be addressed before urban development can occur'. Affidavit of Samuel Mark Lissiman affirmed 9 October 2019, page 70.
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