Humich Nominees Pty Ltd v Commissioner of Main Roads - [2019] WASC 293

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HUMICH NOMINEES PTY LTD -v- COMMISSIONER OF MAIN ROADS [2019] WASC 293
CORAM:   ALLANSON J
HEARD:   22 JULY 2019
DELIVERED          :   15 AUGUST 2019
FILE NO/S:   CIV 1736 of 2019
BETWEEN:   HUMICH NOMINEES PTY LTD
First Applicant
FAR SUPER PTY LTD
Second Applicant
AND
COMMISSIONER OF MAIN ROADS
First Respondent
SHIRE OF SERPENTINE JARRAHDALE
Second Respondent

Catchwords:

Judicial review - Planning and development - Where applicants had development approval - Where approval included full movement access from highway - Where time to commence development extended - Where Commissioner of Main Roads refused to approve crossover design - Whether Commissioner's discretion constrained by development approval - Whether Commissioner's decision or conduct legally unreasonable

Judicial review - Whether mandamus lies against Shire where it can only approve crossover with written approval of Commissioner

Legislation:

Interpretation Act 1984 (WA), s 43, s 51
Local Government (Uniform Local Provisions) Regulations 1996 (WA), reg 12, reg 14
Local Government Act 1995 (WA), s 9.6, Sch 3.1 div 2 cl 2A, Sch 9.1 cl 7
Main Roads Act 1930 (WA), s 1, s 2, s 6, s 7, s 9, s 10, s 13, s 28A
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 6, reg 8, 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 4, s 162, s 171A, s 171C, s 256, s 257B
Road Traffic Code 2000 (WA), reg 297

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	L Rowley & Mr PG McGowan
Second Applicant	:	L Rowley & Mr PG McGowan
First Respondent	:	I A Repper
Second Respondent	:	No appearance

Solicitors:

First Applicant	:	Rowley Legal
Second Applicant	:	Rowley Legal
First Respondent	:	State Solicitor For Western Australia
Second Respondent	:	No appearance

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

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 42
Humich Nominees Pty Ltd v Metro East Joint Development Assessment Panel [2019] WASC 200
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319

ALLANSON J:

The applicants apply to review decisions of the Commissioner of Main Roads and the Shire of Serpentine Jarrahdale:
(1)The refusal by the Commissioner, on 10 April 2019, to assess and communicate approval to the Shire of a cross-over design on lot 196 Thomas Road Oakford in accordance with development approval issued by Metropolitan East Joint Development Assessment Panel on 9 January 2018 as amended on 6 November 2018.
(2)The refusal by the Shire, on 16 April 2019, to process and/or approve crossover design in accordance with development approval issued by Metropolitan East Joint Development Assessment Panel on 9 January 2018 as amended on 6 November 2018.
The application was filed on 26 April 2019. The Commissioner entered an appearance and contested the application. The Shire entered an appearance but did not participate in the proceedings.
The applicants contend that the central issue is the approval of full movement access to Lot 196 - that is the ability for traffic travelling in both directions on Thomas Road to enter and leave the land.
The Metropolitan East Joint Development Assessment Panel is a Joint Development Assessment Panel (JDAP) established under s 171C of the Planning and Development Act 2005 (WA).
The Commissioner of Main Roads is appointed under s 7 of the Main Roads Act 1930 (WA) and constituted as a body corporate under s 9.
The land is within the Shire of Serpentine Jarrahdale, and the Shire is the relevant local government.

The application

The applicant put forward seven 'grounds' for the application. Grounds 1 to 4 are, in substance, a pleading of background facts relied on by the applicant:
1.1By an approval granted 4 November 2013, the Metro East Joint Development Assessment Panel (JDAP) granted development approval to the Applicants for a liquor store, convenience store and service station at Lot 196 Thomas Rd Oakford which included a left in/left out and a full movement access to the Applicants' site lot 196 from Thomas Road (the Applicants' Approval).
1.2By a further approval granted by JDAP on 29 September 2015 the Applicants' Approval was extended for a further period of 2 years but on the same conditions.
1.3The Applicants' Approval was further extended for a period of 2 years ending on 9 January 2020 by JDAP by approval dated 9 January 2018.
1.4The Applicants' Approval was amended and further approved by JDAP on 6 November 2018.
2.On 29 March 2019 the Applicants' consultants Cardno made application to the Second Respondent [the Shire] for approval of the crossover design from lot 196 to Thomas Road pursuant to regulation 12 of the Local Government (Uniform Local Provisions) Regulations 1996 including the construction of a turning lane and other works in the Thomas Road reserve (the cross over design).
3.On 10 April 2019 the First Respondent [Commissioner] refused to assess the Applicants' Application for approval of the cross‑over design on lot 196 to Thomas Road in accordance with the Applicants' Approval on the basis that the Applicants required its separate approval and the [Commissioner] refused to grant that approval.
4.On 16 April 2019 the [Shire] refused to grant an approval of the cross-over design on lot 196 to Thomas Road because it had not received the approval of the [Commissioner] to the cross over design.

The declaration sought

Ground 5 sets out the terms of the declaration sought:
5.The Applicants seek a declaration that:
(a)the Applicants are not required, as a matter of law, to make application to the First Respondent 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 Second Respondent pursuant to regulation 12 of Local Government (Uniform Local Provisions) Regulations 1996;
(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 First Respondent; and
(d)the First Respondent's statutory power and duty in regulation 14(2) of the Local Government (Uniform Local Provisions) Regulations 1996 (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 Main Roads Act 1930 is the only statutory power the First Respondent may exercise to shut the approved full movement access to a highway or main road.

Certiorari

Ground 6 contends that if they are obliged to obtain separate approval from the first respondent to the crossover design then the applicants seek a writ of certiorari quashing the first respondent'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 First Respondent to refuse to assess and/or grant such approval was legally unreasonable in that the Respondent sought to assert a power to usurp the effect of the Applicants' Approval; and
(c)the decision by the First Respondent to refuse to assess and/or grant such approval was legally unreasonable and beyond power having regard to the Applicants' Approval.

Unreasonableness

Ground 7 was introduced by amendment in the week before the hearing. It alleges a wider ground of 'legal unreasonableness':
7.The First Respondent 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;
7.2supporting 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;
7.3requiring the proponent of lot 12 to fund and construct the median thus resulting in the First Respondent avoiding compliance with s28A of the Main Roads Act 1930;
7.4from March 2018 onwards ending in the emails of April 2019 between Cardno and the First Respondent demonstrating a closed mind or prejudgment bias to an approval of the full movement access on lot 196;
7.5refusing 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);
7.6by constraining the Second Respondent from granting an approval under regulation (14(2)) by refusing or failing to assess the merits of the crossover design;
7.7by asserting without statutory justification that JDAP had no power to approve a full movement access on lot 196;
7.8by attempting to usurp the role of JDAP by forcing an outcome on the crossover design in conflict with the JDAP approvals for lot 196;
7.9by failing to act in good faith

Mandamus

The eighth 'ground' sets out the terms in which the applicants seek a writ of mandamus:
8.The Applicants seek a writ of mandamus against:
a)the First Respondent compelling the First Respondent 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 Second Respondent pursuant to regulation 14 of the Local Government (Uniform Local Provisions) Regulations 1996
within a period of no longer than 60 days, to enable the Second Respondent to make a decision pursuant to regulation 12 of the Local Government (Uniform Local Provisions) Regulations 1996; and
b)the Second Respondent compelling the Second Respondent, within 14 days of receipt of an approval from the First Respondent pursuant to regulation 14 of the Local Government (Uniform Local Provisions) Regulations 1996, to approve the cross over design according to law.

The evidence

The evidence and the application was on affidavit, most of it in the documents attached to the affidavits. The parties conferred in the lead up to the trial and resolved all objections to evidence.
The applicants relied on three affidavits:
(1)affidavit of Randal Ivan Humich, sworn 26 April 2019;[1]
(2)affidavit of Randal Ivan Humich, sworn 24 June 2019;[2]
(3)affidavit of Sam Gordon Laybutt, sworn 2 July 2019.[3]
[1] Exhibit 1.1.
[2] Exhibit 1.2.
[3] Exhibit 2.
Mr Laybutt is Team Leader - Transport Engineering and Road Safety at Cardno (WA) Pty Ltd. In about August 2018, Mr Laybutt was instructed by the applicants to provide expert advice with regard to road and traffic matters including the proposed access from lot 196 Thomas Road.
The respondent also relied on three affidavits:
(1)affidavit of Caroline Elizabeth Foster, affirmed 6 June 2019;[4]
(2)supplementary affidavit of Caroline Elizabeth foster, affirmed 14 June 2019;[5]
(3)affidavit of Justin Paul McKirdy, affirmed 5 June 2019.[6]
[4] Exhibit 3.1.
[5] Exhibit 3.2.
[6] Exhibit 4.
Ms Foster is a solicitor in the State Solicitor's Office and assisted with the conduct of this matter on behalf of the Commissioner. Her affidavits attached documents including the initial application for development approval in 2013, and the agenda and minutes of the JDAP for meetings on 4 November 2013, 29 September 2015, 9 January 2018, 11 September 2018, 10 October 2018, 6 November 2018, 6 March 2019, and 15 April 2019. The attachments include the agenda for a meeting of the JDAP on 18 June 2019, after these proceedings had commenced.
Mr McKirdy is a civil and construction engineer, and the Manager Statutory Road Planning at Main Roads Western Australia.

Background

The land

The applicants are the registered proprietors of the land which, for present purposes, is sufficiently described as lot 196, Thomas Road, Oakford. Lot 196 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.
The land is zoned rural under both the Metropolitan Region Scheme and the Town Planning Scheme.
The only access to Lot 196 is from Thomas Road.
Oakford Traders was established in approximately 1970 comprising a service station, general store and liquor store operating on Lot 196. 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.[7]
[7] Exhibit 3.1, CEF1, 15.
The applicants are redeveloping the land as a service station, convenience store and liquor store. They have entered into agreements for redeveloping and leasing of the land. Full movement access is an important and commercially valuable aspect of the approved development.[8]

Lot 12

[8] Exhibit 1.1 [3], [14].

Lot 12 and Lot 50 are on the opposite side of Thomas Road from Lot 196. Those lots are also the subject of an application for development approval, for a proposed service station.
On 16 August 2018, Main Roads provided a letter supporting development of Lot 12 subject to conditions being imposed for an interim access arrangement.[9]
[9] Exhibit 4, JPM28.
The application for approval for Lot 12 was also dealt with by the JDAP. On 29 October 2018, the owners of Lot 12 were given development approval, 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.[10]
[10] Humich Nominees Pty Ltd v Metro East Joint Development Assessment Panel [2019] WASC 200.
On 14 June 2019, Smith J made orders quashing, in part, the development approval for Lot 12. Relevantly, her Honour found the imposition of condition 11 was inconsistent and incapable of reconciliation with the development approval for the applicants' land given by the same JDAP.

The Commissioner

The long title of the Main Roads 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.
The Commissioner is appointed under s 7, and by s 9 shall be a body corporate. The Minister may appoint officers of the Commissioner, and the Commissioner may employ employees as required for road or other construction.[11]
[11] Main Roads Act 1930 (WA) s 10.
The Governor may, on the recommendation of the Commissioner, by proclamation, declare that any section or part of the road shall be subject to control of access, and the places only at which it may be entered or departed from.[12] Compensation may be payable to the owner of land adjoining the road if a right of access is extinguished as the result of a declaration under s 28A.[13]
[12] Main Roads Act 1930 (WA) s 28A(1B).
[13] Main Roads Act 1930 (WA) s 28A(2B).
'Control of access' is defined in s 6:
control of access in relation to any road means that a section or part of that road is intended for use by prescribed traffic without avoidable hindrance, whether from traffic from an intersecting road or otherwise, and that such section or part of the road has been declared by proclamation to be subject to control of access and may be entered or departed from at specified places only.

Thomas Road

The following facts regarding Thomas Road are taken from the Commissioner's schedule of findings of fact. None of them was challenged in the proceedings, and each is supported by the evidence referred to in the footnotes.
Thomas Road is a declared highway under s 13 of the Main Roads Act.[14] Factors relevant to whether a road should be declared to be a highway include whether it will be the principal route between the capital and major producing regions of the state; whether it is or will be the principal route between two or more major producing regions or major centres of population; and whether it will be the principal route for high-volume traffic movements within large urban areas.[15] Absolute property in the land over which a highway is declared vests in the Crown, and the Commissioner has the care, control and management of the land.[16]
[14] Exhibit 4 [2.6].
[15] Main Roads Act 1930 (WA) s 13(2).
[16] Main Roads Act 1930 (WA) s (1), s (2).
Thomas Road is reserved as a 'Primary Regional Road' under the Metropolitan Region Scheme with effect from 15 November 2017. Prior to 15 November 2017, it was reserved as 'Other Regional Road' under the Metropolitan Region Scheme. The change of classification reflects that responsibility for Thomas Road had transferred to the Commissioner.[17]
[17] Exhibit 4 [2.7], [2.9].
Thomas Road is classified by the first respondent as a Primary Distributor road to provide for major regional and inter-regional traffic movement and carry large volumes of generally fast moving traffic.[18]
[18] Exhibit 4 [2.10] ‑ [2.11].
Thomas Road is a primary freight road ‑ as defined in 'State Planning Policy 5.4 ‑ Rail and Road Transport Noise' ‑ to provide for the movement requirements of heavy vehicle traffic. It is an important east west freight and heavy vehicle route that connects Tonkin Highway to the Western Trade Coast.[19]
[19] Exhibit 4 [2.2], [2.12] ‑ [2.13]. The Western Trade Coast is an industrial and port area in and around Kwinana, Henderson and Rockingham.
Nicholson Road is an important north south freight and heavy vehicle route that connects Roe Highway and Canning Vale to Thomas Road.[20]
[20] Exhibit 4 [2.4].
Throughout 2017 and 2018 there were various studies and designs for Thomas Road, including the upgrade and reconstruction of the intersection of Thomas and Nicholson Roads.[21]
[21] Exhibit 4 [7.2], PM20, JPM 22, JPM 26, JPM 28.
The federal and state budgets have now allocated funding to upgrade the intersection of Thomas Road and Nicholson Road.[22] Mr McKirdy stated that the 'timing remains uncertain but is considered probable to commence in the next two years'.[23]
[22] Exhibit 4 [8.2].
[23] Exhibit 4 [8.4].
The part of Thomas Road on which Lot 196 is located will likely be duplicated as part of the intersection works, which will likely involve a dual carriageway being constructed in front of the subject land.[24]
[24] Exhibit 1.2 RH 7.

The approval of development of Lot 196

In general, development of any land is not to be commenced or carried out without approval of the relevant responsible authority being obtained.[25] Except as provided in the Planning and Development (Development Assessment Panels) Regulations 2011 (WA), made under s 171A(2)(a) of the Planning and Development Act, the responsible authority will be either the local government for the particular Town Planning Scheme, or the Western Australian Planning Commission. Where a development application is to be determined by a DAP, it is determined as if the DAP were the responsible authority under the relevant planning instrument in relation to the development.[26]
[25] Planning and Development Act 2005 (WA) s 162.
[26] Planning and Development Act 2005 (WA) s 4.
A development application is an application under a planning scheme or under an interim development order for approval of development.[27] Development is defined to mean
[27] Planning and Development Act 2005 (WA) s 4.
… the development or use of any land, including ‑
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a protection order made under the Heritage Act 2018 Part 4 Division 1 applies, any act or thing that ‑
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building.

The 2013 approval

The application for development approval of Lot 196 was made to the Shire in July 2013, by the then owners of the land. Details of the proposal included relocation of the store and redevelopment of the service station, relocation of the liquor store, and other facilities.[28]
[28] Exhibit 4, JPM8.
The estimated cost of the proposed development was $3 million.
The applicant elected to have the development application determined by the JDAP, pursuant to reg 6(b) of the Planning and Development (Development Assessment Panels) Regulations. The JDAP was required to determine the application 'as if the DAP were the responsible authority under the relevant planning instrument in relation to the development'.[29]
[29] Planning and Development Act 2005 (WA) s 171A(2ba); Planning and Development (Development Assessment Panels) Regulations 2011 (WA) reg 8(1).
Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) contains provisions including, in pt 9, provisions prescribing the procedure for dealing with applications for development approval. These regulations are deemed provisions which have effect and may be enforced as part of a local planning scheme.[30]
[30] See Planning and Development Act 2005 (WA) s 256 and s 257B.
By cl 66 of sch 2:
(1)When, in the opinion of the local government, an application for development approval may affect any other statutory, public or planning authority, the local government is to provide a copy of the application to the authority for objections and recommendations.
(2)…
(3)A statutory, public or planning authority receiving a copy of an application may, within 42 days of receiving the application or within such longer period as the local government allows, provide to the local government a memorandum in writing containing any objections to, or recommendations in respect of the whole or part of the proposed development.
(4)If a statutory, public or planning authority does not provide a memorandum within the time allowed under subclause (3), the local government may determine that the authority is to be taken to have no objections or recommendations to make.
By cl 67:
In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application ‑
…
(s)the adequacy of ‑
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
At the meeting of the JDAP on 4 November 2013, the JDAP resolved to approve the application in accordance with the provisions of clause 6.4.3 of the Shire of Serpentine Jarrahdale Town Planning Scheme No 2, subject to conditions.[31] The approved development was detailed in the application, and in accompanying plans.
[31] Exhibit 3.1, CEF1.
By reg 12 of the Planning and Development (Development Assessment Panels) Regulations, the responsible authority to which the application was made was required to give the presiding member of the JDAP a report on the application (the Responsible Authority Report), 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.[32]
[32] Planning and Development (Development Assessment Panels) Regulations 2011 (WA) reg 12(5).
The Responsible Authority Report recorded:
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.[33]
[33] Exhibit 3.1, CEF1, 23.
The Report concluded that the proposed revised layout and access provisions had been assessed and were considered to satisfy the concerns raised.[34]
[34] Exhibit 3.1, CEF1, 25.
The approval included 'Advice notes', which contained some of the comments of Main Roads including:
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.
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….
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.[35]
[35] Exhibit 3.1, CEF1, 14.
Development did not commence pursuant to the 2013 approval.

The 2015 amendment

In 2015, the applicants applied to amend the approval so as to extend the period within which the development must be substantially commenced.[36]
[36] See Planning and Development (Development Assessment Panels) Regulations 2011 (WA) reg 17.
On 29 September 2015, the applicants' development application was again before the JDAP, with the JDAP approving a two-year extension of the approval given in 2013.[37] The application to extend the approval was not referred to Main Roads.

The meeting of 2017

[37] Exhibit 3.1, CEF4.

In February 2017, representatives of the applicant's, together with Mr Delaney of Caltex Australia Petroleum Pty Ltd, met representatives of Main Roads.
Following that meeting, Mr Delaney forwarded to the applicants a 'slightly modified plan showing the requirements at the entry crossover' - apparently not yet presented to Main Roads.[38] The plan provided, among other things, for widening Thomas Road to allow for a 'right turn pocket'.[39]

Events in 2018

[38] Exhibit 1.2, RH2, 34.

[39] Exhibit 1.2, RH2, 36.

On 9 January 2018, the JDAP considered and approved an application for a further extension of time for a period of two years ending on 9 January 2020.[40]
[40] Exhibit 3.1, CEF5, 199.
The application was not formally referred to Main Roads. Main Roads were, however, aware of the application. On 5 January 2018, the Planning Information Manager of Main Roads wrote to the Shire, noting that 'approvals carried over an extended period can have an impact on current infrastructure planning and management'. The email continued:
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.[41]
[41] Exhibit 4, JPM20, 102.
On 31 July 2018, the Shire referred an application relating to hours of operation, removal of a car wash facility, and alterations to the site layout on lot 196 to Main Roads for comment.[42] On 4 September 2018, Main Roads advised that it could not support the development application as it was not in a position to support the easternmost access to operate with full movement.[43]
[42] Exhibit 4 [3.23], JPM21.
[43] Exhibit 4 [3.24], JPM22, 105.
On 10 October 2018, the JDAP considered a proposed amendment.
The Responsible Authority Report, in dealing with traffic access and safety, recorded that Main Roads did not object in principle to the land‑use, but did 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 is 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.[44]
[44] Exhibit 3.1, CEF9, 370.
It seems to be common ground that the comments of Main Roads fell outside the application that was then before the JDAP, that application being confined to the particular amendments.
The amendment was not immediately approved.[45]
[45] Exhibit 3.1, CEF10, 403.
On 26 October 2018, by email, Mr McKirdy wrote to the solicitors for the applicants and said:
Main Roads understands your client's 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 …[46]
[46] Exhibit 1.2, RH5, 44.
On 6 November 2018, the JDAP resolved to approve the amendment subject to conditions.[47] 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.
[47] Exhibit 3.1, CEF12, 453.

The application for approval of the crossover

On 2 April 2019, the Shire forwarded to the Commissioner a copy of an application by the applicants to undertake works within the road reserve and two crossovers along Thomas Road.[48] The request for approval was addressed to the Shire and sought approval for 'construction of one (1) full movement intersection and one (1) "left out" crossover in accordance with JDAP Approval dated 6 November 2018'.[49] An accompanying letter from Cardno (WA) Pty Ltd, dated 29 March 2019, referred to the approval for the development of the service station and liquor store on lot 196 and continued:
Pursuant with this approval, our Client submits an application for approval of the crossover from the subject site onto Thomas Road and for related works within the Thomas Road reserve.[50]
[48] Exhibit 4 [3.27]; exhibit 1.1 RH11.
[49] Exhibit 1.1, RH11, 87.
[50] Exhibit 1.1, RH11, 89 (emphasis added).
Cardno enclosed a design report for the closure of the two existing driveways on Lot 196, with two new crossovers to be provided onto Thomas Road: an entry and exit/slip lane, and a left turn exit only.[51]
[51] Exhibit 1.1, RH11, 113.
An accompanying 'Application to Undertake Works within a Road Reserve', dated 29 March 2019, described the proposed works as including the installation of turning lanes.[52] When compared with the stamped approved drawing,[53] the attached civil drawings show substantial modification within the road reserve, including the extension of existing medium strips, the creation of a slip lane for traffic turning right from Thomas Road into Lot 196, and also a slip lane for traffic turning left.[54]
[52] Exhibit 1.1, RH11, 208.
[53] See exhibit 1.1, RH11, 133.
[54] See exhibit 1.1, RH11, 94, 96, 101.
The applicants seek relief with regard to the Commissioner's failure on 10 April 2019, to approve the 'cross over design'.
At the time the application was made, approval for the development of Lot 12 had been given, including a condition that was inconsistent with the full movement crossover on Lot 196.

The Commissioner's power to approve the crossover

It was not in dispute that the applicants were seeking to construct a crossing from private land to a public thoroughfare.
The first question on which the application hinges is whether the Commissioner has a separate power of approval. This requires consideration of the Local Government Act 1995 (WA) and the Local Government (Uniform Local Provisions) Regulations 1996 (WA) made under it.
Schedule 9.1 to the Local Government Act provides for the Governor to make regulations for various matters, including 'crossing from public thoroughfare to private land or to private thoroughfare'.[55] Such regulations operate as if they were local laws for the district to which they apply.[56]
[55] Local Government Act 1995 (WA) sch 9.1 cl 7(2).
[56] Local Government Act 1995 (WA), s 9.60(1).
Schedule 3.1 div 2, cl 2A of the Local Government Act provides that regulations made under sch 9.1, cl 7(2) may require a person to bring a crossing into accordance with an approval by the Commissioner of Main Roads or to remove a crossing and restore the place where it was to its former condition.
By reg 12(1) of the Local Government (Uniform Local Provisions) Regulations, on application by the owner of private land, a local government may approve the construction of a crossing giving access from a public thoroughfare to the land or a private thoroughfare serving the land. A person may not construct a crossing for vehicles unless the crossing has been approved, and is constructed in accordance with the approval.[57]
[57] Local Government (Uniform Local Provisions) Regulations 1996 (WA) reg 12(2).
Subsidiary legislation may require a matter affected by it to be approved by or to the satisfaction of a specified person or body, or may confer a discretionary authority on a specified person or body.[58] The power to give an approval is discretionary.[59]
[58] Interpretation Act 1984 (WA) s 43(8).
[59] Interpretation Act 1984 (WA) s 51(1).
By reg 14(2), a local government cannot approve the construction of a crossing 'unless the local government has consulted with the Commissioner [of Main Roads] and the Commissioner has approved in writing the construction of the crossing'. Regulation 14(3) empowers the Commissioner of Main Roads to require a person to bring a 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.
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.
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.
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 …'.[60]
[60] ts 26 ‑ 27.
The application for certiorari hinges on whether the Commissioner was constrained in dealing with the application before it by the applicants' JDAP approval.
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.
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.
The application for mandamus against the Commissioner must fail for the same reasons.

The declarations

I have considered whether, notwithstanding the conclusion I have reached and set out above, I should still consider the application for declaratory relief. In par 5 of the application for judicial review, the applicants seek a declaration on a more general basis regarding the nature of the Commissioner's power and, in particular, whether 'in respect of both Regulation 14(2) and his management care and control of the Thomas Road reserve [the power] must be performed reasonably, consistently and conformably with the Applicants' Approval'.
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'.[61] 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.
[61] Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 [102] ‑ [103]; Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 42, 437; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 ‑ 582.
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'.[62]
[62] Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, 357 [49].
I have set out my opinion on the effect of reg 12 and reg 14 of the Local Government (Uniform Local Provisions) 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.
The applicants raised the more general question of whether the Commissioner is obliged to approve a crossover with full movement access, and submitted that the Commissioner had reached a pre‑determined position that he would not approve a 'works approval' for full movement access. The fact that the Commissioner has expressed such a position is not itself a decision or conduct subject to judicial review. The court is concerned only with a reviewable decision or conduct.
Finally I will comment briefly on the allegations of 'legal unreasonableness' in ground 7.
The power of the court is to review a decision or conduct. In this case, to review the decision or conduct of the Commissioner in not approving the submitted crossover design. Like any 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.[63]
[63] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 [4], [53], [59], [80], [88], [131]; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63].
While legal unreasonableness is fact dependent and requires a careful evaluation of the evidence, the question is whether the decision of the Commissioner was within the scope of the power conferred by reg 14.[64] A decision may be legally unreasonable where it lacks an evident and intelligible justification.[65]
[64] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 [53].
[65] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [76].
That cannot be said of the decision in the present case when regard is had to the content of the application before the Shire (and accordingly before the Commissioner) and to the matters set out above regarding the current status of Thomas Road and the planned changes to the carriageway in the section in front of the applicants' land.
The applications for prerogative relief and for a declaration against the Commissioner will be dismissed.

The application for mandamus against the Shire

The approval of the Commissioner is a condition on the power of the Shire to approve the crossover. The application for mandamus against the Shire must also be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
14 AUGUST 2019