Humich Nominees Pty Ltd v Commissioner of Main Roads
[2020] WASCA 175
•27 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HUMICH NOMINEES PTY LTD -v- COMMISSIONER OF MAIN ROADS [2020] WASCA 175
CORAM: MURPHY JA
BEECH JA
VAUGHAN JA
HEARD: 14 OCTOBER 2020
DELIVERED : 27 OCTOBER 2020
FILE NO/S: CACV 104 of 2019
BETWEEN: HUMICH NOMINEES PTY LTD
First Appellant
FAR SUPER PTY LTD
Second Appellant
AND
COMMISSIONER OF MAIN ROADS
First Respondent
SHIRE OF SERPENTINE JARRAHDALE
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ALLANSON J
Citation: HUMICH NOMINEES PTY LTD -v- COMMISSIONER OF MAIN ROADS [2019] WASC 293
File Number : CIV 1736 of 2019
Catchwords:
Planning and environment - Where Joint Development Assessment Panel (JDAP) approved development of liquor store, petrol station and convenience store on appellants' land - Where development approval approved location and nature of crossovers onto adjoining road - Whether on subsequent crossover application to Commissioner of Main Roads the Commissioner was bound as to the location and nature of the crossovers - Whether Commissioner's refusal of crossover application inconsistent with his previous position or with JDAP's development approval
Administrative law - Judicial review - Unreasonableness - Whether decision of Commissioner of Main Roads to refuse crossover application lacked evident and intelligible justification - Whether decision attended with reasonable apprehension of bias - Whether Commissioner's mind not open to persuasion
Legislation:
Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 12, reg 14
Main Roads Act 1913 (WA), s 13, s 15, s 28A
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 6, reg 7, reg 8, reg 9, reg 12, reg 17
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), sch 2, cl 66, cl 67
Planning and Development Act 2005 (WA), s 162, s 171A(2)(ba)
Road Traffic Code 2000 (WA), reg 297
Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (WA), cl 5.1.1, cl 6.4
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| First Appellant | : | P G McGowan |
| Second Appellant | : | P G McGowan |
| First Respondent | : | A J Sefton & I A Repper |
| Second Respondent | : | No appearance |
Solicitors:
| First Appellant | : | Rowley Legal |
| Second Appellant | : | Rowley Legal |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | Herbert Smith Freehills |
Case(s) referred to in decision(s):
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
Dilatte v MacTiernan [2002] WASCA 100
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Humich Nominees Pty Ltd v Commissioner of Main Roads [2019] WASC 293
Humich Nominees Pty Ltd v Metro East Joint Development Assessment Panel [2019] WASC 200
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 138
JUDGMENT OF THE COURT:
Introduction
The appellants own land at Lot 196 Thomas Road, Oakford (the Property), from which they conduct a liquor store and general store. They applied to the second respondent (the Shire) to construct two crossovers from the Property to Thomas Road. The proposed crossovers involved modifications of Thomas Road. One of the proposed crossovers depicted full movement access (in other words, access for traffic travelling in both directions) from the Property to Thomas Road. The Shire referred the crossover application to the first respondent (the Commissioner), who declined to approve the application on the basis that he did not support full movement access. The Shire subsequently advised the appellants that it would not approve the application without the Commissioner's approval.
The appellants applied for judicial review of the refusal of their crossover application by both the Commissioner and the Shire. The Commissioner contested the application, whereas the Shire did not participate in the proceedings. That has remained so on appeal. In essence, the appellants contended before the primary judge that:
(1)the Commissioner's approval was not required;
(2)alternatively, the Commissioner was bound to determine the application consistently with:
(a) a development approval held by the appellants which depicted full movement access to Thomas Road; and
(b)other earlier indications by the Commissioner, in the course of the development application or its extension and amendment, that he approved of full movement access; and
(3)the Commissioner's decision lacked any evident and intelligible justification and was legally unreasonable.
The primary judge dismissed the appellants' application for judicial review. The appellants now appeal against the primary judge's decision.
Broadly speaking, the appellants advance on appeal the contentions they put to the primary judge.
For the reasons that follow, we would reject the appellants' contentions and dismiss the appeal. By way of broad summary:
(1)The Commissioner's approval of the crossover application was required because, under the relevant provision, his approval is a precondition to the grant by the Shire of approval of the crossover application.
(2)The grant and terms of the development approval did not constrain the Commissioner's exercise of discretion, which arose under different and independent statutory provisions. Further, the crossover application differed significantly from what had been approved by the development approval.
(3)The Commissioner's rejection of the crossover application was not inconsistent with his earlier position relating to the development application, bearing in mind (i) the terms in which that position was expressed and (ii) the changed circumstances concerning contemplated changes to Thomas Road at the time of the crossover application.
(4)The Commissioner's decision to reject the crossover application did not lack an evident or intelligible justification. Nor was it legally unreasonable on any other ground advanced by the appellants.
In order to understand and evaluate the appellants' contentions it is necessary to outline the background facts in some detail. In particular, it is necessary to give close attention to the communications and records relating to the original development application in 2013 and the subsequent extension and amendment of the approval of that application.
Background
The primary facts reflect the documentary record, and, with one exception, were not and are not in dispute.[1]
The Property
[1] The exception relates to the judge's finding that certain plans departed significantly from what was depicted in other plans and is dealt with in [98] - [100] below.
The appellants are the registered proprietors of the Property. The Property is on the corner of Thomas Road and Nicholson Road. Thomas Road is to the north and Nicholson Road is to the west of the site.[2]
[2] Humich Nominees Pty Ltd v Commissioner of Main Roads [2019] WASC 293 (primary reasons) [18].
The only access to the Property is from Thomas Road.[3]
[3] Primary reasons [20].
Oakford Traders, comprising a service station, general store and liquor store, was established on the Property in approximately 1970. The service station component was discontinued in 2007 and the site cleaned and remediated. The general store and liquor store continue to operate on the land.[4]
Lot 12
[4] Primary reasons [21].
Lot 12 is on the opposite side of Thomas Road from the Property. That lot is also the subject of an application for development approval, for a proposed service station.[5]
[5] Primary reasons [23].
On appeal, the appellants submit that the Commissioner's dealings with the Lot 12 development application, when viewed in the context of his dealings with the Property, demonstrate legal unreasonableness and apprehended bias. Consequently, we outline those dealings in the chronological narrative that follows.
Thomas Road
Thomas Road is a declared highway under s 13 of the Main Roads Act that provides for major regional and inter‑regional traffic movement. It carries large volumes of generally fast moving traffic and is an important East-West freight and heavy vehicle route.[6]
[6] Primary reasons [34], [35].
Throughout 2017 and 2018 there were various studies and designs prepared in respect of Thomas Road, including the upgrade and reconstruction of the intersection of Thomas and Nicholson Roads.[7]
[7] Primary reasons [37].
On 15 November 2017, Thomas Road was reserved as a 'Primary Regional Road' under the Metropolitan Region Scheme. It had previously been reserved as an 'Other Regional Road'.[8]
[8] Primary reasons [33].
The federal and state budgets, the first of which was published on 2 April 2019, allocated funding to upgrade the intersection.[9] Those upgrades were likely to commence in the two years following.[10] One of the upgrades is likely to be the duplication (by the construction of a dual carriageway) of the part of Thomas Road in front of the Property.[11]
[9] Primary reasons [38]; exhibit 1.2, RH 7, GAB 891 - 895.
[10] Primary reasons [38]; exhibit 4 [8.2], [8.4], GAB 285.
[11] Primary reasons [39].
As will be seen, the Commissioner's position over time in respect of access to the Property has been heavily influenced by the planned upgrades to Thomas Road.
The 2013 development approval
In July 2013, the then-owners of the Property submitted an application for development approval to the Shire.[12] The proposal set out plans for the relocation and redevelopment of the liquor store as well as the redevelopment of the convenience store and fuel station.[13] The estimated cost of the proposed development was $3 million.[14]
[12] Primary reasons [42]; exhibit 3.2, CEF 41, GAB 905 - 908.
[13] Primary reasons [42]; exhibit 4, JPM 8, GAB 292 - 319.
[14] Primary reasons [43]; exhibit 3.2, CEF 41, GAB 905.
Section 162 of the Planning and Development Act2005 (WA) (the PD Act) requires that, where the applicable planning scheme so provides, the development of land is not to be commenced or carried out without approval having been obtained under the planning scheme.
The planning scheme applicable to the Property is the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2 (WA) (TPS 2). In July 2013, cl 5.1.1 of TPS 2 provided that a person shall not carry out development of any land without first having applied for and obtained the planning consent of the Shire council.
By s 171A(2)(ba) of the PD Act, the Governor is empowered to make regulations:
providing that, despite any other provision of this Act or a planning instrument, if -
(i) an applicant for approval of development elects in accordance with the prescribed procedure to have a development application determined by a DAP; and
(ii) the development application is of a class or kind prescribed by the regulations for the purposes of this paragraph,
the development application -
(iii) must be determined by a DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and
(iv) cannot be determined by a local government or the Commission;
Regulation 6 and reg 7 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (the DAP Regulations) are made in exercise of the power conferred by s 171A(2)(ba) of the PD Act. In July 2013, reg 6 relevantly provided that an application for development in a district outside the City of Perth with an estimated cost of $3 million - $7 million is of a class prescribed under s 171A(2)(ba) of the PD Act. Regulation 7 relevantly provides that an applicant may elect to have such an application determined by a DAP.
In accordance with those regulations, the applicant elected to have the application in respect of the Property determined by a DAP.[15] The DAP was required to determine the application 'as if the DAP were the responsible authority under the relevant planning instrument in relation to the development'.[16] The requirements as to consultation procedures were to be the same as those prescribed by TPS 2, with the DAP taking the place of the Shire council.[17]
[15] Primary reasons [44]; exhibit 3.2, CEF 41, GAB 906 - 908.
[16] PD Act, s 171A(2)(ba)(iii); DAP Regulations, reg 8(1)(a).
[17] DAP Regulations, reg 9(b).
The DAP that took carriage of the development application in respect of the Property was the Metro East Joint Development Assessment Panel (the JDAP). After receiving the application in July 2013,[18] the JDAP was required to determine the application in accordance with the provisions of TPS 2.[19]
[18] Exhibit 3.1, CEF 1, GAB 425.
[19] Not the deemed provisions in sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), which did not come into operation until 19 October 2015. Cf primary reasons [45] ‑ [47].
At the relevant time, cl 6.4 of TPS 2 governed the determination of development applications. That clause provided, relevantly, as follows:[20]
[20] See cl 6.4 in Western Australia, Government Gazette, No 74 (4 August 1989) 2521, which in July 2013 was still in operation.
6.4.1In determining an application for planning consent the Council may consult with any authority which, in the circumstances, it thinks appropriate.
6.4.2In determining an application for planning consent the Council shall have regard to such of the following as are appropriate:
…
(e) any comments received from any authority consulted by the Council;
…
6.4.3In determining an application for planning consent the Council may refuse its consent or grant its consent subject to such conditions as it deems fit.
By reg 12 of the DAP Regulations, the responsible authority to which the application was made (in this case, the Shire) was required to give the presiding member of the JDAP a report on the application, which must provide sufficient information to enable the JDAP to determine the application, including:
(a)a recommendation as to how the application should be determined; and
(b)copies of any advice received by the responsible authority from any other statutory or public authority consulted by the responsible authority in respect of the application; and
(c) any other information that the responsible authority considers is relevant to determining the application.
The Shire's report as the responsible authority for this application (the Responsible Authority Report) records the following:[21]
Significant concerns were raised by Main Roads WA (MRWA) on the initial design concept layout, regarding configuration of vehicular access points and vehicular movement within the site that were considered to potentially and significantly compromise the integrity and safety of the regional freight route network (Thomas Road and Nicholson Road).
In regards to that and in view of traffic issues being considered key and fundamental to the proposal the applicant was afforded the opportunity to consult with Main Roads on a number of issues that had been identified on the initial concept plan. As a result of the consultation between Main Roads and the applicant's traffic consultants, a modified concept layout plan was submitted by the applicant.
[21] Primary reasons [50]; exhibit 3.1, CEF 1, GAB 438.
The modified concept layout plan included a left out only access onto Thomas Road at the westernmost location of the site, as well as a full movement entry/exit onto Thomas Road at the easternmost location of the development site.[22]
[22] Exhibit 3.1, CEF 1, GAB 471, 477. See also exhibit 4, JPM 11, GAB 340 - 341.
The schedule of submissions annexed to the Responsible Authority Report records that the revised plan met Main Roads' traffic management requirements.[23] Main Roads' position, as summarised in that schedule, was as follows:[24]
[23] Exhibit 3.1, CEF 1, GAB 470.
[24] Exhibit 3.1, CEF 1, GAB 471 - 472.
11.2The two existing redundant driveways shall be removed and the verge and its vegetation made good at the applicant's cost.
11.3A new left out only access onto Thomas Road shall be constructed at the westernmost location of the site, positioned at a minimum distance of 120 metres east of the stop line from the Nicholson Road intersection.
11.4One full movement access is permitted on Thomas Road and shall be located at the eastern most location of the development site and eastwards of the existing western power pole. … The full movement access shall be designed to incorporate right turn and left turn pockets and shall comply with Main Roads and Austroads standards for a design speed of 80 km/hour.
…
11.8The developer shall be responsible for all costs involved in the land acquisition, design and construction of the full movement intersection and westernmost access. This includes signing, road markings, relocation of services, street lighting and Main Roads costs involved in the checking of the design and constructions drawings and any site inspections.
11.9Main Roads approval for the construction drawings is required before any work is undertaken with the Thomas Road reservation. A detailed traffic management safety plan while working within the road reservation is to be submitted as part of this approval.
…
11.14The applicant is to be aware that the full movement access will revert to a left in/left out access only when Thomas Road is duplicated. The project for the upgrading/widening of Thomas Road is not in Main Roads current 4-year forward estimated construction program and all projects not listed are considered long term. Please be aware that timing information is subject to change and that Main Roads assumes no liability whatsoever for the information provided.
11.15The applicant must obtain approval from Main Roads before all works are undertaken within the Thomas Road reserve. The applicant seeking access to the Main Roads network will be required to submit an Application as outlined in the 'Application Kit and Guidelines' for State roads.
11.16Application Kits can be found on the Main Roads website>' Our Roads'>'Conducting Works on Roads>'Applications to Undertake Works on State Roads'> Application Kit and Guidelines for Complex Works OR Application Form for Low Complexity Works (emphasis added)
The schedule of submissions accurately reflected the advice Main Roads had given by its letter to the Shire dated 15 August 2013, which contained passages to the effect of those we have set out in [29] above.[25]
[25] Exhibit 4, JPM 11, GAB 340 - 342.
It can be seen from the italicised words in [11.14] of the schedule of submissions to the Responsible Authority Report that, from the outset, Main Roads identified that full movement access would cease to be available when Thomas Road was duplicated. Also, the Responsible Authority Report records that the applicant noted what is set out in [11.14] and [11.15] of the schedule of submissions.[26]
[26] Exhibit 3.1, CEF 1, GAB 472 - 473.
The Responsible Authority Report concluded that the proposed revised layout and access provisions had been assessed and were considered to satisfy the original traffic, access and safety concerns raised.[27]
[27] Primary reasons [51]; exhibit 3.1, CEF 1, GAB 440.
On 4 November 2013, the JDAP resolved to approve the development application subject to conditions.[28] It is not in dispute that the approved plans included plans for a full movement access at the easternmost location of the development site. Conditions 1 and 6 of the approval were in the following terms:[29]
1.The developer shall be responsible for all costs involved in the land acquisition, design and construction of the full movement intersection and the westernmost left out access. This includes signing, road markings, relocation of services and street lighting.
…
6.The vehicle parking area, access way(s), right of way and crossover shall be designed, constructed, sealed, kerbed, drained, line marked and thereafter maintained in accordance with the approved plan and specification to the satisfaction of the Director Engineering prior to the occupation of the development for the use hereby permitted.
[28] Primary reasons [48]; exhibit 3.1, CEF 2, GAB 582.
[29] Exhibit 3.1, CEF 2, GAB 578; CEF 20, GAB 845.
The approval included 'Advice notes'. Consistently with Main Roads' position set out in [11.14] - [11.16] of the schedule of submissions to the Responsible Authority Report, those notes included the following:[30]
8.The applicant shall be aware that the full movement access will revert to a left in - left out access only when Thomas Road is duplicated. The project for the upgrading of Thomas Road is not in Main Roads 4-year forward estimated construction program and all projects not listed are deemed to be long term. Please be aware that timing information is subject to change and that Main Roads assumes no liability whatsoever for the information provided.
9.The applicant must obtain approval from Main Roads before all works are undertaken within the Thomas Road reserve. The applicant seeking access to the Main Roads network will be required to submit an Application as outlined in the 'Application Kit and Guidelines' for State roads …
10.Main Roads approval for the construction drawings is required before any work is undertaken within the Thomas Road reserve. A detailed traffic management safety plan while working within the road reserve is to be submitted as part of this approval. (emphasis added)
The 2015 subdivision application
[30] Primary reasons [52]; exhibit 3.1, CEF 2, GAB 581 - 582; CEF 20, GAB 849.
There was evidence at trial, relied upon by the appellants on appeal, that, in early 2015, Main Roads made comments on an application for subdivision approval in respect of the Property to the effect that it still supported a full movement access to the Property.
On 9 April 2015, Main Roads sent a letter to the Western Australian Planning Commission to the effect that the proposed subdivision was acceptable to Main Roads and that, in the event that the Property was fully redeveloped in the future, it would permit:[31]
a)One full movement access onto Thomas Road situated approximately 250 metres east of the stop line from the Nicholson Road intersection. The full movement access shall be designed to incorporate right turn and left turn pockets and shall comply with Main Roads and Austroads standards for a design speed of 80 km/hour.
b)On left out only access onto Thomas Road, constructed at the westernmost location of Lot 1, positioned at a minimum distance of 120 metres east of the stop line from the Nicholson Road intersection.
[31] Exhibit 4, JPM 18, GAB 354.
The letter recorded that '[t]he location and agreement of access was agreed to in principle by the applicant in a recent meeting held at Main Roads'.[32]
[32] Exhibit 4, JPM 18, GAB 355.
Point 7 of the letter was in the same terms as the portion of [11.14] of the schedule of submissions to the Responsible Authority Report (see [29] above) and of point 8 of the advice notes to the 2013 JDAP approval (see [34] above) commencing with the words '[t]he project'.
The 2015 extension
Development did not commence pursuant to the 2013 approval.[33] At the relevant time, cl 6.9 of TPS 2 provided that where the Shire council (or in this case the JDAP) grants planning approval, the approval lapses if the development has not substantially commenced within two years.[34]
[33] Primary reasons [53].
[34] Clause 6.9 was inserted into TPS 2 by Western Australia, Government Gazette, No 105 (1 June 2001) 2779.
On 8 July 2015, the appellants, who had recently purchased the Property, applied for a two year extension of the planning approval term.[35] The application did not seek to amend any of the approved conditions or plans. The responsible authority (the Shire) considered that consultation with other agencies, including Main Roads, was not necessary in the circumstances and recommended the application's approval.[36]
[35] Primary reasons [54]; exhibit 3.1, CEF 3, GAB 604. See the provisions in reg 17 of the DAP Regulations.
[36] Exhibit 3.1, CEF 3, GAB 586.
On 29 September 2015, the JDAP approved the proposed two year extension.[37]
The 2017 meeting
[37] Primary reasons [55]; exhibit 3.1, CEF 4, GAB 610 - 611.
On 8 February 2017, representatives of the appellants met with Mr Delaney of Caltex Australia Petroleum Pty Ltd (Caltex) and representatives of Main Roads.[38] There appears to have been ongoing discussions between the appellants and Caltex for the lease of the proposed service station on the Property.[39]
[38] Primary reasons [56].
[39] Exhibit 1.2 [4] - [5], GAB 881.
The appellants' position is that the approved plan showing the proposed full movement access on Thomas Road was tabled at this meeting and that no representative of Main Roads indicated any problem or difficulty with the full movement access.[40] The respondent does not appear to contest this position.[41]
[40] Exhibit 1.2 [8], GAB 881.
[41] Respondent's submissions [29].
Following that meeting, Mr Delaney forwarded to the appellants 'a slightly modified plan showing the requirements at the entry crossover'.[42]
The 2018 extension
[42] Primary reasons [57]; exhibit 1.2, RH 2, page 34.
On 26 October 2017, the appellants applied to the Shire for a further extension to the planning approval term.[43] Because the application only sought an extension of time and did not propose any new development, no consultation was undertaken by the Shire.[44]
[43] Primary reasons [58]; exhibit 3.1, CEF 5, GAB 630 - 633.
[44] Exhibit 3.1, CEF 5, GAB 618.
On 9 January 2018, the JDAP considered and approved the application subject to the same conditions as the 2013 approval, extending the approval period by two years to 9 January 2020.[45]
[45] Primary reasons [58]; exhibit 3.1, CEF 6, GAB 666.
Although the 2018 extension application was not formally referred to Main Roads, Main Roads was aware of it. On 5 January 2018, the Planning Information Manager of Main Roads wrote an email to the Shire that included the following:[46]
I understand this is the second request for extension of the approval granted in 2013. We are conscious planning environment changes over time and approvals carried over an extended period can have an impact on current infrastructure planning and management.
Council may be aware Department of Planning, Lands and Heritage (DPLH) is currently undertaking a review of Thomas Road to develop a planning design concept for the future upgrading of Thomas Road. Updated views and comments from DPLH's and Main Roads' perspective could have been useful to avoid any potential impacts to both, the future infrastructure upgrades and the proposed development.
The 2018 amendment application
[46] Primary reasons [59]; exhibit 4, JPM 20, GAB 356.
On 27 July 2018, the appellants applied to the Shire to amend the development approval in respect of the Property.[47] The application sought approval to modify the site layout, remove the proposed car wash facility and vary the hours of operation of the convenience store and service station to 24 hours a day, seven days a week.[48] The Shire referred the application to Main Roads on 31 July 2018.[49]
[47] Exhibit 3.1, CEF 9, page 354.
[48] Primary reasons [60]; exhibit 3.1, CEF 9, page 359.
[49] Primary reasons [60].
On 4 September 2018, Main Roads sent a letter to the Shire advising that it did not object to the proposed land use as a petrol station with a convenience store but it was not in a position to support the easternmost access to operate with full movement. The relevant parts of the letter are set out in full below:[50]
[50] Primary reasons [60]; exhibit 1.1, RH 6, GAB 98 - 101; exhibit 4, JPM 22, GAB 358 - 361.
Main Roads has now completed its assessment [of] this amendment to the DAP13/00615 application for the petrol station/convenience store to operate 24 hours a day and undertake minor alterations to the approved internal layout.
Main Roads does not object to the land use as a proposed petrol station with a convenience store as defined under the Shire of Serpentine-Jarrahdale Town Planning Scheme No 2. Main Roads comments and conditions are as outlined below.
Main Roads is not in a position to support the easternmost access to operate with full movement.
The revised plans submitted as a part of this application are ambulatory in nature and requires a third party approval from Main Roads. This development application also requires approval pursuant to regulation 297 of the Road Traffic Code 2000.
Furthermore, if this development proceeds as proposed there is no certainty for approval and the development lacks finality in the first instance.
To receive Main Roads conditional support for this proposed development, the applicant will be required to submit revised plans which demonstrate both accesses onto Thomas Road operating as left in/left out vehicle movements only.
The … plans detailed in table 1 demonstrates two connections onto Thomas Road with the easternmost crossover demonstrating full movement access. Any access onto a State Road requires a separate and distinct approval from the [PD Act] by the Commissioner of Main Roads.
…
The current road geometry values for Thomas Road can only allow for a left in/left out access to service this parcel of land (Lot 196) which is a consistent access arrangement for all land uses both north and south of the functional area of the Nicholson Road and Thomas Road intersection.
The original JDAP application circa 2013 and supporting site plans for this site do not comply with current design standards for 2018. It is noted that from 2015 the subsequent amendments to extend the development application were not referred to Main Roads for comment. As Council is aware, this intersection is subject to a blackspot funding programme which has progressed to a preferred roundabout treatment and has future implications on the access arrangements for Thomas Road.
As part of the blackspot submission submitted by Council to rectify this problematic intersection, Main Roads undertook a video survey which confirmed the intersection is beyond the original design capacity and thus there is a requirement to improve the current intersection layout.
…
In the event that the required revised plans are submitted and approved by Main Roads following a 100% detailed design review, the following preliminary conditions are to be imposed on this development.
Conditions:
1.The site plan must be amended to depict that the two accesses onto Thomas Road shall operate as left in/left out turning movements only. The location of the westernmost access shall be positioned at a minimum distance of 120 metres east of the hold line from the Nicholson Road intersection.
2.The easternmost access shall be designed to incorporate a left turning pocket and shall comply with Main Roads specifications for the relevant design speed.
3.All heavy vehicles shall enter and exit the site via the easternmost crossover and this access arrangement shall have adequate signage to this effect.
4.The two existing redundant crossovers shall be removed and the verge made good at the applicants cost and to the Shire of Serpentine-Jarrahdale's standards.
…
7.The developer shall be responsible for all costs involved in the land acquisition, design and construction of the left turning deceleration lane for the easternmost access. This includes signing, road markings, relocation of services, street lighting and Main Roads costs involved in the checking of the design and constructions drawings and any site inspections required. This approval is pursuant to regulation 297 of the Road Traffic Code 2000.
…
12.The developer will be required to obtain a 'Works by Others' approval to undertake such modifications to the road network. A 'Works by Others' approval is subject to a 100% design review prior to any consideration to modify a Main Roads asset or road network.
Advice to Applicant
Thomas Road is classified as a Primary Regional Road under the classification scheme used in the Metropolitan Regional Scheme. Main Roads defines Thomas Road as a Primary Distributor road and provides for regional and inter-regional traffic movement and carries large volumes of fast moving traffic. A road with a posted speed limit equal to or greater than 60 km/h is defined as a fast road. This portion of Thomas Road is posted at 90 km/h and has design speeds of 100 km/h reducing to 80 km/h on the approach to the Nicholson Road intersection.
Main Roads has a role to ensure that the functionality of Thomas Road continues to operate as a strategic freight route in a safe and efficient manner for road trains and all road users as currently permitted.
…
2.As the applicant may or may not be aware, this intersection is recognised as a dangerous black spot and has received funding from the Road Trauma Fund account to undertake preliminary planning design concepts. Currently the traffic modelling depicts the preferred intersection at this location is a roundabout treatment, for both interim and ultimate stages.
3.The project for the upgrading/widening of Thomas Road and Nicholson Road is not in Main Roads current 4-year forward estimated construction program and all projects not listed are considered long term.
4.Please be aware the timing information for the construction of the preferred treatment (both interim and ultimate stages) is subject to change and Main Roads assumes no liability for the information provided. (emphasis added)
The Responsible Authority Report prepared for the JDAP's consideration of the amendment application, in dealing with traffic, access and safety, made the following remarks as to Main Roads' concerns:[51]
MRWA did not object in principle to the land use however do not support the eastern access to operate with full movement. A works approval will be required from MRWA for any accesses on Thomas Road. MRWA have advised that they are in support of the proposal if amended plans are provided to demonstrate both accesses onto Thomas Road operate as left in/left out movement only.
The original approved plan, dating back to 2013, no longer complies with current design standards for 2018. It is also noted that an advice note on the original 2013 approval advised that the full movement access would be allowable for a temporary period of time only. MRWA plans to widen Thomas Road to two lanes in each direction and full movement access is not supported.
Officers consider that it would not be orderly and proper planning to support a proposal that, as advised by MRWA, is not consistent with current design standards. … Officers recommend a condition requiring the redesign of the eastern access to ensure the safety concerns are satisfied and that left/in left/out access is supported only.
[51] Primary reasons [62]; exhibit 3.1, CEF 9, page 370.
On 10 October 2018, the JDAP considered whether to approve the amendment application.[52] The minutes record that a representative of Main Roads and representatives of the appellants addressed the JDAP in relation to the proposal.[53] The JDAP determined to defer consideration of the application in order to seek advice regarding (i) conflicting legal opinions that had been presented and (ii) the scope within which the application might be considered as appropriate under reg 17 of the DAP Regulations.[54]
[52] Primary reasons [61].
[53] Exhibit 3.1, CEF 10, page 399.
[54] Exhibit 3.1, CEF 10, page 403.
On 26 October 2018, an officer of Main Roads wrote to the appellants' solicitors by email and said:[55]
Main Roads understands your clients [sic] desire to achieve full movement from the proposed development on Lot 196. As expressed in our letter to the Shire on 4 September, Main Roads does not support the full movement to and from Thomas Road. Main Roads is prepared to consider the possibility of Lot 196 and the proposed development accessing the southern extension of Nicholson Road when the intersection of Thomas and Nicholson is upgraded … (emphasis added)
[55] Primary reasons [65]; exhibit 1.2, RH 4, page 42.
On 6 November 2018, the JDAP resolved to approve the amendment application subject to conditions.[56] Those conditions included that the development be carried out in compliance with the plans and documents listed, being plans received at the Shire on 10 September 2018. It was not in dispute that the relevant plans provided for two points of access to Thomas Road, the western access being left turn only and the eastern access providing for full movement.[57]
[56] Primary reasons [66]; exhibit 3.1, CEF 12, pages 453 - 461.
[57] Primary reasons [66].
The Responsible Authority Report had recommended the imposition of the following condition:[58]
Prior to commencement of works, amended plans to depict that the two accesses onto Thomas Road shall operate as left in/left out turning movements only shall be submitted to and approved by the Shire of Serpentine Jarrahdale. The location of the westernmost access shall be position at a minimum distance of 120 m east of the hold line from the Nicholson Road intersection.
[58] Exhibit 3.1, CEF 10, page 454.
The JDAP resolved not to impose that condition. The reason stated was that 'alterations to the existing approved vehicle access was beyond power in that neither of these elements of the current approved development form part of this Form 2 application to amend that approval'.[59]
[59] Exhibit 3.1, CEF 12, page 457.
The JDAP's position is consistent with the parties' position at trial, who agreed that Main Roads' concerns fell outside the scope of the amendment application before the JDAP.[60]
Lot 12 development application
[60] Primary reasons [63].
At the same time that the 2018 amendment application was being considered in respect of the Property, a development application for the development of Lot 12 as a service station was being considered.
On 16 August 2018, Main Roads provided a letter supporting the development of Lot 12 subject to conditions being imposed for the proposed interim access management. Those conditions included a condition that, in constructing a left in/left out access near the easternmost boundary of Lot 12, the owners would pay for the construction of a solid median strip on Thomas Road to prevent right out movements onto that road.[61]
[61] Primary reasons [24]; exhibit 4, JPM 28, GAB 389 - 391.
On 29 October 2018, the JDAP gave development approval to the owners of Lot 12, subject to conditions. Condition 11 of the approval required the construction of a solid median strip on Thomas Road, which would have prevented the full movement access to Lot 196 (the Property).[62]
[62] Primary reasons [25].
On 14 June 2019, Smith J made orders quashing, in part, the development approval for Lot 12. Relevantly, her Honour found that the imposition of condition 11 was inconsistent and incapable of reconciliation with the development approval for the Property given by the same JDAP.[63]
The 2019 crossover application
[63] Humich Nominees Pty Ltd v Metro East Joint Development Assessment Panel[2019] WASC 200.
On 29 March 2019, a representative of the appellants submitted an application for approval of two crossovers onto Thomas Road and for related works within the Thomas Road reserve. The application sought approval for the '[c]onstruction of one (1) full movement intersection and one (1) "left out" crossover in accordance with JDAP Approval dated 6 November 2018'.[64]
[64] Primary reasons [67]; exhibit 1.1, RH 11, GAB 118, 120.
The application enclosed a design report for the closure of the two existing driveways on the Property and the construction of two new crossovers onto Thomas Road: an entry and exit/slip lane, and a left turn exit only.[65] It is evident from a comparison between the drawing approved by the JDAP[66] and the drawings included in the design report[67] that the works proposed to be undertaken within the Thomas Road reserve were more extensive than those that had previously been approved. The primary judge found that the design report drawings showed substantial modification within the road reserve not shown on the approved drawings, including the extension of existing median strips, the creation of a slip lane for traffic turning right from Thomas Road into the Property and also a slip lane for traffic turning left.[68] That finding is challenged on appeal.
[65] Primary reasons [68]; exhibit 1.1, RH 11, GAB 142.
[66] Exhibit 1.1, RH 8, GAB 113, RH 11, GAB 162.
[67] Exhibit 1.1, RH 11, GAB 124, 126, 131.
[68] Primary reasons [69].
On 2 April 2019, the appellants' crossover application was forwarded to the Commissioner.[69]
[69] Primary reasons [67]; exhibit 4 [3.27], GAB 280.
There followed correspondence between Main Roads employees and the appellants' traffic expert (Cardno) as to the crossover application, which culminated in an email on 10 April 2019 advising Cardno that the Commissioner was not prepared to grant approval for the appellants' crossover application. On appeal, the appellants rely upon the contents of this correspondence as containing the 'reasons for decision' of the Commissioner.
On 5 April 2019, an officer of the Commissioner sent an email to Cardno saying that 'the design drawing submitted did not comply with the original DA approval'.[70] That email enclosed internal correspondence between Main Roads employees. Relevantly, there was an email that stated the following:[71]
The drawings submitted by CARDNO are totally incorrect.
[J]ust to give you a quick background on this one - the existing Oakford Traders premises will be demolished once their new premises are built which comprises of a new petrol station/convenience store slightly east of the existing premises. Due to the road environment, & road geometry changing plus the proposed development on Lot 12 for a similar petrol station immediately north, the access arrangements had to be reviewed from what was previously provided by MRWA back in 2013.
The applicant for Lot 196 is only permitted 2 left in/left out crossovers on Thomas Road and the one at the eastern extent will require a left turning deceleration lane. A solid median needs to be shown along the whole extent across these accesses and beyond to where they have shown it with their left deceleration lane to prevent motorists carrying out u‑turns.
In their drawings they have depicted a right turning pocket, a full movement on the eastern extent with a break in the median. The angle of the crossover for left in on the eastern extent may also be less than 70 degrees. It appears to me that they are trying to get this approved via other avenues within MRWA and defying the Main Roads & JDAP planning approvals recently given. (underlining in original)
[70] Exhibit 1.1, RH 12, GAB 250.
[71] Exhibit 1.1, RH 12, GAB 250 - 251.
The reference in this email to the JDAP planning approval recently given would appear to be referring to the 29 October 2018 approval concerning Lot 12, including its condition 11, as outlined in [59] above. The email was written before Smith J's decision to quash the condition was made.
On 9 April 2019, Cardno responded to the officer's email, saying:[72]
I believe there may be some misunderstandings on Main Roads' part as to the JDAP decisions for Oakford Traders:
1.Firstly, the original Oakford Traders buildings will not be demolished. An application to retain those buildings (by minor variation of the approval) will be heard by JDAP on 15 April. The Council of the Shire of Serpentine Jarrahdale has approved an RAR which recommends that these buildings be allowed to remain.
2.The JDAP approval dated 6 November 2018, despite resistance from both the Shire and Main Roads WA, approved the construction of two new crossovers from the proposed redevelopment to Thomas Road. I attach a copy of the approval. If you refer to pages 9 & 10 of the attached PDF you will see that the approved westernmost crossover is a left-out and the approved easternmost crossover is a full movement access. No median strip was required by JDAP to be constructed.
3.Your comment regarding the angle of the 'left in' crossover is noted - we are happy to discuss adjusting this aspect of the design, if needed, as part of the 15% Design Review.
The application as drawn reflects the approvals Oakford Traders enjoys and I would be most appreciative if we could now move on with this application.
[72] Exhibit 1.1, RH 13, GAB 255.
There followed a response from the Main Roads officer that referred to Main Roads' letter of 4 September 2018 (see [49] above) and its statement that two accesses were approved and both were left in/left out only.[73]
[73] Exhibit 1.1, RH 14, GAB 257.
Cardno's response to the officer's email reflects the appellants' position in these proceedings:[74]
[T]he design we have submitted to Main Roads accords with the development approval issued by JDAP on 6 November 2018 … In the planning process, Main Roads is a referral agency and not a decision maker. JDAP received the advice from Main Roads and listened to a submission by Mr Zagorac who is in the MRWA Planning Section but implicitly has rejected that advice by refusing to alter that access in the approval it gave to my clients as requested by the Shire.
Cardno requested Main Roads to 'initiate the technical design review of this application in accordance with the current, valid JDAP approval'.
[74] Exhibit 1.1, RH 15, GAB 258.
On 10 April 2019, a different officer of the Commissioner responded to Cardno's email, indicating that the Commissioner was not prepared to grant approval for the crossover application:[75]
Main Roads is a part of the planning process only as a referral agency and should a referral agency [sic] ignore such advice from Main Roads, then the approval can either be ambulatory or at risk of nonoperational approval. It is my understanding you are familiar with these terms.
In regard to approval, JDAP is not conferred powers under regulation 297 of the Road Traffic Code 2000. Main Roads is the sole authority for this and as such I consider the JDAP have issue[d] an approval potentially beyond their powers. Unless you can demonstrate to the contrary - our position remains and that is Main Roads has not granted this approval. This message was clearly provided in our letters.
…
Should you wish to meet with Justin or myself to try and resolve this access issue (for support of left in and left out only) I am available but not until approximately 4 weeks time. Justin is the same. Attached is [our] letter and position statement. In addition if the Local Government or the WAPC don't follow due process, that is referring material to Main Roads - this also results in a nonoperational approval and does occur from time to time unfortunately.
The attachment referred to was a copy of Main Roads' letter of 4 September 2018 - see [49] above.
[75] Exhibit 1.1, RH 16, GAB 260.
In the course of further correspondence on 10 April 2019 about whether or not the Main Roads officer had been present at a particular JDAP meeting, the officer stated: 'As you are well aware, Main Roads of late is rather firm with our position statements'.[76]
[76] Exhibit 1.2, RH 18, GAB 264,
On 16 April 2019, a Shire officer advised the appellants' solicitor that the Shire was unable to provide approval for the crossover application without Main Roads' approval.[77]
[77] Exhibit 1.2, RH 20, GAB 271.
Statutory framework for consideration of the crossover application
The Commissioner is appointed under s 7 of the Main Roads Act 1930 (WA) (the MR Act). The long title of the MR Act is:
An Act to consolidate and amend the law relating to and making provision for the construction, maintenance, and supervision of highways, main and secondary roads, and other roads, the control of access to roads and for other relative purposes.
Under s 28A, on the recommendation of the Commissioner the Governor may, by proclamation, declare that any section or part of a road is subject to control of access, and the places only at which it may be entered or departed from.[78] There is no right of access into or from a section or part of a road subject to control of access except at the places provided pursuant to the provisions of the MR Act for the purpose.[79] Where a right of access to a road is extinguished as a result of any declaration under s 28A, the owner of the adjoining land is entitled to compensation for the depreciation in the value of the land caused by the extinguishment.[80]
[78] MR Act, s 28A(1B)(a).
[79] MR Act, s 28A(2A).
[80] MR Act, s 28A(2B).
By s 13(1), on the recommendation of the Commissioner, the Governor may declare that any section or part of a road shall be a highway. The absolute property in the land over which a highway is declared is vested in the Crown,[81] and the Commissioner has the care, control and management of the land over which a highway is declared.[82]
[81] MR Act, s 15(1).
[82] MR Act, s 15(2).
Thomas Road is a declared highway under s 13(1) of the MR Act.[83]
[83] Western Australia, Government Gazette, No 82 (30 May 2008) 2063.
It was common ground at trial that the appellants were seeking to construct a crossing from private land to a public thoroughfare.[84]
[84] Primary reasons [72].
Section 9.60(1) of the Local Government Act 1995 (WA) (the LG Act) provides that the Governor may make regulations that are to operate as if they were local laws for each district to which they apply. By s 9.60(2), regulations made under the section may deal with any matter specified in sch 9.1. Clause 7(2) of sch 9.1 provides that regulations may be made about 'crossings from public thoroughfares to private land or to private thoroughfares'.
In exercise of the power conferred by cl 7(2) of sch 9.1 to the LG Act, the Governor made reg 12 and reg 14 of the Local Government (Uniform Local Provisions) Regulations 1996 (WA) (the LG (ULP) Regulations). Those regulations provide, so far as is relevant, as follows:
12.Crossing from public thoroughfare to private land or private thoroughfare - Sch. 9.1 cl. 7(2)
(1)Upon the application of the sole owner, or a majority of the owners, of private land the local government may, in writing and subject to regulation 14(2) -
(a) approve the construction, under the supervision of, and to the satisfaction of, the local government, of a crossing giving access from a public thoroughfare to -
(i) the land; or
(ii) a private thoroughfare serving the land;
…
(2) A person is not to construct a crossing for vehicles from a public thoroughfare that is a Government road to -
(a) land on which premises have been or are about to be constructed; or
(b) a private thoroughfare serving the land,
unless the construction of the crossing has been approved by the local government under subregulation (1) and the crossing is constructed in accordance with the approval.
Penalty:a fine of $5 000.
…
14.Role of Commissioner of Main Roads in some cases - Sch. 9.1 cl. 7(2)
(1)This regulation applies to a crossing for vehicles from a public thoroughfare that is a Government road to -
(a) land on which premises have been or are about to be constructed; or
(b) a private thoroughfare serving the land.
(2) A local government cannot -
(a) under regulation 12 construct or approve the construction of; or
(b)under regulation 13(1) require the construction of,
a crossing to which this regulation applies unless the local government has consulted with the Commissioner and the Commissioner has approved in writing the construction of the crossing.
(3) If a person -
(a) constructs a crossing to which this regulation applies other than in accordance with approval given by the Commissioner under this regulation; or
(b) modifies a crossing to which this regulation applies in such a way that it is not in accordance with approval given by the Commissioner under this regulation,
the Commissioner may, by notice in writing, require the person to bring the crossing into accordance with the approval, if approval was given, or remove the crossing and restore the place where the crossing was to its former condition.
(4) If the person fails to comply with the notice, the Commissioner may do anything required by the notice to be done and recover the cost of doing it as a debt due from the person.
(5) A person given a notice under subregulation (3) must comply with the notice.
Penalty:a fine of $5 000.
…
(7) In this regulation -
Commissioner means the Commissioner of Main Roads.
(emphasis added)
A 'Government road' is defined to include a declared highway under the MR Act.[85]
[85] LG (ULP) Regulations, reg 4 (definition of 'Government road'), read with MR Act, s 6 (definition of 'highway').
Regulation 297 of the Road Traffic Code 2000 (WA), made pursuant to s 111 of the Road Traffic Act 1974 (WA), relevantly provides:
297.Power to erect traffic-control signals and road signs
…
(4)A person shall not, without the consent of the Commissioner of Main Roads, remove, take down, damage, deface or interfere with any road sign, road marking or traffic-control signal.
Modified penalty: 1 PU
(4a)A person shall not erect, establish, place, maintain or display -
(a)a traffic sign; or
(b)a traffic-control signal; or
(c)a road marking,
on a road, unless that person -
(d)is authorised to do so by the Commissioner of Main Roads; or
(e)has the consent of the Commissioner of Main Roads to do so under this regulation; or
(f)is otherwise entitled to do so under a written law of the State.
Modified penalty: 1 PU
The appellants' application for judicial review
The appellants sought judicial review of (i) the refusal by the Commissioner, on 10 April 2019, to assess and communicate approval to the Shire of the crossover application and (ii) the refusal by the Shire, on 16 April 2019, to process and/or approve the crossover application.
The appellants put forward eight grounds in support of their application for judicial review. Grounds 1 - 4 were, in substance, a pleading of the background facts and need not be set out. Ground 5 sought a declaration, ground 6 sought a writ of certiorari, ground 7 was a ground of 'legal unreasonableness' and ground 8 sought a writ of mandamus. Grounds 5 - 8 were in the following terms:
5.The Applicants seek a declaration that:
(a)the Applicants are not required, as a matter of law, to make application to the [Commissioner] for approval of the cross over design or to construct the resulting works;
(b)the power to approve the crossover design from lot 196 to Thomas Road rests with the [Shire] pursuant to regulation 12 of [the LG (ULP) Regulations];
(c)no power under Regulation 297 of the Road Traffic Code 2000 involves any obligation on the part of the Applicants to obtain approval from the [Commissioner]; and
(d)the [Commissioner's] statutory power and duty in regulation 14(2) of the [LG (ULP) Regulations] (regulation 14(2)):
i) is to be exercised as a referral authority;
ii) does not constitute a separate power of approval in respect of the cross over design which power is exercisable by the Second Respondent;
iii)in respect of both Regulation 14(2) and his management care and control of the Thomas Road reserve must be performed reasonably, consistently and conformably with the Applicants' Approval; and
iv) in respect of both Regulation 14(2) and his management care and control of the Thomas Road reserve may not be exercised so as to bring about a different or conflicting outcome to the Applicants' Approval.
(e)s 28A of the [MR Act] is the only statutory power the [Commissioner] may exercise to shut the approved full movement access to a highway or main road.
6.If, which is denied, there is at law an obligation for the Applicants to obtain separate approval from the [Commissioner] to the cross‑over design then the Applicants seek a writ of certiorari quashing the [Commissioner's] decision to refuse the crossover design on the grounds that:
(a) the power to assess, approve or refuse the crossover design must be exercised reasonably and in conformity with the Applicants' Approval[;]
(b) the decision by the [Commissioner] to refuse to assess and/or grant such approval was legally unreasonable in that the [Commissioner] sought to assert a power to usurp the effect of the Applicants' Approval; and
(c) the decision by the [Commissioner] to refuse to assess and/or grant such approval was legally unreasonable and beyond power having regard to the Applicants' Approval.
7.The [Commissioner] has demonstrated legal unreasonableness by:
7.1supporting a full movement access on lot 196 in 2013 after a thorough review of road conditions and safety, consistently supporting or not objecting to it in 2015 and 2017 (on two occasions at both a meeting with the Applicants and Caltex and before the 2018 extension by JDAP) and objecting to it in September 2018 without any change of circumstance or justification of that position in the knowledge that JDAP had approved and reapproved a redevelopment of lot 196 including the full movement access;
7.2 supporting an access from lot 12 onto Thomas Road in a position opposite to the full movement access on the basis that access from lot 12 would only be safe if a median was built which in turn would frustrate the full movement access on lot 196 approved and reapproved by JDAP;
7.3 requiring the proponent of lot 12 to fund and construct the median thus resulting in the [Commissioner] avoiding compliance with s 28A of the [MR Act];
7.4 from March 2018 onwards ending in the emails of April 2019 between Cardno and the [Commissioner] demonstrating a closed mind or prejudgment bias to an approval of the full movement access on lot 196;
7.5 refusing to consider or progress a proposal by the Applicants that the full movement access be moved further east to avoid conflict with both the proposed roundabout and the access on lot 12 (which, if supported, could have been achieved by amendment of the JDAP approval);
7.6 by constraining the [Shire] from granting an approval under regulation (14(2)) by refusing or failing to assess the merits of the crossover design;
7.7 by asserting without statutory justification that JDAP had no power to approve a full movement access on lot 196;
7.8 by attempting to usurp the role of JDAP by forcing an outcome on the crossover design in conflict with the JDAP approvals for lot 196;
7.9 by failing to act in good faith[.]
8.The Applicants seek a writ of mandamus against:
a)the [Commissioner] compelling the [Commissioner] to:
i)reasonably assess the cross over design consistently and conformably with the Applicants' Approval;
ii) liaise in good faith with the Applicants as to any reasonable amendments required consistently and conformably with the Applicants' Approval; and
iii)to communicate an approval to the [Shire] pursuant to regulation 14 of the [LG (ULP) Regulations] within a period of no longer than 60 days, to enable the [Shire] to make a decision pursuant to regulation 12 of the [LG (ULP) Regulations]; and
b)the [Shire] compelling the [Shire], within 14 days of receipt of an approval from the [Commissioner] pursuant to regulation 14 of the [LG (ULP) Regulations], to approve the cross over design according to law.
The primary judge's decision
After setting out the factual background and statutory framework, the primary judge turned to consider the operation of reg 12 and reg 14 of the LG (ULP) Regulations and their effect in the present case on the appellants' applications for certiorari and mandamus against the Commissioner. His Honour's reasons for dismissing those applications were succinct and may be set out in full:[86]
[86] Primary reasons [79] - [85].
[79]The applicants submit that the effect of reg 12 is that the Shire is the decision maker in respect of the applicants' crossover application; the Commissioner has the ability to constrain an approval by the second respondent but is not the decision maker. The distinction they draw is of no practical application. The Shire is required to consult with the Commissioner and obtain its approval in writing. The Commissioner's decision whether to give written approval is a condition of the Shire exercising its power to approve the crossover.
[80] On the applicants' case the Commissioner has a power of approval, but that power is 'overridden' by the grant of development approval, so that the discretion of the Commissioner is constrained and can only be exercised 'consistently and conformably' with a granted approval. But whether the Commissioner is constrained to approve an application that is pursuant to and consistent with the JDAP approval does not arise in the circumstances of this case.
[81] The court is not concerned with a hypothetical issue, but with the lawfulness of the decision made by the Commissioner on the specific application before him. As counsel for the Commissioner submitted, the actual application before the Commissioner (that is, the application dated 29 March 2019) was not simply for two crossovers onto Thomas Road, but required 'construction of a slip lane, median island … a right-turn lane into the subject land, and substantial works within the road reserve …'.
[82] The application for certiorari hinges on whether the Commissioner was constrained in dealing with the application before it by the applicants' JDAP approval.
[83] Two points can be made immediately. First, the authority of the JDAP with respect to the development application did not extend to the road reserve, which is not part of the land the subject of the development application. Second, the submitted crossover design departed significantly from the approved drawings, in particular in relation to the extent of alteration of the road reserve.
[84] The consequence of those preliminary points is that, even if the Commissioner was constrained in exercising its powers under reg 14 by the applicants' development approval, it was not required to approve construction of the crossovers pursuant to the specific application that was made to it. The content of that application lay outside what the JDAP had authority to approve and what it had, in fact, approved.
[85] The application for mandamus against the Commissioner must fail for the same reasons. (footnote omitted)
Ground 1 challenges this reasoning and its conclusions.
Having reached these conclusions, the judge turned to consider the application for declaratory relief. His Honour noted that the declaration sought by the appellants in ground 5 was general in nature, relating to the nature of the Commissioner's power and in particular whether the power under reg 14 of the LG (ULP) Regulations had to be exercised 'reasonably, consistently and conformably with the Applicants' Approval'.[87] In dismissing the application for declaratory relief, his Honour gave the following reasons:[88]
[87]The power to grant declaratory relief is a power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise'. Factors to which the courts generally have regard include whether the proposed declaratory order will produce no foreseeable consequences for the parties; whether the relief is directed to determining a legal controversy and not to answering some abstract or hypothetical question; and whether the applicant for relief has a real interest in raising the questions to which the declaration would go.
[88] A declaration must, however, state the precise legal effect of the rights of the parties. It must do 'more than declare that the law dictates a particular result when certain facts in the material or pleadings are established'.
[89] I have set out my opinion on the effect of reg 12 and reg 14 of the [LG (ULP) Regulations] and in particular that, pursuant to reg 14, the Commissioner may give or refuse its written approval for a crossing from Lot 196 onto Thomas Road, at its discretion. As this case has demonstrated, whether that power is constrained in respect of a particular crossover design, by reference to an existing development approval, is fact specific. (footnotes omitted)
Ground 4 on appeal challenges the judge's decision to dismiss the application for declaratory relief.
[87] Primary reasons [86].
[88] Primary reasons [87] - [89].
In response to the appellants' submission that the Commissioner had reached a pre-determined position that he would not approve a 'works approval' for full movement access, the judge stated that the Commissioner's expression of such a position was not itself a decision or conduct subject to judicial review.[89]
[89] Primary reasons [90].
As to the appellants' argument of legal unreasonableness, the judge found that it could not be said that the Commissioner's decision lacked an evident and intelligible justification when regard was had to the content of the crossover application and to the current status of Thomas Road and the planned changes to the carriageway in the section in front of the appellants' land.[90] Ground 2 challenges this conclusion.
[90] Primary reasons [94].
For the above reasons, his Honour dismissed the applications for prerogative and declaratory relief against the Commissioner.[91]
[91] Primary reasons [95].
Given his finding that the approval of the Commissioner conditioned the power of the Shire to approve the crossover, the judge also dismissed the application for mandamus against the Shire.[92] There is no challenge on appeal to that conclusion.
[92] Primary reasons [96].
Grounds of appeal
The appellants appeal against the primary judge's decision to refuse relief against the Commissioner on three grounds. A fourth ground was abandoned at the hearing of the appeal.[93] The grounds are, with respect, not a model of clarity. They are in the following terms:
[93] Appeal ts 24.
1.The primary Judge erred in law:
1.1in finding that the authority of the JDAP did not extend to the road reserve [83] - [85] and therefore, by implication, did not extend to approving locations and types of points of access from the Property to the road reserve; and
1.2in concluding that because the details of the Appellants' crossover design departed significantly from the JDAP approved drawings, without any evidence either to that effect or what degree of departure may be considered to be 'significant', the [Commissioner] was not required to approve the crossover design [83] - [85] when his Honour should have found that insofar as the Appellants' crossover design and the JDAP approved drawings both provided for a full movement crossover the [Commissioner] was obliged, in considering the crossover design and its approval, to act consistently and conformably with both his own decision in 2013 to approve the full movement access and the JDAP approval of the full movement access on the eastern boundary of lot 196; and
1.3in failing to find that the [Commissioner's] refusal to exercise its discretion with regard to the Crossover Application itself wrongly rejected the decision of JDAP and asserted an independent, arbitrary and capricious position as to the access issue by the [Commissioner] which was legally unreasonable.
2.The primary judge erred in law in concluding that the [Commissioner's] decision to refuse to assess or determine the Crossover Application was not legally unreasonable [94] when the position was and his Honour should have found that:
2.1the [Commissioner] had a statutory duty to assess and determine the Appellants' application for a crossover approval for a left in/left out and full movement access on lot 196 (the Crossover Application) and that he had failed/refused to so assess and determine the Crossover Application;
2.2 there was no evident, transparent, or intelligible reason justifying the failure/refusal to assess and determine the Crossover Decision [93];
2.3 the position adopted by the [Commissioner] in previous considerations occurring prior to the making of the Crossover Application dictated the failure/refusal to assess and determine the Crossover Application thereby demonstrating apprehended bias; and
as such the actions of the [Commissioner] were legally unreasonable.
3.[abandoned]
4.The primary judge erred in law in failing or refusing to grant declarations in accordance with [5] of the Amended Application for Judicial Review when his Honour should have found that the Appellants had a real interest in raising the questions to which the declarations would go; that the declarations sought were referable to the facts of the matter, had foreseeable consequences for the parties, were capable of determining a legal controversy and were not directed to answering some abstract or hypothetical question [86] - [89].
Ground 1.1: the extent of the JDAP's powers
The appellants contend that the judge erred in law in finding that the authority of the JDAP did not extend to the road reserve and therefore, by implication, did not extend to approving locations and types of points of access from the Property to the road reserve.[94] They submit that the JDAP approval was an approval for development on the appellants' land which necessarily must and did include how and where access and egress to the appellants' land would be effected as part of the approval.[95] They contend that the Commissioner, in considering the crossover application, had to respect and accommodate the accesses approved by the JDAP - they could not 'subvert and in substance defeat the legally valid and binding approval obtained from [the] JDAP'.[96]
[94] Particular 1.1 of ground 1.
[95] Appellants' submissions [34].
[96] Appellants' submissions [36], [38].
In finding that the authority of the JDAP did not extend to the road reserve,[97] the judge was, with respect, plainly correct. The appellants concede as much.[98] To state the obvious, the grant by the JDAP of development approval in relation to the Property provided authority, for the purposes of TPS 2 and the PD Act, to the landowner to develop the Property in accordance with the approval without contravening TPS 2 or the PD Act. The care, control and management of Thomas Road, a declared highway, is vested in the Commissioner.[99] No provision of the PD Act suggests or indicates that the grant of planning approval under the PD Act to a landowner of land adjoining a highway affects the Commissioner's care, control and management of the highway. The road reserve is not part of the land the subject of the development approval. Nothing in the approval granted by the JDAP purported to approve, much less require, works within the road reserve of Thomas Road. Nor could it have done so.
[97] Primary reasons [83].
[98] Appeal ts 6.
[99] MR Act, s 15(2).
In oral submissions, the appellants clarified the point of ground 1.1. In short, it is to establish the proposition that the development approval identified and approved both (i) the location of the access points on the Property for the crossovers onto Thomas Road and (ii) the nature of the crossover at each access point (in other words, full movement or left in/left out).[100] It may be accepted that the development approval approved development to be carried out on the Property in accordance with the location and nature of the accesses approved. Contrary to the appellants' submissions, the judge did not find otherwise. As the appellants accepted,[101] the point they make by ground 1.1 does not establish their claim of jurisdictional error - it merely provides a step in the analysis they invite.
[100] Appeal ts 10 - 11.
[101] Appeal ts 11.
Insofar as the appellants contend that in considering the crossover application the Commissioner had to respect the location and nature of the accesses approved by the JDAP, and could not subvert the JDAP approval, we will deal with that contention under the rubric of ground 1.2.
For these reasons, ground 1.1 is not made out.
Grounds 1.2 and 1.3: requirement to act consistently and conformably with previous decisions
By these grounds, the appellants make two main complaints relating to consistency. They contend that the Commissioner was required to act consistently and conformably with (i) his decision to permit full movement access in the 2013 approval and (ii) the JDAP approval of the full movement access, and that the Commissioner failed in both respects.
Error in fact finding?
Under the rubric of these grounds, the appellants also make a preliminary complaint as to an aspect the judge's fact-finding. They contend that the primary judge erred in concluding, at [83], that the appellants' crossover design departed significantly from the JDAP approved drawings, when he had no evidence either to that effect or about what degree of departure might be considered 'significant'.
It is convenient to deal with the challenge to the judge's finding as to a significant difference first. The appellants submit that the application for judicial review did not assert that the full movement access on the approved plan was identical to the design in the crossover application, and nor was that a relevant issue in the appellants' case.[102] They assert in written submissions that there was no evidence from either party as to what differences there may have been and still less on the qualitative and highly subjective expert question as to whether any such changes were 'significant'. Thus, they submit, his Honour misdirected himself.[103]
[102] Appellants' submissions [35].
[103] Appellants' submissions [37].
There is no merit in this complaint. The differences are, as the judge observed, readily apparent from a comparison between the drawing approved by the JDAP[104] and the drawings included in the design report.[105] The works proposed to be undertaken within the Thomas Road reserve were more extensive than those that had previously been approved. As the primary judge found, the design report drawings showed substantial modification within the road reserve not shown on the approved drawings, including the extension of existing median strips and the creation of a slip lane for traffic turning right from Thomas Road into the Property.[106] As the appellants accepted at the hearing of the appeal,[107] no expert evidence was required to make such a finding. Nor did the judge need expert opinion in order to form the evaluative judgement that such differences were significant.
[104] Exhibit 1.1, RH 8, GAB 113, RH 11, GAB 162.
[105] Exhibit 1.1, RH 11, GAB 124, 126, 131.
[106] Primary reasons [69].
[107] Appeal ts 15.
In oral submissions, while conceding the existence of the additional modifications inside the road reserve referred to in [99] above, the appellants clarified their complaint as to the judge's finding that there was a significant difference between the drawing approved by the JDAP and the drawings included in the design report. The appellants contend that, given both sets of drawings show access points in the same location and of the same nature, such differences as there were, including those already mentioned, cannot properly be described as significant.[108] The foundation of that submission is the appellants' contention that the JDAP's decision as to the location and nature of the access points bound the Commissioner. We turn to that contention and to the appellants' substantive complaints of inconsistency.
Inconsistency between 2013 'decision' and 2019 decision?
[108] Appeal ts 15.
As already noted, the appellants submit that the Commissioner was required to be consistent in two relevant senses: (i) his decision-making between 2013 and 2019 had to be consistent; and (ii) the exercise of his discretion on the crossover application had to be consistent with the JDAP's approval of full movement access.[109]
[109] Appellants' submissions [39].
As to the first, the appellants submit that the Commissioner raised no objection to a full movement access on the Property between the initial development application in 2013 and the letter of 4 September 2018.[110] They assert that nothing changed between 2013 and 2018 that warranted or justified any change in the Commissioner's approach to the full movement access. Because the Commissioner approved the full movement access in 2013, he 'should be bound to the consistency of [his] decision making'.[111]
[110] Appellants' submissions [40].
[111] Appellants' submissions [48].
These submissions cannot be accepted. To say, as the appellants do, that the Commissioner raised no objection to full movement access, is a materially incomplete statement of the Commissioner's position. As already noted, from the outset in dealing with the 2013 development application, Main Roads flagged that full movement access would 'revert to a left in - left out access only' when Thomas Road was duplicated. The clear implication from this was that full movement access would cease to be available when Thomas Road was duplicated. The applicants for the development approval were made aware of that position in the course of the 2013 development application. By the time the crossover application was made in 2019, circumstances had materially changed - changes to the treatment of the intersection of Thomas and Nicholson Roads were under contemplation. The intersection works will involve duplication of Thomas Road in this location.[112]
[112] Primary reasons [39]; exhibit 4 [9.1], [9.6], GAB 286, 287.
Further, there was no inconsistency in decision-making because the Commissioner has only been called upon to make, and has only made, one decision - the rejection of the crossover application. The position adopted by the Commissioner in the course of consultation concerning the 2013 development application did not involve the Commissioner making any decision in the relevant sense. In oral argument, the appellants accepted that this was so.[113]
[113] Appeal ts 9.
The appellants rely on what was said by this court's predecessor in Dilatte v MacTiernan as to the importance of consistency in decision‑making.[114] This case does not assist the appellants. Dilatte was concerned with the potential significance of a lack of consistency in a number of development application decisions made by the decision‑maker with statutory responsibility. As we have said, the present case is not of that character - the Commissioner has only been called upon to make one decision.
Inconsistency with the development approval?
[114] Appellants' submissions [49], referring to Dilatte v MacTiernan [2002] WASCA 100 [51], [52], [58], [61] ‑ [63].
As to the second aspect of alleged inconsistency, the appellants submit that the statutory role of the JDAP is overarching: while it must give due regard to the views of statutory bodies, such as the Commissioner, the JDAP is the central control or repository of the high level decision‑making.[115] They submit that once central control is exercised by the JDAP in giving approval pursuant to the PD Act, 'ancillary decisions' such as a crossover pursuant to reg 12 and reg 14 of the LG (ULP) Regulations 'must be in broad conformity with the development approval'.[116] While the Commissioner may legitimately work with the appellants on matters of practical detail, he cannot make decisions antithetical to the JDAP's approval.[117]
[115] Appellants' submissions [43].
[116] Appellants' submissions [44].
[117] Appellants' submissions [45] - [46].
The appellants submit that the location and nature (in other words, whether full movement or left in/left out only) of the access points were determined by JDAP and could not be revisited by the local authority under reg 12 or by the Commissioner under reg 14.[118]
[118] Appeal ts 7 - 12.
These submissions are flawed both in law and in fact.
We begin with the legal flaw. These submissions cannot simply be asserted; they must be made good as a matter of, and by a process of, statutory construction. The statutory basis for these submissions was not the subject of detailed submissions, either orally or in writing. In written submissions, the appellants point to the wide scope of matters to which the JDAP is to have regard, under cl 67 of the deemed provisions, in approving a development.[119]
[119] Appellants' submissions [42] - [43].
The breadth of considerations to which the JDAP is to have regard, whether under the deemed provisions post-19 October 2015 or under cl 6.4.2 of TPS 2 before that, falls well short of sustaining the appellants' argument. Nothing in the PD Act requires that when a development approval is given, other powers, conferred by a different statute, are to be exercised in any particular way. Under reg 14, a wide discretion is conferred on the Commissioner, subject only to such limitations as are to be derived from the subject matter, scope and purpose of the LG (ULP) Regulations. Nothing in the LG (ULP) Regulations expressly or impliedly constrains an exercise of discretion under reg 14 by reference to a development approval given by a planning authority.
In oral submissions, the appellants articulated the following steps in their argument:[120]
(1)in determining the development application, the JDAP stood in the shoes of the Shire as responsible authority;
(2)the primary decision‑maker in respect of a crossover application, to whom the application is made, is the Shire;
(3)it followed that it was 'inconceivable' that the Shire could have refused the crossover application, at least by reference to the location and nature of the crossovers; and
(4)it should be inferred that the Commissioner, whose role is secondary in nature and to whom an applicant makes no direct application, is similarly constrained.
[120] Appeal ts 7 - 12.
In substance, the third and fourth steps of these submissions do not go beyond mere assertion. They find no support in the text, context or purpose of the relevant statutory provisions. The third step in the appellants' argument does not follow as a matter of logic or as a matter of statutory construction. If two different statutes each vest a discretion in the same decision‑maker, it cannot thereby be assumed that a decision under one statute governs or constrains the exercise of discretion under the other statute. Whether and to what extent it does will be a matter of statutory construction inviting attention, among other things, to the text of the provision, and to the evident purposes of the relevant discretion and the considerations relevant to it.
The fourth step fails for those and additional reasons. While the ultimate decision under reg 12 rests with the Shire, the Shire's powers are conditioned by the need for approval in writing from the Commissioner.[121] The Commissioner's broad discretion is not expressed to be constrained by any previous decision of a different decision-maker, and no such implication can be drawn. Nothing in the regulations supports reading the breadth of considerations relevant to the Commissioner's discretion under reg 14 as constrained by reference to a decision made by a responsible authority in respect of a development application.
[121] Regulation 14(2) of the LG (ULP) Regulations.
In the context of ground 2, the appellants submit that reg 12 and reg 14 of the LG (ULP) Regulations support their case. They say that the $5,000 penalty for contravention of reg 12(2) indicates the 'relatively minor' role of the LG (ULP) Regulations in the overarching regulatory framework.[122] They submit that while the Commissioner can 'constrain' an approval by the Shire, the Shire (not the Commissioner) is the decision-maker.[123]
[122] Appellants' submissions [64].
[123] Appellants' submissions [65].
The first of these submissions involves a form of statutory analysis not supported by authority or principle. There is no basis for classifying various statutory provisions, each of which regulates a specified species of conduct and which may have overlapping operation to a given development, into a hierarchy - based on the level of penalty for breach - under which a power exercised under a provision lower in the hierarchy must be exercised consistently with the exercise of a 'higher' power.
The latter submission mirrors a submission made to the primary judge. For the reasons given by his Honour,[124] and for the reasons in [113] above, it does not assist the appellants.
[124] Primary reasons [79], see [84] above.
Secondly, as to the factual flaw, as the judge found, even if the Commissioner were, in principle, constrained in exercising power under reg 14 by the existence of the development approval, on the facts of the present case that would not avail the appellants. That is because the Commissioner was not required to approve the crossover application as its content extended materially beyond what the JDAP had authority to approve and what it had, in fact, approved.[125]
[125] Primary reasons [84].
Grounds 1.3 and 2: legal unreasonableness
By these grounds, the appellants impugn the judge's finding that the Commissioner's decision to refuse the crossover application was not legally unreasonable. They complain that:
(1)the Commissioner had a statutory duty to assess and determine the appellants' crossover application and that he failed or refused to do so;
(2)there was no evident, transparent or intelligible reason justifying the failure or refusal to assess and determine the crossover application - the Commissioner's position was arbitrary and capricious; and
(3)the Commissioner's actions demonstrated apprehended bias.
We will consider these complaints in turn.
Statutory duty to assess and determine
The appellants submit that, because the Commissioner has no difficulty with a left in/left out access on the Property, the clear inference is that he has refused to assess or determine a full movement access.[126] They submit that by refusing to perform his statutory duty to assess and determine the crossover application, the Commissioner has unreasonably constrained the decision-making powers of the JDAP.[127]
[126] Appellants' submissions [50].
[127] Appellants' submissions [71].
This submission is based on a misconception of the effect of the Commissioner's email of 10 April 2019 and of the Commissioner's position generally. The Commissioner has not refused to assess and determine the crossover application; by the email of 10 April[128] he refused the application. That the Commissioner was not prepared to approve a full movement access does not amount to a failure to exercise his statutory duty under reg 14(2) of the LG (ULP) Regulations. The submission summarised in the first sentence of [120] above involves flawed logic. The Commissioner's willingness to accept a left in/left out access does not even arguably support, much less sustain, an inference that he refused to assess the application for full movement access. Rather, that willingness is an element of the Commissioner's position in, and reasons for, refusing the application for full movement access.
No evident, transparent or intelligible reason for decision
Legal principles
[128] See [70] above.
As will generally be the case with a statutory discretionary power, the Commissioner's power to approve is subject to the presumption of the law that the legislature intends the power to be exercised reasonably.[129] A decision may be legally unreasonable where it lacks an evident and intelligible justification.[130] While legal unreasonableness is fact dependent and requires a careful evaluation of the evidence, the ultimate question is whether the decision of the Commissioner was within the scope of the power conferred by reg 14.[131] That ultimate question reflects the nature of judicial, as distinct from merits, review.
Primary judge's reasons
[129] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [4], [53], [59], [80], [88], [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63].
[130] Minister for Immigration and Citizenship v Li [76].
[131] Minister for Immigration and Border Protection v SZVFW [53], [80]; Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [88].
The judge's reasons for rejecting the 'legal unreasonableness' element of ground 7 of the application before him were succinct, and may be summarised as follows. Taking into account (i) the content of the crossover application; (ii) the earlier findings concerning the current status of Thomas Road; and (iii) the earlier findings as to the planned changes to the carriageway in front of the Property, the decision could not be said to lack an evident and intelligible justification.[132]
[132] Primary reasons [94].
The reference to the content of the crossover application is to the fact that it did not simply apply for two crossovers but required construction of a slip lane, a median island, a right turn lane and substantial works all within the road reserve.[133] As to (ii) and (iii), the judge had earlier found that:[134]
(1)budget funding had been allocated to upgrade the intersection of Thomas Road and Nicholson Road;
(2)the upgrade was likely to commence in the following two years; and
(3)the upgrade would likely result in the duplication of Thomas Road in the vicinity of the Property.
Appellants' submissions and disposition
[133] Primary reasons [81].
[134] Primary reasons [38] - [39].
Whether the judge erred in finding that the Commissioner's decision was legally unreasonable is to be determined by this court by the correctness standard.[135] In our respectful view, as explained below, his Honour's conclusion was correct, essentially for the reasons he gave.
[135] Minister for Immigration and Border Protection v SZVFW [18], [55] - [56], [85] - [87], [154] - [155].
One strand of the appellants' case on unreasonableness, reflected in ground 1.3, relies on their contentions as to the primacy of the JDAP decision. The appellants submit, as an indication of the unreasonableness of the Commissioner's decision, that the Commissioner proceeded on the basis that he would decide for himself the questions of the location and nature of the access points.[136] For the reasons given in relation to ground 1.2, the Commissioner did not err in proceeding in that manner.
[136] Appeal ts 16 - 17.
The appellants submit that the Commissioner's reasons for his decision arise from the correspondence between Cardno and Main Roads' employees. It is not clear whether, in the appellants' submission, that correspondence (i) is limited to the email dated 10 April 2019 or (ii) includes both that email and the email dated 5 April 2019, to which some reference is made in the appellants' submissions.[137] In the appellants' submission, the court is confined to the reasons given by the decision-maker and cannot speculate as to things that may otherwise accord reasonableness to the decision.[138]
[137] See appellants' submissions [51] - [55].
[138] Appellants' submissions [94].
These submissions cannot be accepted. The Commissioner was not required to give, and the email of 10 April did not purport to be, formal reasons for decision. Where formal reasons for decision are neither required nor given, whether the decision lacks an evident and intelligible justification invites attention to the outcome of the exercise of power in the factual context in which the power was exercised.[139]
[139] ABT17 vMinister for Immigration and Border Protection [2020] HCA 34 [127]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 [45].
Even if, contrary to our view, the email of 10 April 2019 were treated as reasons for decision, that email must be read with its attachment, namely the Commissioner's letter of 4 September 2018.
The appellants submit that the reasons arising from the correspondence are not evident or intelligible and, even if they are, they do not justify the decision.[140]
[140] Appellants' submissions [55].
The appellants submit that the decision cannot be influenced by 'speculation' as to what the road treatment may become at some unknown point in the future.[141] In other words, they contend that the proposed duplication of Thomas Road was an irrelevant consideration. This appears to amount to a contention that a reasonable decision‑maker in the position of the Commissioner was not entitled to take into account the prospect of a future change in the road treatment surrounding the Property, at least unless such a change was practically certain or highly likely.
[141] Appellants' submissions [56].
The appellants further submit that at the date of the decision no road design of the road outside the Property had been finalised, let alone a design which justified removal of a full movement access.[142] In support of this proposition, they refer to the following evidence:
[142] Appellants' submissions [56], [96].
(1)The affidavit of a Main Roads employee, Mr Justin McKirdy, who deposed that:
(a)in September 2018 funding was not available for the upgrading of the intersection of Thomas Road and Nicholson Road;[143] and
[143] Appellants' submissions [98], referring to exhibit 4 [8.1], GAB 285.
(b)in October 2018 it was unclear when the dual carriageway on Thomas Road would be constructed.[144]
[144] Appellants' submissions [99], referring to exhibit 4 [4.12], GAB 281.
(2)The email of a legal representative of the Commissioner on 20 June 2019, which states:[145]
In relation to documents relating to the award of funding for the upgrade of the intersection of Thomas and Nicholson Road, please find attached a copy of the Federal Budget Paper No. 2 (see relevantly p144) and the WA State Budget Paper No. 2 Vol 2 (see relevantly p537). I also attach a schedule of WA projects under the National Partnership Agreement (see relevantly p7), which is provided for the purposes of these proceedings only.
In relation to documents relating to duplication of Thomas Road on the boundary of Lot 196, I am awaiting further instructions, but am advised of the following Main Road WA current nominal schedule (subject to review/change):
Detailed design 2019/20
Service relocations 2020/21
Construction 2021/22
The budget documents referred to in the email make provision for funding for 'Thomas Road and Nicholson Road'.[146]
[145] Appellants' submissions [96], referring to exhibit 1.2, RH 7, GAB 890.
[146] See exhibit 1.2, RH 7, GAB 892, 893, 895.
The appellants submit that the Commissioner has adduced no evidence as to the detail of how the funding will be allocated, including whether there is funding for the duplication of Thomas Road.[147] They also point out that the federal budget document (2 April 2019) was published after the Commissioner's position as to full movement access had been made known (4 September 2018).[148]
[147] Appellants' submissions [101.2].
[148] Appellants' submissions [112].
The appellants further submit that the Commissioner has failed to demonstrate that (i) duplication is required, (ii) there is any reasonable requirement for the extension of the median strip and (iii) full movement access is incompatible with the upgrades planned for the intersection.[149]
[149] Appellants' submissions [101.4] - [101.7], [102], [112] - [113].
The appellants assert that the Commissioner's deliberative process falls so far short of what may be considered reasonable that it amounts to an abuse of power.[150]
[150] Appellants' submissions [74].
The submissions in [131] cannot be accepted. To state the obvious, a decision‑maker is entitled, indeed often obliged, to have regard not only to the circumstances existing at the time of the decision, but also to what is known or expected to occur in the future. To do otherwise would be a recipe for planning chaos. In so proceeding, a decision‑maker is not confined to future events that are practically certain to occur. The degree of probability of a future event is part of what must be weighed in the balance.
Thus, the evaluation of what is likely to occur in the future does not warrant the appellants' pejorative characterisation of 'speculation'.
The judge considered the evidence and made the findings outlined in [124(1) ‑ (3)] above, none of which is challenged on appeal.
The appellants' submissions outlined in [132] and [133] above do not engage with these findings. In the light of these findings, which are unchallenged, those submissions fall well short of demonstrating the absence of an evident or intelligible justification for the decision or that the decision was otherwise beyond the scope of the power conferred by reg 14.
Further, the submission in the second sentence of [133] assumes, incorrectly, that what matters is the information that was available in September 2018, when (the appellants say) the Commissioner's objection to full movement access was made known. That is not the critical time - what is relevant is what was known when the crossover application was rejected on 10 April 2019. By then, the federal budget allocating $10 million to the upgrade of the intersection had been announced. Thus, the appellants' submission that the judge's findings outlined in [124(1) ‑ (3)] relate to matters 'after the event'[151] cannot be accepted.
[151] Appeal ts 22.
The appellants also point to the absence of reference to the budget allocation in the April 2019 correspondence.[152] While not spelled out, the implicit suggestion appeared to be that this indicates that the budget allocation played no part in the Commissioner's decision to refuse the crossover application. The judge found to the contrary - see [124] above - and the finding is not challenged. In any event, the appellants' submission fails because it attributes excessive significance to the correspondence in April 2019 in discerning the justification for the Commissioner's decision. The Commissioner was not required to give, and did not give, reasons for his decision.
[152] Appeal ts 22 - 23.
As to the submissions summarised in [134] above, on an application for judicial review it was and is not incumbent on the Commissioner to demonstrate the matters there referred to. The appellants' position appears to assume that there is, in these proceedings, an onus on the Commissioner to justify his decision. That is not so - in judicial review proceedings it is for the appellants, as applicants, to establish the absence of an evident and intelligible justification for the decision. The position as to the onus of persuasion may be otherwise in proceedings involving merits review.
The appellants submit that the inconsistency in the Commissioner's approach to the full movement crossover between 2013 and 2018 also constitutes legal unreasonableness.[153] For the reasons already given, (i) there was no material inconsistency in the position adopted by the Commissioner; and (ii) there was no inconsistency in decision-making because the Commissioner has only been called upon to make, and has only made, one decision.
[153] Appellants' submissions [57].
The appellants submit that the Commissioner's repeated reliance on reg 297 of the Road Traffic Code as a reason for refusal is misplaced, in error and has involved the Commissioner placing 'undue weight on an irrelevant consideration'.[154] They say that nothing in reg 297 requires the appellants to apply to the Commissioner for consent pursuant to it;[155] and, by his reliance upon it, the Commissioner has conflated different statutory provisions and requirements.[156] The appellants submit that the Commissioner has identified no statutory provision or subsidiary legislation that requires a proponent of a development to obtain the approval of the Commissioner to carry out works in a road reserve.[157]
[154] Appellants' submissions [58], [62].
[155] Appellants' submissions [61].
[156] Appellants' submissions [67].
[157] Appellants' submissions [62].
We do not accept these submissions. The Commissioner's reference, in the email of 10 April 2019, to reg 297 of the Road Traffic Code does not demonstrate that the Commissioner's decision exceeded the power conferred upon the Commissioner under reg 14. The crossover application included a line‑marking and signage plan proposed to be installed as part of the works within the Thomas Road reserve.[158] By reg 297(4a) of the Road Traffic Code, it is an offence to erect, establish, place, maintain or display a traffic sign or a road marking without the authorisation of the Commissioner. The statement in the Commissioner's email that the JDAP 'was not conferred powers under reg 297 of the Road Traffic Code' was correct. A decision of the JDAP under a local planning scheme does not constrain the Commissioner's decision‑making as to road signage and line marking.
[158] Exhibit 1.1, RH 11, GAB 131.
In written submissions, the appellants assert that the Commissioner's conduct concerning Lot 12 demonstrates that he has not acted in good faith. Despite knowing that it would conflict with the Property's approved full movement access, the Commissioner supported the imposition of a median strip in respect of Lot 12's application.[159] The Commissioner was also happy to forego formal requirements in respect of Lot 12's application.[160] According to the appellants' written submissions, a strong inference arising from the above is that the Commissioner hoped to avoid having to pay compensation to the appellants in accordance with the provisions in s 28A of the MR Act.[161]
[159] Appellants' submissions [83], [87].
[160] Appellants' submissions [84] - [85].
[161] Appellants' submissions [88] - [89], [100].
In oral submissions, the appellants made clear that they do not assert bad faith or conscious maladministration.[162] They rely on the Commissioner's conduct in relation to Lot 12 in support of the legal unreasonableness of the decision to refuse the crossover application. They also rely upon it as a foundation for apprehended bias.
[162] Appeal ts 18 - 19.
The Commissioner's conduct concerning the proposed development of Lot 12 provides no support for a conclusion of legal unreasonableness. By the second half of 2018, the Commissioner's position when his input was sought as to Lot 12 was, in the light of proposals then existing relating to Thomas Road, to support only left in/left out access. Given the proximity of Lot 12 and the Property, what may be inferred to be the application of the same policy considerations to produce a consistent position in relation to the two properties provides no indication of unreasonableness in the crossover decision. The clarification of the appellants' position as to good faith means that they no longer invite the inference outlined in [146] above. In any event, there is no sufficient basis for any inference that the Commissioner's conduct was animated by the goal of avoiding paying compensation to the appellants in accordance with s 28A of the MR Act.
For these reasons, the judge was correct in finding that the Commissioner's decision did not lack an evident and intelligible justification.
Apprehended bias
The appellants submit that at no time since March 2018 has the Commissioner had a mind open to persuasion - instead, he has demonstrated a resolute refusal to support a full movement access on the Property, without providing justification.[163] According to the appellants, on a number of occasions the Commissioner has (i) refused to respond to the possibility of shifting the full movement access further east and (ii) suggested that access to the Property may be obtained via Nicholson Road while aware that the Property has no physical access to Nicholson Road.[164]
[163] Appellants' submissions [91].
[164] Appellants' submissions [92].
The appellants refer in particular to the following comments of Main Roads officers, which they say demonstrate that the Commissioner did not have a mind open to persuasion:[165]
[165] Appellants' submissions [106].
(1)In the letter of 4 September 2018 (see [49] above), the comments:
Main Roads is not in a position to support the easternmost access to operate with full movement.
…
The current road geometry values for Thomas Road can only allow for a left in/left out access to service this parcel of land (Lot 196) which is a consistent access arrangement for all land uses both north and south of the functional area of the Nicholson Road and Thomas Road intersection.
(2)In the Responsible Authority Report relating to the Lot 12 development application tabled at the Shire council meeting on 8 October 2018, Main Roads' advice that:[166]
[166] Exhibit 3.1, CEF 38, GAB 866 - 867.
While the development approval for Lot 196 Thomas Road permits full movement access to Thomas Road, a works approval from MRWA has not yet been issued. Works approval is a requirement prior to any construction works within Thomas Road.
Furthermore, an advice note on the development approval for Lot 196 Thomas Road states that the full movement access is temporary only and will revert to left in/left out as part of future Thomas Road upgrades.
Therefore, whilst approval of the subject application would prevent full movement access for Lot 196 Thomas Road, MRWA have advised that full movement access to Lot 196 is no longer supported in any case and unlikely to receive works approval. (emphasis added)
(3)In the email of 10 April 2019 advising that the Commissioner was not prepared to approve the crossover application, the comments:[167]
[S]hould a referral agency ignore such advice from Main Roads, then the approval can either be ambulatory or at risk of nonoperational approval. …
In regard to approval, JDAP is not conferred powers under regulation 297 of the Road Traffic Code 2000. Main Roads is the sole authority for this and as such I consider the JDAP have issue[d] an approval potentially beyond their powers.
(4)In a later email also dated 10 April 2019, the comment '[a]s you are well aware, Main Roads of late is rather firm with our position statements'.[168]
[167] Exhibit 1.1, RH 16, GAB 260.
[168] Exhibit 1.1, RH 18, GAB 264.
In oral submissions, the appellants also raised the manner in which the Commissioner dealt with the Lot 12 development application in support of its assertion of apprehended bias.[169]
[169] Appeal ts 18.
For two reasons, these submissions cannot be accepted.
First, ground 2.3 materially differs from the relevant ground of the application before the primary judge. Ground 2.3 asserts that the position adopted by the Commissioner 'in previous considerations', namely, in the 2018 amendment application and the Lot 12 development application, dictated the Commissioner's determination of the crossover application. By contrast, the ground before the primary judge asserted legal unreasonableness by 'from March 2018 onwards ending in the emails of April 2019 between Cardno and [the Commissioner] demonstrating a closed mind or prejudgment bias to an approval of the full movement case on [the Property]'.[170] That latter ground asserts that the first respondent was consistently not open to persuasion from March 2018 until April 2019. The brief submissions in support of this ground at trial[171] were expressed in the same terms. The ground advanced at trial asserts, in effect, that by March 2018 the Commissioner had adopted an inflexible position and thereafter and throughout the period ending in April 2019 continued to adopt the same inflexible position. The primary judge was not asked to consider the different question whether, in deciding the crossover application in April 2019, the Commissioner was not open to persuasion because he was determined to adhere to the position adopted in the course of his consideration of the 2018 amendment application and the Lot 12 development application. That explains why his Honour made no decision on that point. The judge did not err in failing to make the finding for which ground 2.3 contends.
[170] Application par 7.4, see [83] above.
[171] Appellants' written submissions at trial [83], [108.4], [112]. The allegation of bias was not referred to at all in oral submissions at trial.
To the extent that the appellants' submissions on appeal go beyond the ground and reflect the bias case put at trial, the submissions go nowhere. As the primary judge observed,[172] the court is concerned only with a reviewable decision or conduct. As already noted, the Commissioner has only been called upon to make, and has only made, one decision.
[172] Primary reasons [90].
Secondly, and in any event, for the reasons that follow, the claim that the decision to refuse the crossover application was infected by apprehended bias is not made out.
In evaluating whether a decision‑maker's decision is flawed by apprehended bias, it is necessary to have regard to the nature of the statutory power being exercised, the character of the repository of that power and the circumstances in which the power comes to be exercised.[173]
[173] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [23].
The application of the test for a reasonable apprehension of bias to an administrative decision‑maker is not to be equated with its application to a judicial decision‑maker.[174]
[174] Isbester [22], [25], [27] and cases there referred to; Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 138 [79].
In this context, the appellants must demonstrate prejudgement by the Commissioner. That requires demonstrating that the Commissioner might not be open to persuasion, in other words that the conclusion already formed is not open to alteration whatever evidence or argument is presented.[175]
[175] McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 [15] ‑ [23]; Re MacTiernan [83].
Under the deemed provisions, the JDAP in assessing an application for development approval and an application to amend a development approval is to have due regard to 'the adequacy of … the proposed means of access to and egress from the site'.[176] When an application may affect another statutory authority, such as the Commissioner, the JDAP must provide a copy of the application to the authority for objections and recommendations.[177]
[176] Planning and Development (Local Planning Schemes) Regulations, sch 2 cl 67(s)(i).
[177] Planning and Development (Local Planning Schemes) Regulations, sch 2 cl 66(1).
The consistency between:
(1) the objection expressed by the Commissioner as to the proposed full movement access from the Property when he was asked in September 2018 for his objections and recommendations in respect of the amendment application;
(2) the position of the Commissioner in August 2018 in respect of the Lot 12 development application, in particular that a solid median strip should be constructed in front of where full movement access had been approved on the Property; and
(3)the Commissioner's decision to refuse the crossover application insofar as it sought full movement access from the Property in April 2019,
is unsurprising, given the similarity of the circumstances applying at those stages. The consistency of those approaches falls well short of giving rise to a reasonable apprehension of bias in the Commissioner's decision‑making. The same is true of the statements in the passages of documents set out in [151] above. The appellants have not met the high hurdle of demonstrating prejudgement by the Commissioner.
For these reasons, the appellants have not demonstrated that the judge erred in failing to find that the Commissioner's decision concerning the crossover application was made in circumstances revealing apprehended bias on the part of the Commissioner.
For the above reasons, ground 2 fails.
Ground 4: failure to grant declarations
By this ground, the appellants contend that the primary judge erred in law in refusing to grant the declarations sought in par 5 of the judicial review application. They rely upon the submissions made in relation to the other grounds to make good this contention.[178] Thus, ground 4 fails with the failure of the preceding grounds.
[178] Appellants' submissions [127].
Conclusion
For the above reasons, the primary judge was correct in dismissing the appellants' application for judicial review. We would order that the appeal be dismissed and would hear from the parties as to the costs of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Beech27 OCTOBER 2020
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