Humich Nominees Pty Ltd v Metro East Joint Development Assessment Panel
[2019] WASC 200
•14 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HUMICH NOMINEES PTY LTD -v- METRO EAST JOINT DEVELOPMENT ASSESSMENT PANEL [2019] WASC 200
CORAM: SMITH J
HEARD: 7 MAY 2019
DELIVERED : 14 JUNE 2019
FILE NO/S: CIV 3090 of 2018
BETWEEN: HUMICH NOMINEES PTY LTD
First Applicant
FAR SUPER PTY LTD
Second Applicant
AND
METRO EAST JOINT DEVELOPMENT ASSESSMENT PANEL
First Respondent
CALTEX AUSTRALIA PETROLEUM PTY LTD
Second Respondent
SARAH LOUISE MCMULLEN
Third Respondent
DAVID ANTHONY RILEY
Fourth Respondent
SAMUEL PETER PAUL PIIPPONEN
Fifth Respondent
JASMINE ROSE PIIPPONEN
Sixth Respondent
SKUKUZA VENTURES PTY LTD as trustee for THE OAKFORD TRUST
Seventh Respondent
Catchwords:
Application for judicial review - Writ of certiorari - Application to quash a condition imposed on a development approval requiring construction of solid median on main road - Conflicting development approvals - Whether development assessment panel decision to impose particular condition vitiated by jurisdictional error
Certiorari - Whether condition vitiated by jurisdictional error on grounds power held exclusively by Commissioner of Main Roads - s 28A Main Roads Act 1930 (WA) - Anthony Hordern principle considered - Whether condition ambulatory - Whether condition requires exercise of power by third party - Interpretation of 'control of access'
Certiorari - Unreasonableness - Whether decision of development assessment panel legally unreasonable - Whether decision of assessment panels must be consistent or reconcilable - Unreasonableness a question of statutory construction
Certiorari - Discretionary considerations in respect of whether to grant a writ of certiorari - Whether refusal to grant on grounds the issue of certiorari would be an exercise in futility
Legislation:
Main Roads Act 1930 (WA), s 6, s 13, s 15, s 28A
Main Roads Amendment Act 1952 (WA), s 5
Main Roads Development Act 1952 (WA), s 5
Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 8(1)
Planning and Development (Local Planning Schemes) Regulations 2014 (WA), s 68(2)
Planning and Development Act 2005 (WA), s 162, s 171A, s 171CResult:
Writ of certiorari granted
Condition imposed by development assessment panel quashed in partCategory: B
Representation:
Counsel:
First Applicant : Mr P G McGowan & Ms L Rowley Second Applicant : Mr P G McGowan & Ms L Rowley First Respondent : No appearance Second Respondent : No appearance Third Respondent : No appearance Fourth Respondent : No appearance Fifth Respondent : No appearance Sixth Respondent : No appearance Seventh Respondent : Ms R Young & Ms B Moharich Solicitors:
First Applicant : Rowley Legal Second Applicant : Rowley Legal First Respondent : No appearance Second Respondent : No appearance Third Respondent : No appearance Fourth Respondent : No appearance Fifth Respondent : No appearance Sixth Respondent : No appearance Seventh Respondent : Moharich & More Case(s) referred to in decision(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 53 ALR 632
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Deputy Commissioner of Taxation v Dick [2007] NSWCA 190
Duro Felguera Australia Pty Ltd v Samsung CBT Corporation [2018] WASCA 28
Enman v Enman [1942] SASR 131
Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780
Jacob v Save Beeliar Wetlands Inc [2016] WASCA 126
Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467
Kruger v The Commonwealth (1997) 190 CLR 1
Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Esheto (1999) 197 CLR 611
Mohammadi v Bethune [2018] WASCA 98
Mulholland v Winslow [2016] WASC 19
New Brunswick (Board of Management) v Dunsmuir [2008] 13CR 190
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Reid v Western Australian Planning Commission [2016] WASCA 181
Sarawati v The Queen [1991] HCA 21; (1991) 172 CLR 1
Sin‑Aus‑Bel Pty Ltd v Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531
The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Tilbrook v Western Australia Planning Commission [2011] WASAT 130
Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
SMITH J:
1The court has before it an application for judicial review and a writ of certiorari to quash a condition imposed by a decision made by the Metro-East Joint Development Assessment Panel (Metro‑East Panel) to approve an application to develop land on Lot 50 Nicholson Road and Lot 12 Thomas Road, Oakford, being permission to construct a service station and provide for ancillary uses.
2In particular, the applicant seeks a writ of certiorari to quash the Metro‑East Panel's decision to require the construction of a median strip, at the cost of the developer, as part of the access arrangements from that land to Thomas Road (condition 11).
3For the reasons that follow, I would grant certiorari to quash part of the requirement imposed by the Metro‑East Panel in condition 11, on grounds that, in part, condition 11 is vitiated by jurisdictional error on grounds of legal unreasonableness.
Relevant background
(a) The parties
4The applicants, Humich Nominees Pty Ltd and Far Super Pty Ltd (Humich parties) are not the owner, or developer, of Lot 50 Nicholson Road or Lot 12 Thomas Road, Oakford.
5At the time the Metro‑East Panel made its decision, on 29 October 2018, Lot 50 Nicholson Road was owned by the fifth and sixth respondents, Samuel Peter Piipponen and Jasmine Rose Piipponen. On 19 January 2019, the seventh respondent, Skukuza Ventures Pty Ltd as trustee for the Oakford Trust (Skukuza) entered into a contract with the fifth and sixth respondents to purchase Lot 50.
6Lot 12 Thomas Road is owned by the third and fourth respondents, Sarah Louise McMullen and David Anthony Riley. In or about September 2018, Skukuza was granted an option to purchase Lot 12 by the third and fourth respondents.
7By reason of Skukuza's acquired interest in the land, it was joined as a party in these proceedings on 18 March 2019.[1]
[1] Order, 18 March 2019.
8The second respondent, Caltex Australia Petroleum Pty Ltd (Caltex) is the proposed lessee of the proposed service station on Lot 50 and Lot 12.
9In these reasons (even though the land was not owned by Skukuza at the time, for the ease of distinction between this land and land owned by the Humich parties):
(a)the decision made by the Metro‑East Panel, on 29 October 2018, to approve the development on Lot 12 and Lot 50 will be referred to as the Skukuza approval; and
(b)Lot 50 and Lot 12 will be referred to as the Skukuza Land.
10The Humich parties are the registered proprietors of Lot 196 Thomas Road. Lot 196 is located on the south‑east corner of the intersection of Thomas Road and Nicholson Road, Oakford (Humich land). A small parcel of land, which is not owned by the applicant, prevents access to Nicholson Road from Lot 196.[2] Immediately opposite the Humich land on the other side of Thomas Road, is the Skukuza land.[3]
[2] Affidavit of Randal Ivan Humich, filed 22 February 2019 [4].
[3] Annexed to these reasons as Annexure A is a copy of a map which shows the location of the Humich land and the Skukuza land.
11The first, second, third, fourth, fifth and sixth respondents have each filed notices to abide the decision of the court.
(b) Relevant development approvals made by the Metro‑East Panel
12The Oakford Traders Liquor Store and a former service station have operated on the Humich land since, at least, 1970.[4] A development application for the redevelopment of the Humich land for the purposes of a service station, convenience store, and liquor store was approved by the Metro‑East Panel on 4 November 2013 (2013 Humich approval).
[4] Affidavit of Randal Ivan Humich, filed 22 February 2019 [3].
13One of the conditions of the 2013 Humich approval, was approval for a 'left in/left out' western access and full eastern access to Thomas Road (full movement access).[5] The full movement access should enable entrance from and exit to Thomas Road with right hand turns from the eastern entrance to and exit from the Humich land.
[5] Affidavit of Randal Ivan Humich, filed 22 February 2019 [4], annexures RH2 and RH3.
14The Humich approval was extended by the Metro‑East Panel in 2015 (2015 Humich approval) and again on 9 January 2018, to expire on 9 January 2020 (January 2018 Humich approval).[6]
[6] Annexed to these reasons as Annexure B is a copy of the plan of the January 2018 Humich approval.
15On 27 March 2018, an application to develop the Skukuza land was submitted to the Shire of Serpentine Jarrahdale together with a development assessment panel form for assessment of the development application by a development assessment panel.
16On 11 September 2018, the Metro‑East Panel considered the application to develop the land. At that meeting, the Metro‑East Panel resolved to defer consideration of the application:[7]
[7] Affidavit of Fiona Sze, affirmed 15 March 2019 [10].
… to allow:
1.The applicant and relevant parties including Main Roads and the owners of Lot 196 Thomas Road, Oakford to discuss access arrangements to their respective developments.
2.A revised draft to be prepared by the Local Government of the proposed conditions and advice notes.
3.The presiding member to consider whether legal advice is necessary.
Reason: the application before the panel raised potentially complex jurisdictional matters involving third parties and access arrangements, issues that might require legal advice and the parties should in the meantime discuss these matters further.
17On 29 October 2018, prior to the application to develop the Skukuza land being approved, the Metro‑East Panel heard a presentation from a number of persons, including representatives of the Humich parties.
18At the meeting of the Metro‑East Panel, on 11 September 2018, representatives of the Humich parties objected to the imposition of condition 11 on the basis that it would impact the full movement access granted to it in the 2013 Humich approval.[8] Main Roads Western Australia supported the Metro‑East Panel's decision to impose condition 11.[9]
[8] Affidavit of Fiona Sze, affirmed 15 March 2019, annexure FZ5, pages 98-99 and annexure FZ6, page 137.
[9] Affidavit of Fiona Sze, affirmed 15 March 2019, annexure FZ7, page 156.
19The Metro‑East Panel approved the application to develop the Skukuza land subject to a number of conditions, including Condition 11. The Metro‑East Panel determined to impose upon the developer of the Skukuza land the obligation to construct a solid median to prevent 'right in/right out' access to and from that part of the Skukuza land onto Thomas Road.
20Condition 11 provides:[10]
Prior to occupation, the proposed Thomas Road access is to be designed and constructed to the satisfaction of the Shire, on the advice of Main Roads WA.
The Thomas Road access shall operate as left-in/left-out for light vehicles and left in only turning movements for heavy vehicles and shall have suitable signage advising motorists of these restricted movements.
The developer shall be responsible for all costs involved in the land acquisition, design and construction of the left turning pocket and solid median to prevent right out turning movements onto Thomas Road. This includes signage, road markings, relocation of services, and street lighting associated with the turning pocket. (my emphasis)
[10] Affidavit of Fiona Sze, affirmed 15 March 2019, annexure FZ1, page 10.
21The construction of a solid median in the manner required by condition 11 would prevent vehicles from turning right onto Thomas Road from the Humich land or right into the Humich land from Thomas Road. The median would in turn prevent the Humich parties from enjoying the full movement access granted in the 2013 Humich approval, and extended in the subsequent 2015 Humich approval and 2018 Humich approval.
22On 9 November 2018, the January 2018 Humich approval was amended by the Metro‑East Panel following an application for amendment made by the Humich parties. At the meeting, the Metro‑East Panel had before it an officer's report that proposed an amendment to the Humich approval to prohibit a right turn out from the Humich land onto Thomas Road. The minutes of the meeting of the Metro‑East Panel, held on 6 November 2018, record that a motion was moved that it be resolved that the amendments proposed by the Humich parties in the application be approved, subject to a number of conditions including a condition that:[11]
b.Prior to the 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 positioned at a minimum distance of 120 m east of the hold line from the Nicholson Road intersection.
[11] Affidavit of Fiona Sze, affirmed 15 March 2019, annexure FZ11, page 655.
23It appears that this amendment was proposed because Main Roads Western Australia had given conditional support for the proposed amendment to the Humich amendments on condition that the Humich parties submit revised plans which demonstrate both accesses into Thomas Road operating as left in/left out movement vehicles only.[12] If this amendment to the 2013 Humich approval had been made, there would have been no inconsistency between the approvals to develop the Humich land and the Skukuza land.
[12] Affidavit of Randal Ivan Humich, sworn 22 February 2019, Annexure RH6 page 140; letter from Main Roads Western Australia dated 4 September 2018 from Statutory Road Planning Manager.
24In the letter from Main Roads Western Australia before the Metro‑East Panel, on 6 November 2018, under the heading 'Advice to applicants' it was stated:[13]
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 60km/h is defined as a fast road. This portion of Thomas Road is posted at 90km/h and has design speeds of 100km/h reducing to 80km/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.
1.In respect to Condition 12, Application 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.
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.
[13] Affidavit of Randal Ivan Humich, sworn 22 February 2019, annexure RH6 page 142; letter from Main Roads, Western Australia dated 4 September 2018 from Statutory Road Planning Manager.
25The minutes of the meeting of the Metro‑East Panel on 6 November 2018 record that proposed amendment b. to the 2013 approval 2 was deleted. The reason why this deletion was made was: [14]
The majority of panel members considered that refusal of the existing approved land use 'shop' (liquor store) and 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.
[14] Supplementary affidavit of Belinda Ann Moharich, sworn 7 May 2019, annexure BM6, page 9.
26Consequently, the condition proposed by Main Roads Western Australia was rejected.
The application for judicial review
27The Humich parties argue that jurisdictional error is established on four (alternative) grounds, namely, that it is beyond the power of the Metro‑East Panel to impose condition 11 on the grounds that:
(a)s 28A of the Main Roads Act 1930 (WA) operates to preclude the Metro‑East Panel from imposing 'control of access' conditions on Thomas Road;[15]
(b)condition 11 is ambulatory and requires an exercise of discretion by a third party, namely the Commissioner of Main Roads;[16]
(c)it is beyond power of the Metro-East Panel to impose conditions requiring acquisition and construction of a solid median on Main Roads Western Australia's property;[17] and
(d)condition 11 is legally unreasonable.[18]
[15] Applicant's outline of submissions, filed 3 April 2019 [19].
[16] Applicant's outline of submissions, filed 3 April 2019 [21].
[17] Applicant's outline of submissions, filed 3 April 2019 [26].
[18] Applicant's outline of submissions, filed 3 April 2019 [33] - [34].
28Ultimately, the issue to be determined is whether it was within the power of the Metro‑East Panel to impose condition 11, and, if it was not within power, whether certiorari should be refused on discretionary grounds.
Jurisdictional error and statutory construction
29Certiorari is available in circumstances where jurisdictional error is established.[19]
[19] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 176 (Brennan, Deane, Toohey, Gaudron & McHugh JJ).
30In contemporary Australian law the concepts of jurisdiction and jurisdictional error are understood to refer to the scope of a decision-maker's authority and whether a decision‑maker makes a decision within the bounds of their authority.
31In Hossain v Minister for Immigrationand Border Protection, a plurality of the High Court described jurisdiction in the following way:[20]
Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision‑maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision‑maker to embark on the decision‑making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision‑making process in order for the decision‑maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have 'such force and effect as is given to it by the law pursuant to which it was made'.
[20] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 [23] (Kiefel CJ, Gageler & Keane JJ).
32Their Honours went on to describe jurisdictional error as:[21]
[A]n error in a statutory decision‑making process, correspondingly refers to a failure to comply with one or more statutory pre conditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it. To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside of jurisdiction.
[21] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 [24] (Kiefel CJ, Gageler & Keane JJ).
33For the court to be satisfied that a decision has been made outside of jurisdiction it must be satisfied that the decision‑maker made a decision outside the limits of the functions and powers conferred upon the decision‑maker, or does something which the decision‑maker lacks the power to do.[22]
[22] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 141 (Hayne J).
34In this matter, insofar as the Humich Parties argue that s 28A of the Main Roads Act precludes the Metro‑East Panel from imposing a requirement on the developer of the Skukuza land to construct a solid median on Thomas Road, the limits of the power conferred upon the Metro‑East Panel must be determined by applying the principles of statutory construction.
35The principles to be applied in determining the proper construction of a statute are well known and were recently summarised by the Court of Appeal in Mohammadi v Bethune:[23]
The principles of statutory construction are well known and do not require detailed exposition. Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context. Statutory construction, like any process of construction of an instrument, has regard to context. As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL:
'The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.'
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'. As we will explain later in these reasons, we think this is such a case.
Thus, the material provisions of the Act must be understood, if possible, as parts of a coherent whole.
Statutory texts enacted by the same legislature are to be construed, so far as possible, to operate in harmony and not in conflict. Where two or more statutory enactments comprise the overlapping legislative scheme, the enactments should be construed accordingly, and the court should endeavour to produce a rational, sensible, efficient and just operation in preference to an inefficient, conflicting or unjust operation.
[23] Mohammadi v Bethune [2018] WASCA 98 [31]-[36] (Martin CJ, Mazza & Beech JJA) applying, among others, Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] ‑ [23]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4], [47]; Taylor v Owners of Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531 [66]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [38].
Planning and development approval statutory scheme
36Section 162(1)(a) of the Planning and Development Act 2005 (WA) provides that development on land may not be commenced or carried out without having obtained approval upon the making of a development application under a planning scheme or interim development order. Section 162(1)(b) requires that the development be carried out in accordance with the conditions subject to which the approval is granted.
37Part 11A of the Planning and Development Act makes provision for development assessment panels (referred therein as 'DAP') to approve particular development applications. Section 171A(2) provides:
171A.Prescribed development applications, DAP to determine and regulations for
...
(2)The Governor may make regulations ‑
(a)providing that, despite any other provision of this Act or a planning instrument, a development application of a class or kind prescribed for the purposes of this paragraph ‑
(i)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
(ii)cannot be determined by a local government or the Commission;
38Division 2 of part 11A provides for the establishment of Local Development Assessment Panels for a local government district and Joint Development Assessment Panels for two or more districts.[24]
[24] Planning and Development Act 2004 (WA), s 171C.
39Regulation 8(1) of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) provides:
8.Applications to be determined by DAPs
(1)Despite any other provision of the Act or a planning instrument, any DAP application for approval of development within a district for which a DAP is established ‑
(a)must be determined by the DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and
(b)cannot be determined by the local government for the district or the Commission.
40Clause 68(2) of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) provides:
68.Determination of applications
…
(2)The local government may determine an application for development approval by ‑
(a)granting development approval without conditions; or
(b)granting development approval with conditions; or
(c)refusing to grant development approval.
'Control of access' and s 28A of the Main Roads Act
41Jurisdictional error is capable of being established in circumstances where a decision‑maker misapprehends or disregards the nature or limits of their functions or powers.
42The Humich parties contend that s 28A of the Main Roads Act 1930 (WA) operates to preclude the Metro‑East Panel from imposing a condition that the developer of the Skukuza land construct a solid median on Thomas Road.[25]
[25] ts 34 - 35, 7 May 219; Applicant's outline of submissions, filed 3 April 2019 [19].
43It is said that by imposing a requirement that the developer construct a median strip on Thomas Road, condition 11 is a condition imposing 'control of access' on a section of Thomas Road by preventing traffic from entering and exiting by a right turn in or out of the Humich parties' land and Lot 12 (of the Skukuza land).[26]
[26] ts 36, 7 May 2019; Applicant's outline of submissions, filed 3 April 2019 [16].
44Thomas Road is a road proclaimed to be a highway, or main road, pursuant to s 13 of the Main Roads Act.[27] 'Control of access' is defined under s 6 of the Main Roads Act to mean, subject to the context:[28]
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 specific places only
[27] ts 34, 7 May 2019; Applicant's outline of submissions, filed 3 April 2019 [11].
[28] Main Roads Act 1930 (WA) s 6: 'control of access'.
45Section 28A of the Main Roads Act, relevantly, provides:
28A. Restricting access to roads from adjoining land
(1A)Where the Commissioner is of the opinion ‑
(a)that any section or part of a road should have control of access and should be entered and departed from at specified places only; or
(b)that any land acquired should be reserved for a future road section with control of access,
the Commissioner shall make a recommendation to the Governor accordingly but may in so doing exclude a part of the road reserve from that recommendation.
(1B)On the recommendation of the Commissioner the Governor may, by proclamation, declare ‑
(a)that such a 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; or
(b)that the land acquired is to be reserved for a future road section subject to control of access.
(1C)Where the Commissioner is of opinion that a proclamation so made should be varied or cancelled, he shall make a recommendation to the Governor accordingly.
(1D)If of opinion that the recommendation should be given effect, the Governor may, by subsequent proclamation, vary or cancel a former proclamation.
(1E)Proclamations made pursuant to the provisions of subsection (1B) or (1D), as well as being published in the Gazette shall also, if the Governor thinks fit, be published or made known in such other manner as will, in the opinion of the Governor, afford reasonable opportunity to all persons concerned, to know of the substance of the proclamations.
(1F)The powers conferred by this subsection may be exercised from time to time, and notwithstanding the provisions of section 92 of the Public Works Act 1902.
(2A)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 this Act for the purpose.
The parties' arguments in respect of s 28A of the Main Roads Act
46Counsel for the Humich parties points out that the power under s 28A of the Main Roads Act is only exercisable by the Governor, upon a recommendation from the Commissioner of Main Roads (the Commissioner).
47Condition 11, it is said, imposes 'control of access' on a section of Thomas Road (as that term is understood in the Main Roads Act)[29] and the express power conferred by s 28A of the Main Roads Act to control access to a section or part of a road involves an exclusive and specific power that derogates from the general power conferred upon the Metro‑East Panel to impose planning conditions when approving a development application.[30]
[29] ts 34, 7 May 2019.
[30] ts 35-36, 7 May 2019.
48The Humich parties also argue that condition 11 is ambulatory on grounds that condition 11 cannot be met without the further exercise of discretion by Main Roads, Western Australia.[31]
[31] Applicant's outline of submissions, filed 3 April 2019 [21].
49In response, Skukuza argues that no contradiction necessarily arises between s 28A of the Main Roads Act and the general power conferred upon a development panel to impose planning conditions.
50It is said that the power under s 28A of the Main Roads Act requires the satisfaction of a number of conditions before an area is deemed to be a 'control of access' section or part of a road (as that phrase is understood in the Main Roads Act).
51In support of this argument, counsel for the respondent drew attention to the three part definition of control of access under the Act.[32] Counsel for Skukuza also referred to the second reading speeches made in both Houses of the Western Australian Parliament when s 28A of the Main Roads Act was first enacted in 1952 in an attempt to illuminate the point that each part of the definition of control of access is required to be satisfied for a road, or a section or part of a road, to be subject to control of access.[33]
[32] ts 41, 7 May 2019.
[33] ts 54 ‑ 56, 7 May 2019; Skukuza Ventures Pty Ltd's submissions, filed 24 April 2019 [21] ‑ [22].
52I have not, however, had regard to this extrinsic material in construing s 28A of the Mains Road Act. This is because when s 28A was first enacted by s 5 of the Main Roads Amendment Act 1952 (WA) a control of access proclamation could only be made in respect of a (whole) road and not part of, or a section of, a road. The two provisions are, in this way, materially different from one another.
53For the reasons that follow, I am of the opinion that the general power conferred upon the Metro‑East Panel to approve a development application subject to condition 11, pursuant to s 162 of the Planning and Development Act, is not to be read as subject to s 28A of the Main Roads Act, as no conflict necessarily arises between the exercise of the general power conferred by s 162 and s 28A. I am also of the opinion that condition 11 cannot be characterised as an ambulatory condition.
The principles to be applied where two legislative provisions are apparently inconsistent or overlapping
54Where two legislative provisions are apparently inconsistent or overlapping the starting point is that they are to be read together. In the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied.[34] This is understood as the presumption of mutual accommodation.
[34] Sarawati v The Queen [1991] HCA 21; (1991) 172 CLR 1, 17 (Gaudron J).
55In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia,[35] it was said that when the legislature explicitly gives a power in a statute that confers general powers, those powers are to be read subject to more particular limitations and qualifications expressed in powers which prescribe the mode in which they should be exercised and the conditions and restrictions which must be observed.[36]
[35] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, 7 (Gavan Duffy CJ & Dixon J); see also Deputy Commissioner for Taxation v Dick [2007] NSWCA 190 [121] (Santow JA).
[36] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, 7 (Gavan Duffy CJ & Dixon J).
56The same approach was applied by Santow JA in Deputy Commissioner of Taxation v Dick, where the legislative provisions were to be found in different instruments; in order to ascertain the extent to which the provisions were capable of mutual accommodation.[37]
[37] Deputy Commissioner of Taxation v Dick [2007] NSWCA 190 [121] (Santow JA).
57The presumption of mutual accommodation is based on the premise that the legislature intended both provisions to operate and that, to the extent that they would otherwise overlap, one is to be read as subject to the other.[38] The presumption will be rebutted in circumstances where the proper construction of the two provisions reveals an express or implied contradiction between the two.[39]
[38] Sarawati v The Queen [1991] HCA 21; (1991) 172 CLR 1, 17 (Gaudron J).
[39] Deputy Commissioner of Taxation v Dick [2007] NSWCA 190 [116] (Santow JA).
58In Ferdinands v Commissioner for Public Employment, Gleeson CJ determined that the question to be asked was whether the later legislative provision in an Act excluded the former provision of another Act on the basis that there was such contrariety between them.[40] This approach can be displaced by the context in which the legislative provisions operate.[41]
[40] Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 [4]; see also the comments of Gummow & Hayne JJ at [18].
[41] See generally Enman v Enman [1942] SASR 131, 138 ‑ 139 (Mayo J).
59However, the presumption of mutual accommodation will not be rebutted simply because the two legislative provisions overlap, as an intention on the part of the Legislature for the specific power to operate exclusively is necessary.[42] There must be very strong grounds to support the implication that the earlier provision is derogative from, repealed or altered by the later provision.[43]
[42] Enman v Enman [1942] SASR 131, 138 (Mayo J).
[43] Sarawati v The Queen [1991] HCA 21; (1991) 172 CLR 1, 17 (Gaudron J); Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130, 133 - 134 [4] (Gleeson J).
60The questions to be determined in this matter are:
(a)whether s 28A of the Main Roads Act prevents the Metro‑East Panel from imposing a condition requiring construction of a solid median on Thomas Road;
(b)does the requirement to install a solid median on Thomas Road constitute 'control of access' within the meaning of s 28A of the Main Roads Act; and
(i)if so, does the control access to and from Thomas Road depend upon the extent to which s 28A of the Main Roads Act and s 162 of the Planning and Development Act are inconsistent or incompatible with one another; and
(ii)whether the power conferred in s 28A excludes the power of the Metro‑East Panel to impose conditions that control access to and from a road.
Does s 28A of the Main Roads Act prevent the Metro‑East Panel from imposing condition 11?
61Firstly, there is no express contradiction between s 28A of the Main Roads Act and the power conferred by s 162 of the Planning and Development Act. If any contradiction arises it must necessarily be implied. In order to displace the presumption of mutual accommodation an implicit contradiction between the two provisions must necessarily arise.
62The power conferred on a development assessment panel to approve planning applications pursuant to s 162 of the Planning and Development Act is a general power to approve or reject development applications subject to the imposition of conditions; whereas, the power conferred upon the Governor under s 28A of the Main Roads Act is a specific power.
63Section 162 of the Planning and Development Act was enacted at a later point in time to s 28A of the Main Roads Act. If s 28A of the Main Roads Act confers an exclusive power to control access to a section or part of a road then, to that extent, the general power in s 162 (if s 28A applies) will be inconsistent with s 28A.
64For the reasons that follow, however, I do not consider that the powers conferred by s 162 of the Planning and Development Act and s 28A of the Main Roads Act are inconsistent to the extent that it is beyond the power of the Metro‑East Panel to impose condition 11.
65Section 28A of the Main Roads Act requires the Commissioner, in the event that he or she forms an opinion that any section or part of a road should have control of access and should be entered, and departed from, at specified places only; or that any land acquired should be reserved for a future road section with control of access, to make a recommendation to the Governor that the road be subject to control of access. The Governor then may, by proclamation, declare the section or part of the road the subject of the recommendation subject to control of access (as that phrase is defined under the Main Roads Act).
66The ambit of s 28A of the Main Roads Act is to be ascertained from the text, in light of the definition of control of access and the object and purpose of the Main Roads Act. The definition of control of access in s 6 of the Main Roads Act requires the satisfaction of two conditions, namely, that:
(1)the section or part of the road is intended for use by prescribed traffic without avoidable hindrance, whether from traffic from an intersecting road or otherwise; and
(2)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.
67The decision by the Metro‑East Panel to impose condition 11 on Lot 12 of the Skukuza land is to prevent a right turn in and right turn out Thomas Road access by requiring the construction of a solid median in the middle of a section of Thomas Road. Such a solid median would, if constructed, also prevent a right turn in and right turn out onto Thomas Road from the Humich land.
68However, the section of Thomas Road to which condition 11 relates cannot be characterised as a section or part of a road that is for use by prescribed traffic without avoidable hindrance, nor has it been declared by proclamation to be subject to control of access.
69The power under s 28A of the Main Roads Act need not be exercised for there to be a solid median preventing traffic on a road from entering and exiting at a particular location.
70A proclamation of control of access on a road pursuant to s 28A is reserved for specific traffic conditions in which the Commissioner considers right of access should be restricted in order to facilitate the movement of traffic on a road and such a section is proclaimed to be subject to control of access by the Governor. It is a provision, as counsel for the Skukuza points out, that provides extra protection for busy roads and highways where the Governor deems it necessary.[44] In such a circumstance, a person who enters or leaves a road subject to a control of access proclamation, otherwise than in the place provided for, commits an offence.[45]
[44] ts 57, 7 May 2019.
[45] Main Roads Act 1930 (WA), s 28A(7).
71The power to proclaim control of access on roads, from time to time, is a power exercisable at the discretion of the Governor on recommendation from the Commissioner in prescribed circumstances. This is emphasised, in the definition of control of access under the Main Roads Act, by the use of the conjunctive 'and' in the definition of control of access, particularly when read with the object and purpose of the Main Roads Act, part of which is to provide for the construction, maintenance and supervision of highways and for the control of access to roads.
72Further, the power conferred by s 28A provides for more extensive control of access than simply the ability to enter and exit a road at particular points. Section 28A expressly contemplates the prohibition of the movement of live-stock (unless in a vehicle in accordance with the provisions of the Main Roads Act and the regulations made therein).[46] Section 28A, as noted above, also makes it an offence to enter or leave a section or part of a road subject to control of access otherwise than at a place provided for pursuant to the provisions of the Main Roads Act or regulations.[47]
[46] Main Roads Act 1930 (WA), s 28A(5A).
[47] Main Roads Act 1930 (WA), s (7).
73Section 28A provides for a discretionary power to proclaim a road or section of a road as being subject to control of access where there is deemed to be a greater need for supervision, protection and certainty in controlling rights of access to a road. In light of the more extensive controls and the discretion involved in proclaiming a road, or part thereof, subject to control of access it is unnecessary for the procedure under s 28A of the Main Roads Act be followed for every road in Western Australia where it is desirable to restrict entry and exit points to one direction from two points at either side of a road so as to invoke the criminal sanctions that necessarily follow by the making of a proclamation under s 28A of the Main Roads Act.
74This construction is consistent with the effect of the compensation provisions in s 28A. The construction of such a solid median as required by condition 11 could not, invoke the compensation provisions, in s 28A(2A) to (2K) of the Main Roads Act, as s 28A(2A) and (2B) contemplate that compensation is only payable where access to a section or part of a road not subject to control of access is extinguished as the result of a section or part of a (another) road is declared to be subject to control of access.
75On the facts before the court, s 28A does not apply.
76For these reasons, I do not consider that condition 11 falls outside of the power conferred upon the Metro‑East Panel by s 162 of the Planning and Development Act to approve a development subject to conditions by reason of the specific power that arises in s 28A of the Main Roads Act.
77Nor do I agree that condition 11 imposes a condition that requires a further exercise of discretion by a third party or parties.
78The first paragraph of condition 11 simply imposes a requirement that the proposed access (from and to the Skukuza land) is to be designed and constructed to the satisfaction of the Shire (Serpentine Jarrahdale) on the advice of Main Roads Western Australia. The Humich Parties do not specifically challenge this part of condition 11 but say that the power to construct a solid median and any part of the crossover that is on Crown land is statutorily conferred only on the Commissioner for Main Roads and the Governor pursuant to s 28A of the Main Roads Act and the Commissioner of Main Roads pursuant to s 15 of the Main Roads Act who is vested with the care, maintenance, and management of highways and main roads.
79It does not follow that because of the effect of s 15 of the Main Roads Act that condition 11 must be characterised as an ambulatory condition, or that s 15 of the Main Roads Act otherwise renders condition 11 invalid. Condition 11 does not require the exercise of discretion by the Shire of Serpentine Jarrahdale or Main Roads Western Australia.
80As Skukuza points out:
(a)The Metro‑East Panel is empowered to impose conditions relating to construction of things beyond the Skukuza land if it has a planning purpose, is not unreasonable and is reasonably and fairly related to the development permitted.[48] The last requirement requires proof that there is a connection or relationship between the planning purpose for which the condition has been imposed and the likely or possible consequences of the proposed development.[49]
(b)For a development condition to have this connection to the development, it does not mean the condition can only refer to matters on the development land itself. A connection to the development may exist beyond things happening on the land itself.[50] In the context where a court upheld a condition of a subdivision requiring the contribution to the cost of replacing a bridge and resurfacing a road which provided access to the subdivision, Gibbs CJ observed that:[51]
… the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes that the subdivision is likely to produce - for example, in a case such as the present, the increased use of the road and of the bridge - and to impose such conditions as appear to be reasonably required in those circumstances.
[48] Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [57] (McHugh J).
[49] Reid v Western Australian Planning Commission [2016] WASCA 181 [37] (Martin CJ; Newnes & Murphy JJA agreed).
[50] See, for example, the connection recognised between a subdivision or development and a condition requiring a contribution to parks and recreation: Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142; a contribution to school site in the area: Tilbrook v Western Australia Planning Commission [2011] WASAT 130; a condition requiring the ceding of a lot for foreshore: Sin‑Aus‑Bel Pty Ltd v Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67; Western Australian Planning Commission v TemwoodHoldings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30.
[51] Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 53 ALR 632, 635 (Mason, Wilson, Brennan & Dawson JJ agreed); referred to in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 763; (2004) 221 CLR 30 [152] (Callinan J); Sin‑Aus‑Bel Pty Ltd v Western Australian Planning Commission [2006] WASAT 266; (2006) 45 SR (WA) 67 [43] (Chaney J); Reid v Western Australian Planning Commission [2016] WASCA 181 [23] ‑ [26] (Martin CJ; Newnes & Murphy JJA agreed).
81In any event to the extent that it is relevant, it is conceded on behalf of the Humich Parties that it is open at any time for Main Roads Western Australia, pursuant to the power conferred on the Commissioner by s 15 of the Main Roads Act, to re‑design any part of Thomas Road (which could include constructing and the installation by it of a solid median on Thomas Road on the part of the road between the Humich land and the Skukuza land).
The power of the panel to impose conditions requiring acquisition and construction on Main Roads' property
82The Humich parties contend that the Metro‑East Panel is only empowered to impose conditions relating to construction on Skukuza land and had no authority to impose conditions requiring construction on a highway as property in highways is vested in the Crown and is controlled by the Commissioner.[52]
[52]Applicant's outline of submissions, filed 3 April 2019 [22] ‑ [26].
83The Humich parties argue that [3] of condition 11 constitutes a requirement for 'land acquisition' as it imposes an obligation on the owners of the Skukuza land to acquire land on Thomas Road on which a solid median is to be constructed, contrary to s 15 of the Main Roads Act.
84Condition 11 imposes an obligation upon the developer to bear the cost of the 'land acquisition, design and construction of the left turning pocket and solid median'. Yet, the reference to 'land acquisition' in the third paragraph of condition 11 should not be construed to mean that the developer is required to acquire the land comprised of the section of Thomas Road upon which a solid median is required to be constructed.
85At the time condition 11 was imposed, Skukuza was yet to acquire the land. The reference to land acquisition, properly understood, is a reference to the costs involved in the acquisition of the Skukuza Land, Lots 12 and 50, that are the subject of the Skukuza approval. Condition 11 also imposes a separate and distinct obligation on the developer to bear the cost of the construction of the left turning pocket and solid median.
Legal unreasonableness
86Jurisdictional error is capable of being established on the ground that a decision is legally unreasonable. The High Court has made it clear that the legislature is taken to have intended that a discretionary power, statutorily conferred, must be exercised reasonably.[53]
[53] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63] (Hayne, Kiefel & Bell JJ), [88] ‑ [89] (Gageler J); Kruger v The Commonwealth (1997) 190 CLR 1, 36 (Brennan J); Minister for Immigration and Multicultural Affairs v Esheto (1999) 197 CLR 611 [126] (Gummow J).
87Counsel for the applicant submitted that the determination of the panel to impose condition 11 should be quashed for unreasonableness.
88Unreasonableness, as a ground of judicial review, has often been the subject of criticism as it straddles the line between judicial review and merits review. The distinction between judicial review and merits review has been strictly maintained in Australia. In The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority, Edelman J observed that it is not for the judge on a judicial review application which focuses upon whether a discretionary decision is unreasonable to substitute his or her preferred decision for that of the decision‑maker.[54]
[54] The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [142] ‑ [143].
89Similarly, in Minister for Immigration and Citizenship v Li, a plurality of the High Court explained that in undertaking to judicially review a decision for jurisdictional error on the ground of unreasonableness it is not for the court to simply substitute its preferred decision:[55]
[C]ourts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision‑maker.
[55] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332 [66] (Hayne, Kiefel & Bell JJ).
90Legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence, because whether a decision is legally unreasonable depends upon the application of the relevant principles to particular factual circumstances of the case.[56]
[56] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 [84] (Nettle & Gordon JJ).
91The legal standard of reasonableness is the standard indicated by the proper construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.[57]
[57] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332 [67] (Hayne, Kiefel & Bell JJ).
92Every statutory discretion is confined by the subject matter, scope and purpose of the act under which the discretion is conferred.[58] In circumstances where the discretion conferred upon the decision‑maker is ill-defined, as it is here, it is necessary to ascertain its limits by looking to the scope and purpose of the act conferring the discretionary power.[59]
[58] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332 [23] (French CJ).
[59] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332 [67] (Hayne, Kiefel & Bell JJ); Klein v Domus Pty Ltd [1963] HCA 54; (1963) 109 CLR 467, 473 (Dixon J); Jacob v Save Beeliar Wetlands Inc [2016] WASCA 126 [67] ‑ [68] (McLure P; Buss JA agreed).
93The legal standard of reasonableness should not be understood to be limited to whether the decision is so unreasonable that no reasonable person would have made it, rather, the standard to be addressed is whether the power, on its true construction, has been abused.[60] Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[61] This point was expressed clearly by Gageler J in Minister for Immigration and Citizenship v Li, when his Honour said: [62]
Review by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'.
[60] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 [80] (Nettle & Gordon JJ).
[61] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332 [76] (Hayne, Kiefel & Bell JJ), [98] (Gageler J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 [82] (Nettle & Gordon JJ).
[62] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332 [105] applying New Brunswick (Board of Management) v Dunsmuir [2008] 13CR 190 [47]; applied in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 [82] (Nettle & Gordon JJ).
Is the decision to impose condition 11 legally unreasonable?
94The decision of the Metro‑East Panel to approve the Caltex development application subject to the requirement in the third paragraph of condition 11 requiring the developer to construct a solid median was legally unreasonable.
95The power conferred upon a development assessment panel to determine planning applications pursuant to s 162 of the Planning and Development Act and reg 8 of the Planning and Development (Development Assessment Panels) Regulations2011 (WA) is a broad general discretion to approve or refuse development applications and, if necessary, to impose conditions upon applicants as conditions of their planning approval in accordance with the relevant planning scheme.
96 In Western Australian Planning Commission v Temwood Holdings Pty Ltd, McHugh J observed that a condition attached to a grant of planning permission will not be valid unless: [63]
1.The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning.
2.The condition reasonably and fairly relates to the development permitted.
3.The condition is not so unreasonable that no reasonable planning authority could have imposed it.
[63] Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [57]; applied in Reid v Western Australian Planning Commission [2016] WASCA 181 [28], [35] (Martin CJ; Newnes & Murphy JJA agreeing).
97Whilst the discretion granted to a local or joint development assessment panel is substantially undefined, it must also be subject to confinement by the object, scope, and purpose of the Planning and Development Act.
98The object and purpose of the Planning and Development Act, under which the Planning and Development (Development Assessment Panels) Regulations are enacted, is to consolidate the previous schemes for planning and development in Western Australia, and to provide for an efficient and effective land use planning system and promote the sustainable use and development of land in the State.[64]
[64] Planning and Development Act 2011 (WA) s 3(1)(a)-(c).
99This purpose, or object, could not be achieved if the Metro‑East Panel, and other development assessment panels established under the statutory scheme, are able to make decisions that are inconsistent with one another in such a way as to be irreconcilable. If this were the case, there would be capacity for the same development assessment panel to impose conditions upon developers of neighbouring land, that were impossible to be performed, which would not promote an efficient and effective land use system in Western Australia.
100That is not to say that during an assessment of a development application a panel should be required to canvas endlessly its previous decisions to ensure consistency of decision making. However, in the context of the power conferred by the Planning and Development Act, grants of planning permission are impliedly required not to be practicably irreconcilable when they are made within a relatively short period of time, and are made largely by the same decision‑makers, and in relation to adjacent land that had a current development approval in place.
101The Metro‑East Panel granted planning permission to both the Skukuza and Humich parties under conditions that are incapable of reconciliation. The Skukuza approval and the imposition of a requirement to construct a solid median on Thomas Road (condition 11), is directly inconsistent with the conditions of the earlier planning approval granted to the Humich parties allowing full movement access from the Humich land to Thomas Road.
102The Humich approval and the Skukuza approval are for land opposite one another on Thomas Road, were made by the same joint development assessment panel and (largely) consist of the same decision‑makers.[65]
[65] ts 39 ‑ 40,7 May 2019; the November 2018 decision to extend the Humich parties' approval consisted of three out of five of the same members as the 29 October 2018 meeting (Skukuza approval), in particular, the same presiding member, deputy presiding member, and one local government member.
103It cannot be said that the Metro‑East Panel was not aware of the earlier approval as the Humich Parties were represented and made submissions to the Metro‑East Panel immediately prior to the Skukuza decision being made.[66]
[66] For the presentation request forms see: affidavit of Fiona Sze, affirmed 15 March 2019, annexure FZ8, page 485 - 492. Ms Linda Rowhey presented on behalf of the Humich parties at the meeting on 29 October 2018 see: affidavit of Randal Ivan Humich, sworn 22 February 2019, annexure RH16, page 320.
104In this matter the Metro‑East Panel imposed a condition on the Skukuza land that is inconsistent and incapable of reconciliation with the Humich approval, lacking both justification and intelligibility in light of the object and purpose of the Planning and Development Act which, as I have outlined above, is to provide for an efficient and effective land use planning system and promote the sustainable use and development of land in the State.
105The decision of the Metro‑East Panel to impose condition 11 on the development of the Skukuza land, insofar as condition 11 imposes a requirement on the developer to construct a solid median on Thomas Road, is not reconcilable with the approval granted to the Humich parties and cannot achieve the object and purpose of the Planning and Development Act.
106Accordingly, Condition 11 is legally unreasonable and vitiated by jurisdictional error.
Discretionary relief in the nature of certiorari
107Jurisdictional error in respect of condition 11, on the part of the Metro‑East Panel, has been identified. However, as counsel for Skukuza points out, certiorari is a discretionary remedy.[67]
[67] See generally, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372.
108An argument is put on behalf of Skukuza that the discretion to refuse to grant a writ of certiorari should be exercised as Skukuza recently submitted a new development application over the Skukuza land, and that a grant of certiorari would, ultimately, be of no legal effect if the Metro‑East Panel were to subsequently approve the new development application and cancel the existing Skukuza development approval.[68]
[68] ts 45, 7 May 2019.
109In support of this submission, Skukuza applied to read into evidence an additional affidavit sworn by Belinda Ann Moharich on 24 April 2019. The application was opposed by the Humich parties.
110I am of the opinion, however, that this affidavit should be admitted into evidence as the affidavit properly puts relevant documents before the court in support of this argument, being a copy of the development application made by Skukuza, dated 14 March 2019, and other supporting materials.
111Counsel for Skukuza submits that it is open to the court to refuse relief on the grounds that even if jurisdictional error in respect of condition 11 can be identified, quashing the condition will be futile (that is, it will be of no legal effect) if a development assessment panel were to later approve the new application.[69]
[69] Skukuza Ventures Pty Ltd's submissions, filed 24 April 2019 [39] ‑ [40].
112Counsel for Skukuza also argued that the decision to quash condition 11 for jurisdictional error will be of no legal effect in light of a media announcement, made on 28 March 2019, by the Prime Minister and various cabinet ministers in respect of the Federal Government's commitment to invest an additional $1.6 billion in road and rail infrastructure in Western Australia[70] and the Premier and Minister for Transport for the State of Western Australia's pledge to specifically redevelop Nicholson Road and Thomas Road in 2020.[71]
[70] See affidavit of Belinda Ann Moharich, sworn 24 April 2019, annexure BM4, page 223.
[71] Skukuza Ventures Pty Ltd's submissions, filed 24 April 2019 [40]; See affidavit of Belinda Ann Moharich, sworn 24 April 2019, annexure BM5, page 226, 227.
113As to the plans to upgrade Thomas Road, although the intentions of our politicians may be genuine, as counsel for Humich points out, the statements made in the media releases have been made during the course of a federal election campaign.[72]
[72] ts 46, 7 May 2019.
114There is no certainty associated with either announcement and consequently, I have not had regard to the statements made in the media releases.
115There is no certainty that the Thomas Road and Nicholson Road intersection will be redeveloped in the near future. Nor is there any certainty whether as part of any future redevelopment of Thomas Road Main Roads Western Australia will or will not construct a solid median that will preclude right hand turns onto Thomas Road from the Humich land and the Skukuza land, or whether it will redevelop Thomas Road in some other manner.
116The function of certiorari is to quash the legal effect or legal consequences of the decision under judicial review.[73] Relief in the nature of certiorari would not ordinarily be granted in circumstances where the issuing of the writ is an exercise in futility.[74] However, there is no convincing evidence before the court upon which it could be determined that the issuing of certiorari would be an exercise in futility.
[73] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580, (Mason CJ, Dawson, Toohey & Gaudron JJ) 595 (Brennan J).
[74] Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187 [87] (Ipp J); Mulholland v Winslow [2016] WASC 19 [79] (Martino J); Duro Felguera Australia Pty Ltd v Samsung CBT Corporation [2018] WASCA 28 [63] (Martin CJ).
117The fact that Skukuza has submitted a new development application only raises the hypothetical prospect of a new development application being granted on different conditions. The assertions or pledges made by our politicians also do not raise any ground upon which the discretion not to grant certiorari should be exercised. There is no certainty that the proposed amendments to Thomas Road will go ahead in the manner described, or at all.
118For these reasons, it cannot be said that there is any evidence before the court that would make the grant of certiorari an exercise in futility. On that basis, I will not exercise my discretion to refuse to grant the writ.
ANNEXURE A
ANNEXURE B
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Research Associate/Orderly to the Honourable Justice Smith
17 JUNE 2019
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