Hunter v Minister for Planning

Hunter v Minister for Planning is a case before the Supreme Court of Western Australia concerning a challenge to the Minister for Planning’s decision to amend a local interim development order. The applicant, Mr Hunter, argues that the Minister’s decision was beyond power and made for an improper purpose, specifically to thwart pending legal proceedings in a related matter. The court was tasked with determining whether the Minister’s decision to amend the local interim development order was for a planning purpose and whether there was sufficient evidence to support a finding that the substantial or dominant purpose of the Minister was improper.

The court examined the relevant legislative framework, specifically section 109(2) of the Planning and Development Act 2005 (WA), to ascertain the purposes for which the power to amend local interim development orders is conferred. The court noted that an ‘improper purpose’ in this context does not necessarily mean a corrupt or immoral purpose but rather one that is ulterior or extraneous to the scope of the purposes for which the power is conferred. The court further highlighted that the onus is on the party challenging the decision to establish the existence of an improper purpose. In the absence of such evidence, the court presumed that the power was exercised for a legitimate purpose. The court also considered authorities which distinguished between a substantial and a dominant purpose, though it found it unnecessary to determine whether such a distinction was material at this stage of the proceedings.

In assessing the evidence presented, the court found that there was no evidence to support the finding that the Minister’s decision to amend the local interim development order was made for the purpose of thwarting pending legal proceedings. The applicant’s reliance on previous cases, where similar challenges were upheld, was not sufficient to establish the required ulterior purpose in this case. The court emphasised that the exercise of power by an administrative body with the intention of achieving a collateral purpose, such as thwarting litigation, is invalid only if there is evidence that such a purpose was substantial and motivating. As no such evidence was presented in this case, the court dismissed the application.

The court ultimately ruled that the Minister’s decision to amend the local interim development order was not beyond power and was made for a legitimate planning purpose. The applicant’s challenge was dismissed, and the court made no orders for an order nisi.