DiCarlo v The Honourable Rita

Case [2020] WASC 270


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
:  CIV 1923 of 2019
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
:  Ms V E Long-Droppert
Respondent 
:  Mr I A Repper

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
:  Justice Legal Pty Ltd
Respondent 
:  State Solicitor for Western Australia

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…

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AGLC
DiCarlo v The Honourable Rita [2020] WASC 270
Case
[2020] WASC 270
Decision Date

CaseChat Overview and Summary

The case involved an application for judicial review by the applicants, who sought declarations and writs of certiorari and mandamus regarding the decisions of the Minister under the Planning and Development Act 2005 (WA). The applicants challenged the Minister's approval of an amendment to a local planning scheme, arguing that the Minister failed to take into account relevant considerations and that the decisions were unreasonable. The applicants also questioned whether compliance with regulation 55(c) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) was a statutory precondition to the exercise of the Minister's powers under section 87 of the Planning and Development Act. Additionally, they argued that the Minister's discretion to direct a local government to advertise modifications to a proposed standard amendment to a local planning scheme under regulation 56 of the Regulations was not properly exercised.

The court had to determine whether the Minister's failure to take into account relevant considerations established that her decisions were unreasonable and whether compliance with regulation 55(c) was a statutory precondition to the exercise of the Minister's powers. The court also had to consider whether the Minister's discretion to direct advertising of modifications was properly exercised. The court examined the nature and degree of the error of law, referencing the High Court's decision in Hossain v Minister for Immigration and Border Protection. The applicants argued that the material placed before the Minister did not contain an accurate or fulsome summary of the relevant information, but the court found that the Minister had before her a report that summarised the reasons for the proposed amendment and explained its purpose and scope.

The court dismissed the applicants' claims, finding that the Minister had before her the necessary information to make the decisions and that the decisions were not unreasonable. The court held that the Minister's failure to take into account all relevant considerations did not render the decisions invalid, and that compliance with regulation 55(c) was not a statutory precondition to the exercise of the Minister's powers. The court also found that the Minister's discretion to direct advertising of modifications was not improperly exercised. The applicants' applications to apply for judicial review out of time were dismissed.

Orders

Orders of the court

Result:

Applications to apply for judicial review out of time dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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) The applicants claim that the Minister did not have before her the documents that contained information relevant to the consideration of: 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 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]