Goldrange Pty Ltd v Western Australian Planning Commission - [2018] WASC 350

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GOLDRANGE PTY LTD -v- WESTERN AUSTRALIAN PLANNING COMMISSION [2018] WASC 350
CORAM:   QUINLAN CJ
HEARD:   31 OCTOBER 2018; 1 NOVEMBER 2018
DELIVERED          :   1 NOVEMBER 2018
PUBLISHED           :   14 NOVEMBER 2018
FILE NO/S:   CIV 2133 of 2016
BETWEEN:   GOLDRANGE PTY LTD
GREENPARK ASSET PTY LTD
Applicants
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

FILE NO/S: CIV 2635 of 2016
BETWEEN: GOLDRANGE PTY LTD
GREENPARK ASSET PTY LTD
Applicants
AND
THE HONOURABLE DONNA FARAGHER MLC, MINISTER FOR PLANNING
Respondent

FILE NO/S: CIV 2164 of 2018
BETWEEN: GOLDRANGE PTY LTD
GREENPARK ASSET PTY LTD
Applicants
AND
THE HONOURABLE RITA SAFFIOTI MLA, MINISTER FOR TRANSPORT, PLANNING, LANDS
Respondent

Catchwords:

Practice and procedure - Applications for judicial review - Recommendation of Commission in relation to scheme amendment - Decision of Minister to specify modifications to amendment - Whether applications have no reasonable prospect of succeeding under O 56 r 5(2)(j)

Statutory interpretation - Section 87 of the Planning and Development Act 2005 - Whether recommendation is a statutory precondition to exercise of Minister's power - Whether Minister can require further modifications to amendment once resubmitted - Whether Minister must provide a hearing in relation to modifications

Legislation:

Acts Interpretation Act 1901 (Cth), s 15AA
Environmental Protection Act 1986 (WA)
Federal Court of Australia Act 1976 (Cth), s 31A
Interpretation Act 1984 (WA), s 48
Metropolitan Region Town Planning Scheme Act 1959 (WA), s 33, s 33A
Mining Act 1978 (WA), s 59
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Planning and Development Act 2005 (WA)
Rules of the Supreme Court 1971 (WA), O 56 r 5(2)(j)
Town Planning Regulations 1967 (WA), reg 20

Result:

Applications refused

Category: B

Representation:

CIV 2133 of 2016

Counsel:

Applicants	:	P McQueen & B R McMurdo
Respondent	:	K M Pettit SC & C A Ide

Solicitors:

Applicants	:	Lavan
Respondent	:	State Solicitor's Office

CIV 2635 of 2016

Counsel:

Applicants	:	P McQueen & B R McMurdo
Respondent	:	K M Pettit SC & C A Ide

Solicitors:

Applicants	:	Lavan
Respondent	:	State Solicitor's Office

CIV 2164 of 2018

Counsel:

Applicants	:	P McQueen & B R McMurdo
Respondent	:	K M Pettit SC & C A Ide

Solicitors:

Applicants	:	Lavan
Respondent	:	State Solicitor's Office

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

Cabell v Markham (1945) 148 F (2d) 737

Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97
Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239
Harvey v The Minister Administering the Water Management Act 2000 [2008] 160 LGERA 50
Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Minister for the Environment; Ex parte Elwood [2007] WASCA 137
Re Smith; Ex parte Rundle (1991) 5 WAR 295
S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191
Spencer v The Commonwealth (2010) 241 CLR 118
Thiess v Collector of Customs (2014) 250 CLR 664

QUINLAN CJ:

(This judgment was delivered extemporaneously on 1 November 2018 and has been edited from the transcript.)

This is an application under O 56 r 5(2)(j) of the Rules of the Supreme Court 1971 (WA) to refuse the whole or part of three related judicial review proceedings. The three proceedings, to which I will return in more detail, are CIV 2133 of 2016, CIV 2635 of 2016 and CIV 2164 of 2018 (the Applications).
CIV 2133 of 2016 is an application brought by Goldrange Pty Ltd and Greenpark Asset Pty Ltd (the applicants) against the Western Australian Planning Commission (Commission). That application relates to a recommendation made by the Commission on 8 July 2016 to the former Minister for Planning in relation to a proposed amendment to the City of Wanneroo District Planning Scheme No 2.
CIV 2635 of 2016 is an application brought by the applicants against the former Minister for Planning, the Honourable Donna Faragher MLC. That application relates to a decision made by Minister Faragher under s 87(2) of the Planning and Development Act 2005 (WA) (the Act) to specify certain modifications to be provided to the proposed amendment.
CIV 2164 of 2018 is an application brought by the applicants against the current Minister for Transport, Planning and Lands, the Honourable Rita Saffioti MLA. That application relates to further action taken by Minister Saffioti in relation to the proposed amendment.
I will provide further background to the Applications a little later, but will first address the principles to be applied under O 56 r 5(2)(j).
Order 56 r 5(2)(j) provides that a judicial review application may be refused in whole or in part where it has no reasonable prospect of succeeding. The phrase 'no reasonable prospect of succeeding', and the power in O 56 r 5(2)(j), were discussed in detail in the decision of Pritchard J in Coast Ward Ratepayers Association (Inc) v Town of Cambridge.[1]
[1] Coast Ward Ratepayers Association (Inc) v Town of Cambridge [2016] WASC 239.
I refer in particular to the passages of her Honour's reasons at [66] to [70] in relation to the approach to be applied. In that respect, her Honour concluded that:[2]
In the present case, therefore, it is necessary for the Town to demonstrate that the prospects of the Association obtaining relief … are not reasonable in the sense of being rational or sensible to expect. In the application of that test, the court should be careful not to stifle the development of the law by dismissing an application, or one or more grounds of review, other than where there is a high degree of certainty that it does not have reasonable prospects of succeeding. However, the court must also bear in mind that the power in O 56 r 5(2)(j) exists to ensure that applications, or parts thereof, that are unmeritorious can be weeded out at an early stage in an appropriate case.
[2] Coast Ward Ratepayers Association (Inc) v Town of Cambridge [70].
In that context, her Honour also referred to the decision of the High Court in Spencer v The Commonwealth.[3] Spencer v The Commonwealth concerned s 31A of the Federal Court of Australia Act 1976 (Cth), which provides for a similar test ('no reasonable prospect') in relation to summary judgment in the Federal Court.
[3] Spencer v The Commonwealth (2010) 241 CLR 118.
Section 31A provides that the court may give judgment in circumstances where a party has no reasonable prospect of successfully prosecuting or defending a proceeding. In Spencer v The Commonwealth, Hayne, Crennan, Kiefel and Bell JJ, referred to s 31A as:[4]
… depart[ing] radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail.
[4] Spencer v The Commonwealth [53].
Their Honours went on to note the different operation of s 31A. In that context, I note that s 31A(3) expressly provides that for a proceeding to have no reasonable prospect of success, it need not be 'hopeless' or 'bound to fail'. Order 56 r 5 does not contain such express provision. Nevertheless, in my view, the use of the expression 'no reasonable prospect of succeeding' in O 56 r 5 is intended to reflect a change from the previous requirement that the summary disposition of matters required the conclusion that the proceedings would necessarily fail.
In relation to the expression 'no reasonable prospect', their Honours observed:[5]
How then should the expression 'no reasonable prospect' be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is 'no reasonable prospect'. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like 'no reasonable prospect' is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like 'clearly', 'manifestly' or 'obviously') as 'frivolous', 'untenable', 'groundless' or 'faulty'. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word 'reasonable', in the phrase 'no reasonable prospect', be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a 'frivolous', 'untenable', 'groundless' or 'faulty' claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is 'no reasonable prospect' of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to 'no reasonable prospect' can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase 'just and equitable' when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
[5] Spencer v The Commonwealth [58] - [60].

The Applications in the present case include potentially extensive factual disputes and legal arguments. The application brought by the respondents for the refusal of the Applications under O 56 r 5(2)(j), however, relies entirely on legal questions and, in particular, on questions of statutory construction.
In that regard, the factual basis underlying these legal questions is not challenged for the purposes of the application under O 56 r 5(2)(j). I have therefore proceeded on the assumption that the factual contentions alleged by the applicants have been made out. For example, I proceed on the basis that the allegation that the decision of the Committee of the Commission was attended with, or affected by, actual or apprehended bias, in light of the long-held views of officers of the Department of Planning that were determined to restrict development on the applicants' land, is made out.
In light of that assumption, and having had the benefit of comprehensive and thoughtful submissions on the law from Mr Pettit SC for the respondents and from Mr McQueen for the applicants, I am confident that the issues are capable of determination today.
I will commence by providing some brief background to the Applications.

Background

The Applications concern the history of an amendment to the City of Wanneroo District Planning Scheme No 2 (the Scheme). I will refer to this amendment as Amendment 150. Amendment 150 includes land owned by the applicants, being Lots 810 and 811 Drovers Place, Wanneroo (the Land).
In the past, the Land has been zoned 'Urban Development' under the Scheme. In accordance with that zoning in the Scheme, the uses and development of the Land were regulated by Structure Plans which applied to the Land. The effect of Amendment 150 was to provide for a new zoning regime and a new use and development regime to apply to the Land.
The history of Amendment 150 is as follows.
The Committee of the Commission asked the City of Wanneroo (the City) to prepare a scheme amendment. The City did so and, after advertising it in the usual way, submitted Amendment 150 (and supporting documents) to the Commission, as it was required to do under Regulation 53 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations).
In accordance with Regulation 55 of the Regulations, the Commission (by its Committee) considered Amendment 150 and recommended to Minister Faragher that she require the City to modify it to delete particular uses that were to be permissible for the Land, including 'shop'. The recommendation by the Committee of the Commission is the subject of proceeding CIV 2133 of 2016.
On 16 September 2016, Minister Faragher required the City to modify Amendment 150 in the manner recommended by the Commission. In particular, she required that Amendment 150 be modified to delete the uses that I have referred to, including 'shop'. The application in CIV 2635 of 2016 challenges the Minister's decision to refer and to specify those modifications.
The City complied with the requirements from Minister Faragher, and sent the modified Amendment 150 back to her on 2 November 2016. Minister Faragher advised that, notwithstanding that it had been returned, she would not progress the modified Amendment 150, but would await the resolution of the judicial review proceedings in CIV 2133 of 2016 and CIV 2635 of 2016 (which had been commenced by that time).
There then followed a change of Government, and the Honourable Rita Saffioti MLA became the Minister for Planning.
Minister Saffioti advised that she would not await the result of the 2016 judicial review proceedings, but would exercise her powers in relation to Amendment 150.
Minister Saffioti did not approve the modified amendments that the City had returned to Minister Faragher on 2 November 2016. Rather, Minister Saffioti required, and specified, a further modification to Amendment 150 which, in effect, required the reinsertion of a 'shop' use, subject to conditions in relation to traffic infrastructure. Those modifications were made by the City and the final form of Amendment 150 was resubmitted to, and approved by, Minister Saffioti. That decision of Minister Saffioti, which was ultimately carried into effect by the gazettal of Amendment 150, is the decision that is challenged in CIV 2164 of 2018.

The Grounds of the Applications

The Applications originally included a number of grounds that are no longer pursued by the applicants in light of the events that have occurred since the Applications were commenced.
CIV 2133 of 2016 consisted of nine separately numbered grounds. Those grounds were set out in Substituted Grounds of Application, which were substituted by order of Tottle J on 3 August 2016.
A number of those grounds concerned the interrelationship between Amendment 150 and earlier proceedings that had been commenced by the applicants in the State Administrative Tribunal. In light of the events that have transpired, and in light of the authorities to which counsel for the applicants referred in his submissions,[6] a number of those grounds are no longer pursued, with the result that the only grounds remaining in CIV 2133 of 2016 are those numbered 6 and 7.
[6] Including, particularly, Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97.
Grounds 6 and 7 allege that the Commission's recommendation to the Minister was ultra vires on the grounds, first, of a failure to give consideration to relevant considerations (ground 6) and, secondly, actual or apprehended bias (ground 7).
The grounds in CIV 2635 of 2016 originally mirrored, in many respects, the grounds in CIV 2133 of 2016. That is because CIV 2635 of 2016 essentially reproduced the grounds in CIV 2133 of 2016, adding a further allegation impugning the Minister's exercise, or purported exercise, of her powers under s 87 of the Act in light of the recommendation of the Commission (impugned in CIV 2133 of 2016).
As confirmed in the course of argument before me, the only substantive grounds that continue to be pursued in CIV 2635 of 2016 are grounds 2(b), 2(c) and 4. Grounds 2(b) and 2(c) replicate, almost identically, grounds 6 and 7 in CIV 2133 of 2016, and so raise no new issue.
Ground 4 provides the additional matter, which is as follows:
As the exercise of the Respondent Minister's power under section 87(1) [of the Act], is subject to and dependent upon a validly prepared and determined report and recommendation of the WAPC under regulation 55 [of the Regulations], the Respondent Minister's decision was also void and ultra vires, as will be any further steps to give effect to Amendment 150.
Each of CIV 2133 of 2016 and CIV 2635 of 2016, therefore, hinge on the legal question that is identified in ground 4.
I turn then to the grounds in CIV 2164 of 2018, which are as follows:
(1)[Minister Saffioti] exceeded the power conferred on her by section 87 of [the Act] by approving Amendment 150 … subject to modifications, which were in addition to those modifications to Amendment 150 that had already been required by the predecessor Minister in her decision of on or about 11 August 2016, which was made pursuant to section 87(2)(b) of [the Act], in circumstances where section 87 of [the Act] did not empower the current Minister to make any further modifications to Amendment 150 in granting final approval;
(2)[Minister Saffioti] denied the Applicants procedural fairness, by approving Amendment 150 subject to additional modifications that had not previously been disclosed to the Applicants or published in the public realm, in circumstances where procedural fairness required the Minister to allow the Applicants an opportunity to be heard on the proposed additional modifications and to make submissions, prior to the final approval decision on Amendment 150 being made; and
(3)The final approval by [Minister Saffioti] of Amendment 150 is otherwise legally invalid and of no effect, because mandatory steps in the statutory process under [the Act] and its subsidiary legislation were also legally invalid and of no effect ...
As confirmed by counsel for the applicants, ground 3 in CIV 2164 of 2018 is relevantly identical, in what it alleges, to ground 4 in CIV 2635 of 2016. Given that ground 3 in CIV 2164 of 2018 entirely encompasses the contentious legal ground in CIV 2635 of 2016 (which encompasses CIV 2133 of 2016), the legal issues raised in this application relate to whether or not, as a matter of statutory construction, the three grounds in CIV 2164 of 2018 have reasonable prospects of success.
Each ground in CIV 2164 of 2018 depends entirely on a question of statutory construction.
Ground 1 raises the question whether s 87(2) of the Act operates such that the Minister, on receiving a resubmitted amendment following the earlier specification of amendments pursuant to s 87(2)(b), is bound to approve that amendment, or whether the Minister is able to, again, make one of the three alternative decisions identified in s 87(2)(a), (b) and (c).
Ground 2 raises the question whether the power of the Minister to specify a modification to an amendment is conditioned on the Minister providing a hearing, so as to give persons who may be affected the opportunity to be heard on the proposed modifications and to make submissions.
The third ground has been reduced to the question whether a recommendation by the Commission under Regulation 55 of the Regulations is a statutory precondition to the enlivening of the Minister's powers under s 87 of the Act.

I will deal with the third of those questions first because, first, it affects all three matters (and indeed wholly deals with the first two judicial review applications) and, secondly, because it is, in my view, the clearest of the three issues for determination.

Ground 3 of CIV 2164 of 2018

Ground 3 concerns recommendations by the Commission under Regulation 55 of the Regulations.
Regulation 55 forms part of a suite of procedural provisions in relation to the consideration, and formulation, of amendments to planning schemes.
It was made clear in submissions by counsel for the applicants that Ground 3 is concerned only with whether or not a recommendation under Regulation 55 is a statutory precondition to the exercise of the Minister's power under s 87, and not with whether the Minister's approval was 'infected' by bias.
This is an important distinction because recommendations in an administrative law context may fall into two broad categories.
A recommendation may be one to which a decision-maker is bound to have regard, and which itself enlivens the decision-maker's power. That is best described as a statutory precondition recommendation.
The second type of recommendation is one which is not binding, but which has been provided to the decision-maker in the course of an administrative process.
The latter kind of recommendation may well be such, in a particular case, as to adversely affect the decision of the decision-maker - for example, by what has been called 'infection' of some significant factual or legal error that appears in the recommendation.
The difference between the two kinds of recommendation has significant consequences, as is illustrated by the two decisions of the High Court dealing with the long running dispute between Hot Holdings Pty Ltd and Creasy.[7]
[7] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438.
The first decision, Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, concerned a recommendation of the former kind, that is, one which the Minister was bound to take into account. The particular recommendation in that case was a recommendation by a warden under the Mining Act 1978 (WA) in relation to whether an exploration licence ought to be granted by the Minister.
As is set out in the joint judgment of Brennan CJ, Gaudron and Gummow JJ, the Warden was required under the Mining Act 1978 (WA) to consider an application and, ultimately, under s 59(3) of that Act, to provide a report recommending the grant or refusal of the exploration licence. As identified by Malcolm CJ in the proceedings below and repeated in their Honours' judgment:[8]
[T]he making of the report by the Warden conditions the exercise by the Minister of his discretionary power to grant or refuse the application. The content of the report does not condition the exercise of the power.
What is being referred to there is, of course, the fact that it was the receipt of the recommendation which enlivened the Minister's power; which recommendation the Minister was required to take into account.
[8] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 170.
In that case, Brennan CJ, Gaudron and Gummow JJ discussed the distinction between the two types of recommendations I have identified as follows:[9]
[9] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 164 - 165.
However, Thomas J indicates that certiorari lies where a preliminary decision must be taken into account by a body entrusted with the power to make a decision directly determining legal rights. We agree with that conclusion. That this was the point which his Honour sought to make is evident when he later said:
'A line needs to be drawn between the 'purely recommendatory' decisions and those which are regarded as having a sufficient effect upon the rights of an individual. In the former category there may fall Royal Commissions and recommendations which are not conditions precedent to the making of a final decision and which the final decision-making body may ignore.'
If the final decision-making body is not obliged to take the recommendations into account, then certiorari will not lie.
The conclusion of de Jersey J on the nature of the Council's role is to similar effect:
'The making of the Local Authority's determination is an integral and important part of the sequence of events provided for by the statute, and I am unconvinced that its merely 'tentative' effect excludes the availability of certiorari to quash it in an appropriate case.'
A preliminary decision or recommendation, if it is one to which regard must be paid by the final decision-maker, will have the requisite legal effect upon rights to attract certiorari.
The relevant question on these appeals thus involves the construction of the Act and an analysis of the scheme of inquiry, report and subsequent action which it establishes.
As I have indicated, in the present case I am only concerned with the former type of recommendation.
This is particularly clear in the case of the decision by Minister Saffioti, in relation to which there is no suggestion of her having been infected by bias, or indeed having received a recommendation said to be infected by bias.
That is the position that might arise in relation to the second kind of recommendation. A recommendation of that kind appears in the 2002 decision of the High Court in Hot Holdings Pty Ltd v Creasy.[10]
[10] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438.
In that case, the advice provided to the Minister was not a statutory precondition to the exercise of the Minister's discretion. For that reason, the Court held that it was wrong to say that in every case a decision made following recommendations or advice from persons who have an unrevealed interest would be such that the decision must be considered to be legally infirm.[11] As I have said, there is no such allegation in the present case in relation to either Minister.
[11] See, in particular, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 [20] (Gleeson CJ); [48] - [50] (Gaudron, Gummow & Hayne JJ).
I should mention that there is one aspect of 'infection' involved in the present case but which does not concern the issue before me. That is that the allegation, in CIV 2133 of 2016 and CIV 2635 of 2016, of bias on the part of the Commission said to arise as a result of the views, conduct and motives of public officers who provided advice or information to it. In that circumstance, in order to establish the actual or apprehended bias of the Commission, it would be necessary to explore the extent to which it could be said that the non-statutory recommendation or advice provided by the public officers had affected the Commission's decision.
However, as I have said, I have assumed for the purposes of this application that the level of actual or apprehended bias necessary to impugn the decision of the Commission is made out. The only question is whether, as a matter of statutory construction, the existence of such a recommendation is a statutory precondition to the Minister's powers. That is purely a question of statutory construction.
In that regard, I refer to the recent decision of the High Court in Hossain v Minister for Immigration and Border Protection[12] and, in particular, the reasons of Kiefel CJ, Gageler and Keane JJ at [24] to [27]. Their Honours concluded that:[13]
Just as the identification of the preconditions and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so does discernment of the extent of noncompliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside of the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.
[12] Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780.
[13] Hossain v Minister for Immigration and Border Protection [27].
A similar statement was made by Edelman J:[14]
In Attorney-General (NSW) v Quin, Brennan J said that in Australia the development and expansion of judicial review had 'been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power'. The broad test for determining whether an implied legislative condition is jurisdictional was set out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority. Their Honours said it was necessary to 'ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid'.
[14] Hossain v Minister for Immigration and Border Protection [66].
In relation to that exercise of statutory construction, I refer to the principles of statutory construction identified by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky:[15]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. (Footnotes omitted)
[15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69].
Similar statements of principle appear in the High Court's decision in Thiess v Collector of Customs.[16] In that case, French CJ and Hayne, Kiefel, Gageler and Keane JJ, at [22], reiterated that:[17]
'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.' So must the task of statutory construction end. The statutory text must be considered in its context.
Significantly, their Honours went on to say:[18]
Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that 'the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation' is in that respect a particular statutory reflection of a general systemic principle.
Their Honours then quoted the American authority, Cabell v Markham:[19]
[I]t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
[16] Thiess v Collector of Customs (2014) 250 CLR 664.
[17] Thiess v Collector of Customs [22].
[18] Thiess v Collector of Customs [23].
[19] Cabell v Markham (1945) 148 F (2d) 737, 739.
I turn, then, to s 87 of the Act.
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:
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).
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).
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.
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.
Without wanting to do injustice to either counsel's comprehensive submissions, the alternative arguments presented in relation to whether the Minister's power is conditioned by reference to a valid recommendation of the Commission pursuant to Regulation 55 are as follows.
The respondents submit that the regulations cannot cut down, or be used to interpret, the statutory powers. In that context, the respondent called in aid the well-known expression 'the stream cannot rise above its source'.
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.
In this respect, reference was made in the course of argument to Carcione Nominees Pty Ltd v Western Australian Planning Commission. The respondents in that case had conceded that the Commission's decision was a condition precedent to the exercise of the Minister's power to approve the amendments in question.[20] Various provisions and regulations were referred to in that case as supporting the concession, including Regulation 20(5) of the Town Planning Regulations 1967 (WA), which provided:
The Minister shall consider the submissions on the modifications to the Scheme made under this regulation together with the recommendations made thereon by the responsible authority and the recommendations of the Commission, and shall pursuant to section 7(2a) of the Act approve the Scheme, refuse to approve the Scheme or require the responsible authority to modify the Scheme in such manner as he may specify before approval is given.
[20] Carcione Nominees Pty Ltd v Western Australian Planning Commission [68].
That regulation, by the word 'shall', required that the Minister consider submissions and recommendations of the Commission and take other steps. There is no comparable provision in the current Regulations. Accordingly, the respondents did not make a similar concession that the Minister's power was conditioned by the Commission's recommendation in the present case.
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.
I have already set out Regulation 55.
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.
That is significant when one looks to the other authorities in relation to which statutory preconditions have been found to exist.
The applicants rely, for example, upon Re Smith; Ex parte Rundle,[21] a decision of the Full Court of this Court dealing with s 33A of the Metropolitan Region Town Planning Scheme Act 1959 (WA) (the MRTPS Act).
[21] Re Smith; Ex parte Rundle (1991) 5 WAR 295.
In that case, Malcolm CJ[22] found that an opinion of the Commission required by s 33A(1) of the MRTPS Act was a condition precedent to all of the steps in the process for amendment of the scheme set out in s 33A. Section 33A provided that, notwithstanding s 33 (which prescribed the usual procedure for amending the Metropolitan Region Scheme), if a proposed amendment did not, in the opinion of the Commission, constitute a substantial alteration of the scheme, that amendment is not required to be submitted and approved in accordance with the procedure in s 33 (and that the alternative procedure in s 33A would apply).
[22] Pidgeon and Walsh JJ agreeing.

In Re Smith; Ex parte Rundle, the Commission was required to form an opinion and was required to form that opinion in relation to a particular matter. The formation or existence of that opinion was, in essence, the gateway for the application of the alternative procedure for amendment.
Similarly, in Hot Holdings Pty Ltd v Creasy,[23] the provisions imposing the obligation on the Warden, and then on the Minister, required that there be a recommendation as to the grant or refusal of the exploration licence. That is, a recommendation, of one kind or another, was a statutory precondition to the exercise of the Minister's power.
[23] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.
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.
For that reason, assuming there was a basis for impugning the Commission's decision on the grounds of bias or failure to take into account relevant considerations, there is nonetheless no reasonable prospect of establishing that any alleged bias or other ultra vires ground would be capable of affecting the decision of a Minister on the basis that a statutory precondition had not been met.
This conclusion largely disposes of the question whether CIV 2133 of 2016 and CIV 2635 of 2016 have a reasonable prospect of success.
In relation to CIV 2635 of 2016, the fact that there is no reasonable prospect of establishing that the Minister's power under s 87 is dependent upon a validly prepared and determined recommendation under Regulation 55 means that that application must fail.
Likewise, CIV 2133 of 2106, being concerned only with the validity of the Commission's decision to provide a recommendation to the Minister, also has no reasonable prospect of success. There would be no utility in determining the validity of the Commission's decision where the only matter to be relied upon in relation to it was whether it was a statutory precondition. It is, for example, not a decision that would otherwise be amenable to certiorari for the reasons in Hot Holdings Pty Ltd v Creasy which I have set out at [51] above.[24]
[24] Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 164 - 165.
This conclusion, in my view, largely obviates the need for any resolution of any further factual matters in relation to the Applications.
In that regard, it is apparent that the remaining two grounds of CIV 2164 of 2018 entirely depend upon questions of statutory construction.
In relation to the ground 1, for example, there is no doubt that the Minister did, in fact, make a decision to specify further modifications.
In relation to the ground 2, as confirmed in argument before me, it is accepted by the Minister that she did not give a further hearing to the applicants prior to the further modifications being put to the City.
In those circumstances, grounds 1 and 2 depend upon questions of statutory construction. Given the extensive submissions presented by the parties, in my view, it is appropriate to resolve those questions of statutory construction on this application as the answer to those questions of construction will determine whether the proceeding has a reasonable prospect of succeeding.
I am mindful, in that respect, of the need to be careful not to stifle the development of the law. I accept, at least in part, the submission of the respondents, that that requirement generally relates to aspects of the law that are developing and likely to change, and are not really concerned with extent to which I am confident of the construction that I have reached in relation to the statutory provisions. Nevertheless, I am mindful that, for the purposes of these grounds, I should be confident that the construction that I have reached as to the statutory provision is clear before determining the application against the applicants.

Ground 1 of CIV 2164 of 2018

I turn, then, to ground 1, which raises the question whether s 87(2) of the Act operates such that the Minister, on having specified a modification and having received a resubmitted amendment, is bound to approve that amendment, or whether the Minister’s powers in s 87(2)(a), (b) and (c) fall to be exercised again.
In that regard, the applicants submit that the phrase in s 87(2)(b) 'resubmitted for the Minister's approval under this subsection' is a reference to the requirement for the Minister to then approve (and only approve) the amendment so resubmitted.
In effect, as counsel for the applicants put it, s 87(2)(b) provides for a form of conditional approval. That is, the subsection calls upon the Minister to specify modifications, and only those modifications, following which the amendment must be given the Minister's approval under the subsection.
In this context, it is notable that the words 'approve' and 'approval' appear at a number of points in s 87 and, particularly, in s 87(1) and (2). They appear, for example:
(a) in the phrase 'approval of the Minister' at the end of s 87(1);
(b) in the reference to the Minister's power to 'approve' in s 87(2)(a);
(c) in the reference to the Minister's 'approval' in s 87(2)(b); and
(d) in the phrase 'refuse to approve' in s 87(2)(c).
The submission put by the applicants is that the reference to the approval of the Minister, in the phrase 'to be submitted to the Minister for the approval of the Minister' in s 87(1), is a reference to approval in the sense of a future event; that is, something yet to occur. By contrast, the applicants submit, the reference in s 87(2)(b) to 'the Minister's approval under this subsection' is a reference to the approval that is required to be made, or that will be made, under s 87(2)(a).
In effect, the applicants submit that 'the Minister's approval under this subsection' is a 'rubber stamp' to be applied to the modifications where such modifications have been resubmitted to the Minister.
As I have mentioned above, by reference to authorities including Thiess v Collector of Customs, the context and purpose of the relevant provision is critical to its construction. The purpose underlying the applicants' construction - which was, at times, described as a functus officio construction - was articulated in a number of ways in the course of submissions.
The purpose initially identified by the applicants was one of ensuring transparency of consultation in relation to the provisions as whole. As I have indicated above, the requirement for consultation is reflected in other provisions of the Act, such as the consultation requirements in s 83 and the advertising requirements in s 84.
That purpose, in my view, is not a relevant purpose for determining whether the Minister, upon the resubmission of an amendment, has available to him or her each of the three options in s 87(2). That is because, whether it is once or twice (or more) that a Minister specifies modifications to an amendment, there is relevantly no difference in relation to the consultation requirements under the Act.
There is provision, for example, in Regulation 56, in relation to a modification recommended by the Local Government or the Commission, for it to be re-advertised prior to the process in s 87(1) and (2) being embarked upon. As the argument developed, it became apparent that that, given the opening words of Regulation 56(1), that regulation could only operate before a decision was made under s 87 of the Act.
The statutory purpose that was ultimately relied upon by the applicants in support of their construction was the purpose of finality of the process of approval of a local planning scheme.
Finality has been relied upon in various contexts as a matter that is relevant to the exercise of powers and whether powers can be re-exercised. For example, one authority relied upon by the respondents was Minister for Immigration and Multicultural Affairs v Bhardwaj.[25] In that case, Gleeson CJ said:[26]
The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction.
[25] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
[26] Minister for Immigration and Multicultural Affairs v Bhardwaj [8].
I accept, therefore, that finality can be a powerful consideration in the construction of a power.
Nevertheless, as is reflected in Bhardwaj, the statute may reveal an intention that a decision-maker is able to revisit a decision earlier made. This was referred to in the decision of Pritchard J in S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale.[27]
[27] S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191.
By reference to Bhardwaj, her Honour in S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale stated:[28]
Whether it is open to a decision maker to [re-exercise statutory powers] will depend on whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen.
[28] S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [82].
One significant matter that I draw from Pritchard J's judgment, keeping in mind the references to the need for statutory intention in Bhardwaj, is that that issue may arise in circumstances in which a decision is, in terms of the statute, final - that is, where a decision-maker is required to make a decision and there is no other action necessary to be taken by the decision-maker under the statute. In such as case there is, in truth, a reconsideration of an earlier decision.
The need to provide for such a reconsideration is relied upon by the respondents in arguing that s 87(2) should be construed so as to allow reconsideration of a modification when the matter comes back, because the circumstances may have changed. The respondent also relies upon s 48 of the Interpretation Act 1984 (WA), which provides that 'where a written law confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires'. The Commonwealth equivalent of that provision was referred to in Bhardwaj.
The respondent also emphasises that the reference to the 'Minister's approval under this subsection' is a reference to s 87(2) as a whole, rather than paragraph (a) in subsection 87(2), which is the paragraph which refers to 'approving' of the local planning scheme or amendment.
Finally, the respondent also relies upon the words 'submitted' and 'resubmitted' as they appear:
(a)in the phrase 'in relation to a local planning scheme or amendment submitted to the Minister' (in the chapeau to s 87(2)); and
(b)in the phrase 'resubmitted for the Minister's approval under this subsection' (in s 87(2)(b)).
The respondent draws on the equivalence in the meaning of the words 'submitted' and 'resubmitted'.
In my view, as a textual matter, the use of the word 'resubmitted' and, indeed, the repetition of the word 'submitted' within 'resubmitted' are significant. The word 'submitted' is defined in the Macquarie Dictionary to mean, relevantly, 'to refer (something) to the decision or judgment of another or others'.[29] That accords with the natural and ordinary meaning to be given to 'submitted' in this context: that the scheme or amendment is submitted to the decision or judgment of the Minister.
[29] Macquarie Dictionary (6^th ed, 2013) 1461, Definition 3.
The word 'resubmitted' simply includes the prefix 're' which, as defined in the Macquarie Dictionary, indicates repetition. That is, what occurs under s 87(2) is that an amendment that has been submitted to the Minister is resubmitted (i.e. submitted again) following certain matters taking place. It is not forwarded to the Minister or provided to the Minister but resubmitted to the Minister. In my view, the use of the word 'resubmitted' has the consequence that discretionary considerations implied by the expression 'the Minister may' at the beginning of s 87(2) continue to apply.
Indeed, in my view, the references to functus officio or indeed to the notion of the statute enabling a decision-maker to reconsider a decision, once having been made, are somewhat misplaced in the context of s 87(2).
The question in the present case is not whether the Minister can reconsider a decision that has already been made. The decision of Minister Faragher, for example, was made and it had the relevant statutory effect that it was required to have; namely that modifications to Amendment 150 were made and Amendment 150 was resubmitted to the Minister.
When the matter came before the Minister following resubmission, in my view it is not correct to characterise the Minister's decision at that point as being one of reconsideration of an earlier decision. Rather, the powers of the Minister are enlivened anew. In that respect, it is not a matter of looking for a statutory intention that reconsideration of a previous decision is permitted or prohibited, but a matter of asking whether the Minister, having gone through the process of specifying an amendment and on resubmission, is then prohibited from doing anything other than approving the local planning scheme or amendment as resubmitted.
Other than finality, in my view, there can be no other purpose supporting such a construction. Indeed, insofar as a statute might reflect an intention that a single decision that needs to be made and which is final is able to be reconsidered, the fact that this provision provides that the local planning scheme or amendment is resubmitted for the Minister's approval rather than being approved subject to condition, or being approved in order to be certified, demonstrates that the statute as a whole contemplates that the Minister's role in s 87(2) is not exhausted by the Minister having specified an amendment on a previous occasion.
If, as the language of 'resubmission' suggests, the Minister's role is not exhausted once a modification has been specified, it must be that the Minister continues to be involved in the process for a reason. That reason, in my view, is that the final approval always remains ultimately in the discretion of the Minister, and that the Minister may in certain circumstances have new material - for example, a new government policy - before him or her, which prompts the Minister to require that the scheme or amendment be resubmitted more than once before it is finally approved.
In my view, the issue of finality is not as significant in the present context as it otherwise might be - for example, in the context of an administrative process immediately affecting individual rights.[30]
[30] For example, the process involved in Bhardwaj, which concerned a review of the decision of a tribunal.
The issue in the present case is whether there should be finality in the formulation of what are significant local planning schemes having legislative effect. The purpose of the legislation, in my view, leans heavily toward the scheme or amendment ultimately approved being the correct and preferable one, and the Minister being able to make the final decision that he or she concludes ought to be made, rather than a process which would confine the Minister to a particular outcome once a scheme or amendment has been resubmitted to the Minister.
Accordingly, while there are certain ambiguities in s 87(2), in my view, the correct construction of the provision is one which does not foreclose the exercise of any of the powers in s 87(2)(a), (b) and (c) by the Minister upon a resubmission. For that reason, in my view, ground 1 does not have a reasonable prospect of success.

Ground 2 of CIV 2164 of 2018

I turn then to ground 2 of CIV 2164 of 2018. Ground 2 asks whether Minister Saffioti was required to provide procedural fairness in the form of a hearing at the time of considering modifications to Amendment 150.
The respondents raise two interrelated matters in contending that ground 2 has no reasonable prospect of success.
The first is that the Act, together with the Regulations, provides for a comprehensive process of consultation. As I noted earlier, s 83 and s 84, which expressly condition the power in s 87(1), set out requirements for consultation and for the advertising of proposed schemes or amendments.
In my view it is clear from s 87(1) that those provisions in relation to consultation and advertising must be complied with as an essential component of the Act. That is as would be expected, given that a local planning scheme concerns the interests of the public and, in particular, the interests of the public in proper and orderly planning of a particular locality. Accordingly, the provisions in relation to consultation and advertising involve the public.
The Regulations expand on the requirements set out in s 83 and s 84 by setting out the process for advertising amendments and for dealing with submissions. It is clear, in my view, that the Regulations as a whole, inasmuch as they provide for the advertisement of amendments and the consideration of submissions by the Local Government, are enunciating processes that are required by s 83 and s 84.
The respondents say that, as a consequence of those provisions, there is no room for either an implication in, or a construction of, s 87(2) which requires a further hearing by the Minister in relation to modifications that the Minister proposes.
In that respect the respondents rely upon Re Minister for theEnvironment; Ex parte Elwood[31] and, in particular, the conclusion of Buss JA that:[32]
In my opinion, the provisions of Pt IV [of the Environmental Protection Act 1986] evince a clear legislative intention that the Minister is not obliged to exercise the power of approval under section 45C with procedural fairness to persons, other than the proponent, whose interests might be adversely affected by its exercise. I am of that opinion for these reasons. First, Pt IV makes provision for some public participation in relation to the referral and assessment of proposals and their implementation, but does not provide for or contemplate any participation by any members of the public in the procedure or decision-making process under s 45, s 45C or s 46. Secondly, persons who may be relevantly affected by the exercise of the power under s 45C are, potentially, numerous and difficult to identify. Thirdly, the power under s 45C is only exercisable if the change or changes to the assessed and approved proposal are minor and not will cause a significantly different detrimental environmental impact.
[31] Re Minister for the Environment; Ex parte Elwood [2007] WASCA 137.
[32] Re Minister for the Environment; Ex parte Elwood [199] (Buss JA) (Roberts-Smith JA agreeing).
Significantly, his Honour referred not only to the detailed public proposal, but also to the nature of the power and the fact that the persons relevantly affected may potentially be numerous and difficult to identify.

That brings me to the second matter raised by the respondents, which is that the nature of the power in the present case is one which does not in any relevant sense 'affect' or 'single out' an individual, as those expressions are used in the authorities. In that regard, a distinction is drawn in the authorities between decision-making powers that affect the public in general, and powers that single out individuals.
For example, in Harvey v The Minister Administering the Water Management Act 2000,[33] a decision of the New South Wales Land and Environment Court, Jagot J (as her Honour then was) discussed the process of statutory construction in relation to procedural fairness.[34]
[33] Harvey v The Minister Administering the Water Management Act 2000 [2008] 160 LGERA 50.
[34] Harvey v The Minister Administering the Water Management Act 2000 [98]-[118].
In relation to powers of a legislative nature, her Honour said:[35]
Characterising a statutory power as involving the exercise of a legislative function does not provide any necessary answer to the question whether the power is conditioned on the observance of procedural fairness.
Jagot J went on to observe:[36]
But there is a significant distinction between decisions that directly and immediately affect a person individually and decisions that affect a person simply as a member of the public or as a class of the public. The legislature is more likely to intend that the exercise of power of an executive, administrative or quasi-judicial nature be conditioned on the observance of procedural fairness if it 'singles out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected'.
[35] Harvey v The Minister Administering the Water Management Act 2000 [102].
[36] Harvey v The Minister Administering the Water Management Act 2000 [103].
A significant question that arises, in determining whether a power singles out individuals, is whether one looks to the power itself as one which affects an individual or group, or whether one looks to the effect of the power in a particular case.
In this regard the applicants rely upon the text of Aronson, Groves and Weeks, Judicial Review of Administrative Action in Government Liability.[37] In the context of decisions affecting many persons, the authors refer to what they describe as the 'actual effect approach'.
[37] Aronson M, Groves M, Weeks G, Judicial Review of Administrative Action and Government Liability (2017) 430-438.
In the passage relied upon by the applicants (and which is reproduced in their written submissions), the authors state:[38]
The distinction between the 'actual effect' of a decision upon an individual, as opposed to a more general effect, is useful more generally because it is more likely that Parliament intended the exercise of statutory powers to be conditioned on observing the requirements of fairness where they are apt to single out individuals to a significantly different degree.
[38] Aronson M, Groves M, Weeks G, Judicial Review of Administrative Action and Government Liability (2017) 431.
While referring to an 'actual effect', the approach set out in this passage nevertheless directs attention back to the intention of the legislature in relation to the statutory power itself (whether it is 'apt' to single out individuals) in relation to whether the power is conditioned on the observance of the requirements of natural justice.
In the present case the nature of the power is the power to specify a modification to a local planning scheme. On its face, the power itself is not one which is 'apt' to single out individuals to a significant degree. Indeed, it is a power that is related to the locality and planning in the locality.
True it is that a particular amendment or modification may affect a more confined class, for example, of land owners (who may well be persons who take particular interest in the amendment or modification and so also in the consultation required by s 83). Nevertheless, the power itself, dealing with planning schemes, including the zoning, development, and uses prescribed by such a scheme, is intended to be one exercised for the benefit of the public as a whole and for the proper and orderly planning of the location. It does not single out individuals.
That is, while the power to make or amend a local planning scheme might in a particular instance be seen to affect an individual to a significantly different degree (and which may prompt their participation in the consultation process required by the Act), the nature of the power itself is not apt to single out those individuals. Given that there is a detailed statutory scheme for consultation in relation to such schemes and the fact that, as identified by counsel for the applicants in submissions generally, the point at which the Minister deals with the matter is the end point of that process of consultation, there is, in my view, no room for a construction of the provisions as requiring a further hearing.
In my view, in light of the express provisions of the Act and the nature of the power, there is no reasonable prospect of establishing that an additional implied statutory requirement of consultation arises in relation to the Minister's power to specify a modification of a planning scheme under s 87(2)(b).
It follows in my view that there is no reasonable prospect of success in relation to ground 2.
For that reason, in my view, there is no reasonable prospect of success of the judicial review application in CIV 2164 of 2018.
In the result, it is appropriate to make an order under O 56 r 5(2)(j) to refuse each of the Applications as a whole.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EA
RESEARCH ASSOCIATE TO THE HONOURABLE CHIEF JUSTICE QUINLAN
14 NOVEMBER 2018