Friends of Guildford Historical Precinct (Inc) v Metro Outer Joint Development Assessment Panel
[2024] WASC 364
•8 OCTOBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: FRIENDS OF GUILDFORD HISTORICAL PRECINCT (INC) -v- METRO OUTER JOINT DEVELOPMENT ASSESSMENT PANEL [2024] WASC 364
CORAM: MUSIKANTH J
HEARD: 14 JUNE 2024
DELIVERED : 8 OCTOBER 2024
FILE NO/S: CIV 2251 of 2023
BETWEEN: FRIENDS OF GUILDFORD HISTORICAL PRECINCT (INC)
Applicant
AND
METRO OUTER JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
HAWTHORN BREWING COMPANY PTY LTD
First Other Party
CASTLE TOWERS PTY LTD AND FANUCCI PTY LTD
Second Other Party
Catchwords:
Administrative law - Application for judicial review - Application for writ of certiorari - Decision of Joint Development Assessment Panel to grant development approval under local planning scheme - Whether alternative source of power to vary minimum on-site parking requirement - Whether minimum on-site requirement in any event achieved - Whether jurisdictional error established
Administrative law - Nature and content of any requirement to have regard to submissions - Whether jurisdictional error established
Legislation:
Planning and Development Act 2005 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
City of Guildford Local Planning Scheme No 17
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr T Houweling & Ms B M Waugh |
| Respondent | : | No appearance |
| First Other Party | : | Ms R Young SC & Ms B A Moharich |
| Second Other Party | : | Ms R Young SC & Ms B A Moharich |
Solicitors:
| Applicant | : | Cornerstone Legal |
| Respondent | : | No appearance |
| First Other Party | : | Moharich & More |
| Second Other Party | : | Moharich & More |
Case(s) referred to in decision(s):
Ali v Minister of Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627
Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
MUSIKANTH J:
The Guildford Hotel is a prominent landmark on the corner of James Street and Johnson Street in Guildford.
Immediately to its west is the former Vaudeville Theatre.
Both buildings were constructed in the late 1880s during the Gold Boom-Federation period and it is common ground they are in a 'heritage area'.
The buildings are located on Lot 18 (Guildford Hotel) and Lots 2 and 67 (former Vaudeville Theatre).
The first other party owns Lots 2 and 67 (a multi-lot title), and the second other party owns Lot 18.
On 26 September 2023, the respondent approved two applications to redevelop the lots (redevelopment applications).
The applicant now applies for judicial review of that decision, seeking a writ of certiorari.
In substance, the applicant contends that in making its decision the respondent:
(1)Engaged in several failures concerning matters relating to parking (Ground 1).
(2)Failed to have regard to submissions made (Ground 2).
To succeed on either ground, the applicant must establish that:
(1)Any process which the respondent was lawfully required to adopt in arriving at its decision was not followed.
(2)Such failure(s) gave rise to jurisdictional error thus enlivening the discretion to grant certiorari.
For the reasons which follow, the applicant has failed to establish the above matters with respect to either of its grounds.
Accordingly, the application will be dismissed.
The issues
The issues I must decide emerge from the applicant's grounds and the parties' submissions.
They are:
(1)Whether compliance with any minimum on-site parking requirement referred to in cl 77A of sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) was required.
(2)If the answer is 'yes', whether compliance with any such requirement was in any event achieved.
(3)Whether approval of the redevelopment applications was in any event consistent with what cl 77D required.
(4)Whether cl 77E has any role to play in the present matter.
(5)Whether the respondent was required to have regard to the matters referred to in cl 67(2)(s) of the Deemed Provisions.
(6)Whether the respondent was required to have regard to the matter referred to in cl 67(2)(g) of the Deemed Provisions.
(7)Whether the redevelopment applications needed to be accompanied by a plan of the kind referred to in cl 9.2(a)(v) of the City of Guildford's Local Planning Scheme No 17 (LPS 17).
(8)Whether the applicant has demonstrated the respondent engaged in jurisdictional error by failing to have regard to submissions made with respect to the redevelopment applications.
Issues (1), (2), (3), (4), (5), (6) and (7) relate to Ground 1, while Issue (8) relates to Ground 2.
However, before considering the issues it is convenient to make some general observations about the substance of what was proposed by the redevelopment applications and the statutory scheme.
The substance of the proposed redevelopment
As noted, there were two redevelopment applications.
One related to Lots 2 and 67 (former Vaudeville Theatre), and the other to Lot 18 (Guildford Hotel).
The applications were lodged together.
Both applications described the proposed development as '[r]edevelopment of [the] Vaudeville Theatre' and the proposed use as a 'tavern'.
At the time of lodgement, Lot 18 was already the subject of an extant development approval.
That earlier approval was granted on 30 November 2011 and later modified and extended.
Relevantly the earlier approval:
(1)gave approval for a '"[h]otel" and/or "[t]avern"' on Lot 18 as defined in LPS 17;
(2)gave approval for the development of a commercial building of approximately 1300m2 comprising a fresh market grocer and four separate shop tenancies to the rear of Lot 18;[1] and
(3)required that a total of (only) 42 parking bays be provided on Lot 18.
[1] See also modifications approved in December 2014, Exh 6, page 85 (Annexure TSHD08) read with pages 82 - 84 (Annexure TSHD07).
According to the other parties:
(1)Lot 18 was 'included as part of the land the subject of the development application' because:
(a)the servicing of the site of the former Vaudeville Theatre (i.e. waste collection, deliveries) would occur in conjunction with the operations on the Guildford Hotel site;
(b)any required car parking would need to be accommodated as part of the Guildford Hotel site; and
(c)there were some tie-in works proposed at the boundary of the lots, including a small soft-fall playground and changes to levels to make consistent across the lot boundary; and
(2)the proposed redevelopment the subject of the impugned decision was effectively intended to extend the 'footprint' of the operations of the Guildford Hotel from Lot 18 'to over [all] lots, in effect, to expand the space in which the patrons could attend'.[2]
[2] Transcript of hearing on 14 June 2024, page 69.
Moreover:
(1)the Guildford Hotel was already licenced for a maximum of 750 patrons; and
(2)the redevelopment applications did not propose that the overall number of patrons increase, with patrons being able to 'spread out' across both venues.
Indeed, one of the conditions imposed by the impugned decision effectively reduced the maximum number from 750 patrons, for Lot 18 alone, to 729 patrons across all lots.
Given some of the above matters, the parties disagreed as to whether the redevelopment applications amounted to a 'new' application or a 'variation' of an existing one.
However, the present application does not require me to decide that issue.
This is at least so because, as the other parties correctly contend, multiple development approvals can be acted and relied on together so long as they are consistent with each other, and the applicant did not suggest the respondent's approval of the redevelopment applications was in any way inconsistent with the earlier development approval relating to Lot 18.
With respect, the applicant was correct not to do so.
The statutory scheme
The Deemed Provisions are reflected in sch 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA).
Those regulations are in turn made under the Planning and Development Act 2005 (WA) (Act) the purposes of which relevantly include the provision of an 'efficient and effective land use planning system' and the promotion of the 'sustainable use and development of land' in the State.[3]
[3] Act s 3(1)(b) and s 3(1)(c).
The Deemed Provisions:
(1)have effect and may be enforced as part of each local planning scheme to which they apply, whether prescribed before or after the scheme comes into force;[4] and
(2)prevail to the extent of any inconsistency with another provision in a local planning scheme to which they apply.[5]
[4] Act s 257B(2) read with s 256(5)(b) and r 10(4).
[5] Act s 257B(3) read with s 256(5)(b) and r 10(4).
It was uncontentious that LPS 17 was the relevant local planning scheme.
Clauses 77A to 77Q of the Deemed Provisions comprise pt 9A which is headed 'Provisions about car parking'.
Clause 77D is of particular significance to these proceedings. It reads:
77D.Variation of minimum on-site parking requirement in relation to development
(1)The local government may -
(a)vary a minimum on-site parking requirement that applies to development so that the minimum number of car parking spaces that must be provided as part of the development is a lower number; or
(b)waive a minimum on-site parking requirement that applies to development.
(2)The local government must not vary or waive a minimum on-site parking requirement under subclause (1) in relation to development unless the local government is satisfied -
(a)that reasonable efforts have been made to comply with the minimum on-site parking requirement without adversely affecting access arrangements, the safety of pedestrians or persons in vehicles, open space, street trees or service infrastructure; and
(b)that -
(i)in the case of a variation - the lower number of car parking spaces would be adequate for the demands of the development, having regard to the likely use of the car parking spaces, the availability of off-site parking facilities and the likely use of alternative means of transport; or
(ii)in the case of a waiver - it is not necessary for car parking spaces to be provided as part of the development, having regard to the availability of off-site parking facilities and the likely use of alternative means of transport.
(emphasis added)
Clause 77A defines minimum on-site parking requirement as:
… a provision of this Scheme, or a local planning policy, that provides for the minimum number of car parking spaces that must be provided as part of development of a specified kind… (emphasis added)
It was common ground that the City of Swan Local Planning Policy TP-129 (TP129) is the local planning policy which so provides.
Ground 1
By Ground 1, the applicant contends the respondent erred in approving the redevelopment applications by failing to:
(1)require that any on-site parking be provided;[6]
(2)consider the adequacy of parking;[7]
(3)consider [whether the other parties made] a reasonable effort to comply with the minimum on-site parking requirement;[8] and
(4)require payment in lieu of parking or shared parking.[9]
Was compliance with any minimum on-site parking requirement required? (Issue 1)
[6] Cf. Deemed Provisions cl 77D(2).
[7] Cf. Deemed Provisions cl 67(2)(s) and cl 77E(2).
[8] Cf. Deemed Provisions cl 77D(2)(a); LPS 17 cl 9.2(a)(v); and Deemed Provisions cl 67(2)(g) together with TP129.
[9] Cf. Deemed Provisions cl 77E(1)(b), cl 77H and cl 77Q.
According to the other parties, the respondent did not need to comply with any minimum on-site parking requirement referred to in pt 9A of the Deemed Provisions because cl 12 was an alternative source of power by which any such requirement could be varied or waived.
Clause 12 forms part of pt 3 of the Deemed Provisions which is headed 'Heritage protection'.
Clause 12(1) relevantly provides:
The local government may vary any site or development requirement specified in this Scheme to … enhance or preserve heritage values in a heritage area.[10]
[10] Deemed Provisions sch 2 cl 12(1)(b).
As noted earlier, the Deemed Provisions have effect as part of any local planning scheme to which they apply, and it was uncontentious that LPS 17 was the relevant local planning scheme.
It follows that for present purposes the words 'this Scheme', in cl 12(1), refer to LPS 17 of which the Deemed Provisions are taken to form part.
It was uncontentious that the proposed redevelopment was in a heritage area, and that the respondent stood in the shoes of local government.
The expression 'site or development requirement' is not defined in the Deemed Provisions.
However, the other parties submitted its ordinary and natural meaning encompassed the requirement to provide for parking as a condition of the development being approved.
Relevantly, the minutes reflecting the impugned decision record the following relating to parking:
(1)'The Owners of Lot 18 (the Guildford Hotel site) are to provide to the Owners of Lot 2 a right of access to and use of the existing carpark on Lot 18, to the satisfaction of the City of Swan'; and
(2)'In regard to car parking, the [respondent] was satisfied that additional parking was not required as the overall patron numbers were consistent with the approved patron numbers for the current Guildford Hotel approval'. [11]
[11] Condition 18, Exh 1, annexure 'AB2', page 346.
The minutes do not expressly record that the respondent's decision waived or varied any minimum on-site parking requirement. However, the other parties submit that under cl 12 the respondent had power to do either of those things and its decision was valid even if it did not act on that power.
Further, the other parties effectively contend that:
(1)since the former Vaudeville Theatre building took up the entirety of Lots 2 and 67, on-site parking could not be provided on those lots without negatively impacting the significance of the heritage area or destroying the heritage value of the former Vaudeville Theatre site; and
(2)a decision not to require on-site parking on Lots 2 and 67 in those circumstances assists a conclusion that the proposed redevelopment would have an overall positive impact on registered heritage places and the streetscape.
The applicant says the respondent could not have relied on cl 12 as an alternative source of power to waive or vary any minimum parking requirement because cl 12 was a 'general' provision while s 77D dealt specifically with parking and therefore overrode cl 12 in that respect.
I do not accept this proposition for several reasons.
First, an ordinary reading of the words 'may vary any site or development requirement specified in this Scheme' suggests the phrase means just what it says: any such requirement.
Secondly, and in any event, there would seem to be nothing in the language of either pt 9A or cl 12, nor in their respective contexts or relevant purposes, to support a construction that pt 9A was intended to operate as an exception to, or 'carve-out' from, any exercise of the power in cl 12.
Thirdly, just as pt 9A is specific in its purpose, so too is cl 12. Clause 12 operates, specifically, to enhance heritage values in a heritage area.
In my view, that purpose would readily be frustrated, if not defeated, if a minimum on-site parking requirement could not be varied or waived in circumstances where a failure to do so would risk negatively impacting the significance of a heritage area or destroying the heritage value of a site.
The applicant also took issue with the other parties' suggestion that there was no ability to provide (further) on-site parking.
In this connection, the applicant asserted there was space available for on-site parking on the portion of Lot 18 which, under the earlier approval, was earmarked for the new commercial building comprising the shops referred to in paragraph 22(2) above.
According to the applicant, this space was 'readily available' in circumstances where the redevelopment applications ought to have been treated as entirely 'new' applications, replacing the application pursuant to which the earlier approval had been given.
With respect, this contention ignores the terms of the redevelopment applications themselves.
Those applications informed the respondent that the then extant approval with respect to Lot 18 related '… to the refurbishment of the Guildford hotel building (Stage 1) and the development of the rear portion of Lot 18 for the purpose of a small-scaled retail development (Stage 2)', and that 'Stages 1 and 2 share a car parking area that provides a total of 42 car parking bays'. Significantly, the applications also made clear that:
This development approval has been substantially commenced, and therefore all aspects remain valid and it is fully intended that the Stage 2 works will be completed in accordance with the approval. [12] (emphasis added)
and that:
Apart from some tie-in works, the proposed development subject to this application … is primarily limited to Lot 2 … The owners of Lot 18 have provided agreement for access to allow for servicing (deliveries and waste management) and usage of the parking area – however, there is no capacity for the site to provide any additional car parking.[13] (emphasis added)
[12] Exh 1, Annexure 'AB-1', page 125 (Exh 1).
[13] Exh 1, Annexure 'AB-1', page 125 (Exh 1).
In all the circumstances, I consider that:
(1)compliance with any minimum on-site parking requirement contemplated by pt 9A of the Deemed Provisions was not required because cl 12 of those provisions afforded an alternative source of power to the respondent to vary or waive that requirement; and
(2)the applicant has not shown that, in making the impugned decision, the respondent failed properly to exercise its power under cl 12 such as to give rise to jurisdictional error.
Was compliance with any minimum on-site parking requirement in any event achieved? (Issue 2)
According to the other parties there was no departure from any minimum on-site parking requirement even if pt 9A was engaged.
As noted earlier, it was uncontroversial that TP129 reflects the minimum on-site parking requirements relevant to this matter.
According to the applicant, the respondent did not have due regard to those requirements.
In this connection, the applicant relied upon the table in TP129, which relevantly provides that for a 'tavern' there needs to be one parking space per two square metres of gross bar and lounge floor area.[14]
[14] TP129, page 7 'tavern', noting the (not presently relevant) further provision for a relaxation of this standard where the tavern forms part of an integrated shopping centre and car park or other commercial complex.
However, as the other parties correctly submit, the table cannot be read in isolation from the remainder of TP129.
Relevantly, TP129 also includes cl 2.5(b) and cl 2.5(c) which read:
2.5 General requirements for off-street parking
…
b)When the use of any land or building is changed to a use which under any policy requires a greater number of parking spaces, additional parking spaces shall, unless otherwise approved by Council, be provided to meet the new requirements.
c)When a development on any land is enlarged, additional parking spaces to meet the requirements of this clause shall be provided in respect of the enlarged portion only.
(emphasis added)
According to the other parties:
(1)since there was to be neither a change in use nor an enlargement of the development with respect to Lot 18, the minimum onsite parking requirements for that lot were met for the purposes of pt 9A of the Deemed Provisions; and
(2)although there was to be a change in use with respect to Lots 2 and 67, namely for a tavern which required a greater number of parking spaces, cl 2.5(b) of TP129 expressly gave the respondent a discretion to 'otherwise' approve. There was nothing in TP129 expressly limiting the circumstances under which that discretion could be exercised.
I accept these submissions.
In short, on a proper construction of cl 2.5(b), read in the context of TP129 as a whole, there was nothing additional in TP129 which precluded the respondent from exercising its discretion against applying any additional parking requirement which might otherwise have operated with respect to Lots 2 and 67 by force of TP129.
Accordingly, I consider that compliance with any minimum on‑site parking requirement contemplated by pt 9A of the Deemed Provisions was in any event achieved.
Was approval of the redevelopment applications in any event consistent with what was required by cl 77D of the Deemed Provisions? (Issue 3)
As the applicant correctly points out, cl 77D(2) prescribes a process to be followed before any variation or waiver of a minimum on‑site parking requirement can occur.
As cl 77D(2) makes clear, that process requires the decision maker to be satisfied:
(1)that reasonable efforts have been made to comply with any minimum on-site parking requirement without adversely affecting access arrangements, the safety of pedestrians or persons in vehicles, open space, street trees or service infrastructure; and
(2)in the case of a variation - that the lower number of car parking spaces would be adequate for the demands of the development, having regard to the likely use of the car parking spaces, the availability of off-site parking facilities and the likely use of alternative means of transport; or
(3)in the case of a waiver - that it is not necessary for car parking spaces to be provided as part of the development, having regard to the availability of off-site parking facilities and the likely use of alternative means of transport.
However, the other parties effectively contended:
(1)there was sufficient material before the respondent which would have supported the respondent having the requisite state of satisfaction with respect to the above matters;
(2)notably, that material included the responsible authority report which included discussion about parking issues, and attachments which demonstrated efforts in considering access arrangements, alternative parking areas, pedestrian safety, open space generally, and whether there were alternative means of transport; and
(3)it may thus be inferred that the respondent would have had the requisite state of satisfaction despite having not expressly said this in the document recording its decision.
According to the applicant, the respondent did not consider the requirements of cl 77D(2).
The applicant further contends that the exercise requiring consideration of the number of required bays 'was not undertaken', and that the 'exercise of the shortfall in parking' (presumably as contemplated by cl 77(D)(2)(b)) was 'never undertaken'.[15]
[15] Applicant's written submissions [4.10]; [4.23].
No adequate foundation for these contentions was laid in either written or oral submissions. Nor is such a foundation readily apparent from the materials.
Seemingly, the applicant's position is that the respondent must have failed to consider the requirement of cl 77D(2) because neither the responsible authority report nor the document recording the impugned decision expressly states the respondent considered what was required of it by that clause.[16]
[16] Cf. Applicant's written submissions [4.20]; [4.22].
In my view, such an inference is not reasonably open particularly in circumstances where:
(1)the only purpose of a responsible authority report is to provide 'sufficient information' to enable the development assessment panel (here the respondent) to determine a development application;[17]
(2)as was uncontroversial, decisions such as the impugned decision routinely take the form of resolutions based on recommendations recorded in meeting minutes; and
(3)there was in any event no obligation upon the respondent to provide reasons.
[17] Planning and Development (Development Assessment Panels) Regulations 2011 (WA) reg 12(5).
As the other parties correctly observe, when making its decision the respondent in any event had before it all the material referred to in paragraph 74(2) above.
These circumstances militate against an inference that the respondent failed to do what was required of it by cl 77D(2).
In short, nothing emerged from the applicant's submissions which caused me to doubt either the cogency or correctness of the other parties' contentions relating to Issue 3 all of which I accept.
Does cl 77E of the Deemed Provisions have any role to play? (Issue 4)
The applicant contends that even if any minimum on-site parking requirement was varied or waived under cl 77D, cl 77E(2) would in any event still apply.
Clause 77E is headed 'Development that does not comply with applicable minimum on-site parking requirement', and cl 77E(2) reads as follows:
The local government must not grant development approval for development that does not comply with an applicable minimum on-site parking requirement unless the approval is granted subject to a condition or conditions referred to in subclause (1)(b). (emphasis added)
There are two conditions referred to in subclause 77E(1)(b), namely, a payment in lieu of parking condition imposed in accordance with cl 77H, and a shared parking arrangement condition imposed in accordance with clause 77Q.
A 'payment in lieu of parking' condition is one which requires a payment to be made in lieu of satisfying a minimum on-site parking requirement: cl 77A (definition of 'payment in lieu of parking condition').
A 'shared parking arrangement' condition is one which requires entry into an arrangement for shared parking in lieu of satisfying a minimum on-site parking requirement: cl 77A (definition of 'shared parking arrangement condition').
Clause 77A provides the following definition for applicable minimum on-site parking requirement:
applicable minimum on-site parking requirement, in relation to development -
(a)means a minimum on-site parking requirement that applies to the development (and, if the local government has varied a minimum on-site parking requirement in relation to the development under clause 77D(1)(a), means that requirement as so varied); but
(b)does not include a minimum on-site parking requirement that has been waived in relation to the development under clause 77D(1)(b).
As is apparent from its express terms, cl 77E(2) is only enlivened where development approval is given for development that does not comply with an applicable minimum on-site parking requirement.
An ordinary construction of cl 77E(2)[18] leads inevitably to the conclusion that the provision is not engaged where a minimum on-site parking requirement is: actually met, varied (and thus taken to be met), or waived (and thus dispensed with entirely).
[18] Read with the definition of applicable minimum on-site parking requirement.
Should any further support for such a construction be necessary it may readily be found in the definitions of 'payment in lieu of parking condition' (cl 77H) and 'shared parking arrangement condition' (cl 77Q) themselves.
Each definition embodies the idea that the condition in question is to be imposed 'in lieu' of satisfying a minimum on-site parking requirement.
However, once a minimum on-site parking requirement is met, taken to be met (by variation), or entirely dispensed with (by waiver), no need for any quid pro quo arises.
Accordingly, I consider cl 77E of the Deemed Provisions has no role to play in this matter.
It necessarily follows from this conclusion that cl 77H and cl 77Q similarly have no roles to play.
Whether the respondent was required to have regard to the matters referred to in cl 67(2)(s) of the Deemed Provisions? (Issue 5)
By cl 67(2)(s) of the Deemed Provisions, the respondent was required to have due regard to the proposed means of access to and egress from the site and arrangements for the loading, unloading, manoeuvring, and parking of vehicles.
That said, the respondent was only required to do so 'to the extent that, in [its opinion … those matters were] relevant to the development the subject of the [development] application[s]'. (emphasis added)
It follows that whether the respondent was required to consider the matters referred to in cl 67(2)(s) was entirely a question for the respondent's own subjective deliberation.
Although the existence of a subjective state of mind is not beyond review by the court, the grounds upon which it may be 'reviewed' are limited.[19]
[19] Ali v Minister of Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 [42].
The applicant has neither articulated nor made out any of those limited grounds.
In any event, no sound basis has been laid for an inference that the respondent did not in fact consider the matters referred to in cl 67(2)(s) despite having before it the information referred to in paragraph 74(2) above.
Whether the respondent was required to have regard to the matter referred to in cl 67(2)(g) of the Deemed Provisions? (Issue 6)
By cl 67(2)(g) of the Deemed Provisions, the respondent was required to have due regard to any local planning policy for the Scheme area 'to the extent that, in [its opinion … those matters were] relevant to the development the subject of the [development] application[s]' (emphasis added).
As has been noted, TP129 was that policy.
Whether the respondent was required to have regard to TP129 for the purposes of cl 67(2)(g) was also a matter for the respondent's own subjective deliberation.
My conclusions with respect to Issue 5 apply with similar force in relation to the question of whether the respondent was required to have regard to TP129 for the purposes of cl 67(2)(g).
Further, the applicant appears to raise the spectre of cl 67(2)(g) in the context of an assertion that the respondent failed to consider the 'land use parking' and 'cash-in-lieu' requirements referred to in TP129.
However, no adequate foundation has been laid for this assertion. That is so substantially for the reasons set out in paragraphs 78 to 81 above.
The 'land use' requirements are in event only enlivened 'when off‑street parking is required'.[20]
[20] TP129, [2.5] (chapeau).
However, there was no such (additional) requirement in circumstances where there was a variation or waiver under cl 77D(1) of the Deemed Provisions. Nor could any 'cash-in-lieu' requirements[21] have been necessary.
[21] TP129, [2.12].
That is so for substantially the same reasons as are reflected in the analysis relevant to Issue 4 above.
Whether the redevelopment applications needed to be accompanied by a plan of the kind referred to in cl 9.2(a)(v) of LPS 17? (Issue 7)
By cl 9.2(a)(v) of LPS 17, every application for planning approval is to be accompanied by a plan or plans to a scale of not less than 1:500 showing the 'location, number, dimensions and layout of all car parking spaces intended to be provided unless the local government waives any particular requirement.' (emphasis added)
The evidence reveals that the other parties did not intend providing any car parking spaces in addition to those the subject of the earlier approval.[22]
[22] Eg. Exh 1, pages 91, 130 - 133.
For at least this reason, no plan of the kind referred to in cl 9.2(a)(v) was required.
Conclusion - Ground 1
In summary, for the above reasons, I consider as follows:
(1)Clause 12 of the Deemed Provisions afforded an alternative source of power to the respondent to vary or waive any minimum on-site parking requirement contemplated by pt 9A, and the applicant has not shown that the respondent failed properly to exercise that power such as to give rise to jurisdictional error.
(2)Alternatively:
(a)compliance with any minimum on-site parking requirement contemplated by pt 9A of the Deemed Provisions was in any event achieved; and/or
(b)approval of the redevelopment applications was in any event consistent with the respondent having done what was required of it by cl 77D(2) of the Deemed Provisions.
(3)By reason of either (1) or (2) above, cl 77E of the Deemed Conditions has no role to play in this matter.
(4)Nor does cl 67(2)(s) of the Deemed Conditions, cl 67(2)(g) of the Deemed Conditions, or cl 9.2(a)(v) of LPS 17.
Accordingly, none of the sub-grounds forming part of Ground 1 have been made out.
The applicant has failed to demonstrate that any process which the respondent was lawfully required to adopt in arriving at its decision was not followed, and has not established that any of the asserted failures the subject of Ground 1 gave rise to jurisdictional error.
Ground 1 is dismissed.
Ground 2
By Ground 2 the applicant alleges that in exercising any discretion the respondent failed to have regard to submissions made in relation to the proposed redevelopment as was required by cl 5.5.2(b) and cl 10.2(z) of LPS 17, as well as cl 67(2)(y) of the Deemed Provisions.
Clause 5.5 of LPS 17 permits unconditional or conditional planning approval to be given to an application which does not comply with a standard or requirement prescribed under the Scheme.[23]
[23] LPS 17, cl 5.5.1.
In considering any non-compliant application, the respondent was required to have 'regard' to any views expressed by affected parties following advertising under cl 9.4 of LPS 17 prior to making its determination to grant the variation: LPS 17, cl 5.5.2(b).
However, that requirement only applied if 'in the opinion of [the respondent] … the variation [was] likely to affect any owners or occupiers in the general locality or adjoining the [development site]'. (emphasis added).
Clause 10.2(z) of LPS 17 relevantly required the respondent 'in considering [the redevelopment applications]' to have 'due regard' to 'any relevant submissions received on the application[s]'.
This requirement also only applied if any submissions were 'in the opinion of [the respondent … a matter] relevant to the use or development the subject of the application[s]'.[24] (emphasis added)
[24] LPS 17, cl 10.2 (chapeau).
Similarly, by cl 67(2)(y) of the Deemed Provisions, the respondent, in considering the redevelopment applications, was required to have 'due regard' to 'any submissions received on the application[s]'.
That said, and as with cl 67(2)(g) and cl 67(2)(s), the respondent was only required to do so 'to the extent that, in [its opinion … the submissions were] relevant to the development the subject of the [development] application[s]'. (emphasis added)
According to the applicant:
(1)66 submissions were received, of which 44 were objections;
(2)the City of Guildford did not provide to the respondent any 'actual submissions' received, or a summary of each submission, but instead a table providing a 'high-level overview' which separated the issues identified for concern by objectors into six discrete areas; and
(3)the respondent 'could not have reached' a decision to the effect that it was satisfied additional parking was not required if there had been regard to the submissions from nearby residences 'particularly in circumstances where there [was] an intention to expand the [then] current operations of the Guildford Hotel … into the [former] Vaudeville Theatre site and where [that site was] constrained due to its location being a heritage site'.[25]
[25] Applicant's written submissions dated 12 April 2024, [7.9] - [7.11].
In written submissions filed prior to the hearing, the other parties contended that Ground 2 should be dismissed for two reasons.
First, because the provisions relied upon by the applicant in support of that ground were either inapplicable or had been complied with.
Secondly, because the applicant did not in any event identify jurisdictional error.
In the latter respect, I note that at the hearing the applicant suggested the asserted error the subject of Ground 2 was a jurisdictional error in the form of an error of law on the face of the record and/or by way of a failure to follow mandatory requirements.
Has the applicant demonstrated jurisdictional error by the respondent failing to have regard to submissions? (Issue 8)
In my view the applicant has not demonstrated jurisdictional error for at least the following reasons.
First, although the notion of a decision-maker having 'regard' or 'due regard' to prescribed matters requires the giving of 'active or positive consideration',[26] I consider it doubtful that any of the provisions the subject of Ground 2 contemplates consideration being given to the full text of any submissions from potentially affected parties.
[26] Cf. Marshall v Metropolitan Redevelopment Authority[2015] WASC 226 [115] - [116].
In my view such a construction is consistent with the evident purpose of each of the provisions relied upon by the applicant; being to afford potentially affected parties a reasonable opportunity to have the substance of their views brought to the attention of the decision maker.
Moreover, there is nothing in the text, context or evident purpose of any of the provisions to suggest that the word 'views', in cl 5.5.2(b) of LPS 17, or 'submissions', in cl 10.2(z) of LPS 17 and cl 67(2)(y) of the Deemed Provisions, ought not to be understood as including a summary thereof.
Nor, as the other parties correctly submit, is there any evidence to doubt the accuracy of the summaries provided to the respondent in the responsible authority report.
Secondly, as is apparent from the express terms of each of the provisions relied upon by the applicant, it was in any event a matter for the respondent's own subjective deliberation as to whether it was in fact required to consider any such views or submissions.
It follows that any failure by the respondent to have regard to a particular submission does not necessarily mean the respondent breached the provision in question.
As the other parties correctly submit, it may simply be that the respondent did not subjectively consider that submission to be relevant.
Thirdly, I do not consider it safely open to infer that the respondent 'could not' have reached the decision which it did if, in fact, the respondent did have regard to the submissions from the owners or occupiers of nearby residences.
Let alone in the face of the materials referred to in paragraph 74(2) above.
On the contrary, as the other parties correctly point out, the parking issues appear to have been well known to the respondent as is demonstrated by the responsible authority report and the summary of submissions about those matters; with at least two of the issues raised in the summary relating to traffic on surrounding roads and insufficient parking availability.[27]
[27] Exh 1, page 82.
Finally, and in any event, the applicant has in my view neither demonstrated an error on the face of the record nor that any of the alleged errors the subject of Ground 2 involved a failure to take into account a relevant and mandatory consideration such as would result in invalidity.[28]
Conclusion - Ground 2
[28] Cf. Jacob v Save Beeliar Wetlands (Inc) [2016] WASCA 126; (2016) 50 WAR 313, [51].
For the above reasons, Ground 2 is dismissed.
Other discretionary considerations
By the time the review application came on for hearing, the works the subject of the impugned decision were either complete or 'very close' to completion.
For that reason, and because of concerns raised about the applicant's standing, the other parties contended I ought to dismiss the application on discretionary grounds in any event.
Given the application has not succeeded on either Ground 1 or Ground 2 it is unnecessary for me to consider this question further.
Disposition
For the above reasons, I consider the applicant has failed to make out either of its grounds.
Accordingly, the application is dismissed.
I will hear from the parties as to the question of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Associate to the Judge
8 OCTOBER 2024
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