Johnson v Minister for Planning - [2018] WASC 334

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   JOHNSON -v- THE MINISTER FOR PLANNING [2018] WASC 334
CORAM:   SMITH J
HEARD:   6 & 7 AUGUST 2018
DELIVERED          :   2 NOVEMBER 2018
FILE NO/S:   CIV 3049 of 2017
BETWEEN:   IAN FREDERICK JOHNSON
Applicant
AND
THE MINISTER FOR PLANNING
First Respondent
CITY OF KALAMUNDA
Second Respondent

Catchwords:

Administrative law - Application for judicial review - Application for writ of certiorari and declaration - Planning and Development Act 2005 (WA) - Decisions of Minister for Planning to approve amendment of local planning scheme - Whether criteria specified in cl 5.16.1 of LPS3 to create a special use zone mandatory - Whether criteria specified in cl 5.16.1 a manner and form provision - Whether criteria specified in cl 5.16.1 inconsistent with Planning and Development Act and Regulations - Whether local government authority failed to consider or misconstrued the criteria in cl 5.16.1 - What constitutes 'locality' 'need' and 'amenity' considered - Minister not obliged to consider when approving an amendment to a local planning scheme whether the local government authority was satisfied the criteria specified in cl 5.16.1 had been satisfied - No jurisdictional error demonstrated

Legislation:

Environmental Protection Act 1986 (WA), s 48A
Interpretation Act 1984 (WA), s 43(1), s 43(3)
Local Government (Administration) Regulations 1996 (WA), reg 11, reg 11(d), reg 11(da)
Local Government Act 1995 (WA), s 5.70(1)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 45, sch 1 cl 16, sch 1 cl 21
Planning and Development Act 2005 (WA), s 69, s 69(1), s 69(1)(b), s 71, s 72, s 74, s 75, s 76, s 77A, s 77, s 78, s 79, s 80, s 81, s 83, s 84, s 85, s 86, s 87, s 87(1), s 87(2), s 87(2)(a), s 87(2)(b), s 123, s 123(1), s 256(1), s 256(5)(a), s 257A, s 257A(2), s 257A(3), s 257B, sch 7 cl 6
Shire of Kalamunda Local Planning Scheme, cl 1.3, cl 1.5(a), cl 1.6(a), cl 1.6(b), cl 2.2, cl 4.1.1, cl 4.3.1, cl 4.7, cl 5.2.3, cl 5.5.2, cl 5.5.3, cl 5.4.1, cl 5.9, cl 5.16.1, cl 5.16.1(a), cl 5.16.1(b), cl 5.16.1(c), cl 5.16.2, cl 7.1.1, cl 10.2(j), cl 10.2(n), cl 10.2(o), cl 10.2(q), cl 11.1.1(b), cl 11.2.1, cl 11.4(b)
Town Planning Regulations 1967 (WA), reg 13(2), reg 16, reg 17(1), reg 17(2), reg 18, reg 18(1), reg 25(1), reg 25(2), reg 25(2)(h), reg 25(2)(k), reg 25(2)(l), reg 25(2)(m), reg 27, Appendix B cl 4.7.1, Appendix B cl 4.7.2, Appendix B sch 4

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr M C Hotchkin
First Respondent	:	Ms F B Seaward & Mr I A Repper
Second Respondent	:	Mr A J Power

Solicitors:

Applicant	:	Hotchkin Hanly Lawyers
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	City of Kalamunda

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

Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Leighton v The Honourable Mr John Day MLA [2014] WASC 164
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656
Rajneesh Foundation v Shire of Manjimup (No 2) [1985] 3 SR (WA) 65
Re City Area Leases Ordinance 1936 and Axiom Pty Ltd (1986) 66 ACTR 1; (1986) 83 FLR 259
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134
Victoria v Commonwealth [1937] HCA 82; (1937) 58 CLR 618
WA Field and Game Association Inc v Pearce (1992) 8 WAR 64

SMITH J:

The applicant is the sole director of Zyran Pty Ltd, the registered proprietor of 2 Gavour Road, Wattle Grove, being land situated adjacent to lot 500, 32 Gavour Road, Wattle Grove (lot 500).
The applicant applies for judicial review of decisions made by the Minister for Planning on:
(a)1 June 2017 to approve a proposed amendment (Amendment 57) to the Shire of Kalamunda Local Planning Scheme No 3 (LPS3) by which lot 500 was rezoned from 'special rural' to 'special use' for an 'integrated aged care facility' subject to requiring the City of Kalamunda (City) to modify the proposed scheme amendment in terms of a schedule of modifications dated 1 June 2017 (the first decision); and
(b)27 July 2017 to finally approve Amendment 57 as modified (the second decision).
The applicant also applies for judicial review of the publication of the approved scheme amendment in Government Gazette No 186 dated 26 September 2017.

Factual background

Lot 500 is 15 ha in area. It is zoned 'rural' under the Metropolitan Region Scheme. It is located within a 'special rural' precinct in LPS3. Clause 5.9 of LPS3 imposes controls on land use and development and subdivision is restricted to a minimum of 1 ha lots in a special rural zone.
From 2004 to 2009, several unsuccessful applications were made to the City for its relevant local planning scheme to be amended to change the zoning of lot 500 from 'special rural' to 'special purpose (aged person's facility)'.[1]
[1] Affidavit of Andrew Harry William Fowler‑Tutt sworn 16 March 2018 (Fowler‑Tutt Affidavit) [11] - [27].
The last unsuccessful application was made to the City in May 2009. In November 2010, the City, by its governing body, the council, resolved to adopt the relevant amendment (Amendment 18). However, Amendment 18 was refused by the Minister in November 2012.[2] The landowner of lot 500 subsequently unsuccessfully applied for certiorari to quash the decision of the Minister.[3]
[2] Fowler‑Tutt Affidavit [28] ‑ [41].
[3] Leighton v The Honourable Mr John Day MLA [2014] WASC 164.
A further application to amend LPS3 (Amendment 57) was proposed by the landowner of lot 500 and its initiation was considered by the City at a special council meeting on 26 August 2013.[4]
[4] Fowler‑Tutt Affidavit [47], [48].
At the special council meeting on 26 August 2013, the council resolved to initiate Amendment 57, pursuant to pt 5 of the Planning and Development Act 2005 (WA) (Planning Act), by rezoning lot 500 from 'special rural' to 'special use', by making provision for the land in the special use zones.[5] The terms of Amendment 57 initiated by the resolution proposed inserting into sch 4 (special use zones) of LPS3 the land described as lot 500, to create an additional use of residential aged care whereby within this special zone, the following uses were to be permitted:
(a)aged residential care;
(b)caretaker's dwelling;
(c)consulting rooms;
(d)grouped dwelling; and
(e)single house.
[5] Fowler‑Tutt Affidavit [53] and pages 732 ‑ 734.
It was also proposed in Amendment 57 that:
(a)within the special use zone the council may approve other ancillary or incidental uses for the site, provided that they form part of the operational business of the facility and which uses might compliment or enhance the usual living standards and requirements of residents living in and staff serving a facility of this nature;
(b)all other uses of the special use zone were not to be permitted; and
(c)the conditions attached to the special use zone were to be as follows:
(i)at least one occupant of any dwelling within this facility must have reached the age of 55 years; and
(ii)development on the site shall be connected to a reticulated sewerage system or alternative system to the satisfaction of the Health Department of Western Australia and the local government.
At the same special council meeting on 26 August 2013, the council also resolved that the Amendment 57 documents were to be formally advertised for 60 days in accordance with the provisions of the Town Planning Regulations 1967 (WA) (1967 Regulations) without reference to the Western Australian Planning Commission (Commission).
Thus, the City appears to have proceeded to utilise the truncated procedure under reg 25(2) of the 1967 Regulations, which did not require referral of Amendment 57 to the Minister for consent to advertise.[6]
[6] See 1967 Regulations reg 25(2)(h) when read reg 13(2).
In November 2014, consultants, on behalf of the owner of lot 500, submitted to the City a draft local water management strategy. On 9 March 2015, the Department of Water approved the local water management strategy.
As required by s 81 of the Planning Act, the City referred Amendment 57 to the Environmental Protection Authority (EPA) on 6 November 2013 to enable the EPA to comply with s 48A of the Environmental Protection Act 1986 (WA).
The EPA was required to decide whether to assess Amendment 57 under pt IV div 3 of the Environmental Protection Act and give notice accordingly.[7] The EPA sought additional information from the City for the purposes of this process. By letter dated 7 March 2014, the EPA informed the City that it had determined that Amendment 57 should not be assessed under pt IV div 3 of the Environmental Protection Act. The EPA also informed the City that Amendment 57 was defined as an 'assessed scheme amendment'.
[7] Environmental Protection Act s 48A(1).
The City was then required to advertise Amendment 57[8] to enable any persons who so desire to make a submission about Amendment 57.[9]
[8] Planning Act s 84 and 1967 Regulations reg 25(2)(j).
[9] 1967 Regulations reg 16 when read with reg 25(1).
Pursuant to s 84 of the Planning Act, Amendment 57 was advertised by the City from 1 April 2014 until 30 April 2014.
The City was also required to use all reasonable endeavours to consult with such public authorities and persons as appear to the local government to be likely to be affected by the amendment.[10]
[10] Planning Act s 83.
In the interests of transparency, the City elected to engage a third party:
(a)to act as an independent assessor of the submissions and the planning justification for Amendment 57; and
(b)to make a recommendation to the City on Amendment 57.
The City engaged Planning Consultants Australia Pty Ltd to provide an independent review of proposed Amendment 57 and a report was provided to the City in late March 2015 (independent consultant's report).[11]
[11] Fowler‑Tutt Affidavit, pages 857 ‑ 910 (Independent Consultant's Report).
Amongst the submissions received by the City was an objection from Rowe Group Planners on the applicant's behalf. One of the submissions Rowe Group made was a submission that the pre‑conditions creating for a 'special use' zone in cl 5.16.1 of LPS3 had not been met.
The submission made by Rowe Group was included in a summary of all submissions received by the City in the independent consultant's report.
On 23 March 2015, the author of the independent consultant's report, Mr Foley, gave an oral presentation to the council and addressed matters considered in the independent consultant's report.
The council considered whether to adopt Amendment 57 at a special council meeting on 20 April 2015.
Pursuant to reg 17(1) and (2) of the 1967 Regulations (when read with reg 25(2)(k)‑(l) of the 1967 Regulations), the City (by its council) when considering Amendment 57 was required to consider the submissions it received (about the amendment) and to resolve that the amendment be adopted (with or without modifications) or resolve that it did not wish to proceed with the amendment.
The independent consultant's report was attached to the agenda papers for the special council meeting. Also included in the agenda papers was a report prepared by Andrew Harry William Fowler‑Tutt, a town planner, employed by the City as its manager of approval services.
In his report to council, Mr Fowler‑Tutt assessed proposed Amendment 57 and in doing so addressed considerations to be taken into account by the City, pursuant to cl 5.16.1 of LPS3. He concluded by saying 'In this instance, noting the modifications to the Amendment proposed by the consultant, it is recommended that the Amendment be endorsed by Council'.[12]
[12] Fowler-Tutt Affidavit, page 956.
The 'Officer Recommendation' by Mr Fowler‑Tutt was that Amendment 57 be adopted by council with modifications that substantially reflected modifications recommended by Mr Foley in the independent consultant's report as reproduced in the table that follows:[13]
[13] The text in bold is the modifications recommended by Mr Fowler‑Tutt and the text deleted (shown as crossed out) is the text of the modifications recommended by Mr Fowler‑Tutt that Mr Fowler‑Tutt recommended be deleted.

No 19

Description of Land

Special Use

Conditions

          32 Gavour Road, Wattle Grove (Lot 500 on Deposited Plan 57971)

Integrated Aged Care Facility

The objective of this particular zone is to achieve the development and operation of an integrated aged care facility that is designed to allow 'ageing in place'. It will have a full range of accommodation designed for the aged including independent living units (Aged or Dependent Persons' Dwellings) and a nursing home component (Aged Residential Care facility) as well as common use community facilities. It will be designed and implemented to maintain the rural character of the adjacent area whilst also maintaining flexibility to enable the facility's integration with development on adjoining properties should land use changes occur in the future. It will remain in a single control and management arrangement to ensure it remains integrated and that it will be able to be maintained to a consistently high standard and kept up to date in response to the needs of its occupants.
a)        Within this zone, the following uses are discretionary ('D') in accordance with clause 4.3.2:
•         Aged Residential Care;

•         Aged or Dependent
         Persons' Dwellings

•         Caretaker's Dwelling
•         Consulting Rooms.
b)        Council may approve other ancillary or incidental uses on this site, provided that they are minor in nature, they form part of the operational business of an integrated aged care facility, they would not particularly attract patrons or users who are not resident or employed within the development to the facility, and they would complement or enhance the usual living standards and requirements of residents living in, and staff working at, a facility of this nature.
c)    All other uses not mentioned under clauses (a) and (b) of this special use zone are not permitted ('X') in accordance with clause 4.3.2.

a)        At least one occupant of any Aged or Dependent Persons' Dwelling within this facility must have reached the age of 55 years.
b)        Development on the site shall be connected to the reticulated sewerage system or alternative waste water treatment system to the satisfaction of the Health Department of Western Australia and the local government on the advice of the Department of Water and the Swan River Trust.
c)        If development is approved without connection to the reticulated sewerage system, then:

(i)        prior to the approval of any development on Lot 500, an Urban Water Management Plan shall be prepared and approved by the Council on advice of the Department of Water and the Swan River Trust; and

(ii)       the approved alternative waste water disposal system shall be designed and implemented so that it is able to connect to the reticulated sewerage system if and when it is extended to or near Lot 500. If the reticulated sewerage system is extended to within 200 metres of a boundary of Lot 500, then within 2 years of such occurrence, the owner or owners of Lot 500 shall connect all of the development on the lot to the reticulated sewerage system at the owner's cost.
d)        An integrated aged care facility is a development that shall ~~remain on one lot without any strata titling~~ not be strata titled.
e)        Prior to the occupation of any of the integrated aged care facility development on Lot 500 a foreshore reserve for Crystal Brook shall be ceded free of cost to the Crown as a Reserve for foreshore management. The extent of such Reserve shall be at least 20 metres distant from, and parallel to, the top of the northern bank of the brook and extending from that line southwards to the Gavour Road frontage of the lot. A foreshore reserve management plan shall be prepared, approved by the Council, and implemented as part of the development at the cost of the owner of Lot 500.
f) Development on Lot 500 shall be designed in the context of a detailed area plan prepared pursuant to clause 6.2.6 which covers the entire lot, This will, amongst addressing other relevant planning and design matters, identify proposed staging, and the location of a possible future public road and servicing easement(s) through the property with future implementation arrangements for these should land use changes occur on the properties adjoining Lot 500 in the future.
g)        No more than 60 Aged or Dependent Persons' Dwellings shall be developed on Lot 500 and occupied by residents unless and until the development of an Aged Residential Care facility (nursing home component) has been ~~developed and is operational on the lot to the satisfaction of the Council~~ substantially commenced on Lot 500, and no more than 120 Aged or Dependent Persons' Dwellings shall be developed on Lot 500 and occupied by residents unless and until the development of an Aged Residential Care facility (nursing home component) has been completed and is operational on Lot 500.
h) Clause 5.6 shall not apply to this special use zone.

The only change of any substance to the conditions recommended by Mr Fowler‑Tutt was to (g) which was a clause designed to ensure the staged delivery of the aged care facility, in order to address the concern that the proposed development would only be constructed to the retirement village stage.
At the special council meeting, the council resolved to adopt Amendment 57 with further modifications to some of the conditions proposed in the report of Mr Fowler‑Tutt.
The minutes of the special council meeting of 20 April 2015 record that the council made the following amendments to the recommended modifications of the conditions of the special zone in Mr Fowler‑Tutt's report. These amendments were that:
(a)in condition (f) the words 'identify the locations of the Aged Residential Care Facility' be added after the words 'design matters' and the words 'through the property' be deleted;
(b)in condition (g) be amended to read 'Not more than 133 of the 190 Aged or Dependent Persons Dwellings shall be developed on Lot 500 until the development of an Aged Residential Care Facility (Nursing Home Component) has been constructed to practical completion'; and
(c)condition (e) be deleted and the subsequent conditions be renumbered.
These modifications resulted in substantially different conditions of the special use zone to the conditions proposed when Amendment 57 was initiated by the council on 26 August 2013, and advertised for public comment. These modifications did not however result in substantially different conditions to the conditions recommended by Mr Fowler‑Tutt.
On 27 May 2015, the City forwarded its resolution to adopt Amendment 57, with modifications, together with documents referred to in reg 18(1) of the 1967 Regulations to the Commission.
Pursuant to reg 18(1) of the 1967 Regulations, within 28 days of passing a resolution to adopt a proposed amendment to a scheme or to not proceed with an amendment to the scheme the City was required to forward the scheme documents to the Commission together with:
(a)a schedule of submissions made on the proposed amendment;
(b)the City's recommendations made in respect of those submissions;
(c)particulars of the modifications (if any) to the scheme recommended by the City;
(d)a copy of the resolution passed pursuant to reg 17(2); and
(e)if the resolution was a resolution that the City did not wish to proceed with the scheme, a summary of the reasons why it did not wish to proceed with the scheme amendment.[14]
[14] See 1967 Regulations reg 25.

By the time the scheme documents were provided by the City to the Commission, the 1967 Regulations had been repealed by the Planning and Development (Local Planning Schemes) Regulations 2015 (2015 Regulations).[15] The consequence of the repeal was that the 2015 Regulations regulated the procedural steps to be applied by the Commission in its consideration of Amendment 57. The 2015 Regulations also regulated the:
(a)process to be applied by the Commission in making a recommendation to the Minister whether to approve Amendment 57 and if adopted whether further modifications should be made by the City prior to the Minister approving Amendment 57; and
(b)procedure to be applied by the Minister when considering whether to approve Amendment 57 and/or require the City to modify Amendment 57.
[15] The 1967 Regulations were repealed on 19 October 2015.
Prior to the Commission making a recommendation to the Minister, by letter dated 18 August 2015, solicitors for the applicant wrote to the Commission asserting that the resolution by the City to adopt Amendment 57 was invalid because the council had misconstrued the criteria required to amend its scheme (in cl 5.16.1 of LPS3) to make provision for a 'special use' zone. The solicitors, on behalf of the applicant, requested that the Commission recommend to the Minister that Amendment 57 be refused. The Commission did not reply to the letter.
An officer of the Commission provided a report, dated 6 November 2015, to the Commission's Statutory Planning Committee suggesting that it recommend to the Minister that final approval to Amendment 57 be refused.
On 24 November 2015, the Statutory Planning Committee met and resolved to recommend that Amendment 57 be approved, subject to certain modifications. In the minutes of the meeting of the Statutory Planning Committee, held on 24 November 2015, it is recorded that:[16]
[16] Affidavit of Ian Frederick Johnson sworn 30 November 2017 (Johnson Affidavit), pages 71 ‑ 72.
The members discussed the proposed Shire of Kalamunda's Local Planning Scheme No 3, Amendment No 57 and noted that previous concerns have now been addressed in regards to the conditions of the amendment.
The members noted that Amendment No 57 be approved subject to the inclusion of advice in the scheme or a provision to state that in the event on‑site effluent disposal cannot be satisfactorily achieved the State would not be obligated to provide reticulated sewerage infrastructure specifically to service the proposed development ahead of any future capital works program.
Resolved
Moved by seconded by Ms McGowan
The Statutory Planning Committee resolves to:
1.recommend that the amendment be approved subject to an advice or a provision in the scheme to state that in the event on‑site effluent disposal cannot be satisfactorily achieved the State would not be obligated to provide reticulated sewerage infrastructure specifically to service the proposed development ahead of any future capital works program; and
2.request the Department of Planning to provide advice about how the above condition or provision could be achieved.
The motion was put and carried.
The recommendation of the Statutory Planning Committee was subsequently subject to a further modification by the Chairperson of the Commission on 8 December 2015. The modification approved by the Chairperson was to implement the recommendation of the Statutory Planning Committee by proposing a further modification to condition (b) of Amendment 57 as follows:[17]
(b)Development on the site shall be connected to the reticulated sewerage system or alternative waste water treatment system to the satisfaction of the Health Department of Western Australia and the local government on the advice of the Department of Water and Swan River Trust. In the event on‑site effluent disposal cannot be satisfactorily achieved the State would not be obligated to provide reticulated sewerage infrastructure specifically to service the proposed development ahead of any future capital works program.
[17] Affidavit of Rohan Bernard Miller affirmed 7 March 2018 (Miller Affidavit), pages 60 ‑ 61.
In a report prepared for the Minister by the secretary of the Commission, dated 10 December 2015,[18] the recommendation from the Commission to the Minister was to:
(a)note the submissions supporting the amendment;
(b)dismiss the submissions opposing the amendment; and
(c)require the City to modify the amendment documents by replacing condition (b), as modified by the Chairperson of the Commission on 8 December 2015.
[18] Miller Affidavit, pages 65 ‑ 67.
The Commission's recommendation by the Statutory Planning Committee, as varied by the Chairperson, together with various documents, were provided to the Minister sometime between March and May 2017, following a change in government (and a consequent change of Minister).
Pursuant to s 87(2) of the Planning Act, when considering Amendment 57, the Minister was required to either approve the proposed amendment or require the City to modify the amendment in such a manner as the Minister specified before the amendment was resubmitted for the Minister's approval. Alternatively, the Minister could refuse to approve Amendment 57.
Attached to the report to the Minister was a summary of the issues raised in the submissions that had been provided to the City by persons who objected or supported Amendment 57.[19]
[19] Miller Affidavit, pages 81 ‑ 88.
In an undated note prepared for the Minister, by a policy advisor for Metropolitan Redevelopment Authority, it is recorded that the following discussion took place with the Minister on 24 May 2017:[20]
[20] Miller Affidavit, page 89.
At the meeting on 24 May 2017 with the Department of Planning, it was agreed that Amendment No 57 (Gavour Road) would be considered at the meeting on 26 May 2017 for your support.
As discussed in the meeting, there were concerns in the community about the developer never fulfilling their obligation to deliver the high care facilities. To address this the Shire inserted a trigger being Condition 2(f) which proposes that the high care facilities must be provided before any greater than 133 of the 190 aged care units were developed.
The environmental qualities of the site may result in a reduced development yield and could result in a situation whereby the total yield might be less than 133 and therefore the trigger to deliver the high care facilities may not be met.
Following the meeting it is suggested that rather than approve the amendment in its current form you may wish to require modifications to address the potential scenario described above. The modifications include:
i.Converting the trigger to an equivalent percentage of units delivered, in this case it would be 70%; and
ii.introduce a maximum number of units being 190.
If you wish to pursue the above we can raise it at the meeting tomorrow.
In a briefing note prepared for the Minister on 30 May 2017, and signed by the Acting Director General of the Department of Planning, and the Chairperson of the Commission, the modifications referred to in the undated note were recommended. In addition, two additional modifications were recommended to ensure consistency with the 2015 Regulations by referring to a local development plan instead of the detailed area plan and to update the reference to a clause number in the scheme that had been amended since the City's adoption of Amendment 57.
On 1 June 2017, the Minister determined the City was required to modify Amendment 57 (in accordance with the recommendation set out in the briefing note) and resubmit it for her (the Minister's) approval pursuant to s 87(2)(b) of the Planning Act. On 26 August 2013, the council adopted the modifications required by the Minister.[21]
[21] Miller Affidavit, page 97.
On 27 July 2017, the Minister made the second decision and approved Amendment 57.
The solicitors for the applicant subsequently wrote to the Minister enclosing a copy of its letter to the Commission dated 18 August 2015, and enquired about the reasons given for approving Amendment 57. They also requested that the gazettal of Amendment 57 be deferred pending the Minister's response.[22]
[22] Johnson Affidavit, pages 106 ‑ 107.
By letter dated 19 September 2017,[23] the Minister informed the applicant's solicitors that the letter dated 18 August 2015 had been addressed by the Commission in preparing its recommendation and stated that:
(a)no reasons had been published for her decision to approve the amendment; and
(b)the deferral of gazettal of Amendment 57 was refused.
[23] Johnson Affidavit, page 110.
Amendment 57 was gazetted in the Western Australian Government Gazette on 26 September 2017.

Grounds of review

The applicant applies for judicial review and applies for a writ of certiorari and a declaration on the following grounds:
1.The First Respondent made a jurisdictional error in making the First Decision and the Second Decision in that the following conditions for the proper exercise of jurisdiction by the First Respondent had not been satisfied or were otherwise disregarded:
1.1the Second Respondent only had power to make an amendment to LPS3 under section 75 of the Planning and Development Act 2005 (PD Act) by the creation of a 'Special Use' zone when it considered that the creation of that zone required 'special provision' that would:
(a)satisfy a specific need(s) in the locality where the subject may be situated;
(b)enhance the amenity and interest of the orderly and proper planning of the locality; and
(c)would be specifically appropriate or desirable;
pursuant to clause 5.16.1 of LPS3. The Council of the Second Respondent on 20 April 2015, by its resolution to adopt the proposed Scheme Amendment subject to modifications (the Resolution):
(d)failed to consider that each of the criteria outlined in sub‑paragraphs 1.1 (a) to (c) above would be satisfied by the proposed Scheme Amendment; alternatively
(e)in the absence of expressing any view as to whether such criteria would be met when making the Resolution, relied upon and implicitly adopted the views expressed by a planning officer in its report to the Council for the purposes of the proposed Resolution, such that the Council misconceived the proper criteria which it was required to consider because:
(i)the 'specific need' for an Integrated Aged Care Facility was assessed by reference to the entire municipality of the Second Respondent rather than the 'locality' in which the site was situated, and there was no evidence or assessment in fact of why there was a need specific to the site for the development of an Integrated Aged Care Facility;
(ii)the Second Respondent did not identify the proper boundary of the 'locality' around the subject site required to identify the 'specific need' in that locality for an Integrated Aged Care Facility;
(iii)no evaluative judgment was made as to how any amenity of that 'locality' would be enhanced by an Integrated Aged Care Facility, nor how the interests of orderly and proper planning for that 'locality' would be so enhanced by an Integrated Aged Care Facility;
(iv)the Second Respondent did not have any regard to evidence, or otherwise assess in any reasoned way in what respect the creation of a 'Special Use' zone for an Integrated Aged Care Facility at the site would enhance the amenity and the interest of orderly and proper planning of the 'locality';
(v)the Second Respondent did not assess by reference to any evidence or in any reasoned way why the creation of the 'Special Use' zone would be specifically appropriate or desirable, as distinct from being generally appropriate or desirable by, for example, considering the need for high‑care accommodation rather than low‑care accommodation of the kind contemplated by the proposed 'Special Use' zone;
…
2.The First Respondent made a jurisdictional error in making the First Decision and the Second Decision by misconceiving the nature and scope of that jurisdiction in regarding any such 'irregularity' by the Second Respondent to comply with the Scheme in making the Resolution as irrelevant to 'planning considerations', when:
2.1the distinction was misconceived because the requirement for satisfaction of conditions imposed by clause 5.16.1 of LPS3 for making such an amendment to the Scheme were relevant to planning considerations of the Amendment, by the nature of the 'irregularity'; and
2.2the criteria set out in clause 5.16.1 of LPS3 required to be established as a condition for the proper exercise of jurisdiction were properly characterised as 'planning' matters in any event.
3.Alternatively, whether or not the criteria listed in clause 5.16.1 of LPS3:
3.1.was considered in fact by the Second Respondent in making the Resolution to adopt the Scheme Amendment; or
3.2was assessed or evaluated by reference to evidence in a reasoned manner by the Second Respondent;
were mandatory relevant considerations for the proper exercise of jurisdiction by the Minister, and the Minister failed to take those relevant considerations into account.
4.The First Respondent made a jurisdictional error in making the First Decision and the Second Decision, in that the decisions were tainted by the Western Australian Planning Commission failing to make an obvious inquiry into whether the Second Respondent properly considered the criteria required under clause 5.16.1 of LPS3, in light of the matters set out in a letter to the Western Australian Planning Commission dated 18 August 2015 from Hotchkin Hanly in which it put the Western Australian Planning Commission on notice of such concerns in order for them to be addressed in its recommendation to the First Respondent.
5.If the First Decision and the Second Decision are vitiated by jurisdictional error, then the Gazettal is invalid because it was a condition of the exercise of power to cause publication of the Gazettal and the Scheme Amendment publicised by the Gazettal was a valid amendment to LPS3.
Clause 5.16.1 of LPS3 provides as follows:
5.16 SPECIAL USE ZONES
5.16.1 The intent of the Special Use zone is to allow the local government to make special provisions for a specific use or combination of uses on particular land where the provisions of the zoning table are not sufficiently sensitive or comprehensive to achieve the same objective.
The local government shall only make such special provision by the creation of a special use zone when it considers that the special provisions:
a)will satisfy a specific need(s) in the locality where the subject land is situated;
b)would enhance the amenity and the interest of the orderly and proper planning of the locality; and
c)would be specifically appropriate or desirable.
The central issues raised in each of the grounds of the application turn upon whether the council, on 20 April 2015, in resolving to adopt Amendment 57 (subject to modifications):
(a)failed to make an evaluative judgment whether the criteria for making special provision for lot 500 by the creation of a special use zone, as required by cl 5.16.1;
(b)made an evaluative judgment based on a misconception of the criteria in cl 5.16.1 (in particular, the concept of locality); and
(c)failed to identify the relevant 'locality' as the word should be defined in cl 5.16.1.
There are two points in the applicant's grounds which go to the validity of the decision of the Minister to approve Amendment 57. These rely upon arguments by the applicant that:
(a)if it is accepted that the council misconstrued the pre‑conditions requiring it to form the requisite opinion as required by cl 5.16.1 (in order to validly initiate and adopt a scheme amendment) which resulted in the pre‑conditions not being met, it was not open for the Minister to approve a scheme amendment invalidly initiated; or
(b)if the Minister had a power to approve a scheme amendment which was not validly initiated, it was nonetheless a mandatory relevant consideration that the Minister consider (when exercising her discretionary power as to whether or not to approve Amendment 57) that she be satisfied that the criteria specified in cl 5.16.1 of LPS3 had been met, even if the council had not done so. In this respect, it is argued that the Minister did not take into account, at all, whether the pre‑conditions in cl 5.16.1 were satisfied, because she made no finding at all as to what constituted the 'locality' within the meaning of cl 5.16.1 of LPS3.
In respect of the first point, the first question to be determined is whether the council had satisfied the pre‑conditions of its purported exercise of power in initiating a scheme amendment.
It is claimed by the applicant that there is no evidence that the council at its meeting on 20 April 2015 formed the requisite opinion required to be formed under cl 5.16.1. The basis of this argument is that the applicant contends that, as a matter of fact, the council did not give written reasons or record that it had formed the requisite opinion. The applicant argues the council was obliged to do so because it was under a duty pursuant to reg 11 of the Local Government (Administration) Regulations 1996 (WA) (Administration Regulations) and s 5.70(1) of the Local Government Act 1995 (WA).
Regulation 11 of the Administration Regulations provides that the content of minutes of a meeting of council are to include:
(a)the names of the members present at the meeting; and
(b)where a member enters or leaves the meeting during the course of the meeting, the time of entry or departure, as the case requires, in the chronological sequence of the business of the meeting; and
(c)details of each motion moved at the meeting, the mover and the outcome of the motion; and
(d)details of each decision made at the meeting; and
(da)written reasons for each decision made at the meeting that is significantly different from the relevant written recommendation of a committee or an employee as defined in section 5.70 (but not a decision to only note the matter or to return the recommendation for further consideration); and
(e)a summary of each question raised by members of the public at the meeting and a summary of the response to the question; and
(f)in relation to each disclosure made under section 5.65 or 5.70 in relation to the meeting, where the extent of the interest has also been disclosed, the extent of the interest.
The applicant's argument relies on the effect of reg 11(da) and s 5.70(1) of the Local Government Act which deems an 'employee' to include a person, who, under contract for services with the local government, provides advice or a report on a matter. The applicant claims that the council was required to give written reasons for adopting Amendment 57 because the independent consultant's report was a relevant written report containing a written recommendation that the scheme amendment should not be adopted.
Alternatively, the applicant says that if the council did form the requisite opinion that the pre‑conditions in cl 5.16.1 had been met, the only inference that can be drawn is that its opinion was based upon the matters stated in the report to council prepared by Mr Fowler‑Tutt in which he misconceived the criteria in cl 5.16.1.
On behalf of the Minister, counsel points out that the applicant's case is predicated upon the assumption that the matters referred to in cl 5.16.1 are mandatory considerations for the council to be satisfied of when considering whether to adopt Amendment 57 with or without modifications. The Minister submits that upon its proper construction, cl 5.16.1 does not have that effect.
In the alternative, the Minister and the City submits that the council properly considered the criteria contained in cl 5.16.1 and was satisfied that the criteria was met.

Are the criteria specified in cl 5.16.1 mandatory considerations requiring the council to form a requisite opinion as to the matters specified?

At the heart of the applicant's case is a contention that when considering Amendment 57 the City failed to consider that each of the criteria in cl 5.16.1 would be satisfied, and the requirement to be so satisfied is a jurisdictional prerequisite to the exercise of the Minister's discretion to approve Amendment 57 under s 87(2)(a) of the Planning Act. Alternatively, the applicant argues that the Minister was required to have regard to whether the City considered that each of the criteria in cl 5.16.1 would be satisfied.
The applicant's case is predicated upon the assumption that the matters referred to in cl 5.16.1 are mandatory considerations for the City to be satisfied of when considering Amendment 57. As counsel for the Minister points out, this is a matter of statutory construction.
Before considering whether the criteria in cl 5.16.1 was a jurisdictional prerequisite to the exercise of the Minister's discretion to approve Amendment 57, it must be determined whether the criteria in cl 5.16.1 were mandatory considerations for the City to be satisfied of when making its decision to adopt Amendment 57, with modifications.
The Minister submits that upon its proper construction, cl 5.16.1 does not have that effect.
Counsel for the Minister properly points out that in accordance with the usual principles of statutory construction, the interpretation of cl 5.16.1 requires a consideration of its terms in the context of not only LPS3, but also the Planning Act (being the Act under which LPS3 as subsidiary legislation is made).
Pursuant to s 43(1) of the Interpretation Act 1984 (WA), a local planning scheme, as subsidiary legislation, cannot be inconsistent with the provisions of the written law under which it is made, or of any Act, and shall be void to the extent of any such inconsistency.
A submission is also made on behalf of the Minister that the entire process of amendment of a local planning scheme is provided for in the Planning Act and the 1967 and 2015 Regulations. That is, these provisions constitute a code that covers the field. Part of this submission is an argument that, if the criteria in cl 5.16.1 were to be construed as mandatory considerations, it necessarily follows that the criteria have effect as a manner and form provision. This construction is said to be inconsistent with the provisions of the Planning Act and the 1967 and 2015 Regulations.
I do not agree that the criteria specified in cl 5.16.1 cannot properly be construed as mandatory considerations. Further, I do not agree that construing the criteria as mandatory considerations raises an inconsistency with the provisions of the Planning Act and the 1967 and 2015 Regulations.
The criteria specified in cl 5.16.1 determine the relevant considerations and the requisite opinion the council is to form when considering whether to create a special use zone.
Whilst a special use zone can only be created by an amendment to the scheme, it does not follow that an inconsistency arises between cl 5.16.1 and the Planning Act and 1967 and 2015 Regulations.
The criteria in cl 5.16.1 only applies to the creation of a special use zone. Clause 5.16.1 does not otherwise apply to the amendment of any other provision of LPS3.
I do not accept that cl 5.16.1 is itself a manner and form provision. Clause 5.16.1 could be amended without regard to the criteria specified in the clause itself, provided the procedure for preparing, adopting and amending, as prescribed in the Planning Act and the 1967 and 2015 Regulations LPS3, are complied with.
The Planning Act and the 1967 and 2015 Regulations expressly recognise that, other than model and deemed provisions, the matters to be prescribed in a local planning scheme are to be determined by a local government authority.[24] Section 69 of the Planning Act provides:
[24] Until the enactment of the 2015 Regulations no deemed provisions were prescribed.
69. General objects of schemes
(1)A local planning scheme may be made under this Act with respect to any land ‑
(a)with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and
(b)making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.
(2)With those objects a local planning scheme may provide for planning, replanning, or reconstructing, the whole or any part of the local planning scheme area.
(3)This section applies subject to section 256 and the regulations made under it and sections 257A and 257B.
Section 256(1) of the Planning Act provides that the Minister may make regulations prescribing provisions that deal with the carrying out of the general objects of local planning schemes and any matter set out in sch 7 of the Planning Act.
Section 257A provides that a model provision means a provision designated as a model provision under s 256(5)(a). Section 257A(2) and (3) are to the effect that (unless a Minister approves the exclusion from, or variation in the scheme of a model provision) a local planning scheme prepared or adopted by a local government must include any model provisions (that are prescribed by regulations and that apply to the scheme).
Section 257B of the Planning Act provides a deemed provision is a provision that has effect and may be enforced as part of the local planning scheme, and if inconsistent with another provision of the scheme, the deemed provision prevails and the other provision, to the extent of the inconsistency, is of no effect.
Clause 6 of sch 7 of the Planning Act relevantly provides that one of the matters which may be dealt with in a planning scheme is zoning of the scheme area for appropriate purposes and designation of uses in zones as permitted, prohibited or requiring approval. The test in cl 6 'for appropriate purposes' contemplates that those purposes can be the subject of regulations made by the Minister pursuant to s 256(1) and the provisions of the local planning scheme itself.[25]
[25] Planning Act s 69(1)(b).
The model scheme text in the 1967 Regulations were prescribed by reg 27 as a set of general provisions in Appendix B for carrying out the general objects of town planning schemes that envisage zoning or classification of land.
Clause 4.7.1 of Appendix B of the 1967 Regulations provided for special use zones, in addition to the zones in zoning table, as set out in sch 4 of Appendix B. Clause 4.7.2 of Appendix B and the note that accompanies it provided as follows:
4.7.2.A person must not use any land, or any structure or buildings on land, in a special use zone except for the purpose set out against that land in Schedule 4 and subject to compliance with any conditions set out in Schedule 4 with respect to that land.
Note: Special use zones apply to special categories of land use which do not comfortably sit within any other zone in the Scheme.
(If the Scheme does not include special use zones, insert the words 'There are no special use zones which apply to the Scheme.')
Schedule 4 of Appendix B provided for a table to be prepared in the local planning scheme stating the description of the land, the special use and conditions (to attach to each special use zone).[26]
[26] Clause 21 of sch 1 of the 2015 Regulations sets out the same table as the 1967 Regulations and substantially in the same terms as cl 4.7.2 of Appendix B of the 1967 Regulations.
Clause 16 of sch 1 of the 2015 Regulations specifies the objectives of a special use zone as follows:
• To facilitate special categories of land uses which do not sit comfortably within any other zone.
•To enable the Council to impose specific conditions associated with the special use.
When regard is had to these regulations, and when read together with the general objects of a local planning scheme set out in s 69 of the Planning Act,[27] it is plain that it is within the power of a local government authority to prescribe within a scheme pre‑conditions (as text for appropriate purposes and designation of uses) to create a special use zone.
[27] Which provides that a local planning scheme is to make suitable provision for the improvement, development and use of land in the local planning scheme area.
A regulation will be 'inconsistent' with an Act if it would alter, impair or detract from the operation of the Act.[28] Where an Act is intended as a complete statement of the law governing a particular matter or a set of rights and duties, delegated legislation regulating or applying to the same matter is regarded as a detraction from the full operation of the Act and thus inconsistent.[29]
[28] See Victoria v Commonwealth [1937] HCA 82; (1937) 58 CLR 618, 630 (Dixon J).
[29] Pearce DC and Argument S, Delegated Legislation in Australia (4^th ed, 2012), [19.23] ‑ [19.24]. See also Re City Area Leases Ordinance 1936 and Axiom Pty Ltd (1986) 66 ACTR 1; (1986) 83 FLR 259.
Yet, no inconsistency arises between cl 5.16.1 and the Planning Act and the 1967 and 2015 Regulations as s 71 to s 81 and s 83 of the Planning Act deal only with the general procedure for preparing, adopting or amending a local planning scheme. There is nothing in these provisions or the regulations that purport to be a complete and exclusive statement of the law governing amendments to a local planning scheme. To the contrary, the provisions of the Planning Act and the 1967 and 2015 Regulations contemplate in respect of the creation of a special use zone that there will be conditions upon which a local government authority would need to consider in determining that the zoning of particular land as a special use zone is for an appropriate purpose or purposes.
There is nothing in the pre‑conditions in cl 5.16.1 that provide for criteria that could otherwise be described as not being proper planning principles or not appropriate purposes for a local planning scheme. Considerations going to the need for a particular use, an assessment of locality, the enhancement of amenity and the interests of orderly and proper planning of the locality are all well‑established planning principles. Further, the pre‑conditions in cl 5.16.1 can be said to be consistent with the objectives of a special use zone as referred to in the note to cl 4.7 of Appendix B of the 1967 Regulations and cl 16 of sch 1 of the 2015 Regulations and consistent with the general objects in s 69 of the Planning Act.

The statutory task - procedural matters the Minister is required to consider when approving or refusing to approve an amendment to a local planning scheme

In his application, the applicant pleads that the Minister made a jurisdictional error:
(a)by approving Amendment 57 which had not been validly adopted by the City; or
(b)in the alternative:
(i)by not taking into account at all whether or not the criteria specified in cl 5.16.1 of LPS3 had been satisfied, irrespective of whether the criteria had been considered in fact by the City in making the resolution to adopt Amendment 57 or whether the criteria had been assessed or evaluated by reference to the evidence in a reasoned manner by the City; or
(ii)the first and second decisions of the Minister were tainted by the Commission failing to make an obvious enquiry into whether the City properly considered the criteria specified in cl 5.16.1.
The task of determining the relevant considerations that the Minister is required to consider when making a decision under the Planning Act was considered by Allanson J in Leighton v Day as follows:[30]
Judicial review on the ground of failure to have regard to relevant considerations is concerned essentially with whether the decision-maker has properly applied the law, and not with the process of making the particular findings of fact upon which the decision-maker acts: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 [74]. To make out this ground, the applicant must show that each of these matters is a consideration that the Minister was bound to take into account: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91] ‑ [93]; A v Corruption and Crime Commissioner [2013] WASCA 288 [88]. It is not sufficient merely to show that they are matters which, should the Minister have regard to them, his decision would not be vitiated by having regard to considerations which are extraneous to the power.
Whether a consideration is one which the Minister is required to take into account is to be determined by the construction of the Act. Some considerations may be expressly stated. Others may arise by implication from the subject matter, scope and purpose of the act: A v Corruption and Crime Commissioner.
[30] Leighton v The Honourable Mr John Day MLA [2014] WASC 164 [64] ‑ [65].
The considerations that the Minister must take into account are, in part, expressly set out in s 87(1) of the Planning Act which provides as follows:
(1)Subject to section 83, after advertisement under section 84 and compliance with sections 85 and 86, a local planning scheme prepared or adopted, or an amendment to a local planning scheme prepared or adopted, by a local government is to be submitted to the Minister for the approval of the Minister.
The requirement in s 84 (advertising the proposed amendment), s 85 and s 86 (matters relating to an assessment of a proposed amendment by the EPA) are not raised in this application as relevant considerations that were not taken into account by the Minister when making the decision to approve Amendment 57.
Pursuant to s 123(1) of the Planning Act, the Minister is prohibited from approving a local planning scheme if the provisions of the scheme are not in accordance with and consistent with each relevant region planning scheme.
Other than the considerations expressly stated in s 84, s 85, s 86 and s 123 of the Planning Act, the discretion of the Minister to approve an amendment or require a local government authority to modify an amendment or to refuse to approve an amendment is conferred in very broad terms. In particular, the Planning Act does not specify any circumstances in which the power to approve an amendment to a local planning scheme must be exercised, or confine the discretion to refuse to approve an amendment to particular circumstances.[31]
[31] Planning Act s 87(2).
The 1967 Regulations and the 2015 Regulations require that the Minister, when making a decision pursuant to s 87, is to have before her or him the documents the local government authority is required to submit to the Commission and any recommendations the Commission makes to the Minister.[32]
[32] Regulation 18 when read with reg 25(2)(m) of the 1967 Regulations and reg 45 of the 2015 Regulations.
In making a decision, the Minister is entitled to make a decision whether as a matter of policy an amendment, with or without modifications, should be approved or refused.
Along with the conferral of a broad discretion on the Minister, the legislative power to make and amend planning schemes is also conferred in very broad terms. A local planning scheme may be made 'with the general objects of making suitable provision for the improvement, development and use of land', and for the 'zoning of the scheme area for appropriate purposes' and the 'designation of uses in zones as permitted, prohibited or requiring approval'.[33]
[33] Planning Act s 69(1) and cl 6 in sch 7.
The general objects in s 69 of the Planning Act impliedly contemplate that the Minister, in exercising a discretion to determine whether an amendment should be made to a local planning scheme may take into account matters of policy that relate to the objects. Thus, the power to approve an amendment to a local planning scheme by s 87 allows a broad range of planning policy considerations to be taken into account by the Minister, including broader government policy and other political considerations. In Leighton v Day, Allanson J pointed out:[34]
It is relevant that the power to approve is vested in a Minister of the Crown. In particular, due allowance must be made to the fact that a minister, in exercising a discretion, may take into account broader policy considerations: see Minister for Aboriginal Affairs v Peko‑Wallsend Ltd; Minister for Immigration v Jia Legeng (2001) 205 CLR 507, 529, 565; Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 [50].
The Act expressly requires a local government to have due regard to any State planning policy which affects its district when preparing or amending a local planning scheme. Policy issues more generally, even if not formalised into a State planning policy, are matters to which a Minister may properly have regard. The decision being policy based, the question for the Minister was not whether he could approve Amendment 18 - he was advised that he could. The question was whether he should approve it, and his statement of reasons should be read as informing why he decided that he should not.
Finally, many of the major developments in administrative law, particularly over the last 15 years, have arisen out of proceedings under the Migration Act 1958 (Cth). Many of those cases arise out of the particular requirements imposed upon a tribunal that is conducting the function of review of an administrative decision: see, for example, Minister for Immigration and Citizenship v Li [10], [93]; Minister forImmigration and Citizenship v SZIAI [2009] HCA 39 [25]. That is not the nature of the function performed by the Minister under s 87 of the Act. He was required to decide whether to exercise a power that, on the completion of formal processes, would result in the creation of delegated legislation that has effect as if enacted. This is an area of policy in which the court should hesitate to intrude: see West Australian Field and Game Association Inc v Pearce (1992) 8 WAR 64, 87; and see Minister for Immigration and Citizenship v Li [108], [111] (Gageler J).
[34] Leighton v The Honourable Mr John Day MLA [2014] WASC 164 [60] ‑ [62].
Where a legislative power vests in a Minister who, as a matter of policy, exercises a decision of whether to promulgate delegated legislation, in general terms the area of determination of policy is an area which the court will not intrude.[35]
[35] WA Field and Game Association Inc v Pearce (1992) 8 WAR 64, 87 (Malcolm CJ, Ipp J concurring).
In this matter, following council's decision on 20 April 2015 to adopt Amendment 57, with modifications, the 1967 Regulations required the City to forward Amendment 57, with material including the submissions, its recommendations in relation to those submissions, and particulars of any modifications, to the Commission.[36]
[36] 1967 Regulations reg 18.
After receiving those documents, the Commission examined the material provided by the City and made its recommendations to the Minister. By the time this occurred the 2015 Regulations[37] applied to Amendment 57.
[37] 2015 Regulations reg 45.
Following an assessment of Amendment 57, an officer of the Department of Planning, Lands and Heritage produced a report and made a recommendation to the Commission's Statutory Planning Committee.[38] The Statutory Planning Committee considered the report in relation to Amendment 57 at its meeting on 24 November 2015 and resolved to recommend that Amendment 57 be subject to some modifications.[39] This resolution was further modified by the Chairman of the Commission on 8 December 2015.[40] The amendment was submitted to the Minister together with the Commissioner's recommendation. The documents provided to the Commission by the City were also provided to the Minister as required by reg 45 of the 2015 Regulations.
[38] Miller Affidavit, pages 7 ‑ 37.
[39] Miller Affidavit, pages 38 - 59 and Johnson Affidavit, pages 70 ‑ 72.
[40] Miller Affidavit, pages 60 ‑ 61.

To establish the ground that the Minister made a jurisdictional error in approving Amendment 57 by not taking into account whether the criteria specified in cl 5.16.1 of LPS3 had been satisfied, the applicant must show that the Minister was obliged by the Planning Act to do so. There is, however, no such statutory obligation on the Minister.
In the alternative, even if one accepts the applicant's argument that the Minister was obliged to do so a presumption of regularity arises on this issue. Section 43(3) of the Interpretation Act provides:
It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of subsidiary legislation have been complied with and performed.
Therefore, there must be some evidentiary material before the court to displace the statutory presumption that in approving Amendment 57, the Minister had complied with and performed all the necessary conditions and preliminary steps.
Even if the Minister was obliged to consider whether the City had considered the criteria specified in cl 5.16.1 had been satisfied, and if that were the case:
(a)for reasons that follow, I am not satisfied that the City did not form the requisite opinion specified in cl 5.16.1; and
(b)I am not satisfied that the Minister failed to consider the criteria in cl 5.16.1 of LPS3 so as to displace the statutory presumption in light of the evidence[41] that in a letter to the applicant's solicitors from the Minister (after she had approved Amendment 57) the Minister stated that the issues raised on behalf of the applicant had been considered by the Commission in preparing its recommendation.
[41] Johnson Affidavit, page 110.

The independent consultant's report

In considering whether the council had formed the requisite opinion specified in cl 5.16.1, the first issue to be determined is whether the recommendation made by the author of the independent consultant's report is a relevant written recommendation of an employee within the meaning of reg 11(da) of the Administration Regulations.
The City contends that the only relevant written recommendation made to council was the recommendation made by Mr Fowler‑Tutt in his report to council contained within the special council meeting agenda for the meeting of council on 20 April 2015. Mr Fowler‑Tutt's recommendation was that noting the modifications to Amendment 57 proposed by the independent consultant, the amendment be approved by council.
The recommendation made by Mr Fowler‑Tutt was a relevant written recommendation before council within the meaning of reg 11(da). It is clear that when regard is had to the decision of the council to adopt Amendment 57, with modifications, that the decision made by council at the meeting on 20 April 2015 was not a decision that was significantly different from the written recommendation made by Mr Fowler‑Tutt.
However, I do not agree that the only relevant written recommendation before council at its meeting on 20 April 2015 was the recommendation made by Mr Fowler‑Tutt. The independent consultant's report was commissioned by the City to act as an independent assessor of the submissions and the planning justification, and to make a recommendation to the City on Amendment 57. Mr Fowler‑Tutt attests to this in the affidavit sworn by him on 16 March 2018.[42] Mr Fowler‑Tutt also refers to the engagement of Planning Consultants Australia Pty Ltd for this purpose in his report to council.[43]
[42] Fowler‑Tutt Affidavit [72].
[43] Fowler‑Tutt Affidavit, page 951.
The author of the independent consultant's report states that Planning Consultants Australia Pty Ltd was commissioned to:[44]
(a)review background information pertaining to the proposed amendment;
(b)review the proponent's amendment request and supporting documentation;
(c)review submissions received during the advertising period (including those from, and later comments of, government agencies), and review and provide draft responses in the submission table to be included in the report to the council on the amendment; and
(d)prepare a planning report with comments and recommendations on the proposal for the council's consideration when the proposed amendment is referred to the council for its further consideration as required by the 1967 Regulations.
[44] Fowler‑Tutt Affidavit, page 860.
Whilst the applicant makes a submission that the independent consultant's report recommended that Amendment 57 not be adopted by the City, I do not accept that to be so.
Although the author of the report states in the report that the review work undertaken did not support Amendment 57, when his observations are examined it is clear that he was referring to Amendment 57 in the form it was when initiated by the City by a council motion on 26 August 2013 and as advertised between 1 ‑ 30 April 2014.
The reasons why the author of the independent consultant's report concluded the review work did not support the 'current amendment' proceeding to approval were summarised in his conclusions in [6.1.1] ‑ [6.1.4] of the report as follows:
6.1.1. Proposals for integrated aged care facilities on Lot 500 have been ongoing for a number of years. The previous proposal, Amendment 18, was refused by the Minister for Planning in November 2010 (see paragraph 2.3.2) essentially because:
•the proposed integrated aged care use and development would constitute an urban use in the MRS 'Rural' zone and would set an undesirable precedent for development in the locality, especially having regard to the current lack of urban services and utilities including readily available reticulated services, and
•it would be premature to the strategic planning that is still required to be undertaken in the locality (including the timing for service provision and detailed structure planning), and that there has been no adequate demonstration that the area can be urbanised in the short to medium term, and
•it was considered that development of the intensity proposed should be connected to the reticulated sewerage system and it is not feasible to connect Lot 500 to the existing sewerage system in the locality.
As outlined above in this report these reasons for refusal are still relevant and applicable.
6.1.2As outlined in paragraphs 5.2.1 to 5.2.17, it would be difficult to conclude that the current proposed amendment would result in uses that would be consistent with the existing MRS 'Rural' zoning of Lot 500 and its surrounding precinct. For the intensity and type of development envisaged, an MRS 'Urban' zone would normally precede local zoning which in turn would provide for comprehensive detailed local structure planning and developer infrastructure contribution arrangements to ensure integrated, well planned and serviced subdivision and development within the precinct.
6.1.3Since the previously proposed Amendment 18 was refused, the Shire's Local Planning Strategy has been adopted showing Lot 500 and surrounding lands in an 'Investigation Area' for possible future urban or residential bushland development. This is an early step in considerations as to whether the area should become urban. The strategic planning for the area, being the North East sub‑regional structure plan, which is under preparation by the WAPC, is anticipated to be released in a draft form in the first half of 2015 for public comment (paragraphs 5.2.18 to 5.2.27). This would indicate whether the precinct within which Lot 500 is situated is considered potentially suitable for a change in land use, including the possibility of urbanisation. The structure plan is not likely to be finalised and adopted by the WAPC until the end of 2015 or early 2016, after which it would form the planning rationale for amendments to the MRS and local planning schemes, as well as more detailed district/local structure plans and developer infrastructure provision and contribution arrangements.
6.1.4If the precinct within which Lot 500 is located is shown for possible future urbanisation in the draft North East sub‑region structure plan document, then there would thus still be a number of further steps in the planning process before a local rezoning for urban purposes would proceed; including finalisation of the sub‑regional structure plan and an 'Urban' MRS rezoning. Nevertheless, if Lot 500 and surrounding land is proposed as future urban then it would provide more support for the proposed amendment.
The author of the independent consultant's report noted that amongst the submissions received there was an objection that the proposed amendment failed to comply with cl 5.17.1 of LPS3 (subsequently renumbered 5.16.1 of LPS3).[45] Notwithstanding this submission, the author did not express a view that the council could not be satisfied that the proposal could not meet the criteria specified in cl 5.16.1. The author set out the criteria in cl 5.16.1 and simply stated that in initiating the amendment the council appears to have at least implicitly formed the view that the proposal met this criteria.[46]
[45] Independent Consultant's Report [4.2.2].
[46] Independent Consultant's Report [3.2.4].
When the conclusions made by the author of the independent consultant's report are examined it is clear that it was his recommendation that it was for the council to decide whether to adopt Amendment 57 as advertised, adopt with modifications, or not proceed with the amendment. The author did, however, recommend that if the council decided to adopt Amendment 57, then modifications 'along the lines' that he set out in [5.6.4] of his report,[47] if adopted, would give a higher degree of certainty as to the outcomes which are considered appropriate in the circumstances.[48]
[47] Being the modifications reflected in the table reproduced in [27] above.
[48] Independent Consultant's Report [6.2.3].
The consequence of this finding is that because the independent consultant did not provide to council a written recommendation to council that was significantly different to decision made by council, council was not obliged by reg 11(da) of the Administration Regulations to give written reasons (in its minutes of the meeting held on 20 April 2015) for its decision to adopt Amendment 57.

The Fowler‑Tutt report to council - April 2015 - the assessment of the criteria specified in cl 5.16.1 of LPS3

In his report to council on 20 April 2015, Mr Fowler‑Tutt directly addressed the criteria in cl 5.16.1 of LPS3 as follows:[49]
[49] Fowler‑Tutt Affidavit, pages 951 ‑ 953.
STATUTORY AND LEGAL CONSIDERATIONS
…
9.Under the Scheme a Special Use zoning may be considered to accommodate a specific use with special conditions on land where the provisions of the zoning table are not sufficiently sensitive or comprehensive to achieve the same objective.
10.In considering a Special Use zoning, the Council shall only make special provision by creating the Special Use zone where it considers it:
(i)Will satisfy a specific need(s) in the locality where the subject land situated;
(ii)Would enhance the amenity and the interest of the orderly and proper planning of the locality; and
(iii)Would be specifically appropriate or desirable.
11.In respect to the specific considerations required to be taken into account when considering a Special Use amendment, the following comments are made:
Satisfying a specific need in the locality.
It is considered that the term 'locality' should be interpreted as the district of the Shire of Kalamunda and not specifically the rural area of Wattle Grove. It is well demonstrated that the Shire of Kalamunda requires aged persons' accommodation, particularly high end care, to serve the current and future needs of the community.
This issue is further expanded upon in the Independent Review of the proposal.
Enhance the amenity and the interest of the orderly and proper planning of the locality.
The amenity of the area would be enhanced by the prospect of developing such a facility in an area identified as an urban investigation thus ensuring the proper and orderly planning of the area.
Would be specifically appropriate or desirable.
The Local Planning Strategy adopted by the Shire and WA Planning Commission, amongst other matters, identified sites considered to present the best opportunity to deliver aged accommodation. The subject site was identified as having an opportunity to be considered for this purpose. As such, given this strategic basis, the amendment is considered appropriate and desirable.
This issue is further expanded upon in the Independent Review of the proposal [the independent consultant's report].
POLICY CONSIDERATIONS
12.The Shire of Kalamunda Aged Accommodation Strategy notes the significant shortfall of residential care in the community.
…
STRATEGIC COMMUNITY PLAN
Strategic Planning Alignment
17.Kalamunda Advancing: Strategic Community Plan to 2023
OBJECTIVE 1.2 - To ensure the ageing population has housing choice.
Strategy 1.2.1 - Collaborate with residential care providers to increase the number of residential care places within the Shire.
Strategy 1.2.2 - Advocate and facilitate large parcels of land within the Shire to be established for aged care facilities.
OBJECTIVE 4.2 - To effectively plan for the diverse range of housing stock that will be required to meet the social and economic needs of the Shire's changing demographics
Strategy 4.2.2 - Facilitate the delivery of suitable housing options for the aged population and people with special needs through a range of smaller and affordable homes and unit dwellings.
SUSTAINABILITY
Social Implications
18.If the Amendment is adopted by Council and subsequently approved by the Minister for Planning it will create the statutory environment to allow for development of Residential Aged Care. This will be of particular benefit to those residents of the Shire wishing to stay in the locality and to live in this type of facility.
19.Objections from nearby land owners cite impacts on amenity, including traffic, noise and visual impact.
Economic Implications
20.Development of the site will inject a significant capital investment into the locality and will lead to local employment opportunities.
Environmental Implications
21.Environmental issues in respect to clearing and effluent disposal are largely resolved and are addressed in the Independent Review. It is noted that as the site is mostly cleared, there will be minimal impact on endemic vegetation.
22.The Applicant has prepared a Local Water Management Strategy which has been approved by the Department of Water. The Strategy confirms the capability of the land to manage the onsite disposal of effluent associated with the future development of the site for integrated aged care.
Mr Fowler‑Tutt went on to make the following observations:[50]
[50] Fowler‑Tutt Affidavit, pages 955 ‑ 956.
25.As outlined in the consultant's report, the reasons given by the Minister for Planning in refusing the previous proposal, Amendment 18, are still relevant and highlight the difficulties, from a planning perspective, in trying to achieve outcomes for the development of new integrated aged care facilities. That said, it is clear that the Shire and more broadly the State of Western Australia faces a significant issue with the lack of integrated aged care facilities for the aging population.
26.If amendments such as these are not considered and supported, it raises a broader issue about where and how the State of Western Australia will address the significant ageing population before us. With the baby boomer generation well into the active retirement period, the demand for these facilities will increase dramatically in the coming decades.
27.The consultant, in his report, has recommended a number of changes to the conditions of the proposed Amendment which will, noting the reasons for the Minister's refusal to Amendment 18, provide a higher degree of certainty as to the outcomes if the development were to proceed. Ultimately however, it is open to the Minister for Planning to consider the proposed changes and approve the Amendment.
28.The Shire understands that one of the key issues to be addressed in the Amendment is that of certainty. It is acknowledged that this means certainty that the aged care facility can be built and certainty that it will be built.
29.The issue of certainty as to whether the development, and in particular the assisted care component will be built has been the subject of many of the submissions received. The concern is that the proposed development would only be constructed to retirement village stage only. Whilst it is noted that the proposed developer has a history of delivering aged care facilities, the Planning and Development Act is unable to take this into consideration. The recommendations of the Consultant include changes to the conditions of the Amendment which will ensure the staged delivery of the care component of the aged care facility, regardless of the developer.
30.This certainty of whether it can be built has largely been addressed as part of the Local Water Management Strategy study of the site which has been approved by the Department of Water, included within (Attachment 1).

Is the applicant able to demonstrate that the City failed to consider or misconstrued the criteria for the creation of a special use zone in cl 5.16.1 of LPS3?

Although much was made in the applicant's submissions about whether the City had adduced evidence that the council had in fact on 20 April 2015 considered the criteria of cl 5.16.1 of LPS3, pursuant to s 43(3) of the Interpretation Act, as discussed, in absence of evidence to the company, it is to be assumed there is no defect in any condition or preliminary step to the making of Amendment 57.
In considering whether the council failed to consider the criteria in cl 5.16.1, regard must be had to the fact that the City was not required to give reasons for its decision to adopt Amendment 57. As the council's decision on 20 April 2015 to approve Amendment 57, with modifications, was not a decision that falls within reg 11(da) of the Administration Regulations, the council was only required to record in its minutes of the council meeting the details of the decision made (reg 11(d)) and not written reasons for the decision.[51]
[51] See also Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656.
Consequently, regard must be had to the information and material the council had before it in making the decision to adopt Amendment 57.
In light of the fact that the report of Mr Fowler‑Tutt set out the criteria of cl 5.16.1 and analysed matters that he regarded as material that council could have regard to in determining whether the criteria had been met and that these matters are recorded in the council minutes without alteration,[52] I am not satisfied that the presumption of regularity is displaced.
[52] See the Special Council Meeting minutes - 20 April 2015 annexed to Johnson Affidavit, pages 7 ‑ 20.
The next issue is whether when regard is had to the observations made in [11] and [12] of the report of Mr Fowler‑Tutt[53] (which are repeated verbatim in the council minutes) it necessarily follows that the council misconceived the criteria it was required to consider pursuant to cl 5.16.1.
[53] Reproduced at [115] above.
In particular, the applicant asks the question of whether the council misconstrued the concept of 'locality' such that it could be inferred that the City failed to properly consider and apply the criteria specified in cl 5.16.1 by wrongly construing 'locality' in cl 5.16.1 as being the entirety of the City of Kalamunda.
Clause 5.16.1(a) required the City to form an opinion that the making of such a special provision by the creation of a special use zone would 'satisfy a special need(s) in the locality where the subject land is situated'.

The applicant contends that the text in cl 5.16.1(a), 'locality where the subject land is situated', should be construed as a reference to an area which is adjacent or proximate to the subject land for the following reasons:
(a)'locality' is not defined in LPS3. The ordinary meaning of 'locality' is a place, spot, or district, or the place in which a thing is or occurs: Macquarie Dictionary (5^th ed);
(b)in the context of LPS3, 'locality' cannot be a reference to the entire district comprising City of Kalamunda. Where reference is made in LPS3 to the entire City of Kalamunda district, the phrase used is 'scheme area';[54]
(c)the word 'locality' has a well‑understood meaning in planning law. Although the word is 'necessarily flexible' in its application, the characterisation of the locality will depend upon the impact in question and the circumstances of the case;[55]
(d)the concept of a 'locality' derives its function necessarily because it is less than a scheme area. That is because 'the locality is the topographical area which relevantly affects or is affected by a proposed development',[56] and a scheme area invariably includes a range of topographical areas likely to be affected by impacts of proposed developments;[57]
(e)in this matter, 'locality' is to be interpreted by the 'amenity' impacts of the proposed development, and it is not reasonable to suppose that the proposed development will have any impacts on the amenity of the entire scheme area, particularly where the aged accommodation strategy identifies different needs for it within different localities across the scheme area;
(f)the express intent and context of cl 5.16.1 is to consider 'special' provision for a 'specific' use on 'particular' land, and the special use zone created by an amendment is to be 'specifically' appropriate or desirable. To be consistent with these concepts, the relevant 'locality' must be something relevant to the particular land, as compared to the entire scheme area;
(g)'locality' is also used in cl 5.16.1(b) in the context of whether the special use zone would enhance the amenity and the interest of the orderly and proper planning of the 'locality'. It is reasonable to assume that 'locality' is intended to have the same meaning in both cl 5.16.1(a) and (b). That being the case, 'locality' must mean something less than the entire scheme area, otherwise the council would need to be satisfied that the special use would enhance the amenity and interest of the orderly and proper planning of the entirety of the scheme area, which would be an unrealistic demand and costly and time‑consuming test;
(h)the aged accommodation strategy referred to in [12] of the report of Mr Fowler‑Tutt[58] distinguishes between localities and the City of Kalamunda area; and
(i)the definition of 'locality' used by Mr Fowler‑Tutt in his report is inconsistent with the response that he gave to an objection as to the need for the facility in the Wattle Grove locality by distinguishing that area from the area of the entire City of Kalamunda and by not equating it.
[54] LPS3 cls 1.3, 1.5(a), 1.6(a), 1.6(b), 2.2, 4.1.1, 4.3.1, 5.2.3, 5.4.1, 7.1.1, 11.1.1(b) and 11.4(b).
[55] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 [42].
[56] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 [42].
[57] See for example Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 [89] ‑ [93] and St Patrick's Community Support Centre and City of Fremantle [2007] WASAT 318 [37] ‑ [38].
[58] Reproduced at [115] above.

Principles of construction - planning schemes

In Australian Unity Property Ltd v City of Busselton,[59] the Court of Appeal recently set out the well‑established principles to be applied in determining the proper construction of a planning scheme. In the joint judgment of the court, the plurality observed:
(a)Establishing legislative intention by the process of statutory construction is not the subjective understanding or motives of persons exercising delegated legislative power. The construction of a planning scheme is a process of determining the objective meaning of the legislation by application of recognised rules of interpretation to the legislative text, understood as a whole and in its context.[60]
(b)The first aspect of the recognised rules of interpretation is the imperative to give primacy to the language which the legislating body has chosen to use.[61]
(c)The focus on the text recognises and preserves the role of the legislature in identifying the policy which legislation is to pursue by requiring that effect be given to the chosen text.[62]
(d)Focus on the statutory text facilitates the comprehension of the meaning of the legislation by persons whose conduct it regulates.[63]
(e)These considerations are no less important when the legislative instrument being construed is a planning scheme. The terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of the land to which the scheme applies. Placing a counter‑intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.[64]
(f)Context and purpose may affect the meaning of the language the Parliament has chosen to use. When the text is considered in its context, and having regard to the statutory purpose, it may be apparent that words are used with other than their ordinary meaning. The meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.[65]
(g)In construing a planning scheme, it is also relevant to note that schemes are not usually drafted by Parliamentary Counsel and are often expressed in terms which lack the precision of an Act of Parliament. Planning schemes should be construed broadly rather than pedantically and with a sensible practical approach.[66]
(h)The legislative purpose which informs the proper construction of legislation is itself ascertained by a process of statutory construction, rather than the mere attribution to the legislature of what the court might regard as a desirable policy outcome. Identifying the legislative purpose is itself an objective exercise of statutory construction, which does not involve a search for what those who promoted or passed the legislation may have had in mind when it was enacted. Nor was it for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.[67]
[59] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38.
[60] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77].
[61] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [79].
[62] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [80].
[63] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [81].
[64] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [82].
[65] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [83].
[66] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [84].
[67] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [85].

What constitutes 'locality', 'need' and 'amenity'

The word 'locality' in planning policies and planning schemes has been consistently interpreted by the State Administrative Tribunal as a flexible concept requiring a factual assessment of town planning impacts. In Ridgecity Holdings Pty Ltd and City of Albany the Tribunal observed:[68]
The concept of the locality in town planning is necessarily flexible. However, the determination of the boundaries of the locality in any given case is generally concerned with town planning impacts. The locality of a site is the topographic area which relevantly affects or is affected by a proposed development. The characterisation of the locality will depend on the impact in question and the circumstances of the case.
[68] Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187 [42] (Chaney DP, Parry SM, Connor M).
When the principles recently enunciated by the Court of Appeal in Australian Unity Property Ltd v City of Busselton[69] are applied to this matter, starting from the text of cl 5.16.1, it is apparent from the text used in the first paragraph of cl 5.16.1 by the words 'the intent of the special use zone' is a statement of the planning vision of the City. This paragraph creates no obligation or mandatory consideration but is merely aspirational in its terms. The aspiration can be characterised by its terms as a statement of policy by the City to create special use zones in the zoning table that are not otherwise contemplated as uses in the zoning table in LPS3. This policy is reflected in cl 4.7 of Appendix B of the 1967 Regulations and cl 16 of sch 1 of the 2015 Regulations.
[69] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85].
The creation of a special use zone can only take effect by the amendment process. Consequently, the creation of a special use zone requires significant scrutiny through the application of the amendment process. This policy is made clear by the objectives of the special use zones as stated in cl 5.16.2 of LPS3 which provides as follows:
5.16.2 The objectives of the zone are:
a)to make provision for a specific use or combination of uses on particular land where provisions of the Zoning Table would otherwise restrict this, or to prevent the establishment of a use or a combination of uses where the provisions of the Zoning Table would otherwise allow this;
b)to ensure that any use or development of land which is considered to have significant impact, takes place only after the amendment process has been undergone; and
c)to allow for the inclusion of specific uses or combinations of uses on particular land either with or without a base zoning (from the Zoning Table) of that land.
These objectives are to the effect that an amendment to LPS3 by the creation of a special use zone is to provide for a specific use of particular land, subject to conditions that would not otherwise be for a use that is mentioned within the zoning table.[70] In particular, the objectives stated in the opening paragraph of cl 5.16.1 and cl 5.16.2, when read with cl 4.7, make it clear that (once provision is made in respect of particular land by an amendment to LPS3 to create a special use zone) the land in question will by its inclusion in the special use zone be zoned differently to the land that surrounds it, and is adjacent to it.[71]
[70] Table 1 of cl 4 of LPS3 when read with cl 4.7.
[71] 4.7 SPECIAL USE ZONES
4.7.1 Special Use zones are set out in Schedule 4 and are in addition to the zones in the Zoning Table.
4.7.2 A person must not use any land, or any structure or buildings on land, in a Special Use zone except for the purposes set out against that land in Schedule 4 and subject to compliance with any conditions set out in Schedule 4 with respect to that land.
Note: Special Use zones apply to special categories of land use which do not comfortably sit within any other zone in the Scheme.
Turning to the conditions specified for making provision by creating a special use zone (within sch 4 Special Use Zones), there are three matters upon which the City (through its governing body of the council) must form a requisite opinion. The criteria in cl 5.16.1(a) and (b) refer to 'the locality'. These subclauses require the council to form an opinion that the making of special provision by the creation of a special use zone:
(a)will satisfy a specific need(s) in the locality where the subject land is situated; and
(b)would enhance the amenity and the interest of the orderly and proper planning of the locality.
It is notable that the words in these subclauses of cl 5.16.1 refer to the concept in the 'locality' in two contexts.
The ordinary meaning of 'locality' is, as the applicant contends, a place, a spot, or district.
The word 'locality' is not defined in LPS3. The word is used in cl 4.9.3 (non‑conforming uses), cl 5.5.2 and cl 5.5.3 (which requires consultation of owners or occupiers in the general locality or adjoining the site in respect of variations to site and development standards), cl 10.2(j), (n), (o) and (q) (considerations to be applied in determining applications for planning approval) and cl 11.2.1 (where an existing advertisement is in conflict with the amenity of the locality). However, none of these provisions are informative of the construction of the word 'locality' as it appears in cl 5.16.1.
'Locality' can mean a specific definable area, such as a central business district, or a particular neighbourhood. It can extend to large or small areas. However, a 'locality' must not be a remote or distant place, it must, by the terms of that word, be local. What constitutes a 'locality' is necessarily a factual inquiry.
In construing cl 5.16.1(a) and the words 'specific need(s) in the locality where the subject land is situated' regard must be had to the fact the word 'locality' is undefined and the principle is that generally in a planning context the word 'locality' is to be construed flexibly in the context of particular circumstances of a matter.
In this matter, the word 'locality' must be construed in light of the context that the creation of Amendment 57 as a special use zone is to create a zone that only applies to lot 500 and that is not 'special rural'. Further, such a use (not being special rural) is expressly contemplated by the creation of a special zone.
Regard should also be had to the proposed 'use' and the scale of the development. In this matter, the circumstances are that the proposed use is for a large integrated aged care facility.
In cl 5.16.1(a), the pre‑condition for creating a special use zone is that the special provision is to satisfy a specific need(s) in the locality. It must necessarily follow that the 'need' be in the locality. That does not necessarily mean that the identified need for that use must only exist in, or be exclusive to, that locality. The concept of 'locality' in cl 5.16.1(a) must turn on the size and character of the development being considered as the subject of the creation of the special zone.
The approach to the matters considered by the council in forming the requisite opinion in respect of the matters specified in cl 5.16.1 is consistent with the approach taken by the Town Planning Appeal Tribunal in Rajneesh Foundation v Shire of Manjimup (No 2).[72] In that matter, the Town Planning Appeal Tribunal considered a planning application to change the use of a property in a rural area zone for short‑term accommodation to that of a boarding school. The Town Planning Appeal Tribunal found that an assessment of 'need' within a locality can extend to an entire community. One of the issues was whether a school would be detrimental to the amenity of the locality. Another issue was whether there was a need for the proposed use and whether the advantages to be gained in satisfying that need outweighed any disadvantages such as any potential adverse impact of the use on the amenity of locality. Although the issues raised in that matter are directed to different questions than in this matter, the Town Planning Appeal Tribunal's approach illustrates flexibility in the concept of both 'need' and 'amenity' and what flows from those observations is that consideration of these planning concepts depend upon the relevant circumstances of a particular matter.
[72] Rajneesh Foundation v Shire of Manjimup (No 2) [1985] 3 SR (WA) 65 (DK Malcolm QC, LA Dickson & LW Hegvold).
In Rajneesh Foundation v Shire of Manjimup (No 2), the Town Planning Appeal Tribunal made the following observations in respect to the issues before them:[73]
To the extent that the satisfaction of that need is in competition with the preservation of local amenity it is necessary to weigh the competing considerations in the light of the evidence in the particular case: Methodist Church NSW Property Trust v Burwood Council [1972] 1 NSWLR 288. The concept of 'need' has different dimensions. First, it must be looked at from the point of view of the community as a whole. It has long been recognised that the community may be expected to accommodate the desire of individual religious and other groups to establish schools to be conducted in the manner of their choosing …
[73] Rajneesh Foundation v Shire of Manjimup (No 2) [1985] 3 SR (WA) 65, 83 (Malcolm C, Dickson M & Hegvold M agreeing).
Not only did the Town Planning Appeal Tribunal on the facts before it assess the concept of need from the point of view of the community as a whole, the Town Planning Appeal Tribunal also recognised that for the purpose of testing whether the proposed use of a school would be detrimental to the amenity of a locality, it may be permissible to look at a wider area than the land in the immediate vicinity of the subject land to include a town or a whole Shire. In making this assessment, the Town Planning Appeal Tribunal said:[74]
Given that there is a need for a school and that the subject land and buildings are suitable for that purpose would their use by the appellant as a school be detrimental to the amenity of the locality? The Tribunal has had reason on a number of previous occasions to consider the somewhat elusive meaning of the concept of 'amenity'. The meaning which has been adopted for planning purposes is that the amenity of a given area is an expression of the sum of the expectations of the residents concerning the character and quality of their residential environment: see Cipriano v City of Perth (1979) (unreported, TPAT No 20 of 1979); Camfield Nominees Pty Ltd v City of Claremont (1980) (unreported, TPAT No 22 of 1979); Aboriginal Hostels Limited v Shire of Swan (supra); Aboriginal Boomerang Council v Town of Geraldton (1982) (unreported, TPAT No 47 of 1981) and Islamic Association of Canning v City of Canning (1984) 2 SR (WA) 160. Amenity is, therefore, a relative concept which will vary according to time, place and other circumstances. In many cases it is easy to determine that a proposed use will have a detrimental effect on the amenity of the area. It would be readily apparent, for example, that the conversion of a private residence in an attractive and desirable residential area into a factory for the manufacture of noxious chemicals would substantially defeat the expectations of residents. In my view, however, the conversion of a hotel or guest house into a school does not have an inherent likelihood of being detrimental. One reason for this is that a school is not likely to be any more disruptive in a given location than a hotel.
[74] Rajneesh Foundation v Shire of Manjimup (No 2) [1985] 3 SR (WA) 65, 85 ‑ 86 (Malcolm C, Dickson M & Hegvold M agreeing).
The Town Planning Appeal Tribunal went on to assess the effect of amenity by defining the locality. An argument was put to the Town Planning Appeal Tribunal that the change of use would have an impact upon all of the residents in the Shire which would be detrimental to the amenity of the area. The Town Planning Appeal Tribunal then went on to find:[75]
In my opinion, the likelihood of a proposed activity causing a nuisance is one way of testing whether or not a given activity will have a detrimental affect on the amenity of a locality. For that purpose, it may be permissible to look at a wider area than the land in the immediate vicinity of the subject land and extend it to include the town of Pemberton or even the Shire as a whole. It was in this context that Counsel for the respondent Shire invited us to take into account the views of residents. In my opinion, it is relevant to examine the views of residents to determine whether or not the activities of the appellant in using the subject land for a school are likely to cause any form of nuisance. I use the word 'nuisance' in the sense that the appellant's activities will result in some kind of interference with the ordinary enjoyment of life by the residents of Pemberton or, alternatively, the Shire. Counsel for the respondent accepted that this was the position.
[75] Rajneesh Foundation v Shire of Manjimup (No 2) [1985] 3 SR (WA) 65, 87 (Malcolm C, Dickson M & Hegvold M agreeing).

In this matter, the relevant circumstances are that the council had before it information upon which it was open to find that there is an identified 'need' for aged care facilities in the whole of the geographical area to which LPS3 extends. This identified need extended in and beyond the area adjacent to the subject land.
As the Minister points out in her submissions, the relevant locality for the purposes of cl 5.16.1 could extend to the whole City of Kalamunda.
In circumstances where the shortage of aged care accommodation exists across the local government area, it was open to the council to find that the whole of that area will be affected by the amendment because the whole of the area will be in the catchment of the proposed aged care facility. Whether this evaluation was the appropriate judgment to make is not a matter that can be reviewed by the court.
For reasons that follow, I find that whether this identified need in the immediate adjacent area is less than it is in other parts of the City (or was at the time council made the decision) is a matter going to the merit of decision of council and is not a matter which is open to be reviewed by this court in an application for judicial review. Whether Amendment 57 represents an appropriate assessment of an 'identified need' involves an evaluative judgment going to weight and is a question of merit, not legality.
As the Minister also points out, there is no requirement in the Planning Act, the 1967 Regulations or LPS3 (when considering an amendment of this type) that the City be required to identify a confined boundary for a 'locality'.
When regard is had to all of these matters, it follows that it was open to the council to construe the words 'locality' in cl 5.16.1(a) in this matter to mean the geographical area from which the proposed development is to service, which include the geographical area from which prospective residents and users of the integrated aged care facility could be drawn, that is, the entire geographical area of the City.
As to cl 5.16.1(b), the requisite opinion council was required to form when considering whether to adopt Amendment 57, with modifications, was that the creation of a special use zone would enhance the amenity and interest of the orderly and proper planning in the locality.
Consequently, the council was required to assess relevant matters of policy which provide for orderly and proper planning in the geographical area of LPS3 and determine whether Amendment 57 would enhance the interest of that policy in the locality.
In the special council meeting minutes of 20 April 2015 it is recorded under the heading 'Enhance the amenity and the interest of the orderly and proper planning of the locality' that 'the amenity of the area would be enhanced by the prospect of developing such a facility in an area identified as an urban investigation thus ensuring the proper and orderly planning of the area'.[76]
[76] Johnson Affidavit, page 11.
There was material before the council on 20 April 2015 upon which it could find that the Wattle Grove rural area had been identified as an investigation area for urban development in the City's local planning strategy.[77] The planning strategy was specifically referred to by council in the special council meeting minutes of 20 April 2015 under the third criteria (corresponding to cl 5.16.1(c) of LPS3) as to whether the creation of a special use zone would be specifically appropriate or desirable.[78] Under this criteria it is stated that the local planning strategy adopted by the Shire (the City) and the Commission, amongst other matters, identified sites considered to present the best opportunity to deliver aged accommodation. The subject site was identified as having an opportunity to be considered for this purpose. As such, given this strategic basis, Amendment 57 was considered appropriate and desirable.[79] It is also noted in the minutes that this issue was further expanded upon in the independent consultant's report of the proposal.
[77] Fowler‑Tutt Affidavit, page 522.
[78] Johnson Affidavit, page 11.
[79] Johnson Affidavit, page 11.
In [5.2.22] of the independent consultant's report the author stated:
The Local Planning Strategy identifies the Wattle Grove rural area (including Lot 500) and a large part of the balance of the foothills as 'Investigation Areas' for possible urban or bushland residential development (esp pp 9‑10, 15‑16, 83, 89‑90, 203). The Strategy recommends 'Population Scenario 3' which would allow for growth in the Shire's population by 25,000. This scenario includes possible urbanisation of the special rural land south of Welshpool Road East in Wattle Grove which the strategy estimates to be required for development by 2025 to satisfy the 25,000 people growth target. The strategy is not entirely clear as to the form of urban development with one possible form identified being a low density 'Residential Bushland' zone. The draft strategy originally proposed the Wattle Grove rural area as a 'proposed urban development area' although after the draft Strategy's advertising the WAPC modified this to 'investigation area', reflecting its identification in the Draft Outer Metropolitan Perth and Peel Sub‑Regional Strategy (p 67) as an area that 'has potential for future consideration as an urban investigation area due to its proximity to the urban front and employment opportunities around the airport'. The Local Planning Strategy notes:
'The key matters that will need to be investigated for each Investigation Area are, but not limited to:
•Bushfire risk.
•Transport/movement networks.
•Infrastructure/servicing.
•Environmental and landscape impacts.
•Urban water management.
It should not be assumed that Investigation Areas will be rezoned for further subdivision, urban or industrial development at any time.'
Part of the assessment of criteria 5.16.1(b) required the council to assess 'amenity' in the locality. The ordinary meaning of 'amenity' includes 'the quality of being pleasant or agreeable in situation, prospect.'[80]
[80] Macquarie Dictionary Online.
In a planning context, an assessment of amenity must necessarily have regard to the quality and character of the locality which in a particular matter will require an assessment of the benefit to the community of the proposed use, including the likely future of the area. In particular, whether the proposed use can be said to advance the amenity of persons who presently live in the locality and future residents.
In this matter, it must be borne in mind that in assessing the amenity of a locality it is expressly contemplated in LPS3 that the creation of a special zone will result in a use that may not be consistent with the use of surrounding or adjacent areas. In this case the surrounding and adjacent use is special rural. Plainly, the proposed use in Amendment 57 contemplates a density of development that is consistent with urban zoning and not special rural.
The council's minutes evidences that the council formed an opinion about the matters in cl 5.16.1(b) and (c). The question is whether it was open for the council to form the opinion that the pre‑conditions had been met by regard to the matters that they considered.
Firstly, it was open to the council to form an opinion that the 'locality' was not just the rural area of Wattle Grove but the whole of the geographical area of the City. Secondly, it was open to the council to ignore the current and surrounding use of the land to that of the subject of the special zone, being special rural. Thirdly, it was open to the council in considering the matter to have regard to an existing council policy, the local planning strategy, which contemplated that lot 500 was within an area that has potential for possible urban or bushland residential development. Fourthly, it was open to the council to have regard to all of these matters in forming the opinion that the proposed use would enhance the amenity and the interest of the orderly and proper planning of the locality and be specifically appropriate or desirable.
The real heart of the applicant's complaint in this matter is that he does not agree with the evaluative judgments made by the council. However, the criticisms of the City's consideration of the criteria in cl 5.16.1 by the applicant go to the planning merits of the City's decision. The criticisms relate to a matter of merit, when all the circumstances and information before the council is weighed, of whether:
(a)from a planning perspective, given the shortage of aged care in the whole of the geographical area of the City it is appropriate for the 'locality' to be regarded as the entire geographical area of the City;
(b)Amendment 57 will enhance the interests and rural amenity of the locality and introduce a land use consistent with the surrounding and adjacent land;
(c)the integrated aged care facility contemplated by the proposed development would satisfy a need for aged care housing;
(d)the land the subject of the proposal is optimally suited to servicing the needs of elderly people, given its walkability and integration with other infrastructure. In particular with the location of this facility and this place within a special rural zone is the best location in the entire geographical area of the City of Kalamunda; and
(e)the proposed use is premature to the strategic planning of the area.
These are questions which go to the merits of the opinions formed by the council and the weight to be given to the matters that they considered. These are not questions of legality. They involve the making of evaluative judgments that are not matters susceptible to judicial review.
The court must beware of turning judicial review into a reconsideration of the merits of the decision. The court in an application for judicial review is concerned only with legality. The merits of the decisions, to the extent they can be distinguished from legality, are for the Minister alone.[81]
[81] Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [66], [110] ‑ [111]; Leighton v The Honourable Mr John Day MLA [2014] WASC 164 [59].

Conclusion

For these reasons, I am not satisfied that any of the applicant's grounds for judicial review have been established. The application should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
ASSOCIATE TO THE HONOURABLE JUSTICE SMITH
2 NOVEMBER 2018