Hunter v Minister for Planning
[2012] WASC 247
•5 JULY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HUNTER -v- THE MINISTER FOR PLANNING [2012] WASC 247
CORAM: MARTIN CJ
HEARD: 3 & 5 JULY 2012
DELIVERED : 5 JULY 2012
FILE NO/S: CIV 2121 of 2012
BETWEEN: RICHARD HUNTER
Plaintiff
AND
THE MINISTER FOR PLANNING
First RespondentWOODSIDE ENERGY LTD
Second Respondent
Catchwords:
Administrative Law - Application for order nisi - Planning and Development Act 2005 (WA) - Whether Minister’s decision to amend a local interim development order was beyond power for improper purpose
Administrative Law - Improper purpose - Consideration of authorities - Whether the decision of the Minister to amend the local interim development order was for a planning purpose - Purpose for which power is conferred under s 109(2) of the Planning and Development Act 2005 (WA) - Whether the substantial or dominant purpose of the Minister in making the amendment was the improper purpose of thwarting pending legal proceedings in a related matter - Insufficient evidence to support finding
Legislation:
Land Administration Act 1997 (WA), s 91
Planning and Development Act (Development Assessment Panels) Regulations 2011 (WA)
Planning and Development Act 2005 (WA), s 3, pt 6 div 2, s 102(1), s 103(2)(c), s 107 s 107(1), s 109(2)
Result:
Order nisi refused
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Ms J Walker
First Respondent : Mr R M Mitchell SC
Second Respondent : Mr P C S Van Hattem SC & Mr D Dragovic
Solicitors:
Plaintiff: Environmental Defender's Office (WA) Inc
First Respondent : State Solicitor for Western Australia
Second Respondent : Freehills
Case(s) referred to in judgment(s):
Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth [1986] HCA 47; (1986) 161 CLR 88
Bonton Pty Ltd v City of South Perth [1982] WAR 213; (1981) 47 LGRA 422
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273; (2007) 161 FCR 40
Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649
Long v Copmanhurst Shire Council [1969] 2 NSWR 641; (1969) 19 LGRA 29
Municipal Council of Sydney v Campbell [1925] AC 338
Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495
Nettheim v Minister for Planning and Local Government (1988) 16 ALD 796; BC 8801395
R v Humby; Ex Parte Rooney [1973] HCA 63; (1973) 129 CLR 231
R v Toohey; Ex Parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170
Re Capobianco; Ex Parte Castelli, Unreported, WASC, Library No 980567, 18 & 25 September 1998
Re Her Honour Judge Schoombee; Ex Parte Attorney General for Western Australia [2011] WASC 23
Re Minister for the Environment; Ex Parte Elwood [2007] WASCA 137
Seddon v Medical Assessment Panel [2011] WASC 237
Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87
Woodley v Minister for Indigenous Affairs [2009] WASC 251
MARTIN CJ: (This judgment was delivered extemporaneously on 5 July 2012 and has been edited from the transcript.)
The applicant, Mr Richard Hunter, moves for an order nisi calling upon the Minister for Planning, who is the first respondent, to show cause why a writ of certiorari should not be issued to quash an order made by the Minister to amend the Shire of Broome Local Interim Development Order No 4 made by the Minister on 25 June 2012, a summary of which was published in the Government Gazette on 26 June 2012 (the Amendment Order). The sole ground upon which an order quashing the Amendment Order is sought is the assertion that:
The Amendment Order was made for the improper purpose of thwarting current legal proceedings in the matter of Hunter v Shire of Broome & Another, CIV 1940 of 2012.
The legal proceedings referred to in the ground are proceedings commenced by Mr Hunter in this court against the Shire of Broome (the Shire), Woodside Energy Ltd (Woodside) and the Kimberley Joint Development Assessment Panel (the KJDAP). The Minister for Planning intervened in those proceedings. Woodside is the second respondent in these proceedings.
In the course of those proceedings, a number of legal issues were referred to the Court of Appeal by a judge of the General Division. The nature of the legal proceedings and of the issues referred to the Court of Appeal is best understood from a recitation of the facts that were stated for the purposes of the reference of the legal issues. Relevantly, those facts are as follows.
Mr Hunter is a Goolarabooloo Law Boss for an area of land which includes Lot 259 Wattle Drive, Waterbank, which is a parcel of land situated near James Price Point on the Dampier Peninsula north of Broome, and within the municipality of the Shire. Lot 259 is Crown land within the meaning of the Land Administration Act 1997 (WA) over which a licence has been granted to Woodside under s 91 of that Act.
The Minister for Planning issued Shire of Broome Interim Development Order No 4 pursuant to the provisions of the Planning and Development Act 2005 (WA) (the Act). Lot 259 is within the scope of that order and, in its form prior to the making of the Amendment Order, the order prohibited development of Lot 259 without the written approval of the Shire or the KJDAP.
On 22 December 2011, Woodside submitted to the Shire an application for approval of certain works, estimated to have a cost of $6.2 million. Woodside elected to have the application determined by the KJDAP, pursuant to the Planning and Development (Development Assessment Panels) Regulations 2011 (WA).
On about 9 February 2012, an employee of the Shire prepared a document entitled 'Responsible Authority Report Template' in relation to Woodside's application. From about 10 February 2012, the Shire published a number of documents on its website relating to Woodside's application. The information published by the Shire is said to have been deficient in a number of respects.
The meeting of the KJDAP to consider Woodside's application was scheduled for 17 February 2012. The agenda for that meeting was not available on the Shire's website until 14 February 2012.
At a meeting of the council of the Shire on 16 February 2012, a motion to 'endorse' the report prepared by the employee to which I have already referred was put but was not carried.
At its meeting on 17 February 2012, the KJDAP purported to approve Woodside's application for development approval subject to conditions.
The legal issue referred to the Court of Appeal was whether the approval purportedly granted by the KJDAP on 17 February 2012 was invalid on certain grounds, including grounds relating to the deficiencies in the publication of material relating to the meeting of the KJDAP prior to that meeting, the lateness of publication of the agenda for the meeting, the failure of the Shire to give the KJDAP a report which had been endorsed by the council of the Shire, and an alleged misapprehension by the KJDAP with respect to the effect of not granting planning approval at its meeting of 17 February 2012.
The questions referred to the Court of Appeal were listed for hearing by that court on Tuesday, 3 July 2012.
The evidence in these proceedings
The evidence which has been tendered in support of the application by Mr Hunter for the order nisi with respect to the quashing of the Amendment Order establishes the following facts.
On 25 June 2012, the Minister made the Amendment Order. Relevantly to these proceedings, the Amendment Order inserted an additional paragraph and two schedules to the order. The additional paragraph was in the following terms:
9.Exemption for Browse LNG Preliminary Works
(a)This exemption operates if and only if the purported approval by the Kimberley Joint Development Assessment Panel on 17 February 2012, of an application for planning approval made by Woodside Energy Ltd relating to various works within the Browse LNG Precinct on unallocated Crown Land at James Price Point, Dampier Peninsula, is invalid or does not have effect according to its terms.
(b)Development of a kind described in Schedule 1 to this Order when conducted in accordance with the conditions contained in Schedule 2 to this Order, is exempt from the operation of this Order.
Schedule 1, added by the Amendment Order, is headed 'Exempted Development' and restates, verbatim, the application made by Woodside for planning approval. Schedule 2, which was also added by the Amendment Order, restates the conditions purportedly imposed by the KJDAP at the time it purported to grant approval of Woodside's application.
The next day, 26 June 2012, a special issue of the Government Gazette was published giving notice of the making of the Amendment Order and summarising its terms and effect. The Amendment Order took effect from the date of gazettal in accordance with s 107 of the Act.
During a radio programme broadcast on the evening of 26 June 2012, an excerpt from an interview with the Minister for Planning was broadcast, in which the Minister stated:
The advice that I've received is that by taking this action it would hopefully obviate the need for the court case to go ahead.
No evidence has been adduced with respect to Mr Hunter's standing to obtain the relief which he seeks. However, neither the Minister nor Woodside puts any submissions on that subject in opposition to the grant of the order nisi, with the result that the issue need not be further considered, at least for the purposes of determining whether an order nisi should be granted.
The test to be applied to the grant of the order nisi
There are differing authorities in this court with respect to the test properly applied in order to determine whether or not an order nisi should be granted in proceedings such as these. The differing authorities have been recently and conveniently summarised in Re Her Honour Judge Schoombee; Ex Parte Attorney General for Western Australia [2011] WASC 23, [11] ‑ [18] and Seddon v Medical Assessment Panel [2011] WASC 237 [29] ‑ [32]. In short, some but not all of the authorities have suggested that there is a two-fold test which requires the court first to assess whether the applicant has an arguable case, and if so, whether the applicant has reasonable prospects of success (see, for example, my observations in Woodley v Minister for Indigenous Affairs [2009] WASC 251). Other (generally earlier) authorities suggest that there is a single test, which is whether an arguable case has been established, which has in some cases been described as a threshold test which is 'quite low' (see, for example, Re Capobianco; Ex Parte Castelli, Unreported, WASC, Library No 980567, 18 & 25 September 1998 (Parker J)).
There may be force in the proposition advanced by senior counsel for the Minister to the effect that, at least in some cases, the distinction between the two approaches identified in the authorities is essentially semantic, in that there may be no practical difference between the outcome of the two approaches.
This is a case in which the choice of one or other of the tests would make no practical difference to the outcome. That is because the essential question is whether the evidence upon which Mr Hunter relies is arguably capable of supporting an inference to the effect that the Minister's purpose in making the Amendment Order was of a kind which would result in the invalidity of that order. If the evidence is capable of supporting that inference, Mr Hunter will have established an arguable case. In that event, it would be unjust to refuse to grant an order nisi on the basis of a tentative assessment of the strength of the inference to be drawn from the evidence, because the grant of the order nisi may well enable Mr Hunter to gain access to interlocutory procedures which would provide evidence which could strengthen the inference to be drawn. On the other hand, if the evidence adduced by Mr Hunter at this point is simply incapable of arguably supporting an inference that the Minister's purpose was of a kind which would result in invalidity of the order, then it would be equally unjust to grant an order nisi to Mr Hunter to enable him to utilise the interlocutory processes of the court to go fishing for evidence that might perhaps provide him with a case which he currently does not have.
For these reasons, in the particular circumstances of this case, I will address only the question of whether Mr Hunter has established an arguable case. This question will turn upon an assessment of whether the evidence upon which he relies is capable of supporting an inference that the Minister's purpose in making the Amendment Order was of a kind which would result in the invalidity of that order.
Improper purpose - the principles
Before turning to that question, it is appropriate to set out some general principles of law which are applied when the exercise of a power is challenged on the basis of improper purpose. I did not understand the submissions of the parties to suggest that those principles were contentious.
First, in this context the expression 'improper purpose' does not necessarily connote a purpose which is corrupt, immoral or lacking in probity. Rather, it connotes a purpose which is ulterior or extraneous in the sense that it is beyond the scope of the purposes for which the relevant power is conferred (see, for example, Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87, 106 (Williams, Webb & Kitto JJ)). Accordingly, where the relevant power derives from legislation, the purposes for which the power has been conferred will be derived by a process of construction of the legislation: see R v Toohey; Ex Parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 186 (Gibbs CJ), 233 (Aickin J).
The ulterior purpose need not be established to be the sole purpose for the exercise of the power. It will be sufficient if it is established that the purpose is a substantial purpose, in the sense that the power would not have been exercised but for the ulterior or extraneous purpose: Thompson v Randwick, 106; see also Re Minister for the Environment; Ex Parte Elwood [2007] WASCA 137 [173].
The party impugning the exercise of power on the basis of improper purpose bears the onus of establishing such a purpose (Municipal Council of Sydney v Campbell [1925] AC 338, 343; Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649, 671 (Gaudron J)). In the absence of evidence establishing improper purpose or displacing all possible legitimate purposes, it will be presumed that the power was exercised for a purpose falling within the scope of the purposes for which the power was conferred. An improper purpose will not lightly be inferred. If the purpose for which the power was exercised must be ascertained by inference from other facts, the presumption of regularity will be applied, so that the inference of improper purpose will only be drawn if the evidence cannot be reconciled with the proper exercise of the power (Industrial Equity Ltd, 672 (Gaudron J)).
There are some authorities which draw a distinction between a substantial purpose, in the sense in which that term is used in the decision in Thompson v Randwick, to which I have referred, and a 'dominant' purpose (see, for example, Haneef v Minister for Immigration and Citizenship [2007] FCA 1273; (2007) 161 FCR 40 [287]). However, at this stage of these proceedings, it is unnecessary to determine whether there is any material distinction between a test cast in terms of substantial or dominant purpose. It is sufficient for present purposes to observe that the purpose must have motivated the exercise of the power, in the sense that the power would not have been exercised but for the existence of that purpose or motive.
Counsel for Mr Hunter relies upon two cases in which these principles have been applied in the context of pending or threatened legal proceedings.
In Nettheimv Minister for Planning and Local Government (1988) 16 ALD 796; BC 8801395, the validity of an order of the Minister for Planning revoking a Permanent Conservation Order was challenged on the basis that it was made for the purpose of frustrating pending court proceedings challenging the validity of a similar order previously made by the Minister. After referring to a number of previous cases, McHugh JA, with whom the other members of the court agreed, observed:
These cases are authority for the proposition that an exercise of power by an administrative body made with the intention of achieving the collateral purpose of thwarting pending or potential legal proceedings, is invalid. However, the proposition has no application unless the evidence establishes that there was a purpose of thwarting the legal proceedings and that it was a substantial purpose in the sense that no attempt would have been made to exercise the power if the administrative authority had not desired to thwart the litigation: cf Thompson v Randwick Corporation (1950) 81 CLR 87 at 106. Here there is no evidence of a purpose of thwarting the litigation (10).
These observations reinforce my view that the legal principles properly applied are not in doubt, and that the real question in this case is one of fact.
The second authority relied upon by counsel for Mr Hunter is one of the cases to which McHugh JA referred prior to the passage I have just cited - Long v Copmanhurst Shire Council [1969] 2 NSWR 641; (1969) 19 LGRA 29. That was a case in which a local authority had purported to use planning powers for the impermissible purpose of the economic regulation of the dairy industry. It refused a development application for that impermissible purpose. The applicant threatened proceedings challenging the authority's decision. In response, the authority purported to issue an order prohibiting any development of that kind within the area of the municipality. In that unusual context, Hardie J observed that the second purported order was invalid because it was made for a purpose extraneous to a planning purpose, being an attempt to place the authority's earlier decision beyond the reach of legal redress (34). This case provides further support for my view that the legal principles applicable to this case are not in doubt, and that the real question which I must determine is a question of fact.
Neither of the cases relied upon by counsel for Mr Hunter support the proposition that the exercise of an administrative or legislative power is invalid merely because it would have an effect upon pending or threatened litigation, and counsel for Mr Hunter does not advance so broad a proposition. Rather, it is said that the evidence which has been adduced in this case gives rise to an arguable case that the Minister's purpose in making the Amendment Order was extraneous to a planning purpose and therefore, like the exercise of power in Long, but unlike the exercise of power in Nettheim, is for that reason invalid.
The statutory context of the Minister's power
The Minister's power to amend the Interim Development Order was conferred by s 109(2) of the Act. It is necessary to view that provision in its context in order to ascertain the purposes for which the power can properly be exercised.
Section 3 of the Act provides that its purposes include to 'provide for an efficient and effective land use planning system in the State'.
Division 2 of pt 6 of the Act makes provision for the making and purpose of local interim development orders. Within that division, s 102(1) provides:
102. Making and purpose of local interim development orders
(1)Pending the consideration by the Minister of a proposed local planning scheme for a district or part of a district situated outside the metropolitan region, the Minister may make such local interim development orders as are necessary and in the public interest for regulating, restricting or prohibiting the development of any land within the district or such part of the district.
Section 103(2)(c) provides that a local interim development order may exempt from the operation of the order any development of a specified class within the local order area. This is the power which the Minister has purported to exercise by making the Amendment Order.
Section 107(1) provides that an interim development order comes into operation on the day of publication of the relevant notice in the Government Gazette and 'has effect as if it were enacted by this Act'.
Senior counsel for the Minister noted that there may be an argument to the effect that the 'as if enacted' provision precludes any sustainable allegation of improper purpose because the power of the Parliament is plenary and unrestricted by any requirements of purpose. However, senior counsel appropriately conceded the contentious nature of this argument, and does not rely upon it for the purposes of opposition to the grant of the order nisi.
When the Minister's power to amend a local interim development order is read in the context of the Act as a whole, it is clear that the purpose for which the power is conferred is to enable the Minister to advance the public interest by 'regulating, restricting or prohibiting the development of any land' (using the language of s 102(1)).
It follows that if the evidence upon which Mr Hunter relies is arguably capable of sustaining an inference that a substantial purpose of the Minister was not the purpose of regulating, restricting or prohibiting the development of Lot 259, in the sense that the Minister would not have exercised the power to make the Amendment Order but for that ulterior or extraneous purpose, an arguable case will have been established. On the other hand, if the evidence upon which Mr Hunter relies is not arguably capable of sustaining that inference, no arguable case is made out, and the application for the order nisi must be refused.
The evidence upon which Mr Hunter relies has three principal components, namely:
(a)the terms of the Amendment Order itself;
(b)the time at which the Amendment Order was made; and
(c)the statement made by the Minister in the course of the radio broadcast.
I will deal with each of these components in turn.
The terms of the Amendment Order
Counsel for Mr Hunter points to the fact that the Amendment Order only operates in the event of the invalidity of the grant of planning approval by the KJDAP. This is said to support the proposition that the Minister's purpose in making the order was not the purpose of regulating the development of Lot 259, but the improper purpose of preventing Mr Hunter obtaining injunctive relief to restrain the development of that land from proceeding. The difficulty with this submission is that it draws a distinction without a difference. The relief sought by Mr Hunter in the proceedings he has brought challenging the validity of the planning approval granted by the KJDAP includes injunctive relief restraining Woodside from developing the land in accordance with the development set out in its application for planning approval. The terms of the Amendment Order allow Woodside to continue developing the land in that manner, subject to compliance with the conditions imposed initially by the KJDAP, whether or not the approval granted by the KJDAP was invalid by reason of one or more of the procedural defects asserted by Mr Hunter in his proceedings. The Amendment Order regulates the development of Lot 259 by permitting Woodside's proposed development to proceed subject to specified conditions whether or not previous procedural deficiencies may have invalidated the approval previously given by the KJDAP. Regulating the development of land by permitting it to proceed subject to specified conditions is the quintessential means by which the purposes of the Act are achieved. There is nothing in the terms of the order which would suggest that this was not the Minister's purpose. The fact the Amendment Order would have an impact on the utility of the litigation which was pending does not detract from its characterisation as an order regulating the development of land, nor does the fact that it only operates in the event of the invalidity of the prior approval.
The timing of the Amendment Order
Counsel for Mr Hunter points to the fact that the Amendment Order was made in the week preceding the week in which the Court of Appeal was due to hear the questions referred to that court, as supporting an inference to the effect that the Minister's purpose in making the Amendment Order was to thwart Mr Hunter's proceedings. This submission suffers the same fundamental flaw as the submission relying upon the terms and effect of the Amendment Order itself in that it pre‑supposes that there is a material distinction between the purpose of regulating the development of Lot 259, and the purpose of obviating the prospect of an injunction being granted restraining the development of that land. Both are concerned with the development of land which is the purpose for which the powers conferred by the Act are to be exercised.
But in any event, the time at which the Amendment Order was made provides no support for an inference to the effect that the Minister's purpose was a purpose other than the regulation of the development of Lot 259. It can reasonably be inferred, and I do infer, that the time at which the Amendment Order was made was influenced, and probably very much influenced, by the timetable for the hearing and determination of the proceedings initiated by Mr Hunter. However, there is a vital distinction between the Minister's decision as to the time at which he made the Amendment Order, and the Minister's purpose in making the Amendment Order. It can be reasonably supposed that the time at which the Minister made the Amendment Order was influenced by his desire to obviate the dissipation of the resources of the parties and the court in the determination of issues which may not need to be determined, given his decision to exercise the powers available to him to enable Woodside's development of the land to proceed in accordance with the approval purportedly granted by the KJDAP, irrespective of the validity of that approval. It might also be reasonably supposed that the time at which the Minister made the Amendment Order was influenced by his desire to avert the risk that the development work may be stopped by the issue of an injunction. However, these inferences as to the time at which the order was made tell one nothing of the Minister's purpose in deciding to exercise the power to make the Amendment Order to enable Woodside's development of the land to proceed irrespective of the validity of the prior purported approval. The most reliable guide to the Minister's purpose in making the amendment is not the time at which it was made, but its operative terms - which eventually permit the development work to proceed.
The point I am endeavouring to make can be illustrated another way. Let it be supposed that instead of deciding to exercise the power to amend the Interim Development Order at the time he did, the Minister elected to await the outcome of Mr Hunter's proceedings. If the result of those proceedings had been a determination that the approval purportedly granted by the KJDAP was invalid, there would have been nothing to prevent the Minister from then exercising the power to amend the Interim Development Order so as to exempt Woodside from compliance with the order. Legislative action, including delegated legislative action in response to court decisions, altering rights and obligations flowing from the decisions of courts is commonplace. Provided that the legislation does not direct the court as to the manner and outcome of litigation such as to impermissibly interfere with the independence of the judicial branch of government, which is constitutionally guaranteed, it is valid: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1, 36 ‑ 37; Australian Building Construction Employees' and Builders Labourers' Federation v The Commonwealth [1986] HCA 47; (1986) 161 CLR 88 (the BLF case). Although the Amendment Order does affect Woodside's right to develop the land, it does not purport to direct the court as to the manner and outcome of the proceedings before it. No inference to the effect that the Minister's purpose was ulterior to his purpose of allowing development to proceed subject to conditions flows from his decision to exercise a power which he had determined to exercise to ensure Woodside's development of Lot 259 could proceed at a time when the exercise of that power might avoid the unnecessary dissipation of the limited resources of the parties and of the court, and avert the possibility of development work being stopped.
I note in this context that Mr Hunter's case is brought entirely upon the basis that the Minister's issue of the Amendment Order was beyond power because the purpose of its exercise was beyond the purposes for which the power was conferred. It has not been alleged that the Amendment Order is beyond power because it impermissibly interferes with the independent exercise of judicial power. If that allegation had been made, it would have been necessary to consider different principles of law. It may well have been sufficient to refer to the cases which establish that legislative power may be exercised so as to affect and alter rights in issue in pending litigation without interfering with the exercise of judicial power in a way that is inconsistent with the Constitution. Put another way, it is legitimate to alter the substantive rights which are at issue in pending litigation, but it is not legitimate to interfere so as to direct the outcome of the judicial process itself: see the BLF case; also R v Humby; Ex Parte Rooney [1973] HCA 63; (1973) 129 CLR 231; Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495, 503 ‑ 504, 579 ‑ 580. The most that could be said of the impact of the Amendment Order on the pending litigation in this case is that the rights it confers upon Woodside may render the litigation futile. It does not purport to direct the court as to the manner in which the litigation should be decided or as to its outcome.
The Minister's interview
Counsel for Mr Hunter points to the comment made by the Minister during the course of the interview broadcast on radio as providing support for an inference that the Minister's purpose was to thwart Mr Hunter's case. I have already referred to the words used by the Minister. They do nothing more than record advice that the Minister had received to the effect that the exercise of the amendment power might obviate the need for the court to resolve the legal questions which had been referred to the Court of Appeal. It may be readily inferred, and I do infer, that this advice may well have influenced the Minister's decision as to the time at which he would exercise the power of amendment. However, for the reasons I have already given, no inference can properly be drawn from the time at which the Minister exercised his power to the effect that the purpose of the exercise of the power was some purpose other than the regulation of the development of Lot 259.
It might reasonably be inferred that the commencement of proceedings by Mr Hunter challenging the validity of the planning approval purportedly granted to Woodside by the KJDAP provided the occasion for the Minister to consider the exercise of his power to amend the local Interim Development Order. It can be inferred that if Mr Hunter had not challenged the validity of the planning approval granted to Woodside, the Minister would not have found it necessary to give any consideration to the exercise of the amendment power. However, that does not support any inference to the effect that when the occasion for consideration of the exercise of the power arose, the decision to exercise the power so as to enable Woodside's development of the land to proceed irrespective of the validity or otherwise of the purported planning approval was anything other than a decision with respect to the regulation of the development of land, made for that purpose.
Stepping back from a consideration of the particular components of the evidence to which Mr Hunter points, the fundamental flaw which underpins his claim to the effect that the Amendment Order is invalid may be illustrated another way. The exercise of legislative and administrative powers for one or more of the purposes for which those powers are conferred will often have effects beyond those purposes. The exercise of powers with respect to the planning and development of land will often have effects beyond the purposes of planning and development. To take an obvious example, the exercise of a delegated legislative power to make town planning schemes under which land is zoned so that it can only be used for particular purposes is inherently likely to have an effect upon the value of zoned land - very often a profound effect. However, the exercise of the power to zone land does not, of itself, support any inference to the effect that the purpose of its exercise was to affect the value of the land zoned, even in those many cases in which the effect of the zoning on the value of the land will have been obvious to all. In such cases, other evidence beyond the mere exercise of the power would be required before it could be inferred, merely from the fact of the exercise of the power, that the purpose of the exercise of power was extraneous to the purpose for which the power was conferred.
In this case, the Minister had advice to the effect that his exercise of the power to amend the Interim Development Order at the time he exercised it might well obviate the need for the resolution of the legal questions referred to the Court of Appeal. It can reasonably be inferred that this advice influenced the time at which the Minister chose to exercise the power. However, it cannot be inferred from the fact that the power was exercised, or the time at which it was exercised, that the purpose of the exercise was anything other than the purpose of regulating Woodside's development of Lot 259.
This fundamental flaw in these proceedings is well illustrated by the earlier decision of this court in Bonton Pty Ltd v City of South Perth [1982] WAR 213; (1981) 47 LGRA 422. That case also supports the proposition that the mere fact that the exercise of a power to make delegated legislation will have an effect upon the rights and obligations of parties to pending litigation will not, of itself, lead to the conclusion that the power has been exercised for an ulterior purpose. The case was concerned with the then contentious issue of the height limits to be imposed upon buildings to be constructed in the area of Mill Point Road, South Perth. The local authority wished to implement a policy of restricting the height of new buildings in that area and passed an amendment to the relevant town planning scheme to that effect. In approving the amendment, the Minister imposed a time limit upon its operation of six months.
The owner of land within the area affected by the amendment applied for approval to construct a building which exceeded the height limits specified in the amendment. The application was refused because it proposed a development other than in compliance with the scheme as amended. The applicant appealed to the Town Planning Appeal Tribunal. It seemed likely that the appeal would be heard at a time when the amendment restricting height limits had expired with the result that the Tribunal would be bound to apply the scheme as it applied at the time of the hearing before the Tribunal, with the risk that it might allow the appeal and permit the development to proceed. In order to obviate that prospect, the local authority proposed amendments of the scheme to the Minister which would have the effect of extending the operation of the amendment which would in turn have the effect of defeating the developer's appeal. The Minister approved the proposed amendments, although again on terms as to time of operation.
Brinsden J concluded from the evidence that it was the policy of the local authority to impose height restrictions on new buildings to be constructed in the relevant area. He also concluded that the local authority wished to prevent the developer's appeal to the Tribunal succeeding, as that would permit the developer to overcome its policy, and further concluded that the local authority would do whatever it could to avoid that outcome. In that context, Brinsden J observed:
But to accept all that does not require the conclusion that the city's true or dominant purpose in participating in the events leading up to the gazettal of amendment 34 was to avoid appellate decisions which would not be inhibited by a blanket height restriction. In my view the city's dominant purpose at all times in relation not only to amendment 34 but amendment 12 and the proposed amendment 53 has been to achieve blanket control for an indefinite period of time in respect of the height of buildings in the affected area. It is not for me to pass judgment upon the wisdom of a height restriction in the form of amendment 34. If that was the dominant purpose as I so find then amendment 34 was not put forward in bad faith. Furthermore, if the city had so acted for the purpose of gaining more time so it could eventually make a further town planning scheme affecting the Mill Point area, that purpose would not have been an exercise of power for an improper or irrelevant nature. It seems to me clearly within the nature of town planning that at times a point must be held during which the planning authority has time to consider future development. This can be readily achieved by imposing a restriction for a time while consideration is given to future planning proposals. Such a restrictive provision is, in my view, as much within the concept of planning as the planning provisions which follow upon the removal of the restriction (429).
It is true that in the Bonton case the legislative instrument was directed to an area of land, whereas in this case the Amendment Order is directed to one piece of land, and to a particular development. However, as it has not been contended, nor could it be contended that the Amendment Order purports to direct the court as to the manner in which it exercises its jurisdiction, the specificity of the order does not lead to, or even support, the conclusion that its purpose is anything other than the regulation of the development of land, which is a purpose for which the power was conferred upon the Minister by the Act.
For these reasons, I have concluded that the evidence upon which Mr Hunter relies is incapable of supporting any inference to the effect that the purpose of the Minister in making the amendment order was any purpose other than the regulation of the development of Lot 259. As that purpose is the purpose for which the power to make the Amendment Order was conferred under the Act, the evidence provides no arguable basis for the assertion that the Amendment Order is invalid. The order nisi sought by Mr Hunter should be refused, and his claim dismissed.
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