Leighton v The Honourable Mr John Day MLA

[2014] WASC 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   LEIGHTON -v- THE HONOURABLE MR JOHN DAY MLA [2014] WASC 164

CORAM:   ALLANSON J

HEARD:   11 OCTOBER 2013

DELIVERED          :   12 MAY 2014

FILE NO/S:   CIV 1813 of 2013

BETWEEN:   ROSS WILLIAM LEIGHTON

Applicant

AND

THE HONOURABLE MR JOHN DAY MLA
Respondent

Catchwords:

Administrative law - Prerogative writs - Application for certiorari and mandamus - Planning and Development Act 2005 (WA) - Amendment of local planning scheme - Decision of Minister for Planning - Failure to take into account relevant considerations - Irrelevant considerations - Unreasonable decision - Whether decision made in accordance with the Act

Legislation:

Environmental Protection Act 1986 (WA), s 48A(1), s 48I(3)
Planning and Development Act 2005 (WA), s 3, s 14, s 69, s 75, s 81, s 83, s 84, s 86, s 87, s 123, s 124, sch 7
Town Planning Regulations 1967 (WA), reg 13, reg 15, reg 17, reg 18, reg 19, reg 25, reg 25AA

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr M L Bennett & Ms T Elder

Respondent:     Mr R M Mitchell SC & Ms F B Seaward

Solicitors:

Applicant:     Bennett + Co

Respondent:     State Solicitor for Western Australia

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

A v Corruption and Crime Commissioner [2013] WASCA 288

Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400

Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353

Belmorgan Property Development Pty Ltd v GPT RE Ltd [2007] NSWCA 171; (2007) 153 LGERA 450

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291

Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277

Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Citizenship v Li [2013] HCA 18

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656

Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175

Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492

Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181

West Australian Field and Game Association Inc v Pearce (1992) 8 WAR 64

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43

1. ALLANSON J:  The applicant is one of the owners of land at 32 Gavour Road, Wattle Grove.  He proposes to develop a retirement village and aged care facility on the site.  That use of the land is prohibited under the current zoning of the site in the Shire of Kalamunda Local Planning Scheme No 3.  Since about 2004, the applicant has been attempting to have the zoning of the land changed.

2. In November 2010, the Shire of Kalamunda resolved to adopt an amendment to Local Planning Scheme No 3 (Amendment 18), under which the land would be zoned 'Special Use (Aged Residential Care)'.  The amendment required the approval of the Minister for Planning.  On 21 November 2012, the Minister decided to refuse to approve Amendment 18.

3. The applicant applies for certiorari to quash the decision of the Minister on three broad grounds, alleging that the Minister:

   1.Failed to take into account considerations that he was bound to take into account.

   2.Made a decision that was unreasonable.

   3.Took irrelevant considerations into account.

   There is a degree of overlap between the grounds, with the allegation that the decision was unreasonable relying on factors that are the basis of the two relevance grounds.

4. Should the decision of the Minister be quashed, the applicant also seeks relief by mandamus to require the decision on Amendment 18 to be made according to law.

5. The evidence before the court was in three affidavits filed on behalf of the applicant, and four affidavits filed on behalf of the Minister.  The affidavits were made or affirmed by the following witnesses:

   1.Ross William Leighton, sworn 26 July 2013;

   2.Ross William Leighton, sworn 31 July 2013;

   3.Peter David Webb, affirmed 26 July 2013;

   4.Wayne Ross Zimmerman, affirmed 19 June 2013;

   5.Carolyn Ann Vyner, affirmed 21 June 2013;

   6.Andrew David Trevor, affirmed 13 September 2013; and

   7.Peter David Spragg, affirmed 27 September 2013.

The legislative scheme

Planning and Development Act 2005

1. The Planning and Development Act 2005 (WA) (the Act) provides for the making and amendment of region planning schemes and local planning schemes. Local Planning Scheme No 3 is a local planning scheme made under pt 5 of the Act. Under s 69 of the Act,

   (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.

2. Schedule 7 sets out matters for which a scheme may provide, including zoning, and the designation of uses in zones as permitted, prohibited or requiring approval.

3. By s 75(a) of the Act, the Shire of Kalamunda (as the responsible authority) may amend Local Planning Scheme No 3 by an amendment prepared by the Shire, approved by the Minister, and published in the Government Gazette.  

4. After resolving to prepare Amendment 18, the Shire was required to refer the amendment to the Environmental Protection Authority: the Act s 81.

5. The Environmental Protection Authority (EPA) was required to decide whether to assess Amendment 18 under pt IV, div 3 of the Environmental Protection Act 1986 (WA): Environmental Protection Act s 48A(1). In 2009, the EPA gave notice that it decided not to assess Amendment 18.

6. The amendment was required to be advertised for public inspection in accordance with the Town Planning Regulations 1967 (WA): the Act s 84. Under reg 13, the Shire was required to submit Amendment 18 to the Western Australian Planning Commission (the Commission), for the Commission to consider the amendment and either give consent to it being advertised for public inspection, with or without modification, or to recommend to the Minister or an authorised person that consent to advertise be withheld: reg 13(2), reg 25.

7. The Commission recommended that consent to advertise Amendment 18 be withheld.  As a result, the Minister was required to consider Amendment 18 and the recommendation of the Commission and either withhold his consent to advertise, or direct the Commission to give its consent to the advertising of Amendment 18, with or without modification. 

8. The Minister directed the Commission to give its consent to Amendment 18 being advertised for public inspection. The Commission was to give effect to that direction: reg 25AA(3). The Shire was then required to advertise Amendment 18: reg 15 and reg 25(1)(f), (fa), and (faa).

9. The Shire was required to consider any submissions made on the amendment and resolve either that it should adopt the amendment, with or without modification, or that it did not wish to proceed with it: reg 17 and reg 25. The Shire resolved to adopt Amendment 18 with modifications. It was then required to forward the amendment and material, including the submissions, its recommendation in relation to those submissions, and particulars of any modifications, to the Commission: reg 18.

10. After having examined the amendment, the submissions, and the comments, recommendations and modifications made by the responsible authority, the Commission was required to submit its recommendations to the Minister: reg 19 and reg 25.

11. Under s 87(1) and (2) of the Act:

    (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.

    (2) The Minister may, in relation to a local planning scheme or amendment submitted to the Minister under subsection (1) ‑

    (a)approve of that local planning scheme or amendment; or

    (b)require the local government concerned to modify that local planning scheme or amendment in such manner as the Minister specifies before the local planning scheme or amendment is resubmitted for the Minister's approval under this subsection; or

    (c)refuse to approve of that local planning scheme or amendment.

12. If an amendment is approved, after the necessary procedures have been followed, including publication in the Gazette, it has full force and effect as if enacted by the Act.  At the conclusion of the process, however, the Minister refused to approve Amendment 18. 

13. A local planning scheme is not to be approved by the Minister unless it is in accordance with and consistent with each relevant region planning scheme: the Act s 123(1). If a region planning scheme is inconsistent with a local planning scheme, the region planning scheme prevails to the extent of the inconsistency: s 124. The Minister may, before approving a local planning scheme amendment, direct the relevant local government to modify the local planning scheme so that it is consistent with the region planning scheme and 'will not impede the implementation of the region planning scheme': s 127.

14. The Metropolitan Region Scheme applies to the subject land.  Part III is headed 'Zones'.  Clause 23 of the Metropolitan Region Scheme provides for the classification of land into zones.  The subject land is zoned 'rural' in the Metropolitan Region Scheme. 

15. When making or amending a local planning scheme, a local authority shall have regard to the primary use for which the land to which the local planning scheme relates is zoned under the Metropolitan Region Scheme.  Nothing in the Metropolitan Region Scheme prevents a local authority from making proper provision for that land or a portion of it to be otherwise used, or zoned for some other use:  cl 25.  In this manner, zoning under a local planning scheme may depart from the zoning under the Metropolitan Region Scheme.  Where a local planning scheme, approved by the Minister and Gazetted, is at variance with any provision of pt III of the Metropolitan Region Scheme, the provision of the local planning scheme prevails:  Metropolitan Region Scheme  cl 21. 

The proposed amendment

1. The aims of Local Planning Scheme No 3 are set out in cl 1.6.  They include:

   (i)to zone the Scheme area for the purposes described in the Scheme so as to strategically promote the orderly and proper development of land by making suitable provisions for the use of land within the Scheme area

   (ii)to secure the amenity, health and convenience of the Scheme area and the residents thereof.

2. Part 4 deals with zones and the use of land. The applicant's land is currently zoned 'special rural'.  The objective of the special rural zone is:

   To enable smaller lot subdivision to provide for uses compatible with rural development. 

   To retain amenity and the rural landscape in a manner consistent with orderly and proper planning:  cl 4.2.2.

3. The zoning table sets out what uses are permitted in each zone, including those uses that are not permitted unless the Shire has exercised its discretion by granting planning approval:  cl 4.3.  Aged residential care is not a permitted use in the special rural zone.   

4. Further provisions relating to the special rural zone are found in cl 5.10.  Home occupation is a permitted use in the zone, but the zone provides for small rural lots to accommodate uses compatible with rural residential living.  Subdivision in special rural zones shall not create lots less than 1 ha in area.  There are requirements imposed on development in the zone.

5. The scheme provides for special use zones.  By cl 5.17.1, a special use zone may accommodate 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 the special provisions:

   (1)will satisfy a specific need(s) in the locality where the subject land is situated;

   (2)would enhance the amenity and the interest of the orderly and proper planning of the locality; and

   (3)would be specifically appropriate or desirable.

6. The development proposed for the land, if rezoned, was described in a report on Amendment 18 to the Shire of Kalamunda.  The report is dated May 2009, and was prepared by Peter D Webb and Associates, the applicant's town planning consultants.  It was included in the material put before the Minister.

7. Two areas on the site were to be developed with small individual homes, 'designed to be occupied by independent people who have reached an age of 55 years or more, or in the case of a couple, one of whom has reached that age'.  One area would have 25 to 30 units, the other ‑ described as 'the bulk of the site' ‑ was to have about 180 ‑ 190 units, each on a parcel of land in the order of 20 ‑ 25 m deep and 12 ‑ 14 m wide.  The land would include a communal caravan and boat parking facility, and would 'incorporate space for the possible development of a residential aged care facility designed to support approximately 100 ‑ 120 beds'.

8. At the time of the report, the applicant proposed that waste water would be pumped to the Water Corporation's sewer system.

9. Amendment 18, as adopted by the Shire, would zone the land 'Special Use (Aged Residential Care)', with permitted uses:  aged residential care, caretaker's dwelling, consulting rooms, grouped dwelling and single house.  Permissible uses, that is uses which are permitted at the discretion of the Shire, would be 'other ancillary or incidental uses … providing that they form part of the operational business of the facility and which uses might complement or enhance the usual living standards and requirements of residents living in and staff serving a facility of this nature'.  Land use would be subject to conditions, including that at least one occupant of any dwelling must have reached the age of 55 years.  The amendment adopted by the Shire in 2010 also included the condition that development on the site shall be connected to a reticulated sewer service 'or an alternative system to the satisfaction of the Department of Health of Western Australia'.

The chronology of the decision

1. Within the general statutory scheme outlined above, some particular decisions were made which need to be described in greater detail.

2. The Minister's decision on the advertising of Amendment 18 was recorded on 6 October 2009.  The Minister stated that his consent to advertise was given 'in the knowledge that there is an increasing demand for aged care facilities and to determine the support or otherwise of the local community for the proposal'.  The decision continues:

   However, consent to advertise is also given in the knowledge that the proposal is not currently supported by any detailed strategic planning instruments.

   Council be advised that:

   i)Intensification of land use and development in the Wattle Grove locality will only be considered following comprehensive planning for the wider locality which has been the subject of appropriate consultation and review, including assessment by agencies responsible for the provision of infrastructure, services and utilities;

   ii)Council through the review of their Local Planning Strategy should investigate alternative sites for aged persons development and clearly rank the sites which are best suited for such development; and

   iii)Consent to advertise should not be construed as support for the proposed rezoning as the proposal is still to be assessed against wider planning considerations and metropolitan planning strategy.

3. On 15 December 2009, the Shire wrote to the Commission concerning the decision of the Minister to advertise Amendment 18, and in particular the Minister's advice regarding the need for comprehensive planning and investigation of alternative sites.  The Shire asked for clarification whether these exercises must be undertaken before the Minister would give further consideration to Amendment 18.

4. On 30 December 2009, the Commission responded, referring to the progress that had been made regarding the preparation of a Local Planning Strategy for the Shire of Kalamunda and stating:

   The Strategy which is required as part of a review to the town planning scheme provides the rationale for decisions relating to the zoning and development of land in the Shire. The Shire of Kalamunda have indicated that there is a deficiency of aged persons accommodation in their locality and this is a significant issue which needs to be addressed in the Strategy to ensure adequate aged accommodation can be provided for in suitable locations in the next ten to fifteen years.

   The justification provided with the scheme amendment did not include this strategic overview and it is clearly the intention of Items 1and 2 of the Minister's advice that this information should be significantly advanced or completed before the amendment is considered for final approval to provide a clear strategic context for the decision.

5. The same issue appears to have arisen in early 2011, when an officer of the Department of Planning wrote, by email, to the applicant's town planning consultants and advised them that the Minister would not entertain final consideration of the proposal until comprehensive planning for the wider locality had been completed:

   As a minimum he wants the draft Local Planning Strategy to be completed by Council, certified for advertising by the WAPC, advertising undertaken and submissions reviewed by the Council, a final recommendation from Council to the WAPC, and for the DoP and WAPC to have at least undertaken a preliminary assessment of the final draft Strategy following advertising before he will consider the amendment for final approval.

   The Minister wants detailed information of the long‑term strategic context for the Wattle Grove semi‑rural area before he makes any decision on the proposal.

6. The proposal for final approval of Amendment 18 was before the Statutory Planning Committee of the Commission on 13 March 2012, but no decision was made on that day.  On 27 March 2012, the Commission recommended to the Minister that Amendment 18 be approved on the basis:

   1.the Committee is satisfied that there is a demand for aged sites;

   2.that the proposal will not interfere with comprehensive planning for the surrounding locality as confirmed by the presentation from the Shire of Kalamunda and confirmed by the City Planners;

   3.the Shire of Kalamunda confirmed to the Committee that it is the only site where a viable proposal has been lodged to Council; and

   4.the confirmation that proposed development for the site can be serviced by connection to either:

   (a)the Water Corporation sewerage system within the locality or

   (b)an onsite effluent disposal system which is to be approved by the Department of Health and the Shire of Kalamunda.

1. On 4 April 2012 the chairman of the EPA, Dr Vogel, advised the Department of Planning that the decision by the EPA to not assess the Scheme Amendment in October 2009 was based on its understanding that the proposed development on the rezoned land would be serviced by reticulated sewerage, and, had that not been the case, in all likelihood the EPA would have made a 'very different decision'.

2. On 26 June 2012 the Commission resolved to amend its recommendation of 27 March 2012.  The recommendation now conditioned approval on confirmation that the proposed development of the site can be serviced by connection to the Water Corporation sewerage system within the locality.

3. On 11 July 2012, Dr Vogel wrote to the Minister, repeating the effect of the earlier email.  He continued that it had recently been brought to his attention that the provision of reticulated sewerage to the proposed development 'is not on the Water Corporation's planning horizon.  Furthermore, the Department of Health does not support the onsite treatment and disposal of effluent at this site'.

4. On 18 October 2012, following a request for advice from the Department of Planning, the Department of Health wrote to the Department of Planning advising that it had received and considered a geotechnical report on the site which demonstrated that it was suitable for waste water disposal.  It further advised that the development proposed would satisfy the density development provision of the Government Sewerage Policy ‑ Perth Metropolitan Region if the number of people did not exceed 410.  The letter continued:

   However, apart from consideration of site suitability for effluent disposal and development density, the special provision for Aged Persons' Accommodation Developments under the Policy (Clause 5.2.4) also requires the following criteria to be addressed:

   •The proponent has demonstrated to the satisfaction of the local government a community need for such development in a particular location, and that location is suitable for such accommodation (Clause 5.2.4 (ii)); and

   •The local government is satisfied that no better alternative site is available in a particular locality for such development which could reasonably be connected to reticulated sewerage (Clause 5.2.4 (iii)).

   Therefore, the support for the development by the Shire of Kalamunda is necessary to satisfy the Policy.  To date, DOH is not aware of the Shire's position on the proposal.  As such, the DOH is not prepared to support the rezoning proposal until such time when the Shire of Kalamunda is willing to support the development without connection to sewer in the location proposed.

5. The letter set out conditions under which the Department of Health would support the unsewered development: compliance with the R12.5 density code, and details of the waste water treatment and disposal system proposed being acceptable to the department.

6. On 8 October 2012, a senior town planner with the Water Corporation advised the Department of Planning that the planned, long‑term gravity sewers through the area were dependent on substantial infill development in the area, as well as government advancing the area on the Infill Sewerage Program.  'The alternative would be for the proponent to fund millions of $'s of gravity sewer works, which is unreasonable and highly unlikely'.

7. On 6 November 2012, Ms Vyner asked the Water Corporation to clarify certain points, including whether there was the option of the developer prefunding gravity sewer works for the site.  The Water Corporation reply included:

   The long-term implementation of this conceptual wastewater planning is highly reliant on infill sewerage in Lesmurdie to the east, and urbanisation of this and surrounding land along the scarp.  These conditions don't exist and are not on the radar, so there is little merit in considering if or how an individual land developer might fund these works …

   The existing sewer network for the developed parts of the Forrestfield Sewer District … presently pump their wastewater to the south‑west into the end of the Maida Vale Main Sewer via a series of temporary waste water pumping stations located at key points in the catchment … This system has a finite capacity and is being monitored to determine the appropriate timing of further major capital expenditure.  Significant expenditure is required in capital works to extend the Maida Vale MS further north and to construct large branch sewers heading east … in order to grade out the existing temporary waste water pump stations and to convert the present pumped system into the ultimate gravity conveyance. These main sewer extensions are significant headworks that would total in the tens of millions of dollars and are of a type, size and complexity that individual land developers would not be able to handle or sustain.  There is no option for the developer to 'pre-fund' these works.

The material before the Minister

1. Ms Vyner held the position of Policy Adviser, Planning at the office of the Minister.  She deposes that in or around August 2012 she began a review of the key aspects of Amendment 18 and later produced a summary document for consideration by the Minister when he came to decide whether to approve the amendment.  The summary document is 15 pages, with another 29 pages of attachments.  Ms Vyner says that the Minister did not read correspondence, 'other than to the extent that I summarised, reproduced or attached those documents to the summary document'. 

2. Ms Vyner said she also summarised information conveyed to her by another officer who attended a meeting with the applicant.  She attended a meeting with representatives of the Wattle Grove Residents Group, and gave a brief oral summary of that meeting to the Minister.

3. The decision making process described by Ms Vyner is not objectionable in itself.  There is no suggestion that the Minister did not himself make the decision, as required by the Act.  Where the complaint is that the Minister failed to have regard to relevant considerations, the material presented to him by Ms Vyner is important.  In Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 30 ‑ 31, Gibbs CJ said:

   Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter.  It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department.  No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial.  But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.

   See also Brennan J at (65 ‑ 66).

4. The Minister also held two meetings in August and November 2012 with the Director General and officers of the Department of Planning, during which he received specific briefings regarding the amendment.  Ms Vyner could locate no notes or minutes of those meetings.  The Minister's office also received the reports containing the recommendations from the meetings of the Commission dated 27 March 2012 and 26 June 2012.

5. Ms Vyner states that on a date between 6 November 2012 and 21 November 2012, she presented the Minister with the following documents for his consideration:

   (a)the Commission's recommendation and accompanying report dated 27 March 2012, as amended on 20 April 2012;

   (b)the Commission's amended recommendation to the Minister and accompanying report dated 26 June 2012;

   (c)the summary document she had prepared; and

   (d)the proposal document for Amendment 18, titled 'Shire of Kalamunda Local Planning Scheme No 3 Scheme Amendment Documents Amendment No 18', with her handwritten comments on 'stick on' notes.

6. In her summary, Ms Vyner set out a series of conclusions on servicing (in particular, the provision of sewerage) and strategic planning.  In substance, Ms Vyner advised the Minister that:

   1.Because of cost, it was unlikely that the development would be connected to the Water Corporation's sewerage system.       The site was capable of providing an onsite effluent disposal system. Despite the Department of Health's support for onsite effluent disposal, the development would need to be referred to the EPA.  There was no guarantee that the EPA would support onsite disposal as it had already raised environmental issues.

   2.The proposed development facilitated by Amendment 18 would be largely urban in nature.  Generally accepted principles in State Planning documents for the appropriate siting for aged persons accommodation, included:

   •Liveable Neighbourhoods which states that retirement complexes should be located close to town and neighbourhood centres;

   •Residential Design Codes which states that dwellings for the aged be provided within normal residential areas and in close proximity to public transport and convenience shopping;

   •Government Sewerage Policy which states that aged person's accommodation not connected to a reticulated sewerage should only be considered where the location was suitable for such accommodation and it had been demonstrated that there were no better alternative sites.

   Based on those principles, Amendment 18 was 'premature of the strategic planning that has been undertaken for the locality'.  There was still uncertainty as to whether this part of Wattle Grove would be urbanised, and no timeframe for when the area would be adequately serviced.  The amendment did not satisfy the generally accepted principles for the siting for aged persons accommodation.

   3.The Commission resolved to recommend approval for the amendment, on the basis of demand for aged person's sites.  The Amendment Report, however, referred to the 'possible' development of a residential aged care facility.  A significant portion of the detached dwellings would need to be constructed and sold before the provision of an aged care facility was viable.  The proposed detached dwellings are not specifically dwellings for aged/dependent persons and the majority of the proposal may not actually provide relief for the shortage of aged person's accommodation in the Shire.

7. Ms Vyner, however, advised that approval of the amendment could be justified on the grounds that the proposed development may not adversely impact on future urban development and planning of the locality; preliminary support had been received from the Department of Health for onsite effluent disposal being accommodated on the site (although this would still require EPA approval); and while there was no guarantee that the nursing home would be provided, it would help facilitate the provision of a high care facility needed in the Shire.  Ms Vyner suggested further provisions or conditions which might meet the reservations she had stated.

8. The summary document concluded with decision options:  to refuse the amendment, to adopt the recommendation of the Commission without modifications, or to adopt the recommendation with modifications to allow for onsite effluent disposal.

The decision and reasons for decision

1. In making his decision, the Minister endorsed upon the recommendation from the Commission, dated 26 June 2012, the words, 'recommendation not approved ‑  see attached reasons'.  The endorsement is dated 21 November 2012, although the attached reasons are dated 27 November 2012.  The reasons are short enough to set out in full:

   The Minister resolves to uphold the submissions opposing the amendment and refuses to grant final approval to the scheme amendment for the following reasons:

   1.The land subject to the proposed amendment cannot reasonably be connected to the existing sewerage system in the locality.

   2.The proposed amendment is premature of the strategic planning that is still required to be undertaken for the locality, including the potential and timing for service provision and detailed structure planning.  There has been no adequate demonstration that the area can be urbanised in the short or medium term.

   3.The proposed land use and development facilitated by the proposed amendment would constitute an urban use in the 'Rural' zone under the Metropolitan Region Scheme and would set an undesirable precedent to development in the locality, especially having regard to the current lack of urban services and utilities including readily available reticulated sewerage.

   The Minister also advises that he accepts and supports the desire of the Shire of Kalamunda for more residential aged care facilities to be developed.  As there are other possible alternative locations within the Shire, he will assist, where possible, in progressing the development of such sites for this purpose.

2. Ms Vyner states the usual practice adopted by the Minister is that he will advise her of the reasons for his decision and ask her to prepare a written document setting out those reasons.  She has no reason to believe that process was not followed on this occasion.  That process would explain the difference in dates between the decision endorsed on the Commission's recommendation, and the brief reasons.

3. On 21 November 2012, the Minister met representatives from the Shire of Kalamunda and the Director General of the Department of Planning.  At this meeting the Minister advised that he would not approve the amendment, and the reasons for his decision.  The Minister also prepared a statement regarding his decision to be provided to local Members of Parliament and to the public, dated 21 November 2012.  Accordingly, there is a statement containing reasons why the Minister did not approve Amendment 18, prepared contemporaneously with the decision, although not intended to be the formal reasons for decision.  Its content is, again, relatively brief.  It begins by setting out, in summary, Amendment 18 and a brief history of the process followed, including the initial recommendation by the Commission to refuse consent to advertise, and its eventual recommendation to approve the amendment.  The statement continues:

   The ultimate recommendation of the WAPC was to approve the amendment, on condition that the proposed development of the site can be serviced by connection to the Water Corporation sewerage system within the locality.

   This followed advice from the Environmental Protection Authority that its initial decision to 'not assess' the Amendment was based on its understanding, confirmed in the Shire's documentation, that the proposed development would be serviced by reticulated sewerage.

   The advice from the Water Corporation is that:

   •It is very unlikely that a single developer could prefund the gravity sewer system that is generally planned for the area in the long term; and

   •A short term option of a temporary pump station would need to discharge into neighbouring catchments of the existing urban areas in Forrestfield and Wattle Grove, which have finite capacity that should be reserved for the existing urban development of the locality.

   Although the inability of the site to be connected to the reticulated sewerage system is a major factor, it was not the only issue considered.  Consideration was also given to the strategic planning that is still required to be undertaken for the locality, where there has been no adequate demonstration that the area can be urbanised in the short or medium term, and various state planning policy requirements for the appropriate siting for aged care facilities.

   Therefore, all issues considered, the only proper decision is to not approve the Amendment.  To do otherwise would be to continue a false expectation regarding the community's desire for additional residential aged care facilities on this particular site.

   There are other possible alternatives in the Shire of Kalamunda, and I have advised the Shire that I will do whatever I reasonably can to assist in progressing the development of such sites for this purpose.

   Whether a changed use for this site is appropriate in the medium to long term will depend on future planning decisions and investigations.

4. This statement was admitted without objection, and relied on to some extent by the applicant. 

The approach to review generally

1. The Minister gave reasons, stating shortly the basis for refusing the amendment.  They contain limited findings on questions of fact, and no reference to the evidence or other material upon which the decision was based.  They do, however, record why that decision was reached and are the only reasons he gave for refusing. 

2. The Act does not require the Minister to provide reasons for decision.  Administrative decision‑makers are under no general law obligation to give reasons, absent a statutory requirement or some exceptional circumstance:  Public Service Board (NSW) v Osmond [1986] HCA 7; (1986) 159 CLR 656; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 [43]. There is no statute of general application in this State that either requires reasons to be given, or prescribes standards for the content or adequacy of written reasons: compare the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13, and the Acts Interpretation Act 1901 (Cth) s 25D.

3. The absence of detailed reasons does not prevent review.  Many of the early authorities on judicial review concerned legislative regimes in which there was no obligation to give reasons.  Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 was such a case. Dixon J said at 360:

   But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income.  His decision, it is true, is not unexaminable.  If he does not address himself to the question which the sub‑section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review.  Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision.  The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception.  If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition.  It is not necessary that you should be sure of the precise particular in which he has gone wrong.  It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

4. When an administrative decision-maker gives reasons, they  are meant to inform.  They should not be scrutinised upon over-zealous judicial review, by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed:  Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu  Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271 ‑ 272.

5. The court must beware of turning judicial review into a reconsideration of the merits of the decision.  The court is concerned only with legality.  The merits of the decisions, to the extent they can be distinguished from legality, are for the Minister alone:  Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36; Minister for Immigration and Citizenship v Li [2013] HCA 18 [66].

1. 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 (42); 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].

2. 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.

3. 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 for Immigration 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).

The grounds of the application

Failure to have regard to relevant considerations

1. In his application, the applicant pleads that the Minister failed to take into account relevant considerations:

   a.The Department of Health's conditional approval to use an onsite effluent disposal system;

   b.Correct and up-to-date advice from the Environmental Protection Authority;

   c.The lack of inquiries made with the applicant as to his ability to prefund reticulated sewerage.

2. 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 (39); 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.

3. 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 [89].

4. The applicant submits that the only considerations expressly stated are found in s 86. The applicant submits that the Minister was bound to take the 'advice' of the EPA into account, with the corollary that s 86 required the Minister to take into account 'correct and up‑to‑date advice' from the EPA.

5. That obligation is not found in s 86, properly construed. Under s 86:

   The Minister is not to approve under section 87 (2) of a proposed local planning scheme or amendment referred to the EPA under section 81 if the Minister has reached agreement with the Minister for the Environment under section 48A(2)(b) of the EP Act, or until ­

   (a)the Minister is informed under section 48A(1)(a) of the EP Act that the EPA considers that the local planning scheme or amendment should not be assessed by the EPA under Part IV Division 3 of the EP Act; or

   (b)the Minister has received a statement under section 48F(2), or a decision has been made under section 48J, of the EP Act in respect of the conditions, if any, to which the local planning scheme or amendment is subject; or

   (c)the period of 28 days referred to in section 48A(1)(b)(i) of the EP Act has expired without the EPA having informed the local government under that section,

   whichever first occurs, and the Minister is satisfied that the conditions, if any, to which that amendment is subject have been incorporated into that local planning scheme or amendment.

6. Similarly, s 123 prescribes another circumstance in which a local planning scheme is not to be approved by the Minister ‑ it may not be approved unless its provisions are in accordance with and consistent with each relevant region planning scheme. Common to both sections is the stipulation that the Minister is not to approve a local planning scheme unless certain conditions are met. Neither purports to set out matters which the Minister must consider in deciding whether he should approve a scheme amendment which might lawfully be approved.

7. In the circumstances of this case, the information that the Minister was obliged to take into consideration, by reason of s 86, was that the EPA had given notice under s 48A(1)(a) of the Environmental Protection Act that the scheme should not be assessed.

8. I do not intend to suggest that advice from the EPA is not relevant. Part 5 of the Planning and Development Act and pt IV of the Environmental Protection Act must be read together.  If the EPA decides not to assess a scheme or amendment, it may nevertheless give advice and make recommendations to the responsible authority and any other relevant person on the environmental issues raised by it:  Environmental Protection Act s 48A(1)(a). To the extent that the EPA offered advice on the environmental issues, in the letters of Dr Vogel of 13 April 2012 and 11 July 2012, it was summarised in the document prepared by Ms Vyner. The later letter was included in the material before the Minister.

9. That part of the letter from Dr Vogel which is now said to be incorrect is his statement that, 'the Department of Health does not support the onsite treatment and disposal of effluent at this site'.  The document prepared by Ms Vyner both attached the relevant letter from the Department of Health, and summarised the position of that department.  

10. The advice from the EPA was not final, in the sense that it had not formally assessed the proposed amendment on the basis that the proposed development would not be connected to the sewer system.  The Minister may have asked for further information.  But to establish this ground, the applicant must show that he was obliged by the Act to do so.  There is no such statutory obligation.

11. The applicant relies also on relevant considerations which arise by implication from the subject matter, scope and purpose of the Act: the general objects, set out in s 69, are that a local planning scheme is to make suitable provision for the improvement, development and use of land in the local planning scheme area; the 'aims' expressed in the scheme itself, include to secure the amenity, health and convenience of the scheme area, and the residents thereof. These matters, the applicant submits, required the Minister to consider onsite effluent disposal, as this bears on the amenity, health and convenience in the scheme area. Further, because the Minister was required to consider that issue, he must consider it on the basis of the most current material available, and must give that material 'proper, genuine and realistic consideration'.

12. The trinity of 'proper, genuine and realistic' stems from the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, and achieved some currency in relation to the ground of failure to have regard to relevant considerations: see for example, Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 [9]; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 [226], but see A v Corruption and Crime Commissioner [92] (Martin CJ and Murphy JA). Its use has been attended by repeated warnings that its vagueness and imprecision has the potential to invite impermissible merits review: see, for example, Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 [79]; Belmorgan Property Development Pty Ltd v GPT RE Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 [76]; Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 [51] - [60].

13. Even if one accepts the applicant's premise that s 69 and the local planning scheme required the Minister to have regard to servicing and waste water disposal, as it affects the amenity, health and convenience of the scheme area, he has failed to demonstrate that the Minister failed to consider it. The summary document prepared by Ms Vyner, after setting out a chronology of events, contains a summary of strategic planning issues, and then a series of conclusions. Within the chronology, Ms Vyner refers to the letter from the Department of Health of 18 October 2012. The first topic dealt with in the conclusion is 'servicing', in which she sets out the following summary (emphasis added):

    Water Corporation

    •There is no sewerage system in the locality to which they can currently connect;

    •In advance of [Water Corporation's] Infill Sewerage Program, the proponent would need to fund gravity sewer works. This would be very costly;

    •Due to the topography of the site a temporary solution would be unlikely to be achieved from an engineering perspective; and

    •Alternative solution is on‑site treatment and disposal/re‑use subject to Local Government and Department of Health approvals, the [Water Corporation] is not involved in on-site treatment systems or their approvals.

    Department of Health

    •Based on a geotechnical report, the proposal can be developed with on‑site effluent disposal, to meet the requirements of the Government Sewerage Policy, if the number of people did not exceed 410; and

    •Despite this, the DOH advice is only subject to decisions being made that the development should occur in this location and that there are no better alternatives which could be connected to reticulated sewerage.

    EPA

    •Decision to not assess was based on the understanding, confirmed in the Shire's documentation that the proposed development on the rezoned land would be serviced by reticulated sewerage;

    •The EPA did not assess the issue of treatment and on‑site disposal of wastewater; and

    •Given the potentially significant environmental consequences that may arise from a substantial discharge of wastewater into the local environment which is connected to the Swan/Canning system via Crystal Brook, the EPA is highly unlikely to support on-site treatment and disposal of wastewater.

14. In further comments on that summary, Ms Vyner stated

    the alternative option of providing an on‑site effluent disposal system, while proven that the site is capable, the bigger issue of whether the use is appropriate in this location (as required by the Government Sewerage Policy) will be determined as part of the Minister's consideration of the Amendment.

    She wrote

    in the event that the Amendment 18 is supported, and despite DOH's support for on‑site effluent disposal, the development will need to be referred to EPA who will also need to support the use of on-site effluent disposal. There is no guarantee that this will be support as EPA has already raised environmental issues associated with this [emphasis added].

    In the statement of decision options, the option of approving the amendment with onsite effluent disposal was put forward, despite the position of the EPA and the lack of strategic planning for the locality, on the basis of the need for such a use.

15. As part of the documents attached to the summary document, Ms Vyner included the letter from the Department of Health dated 18 October 2012. 

16. It cannot be said that the summary document misrepresented the advice from the Department of Health, or failed to bring the issue to the attention of the Minister for his consideration.  If it was a matter that he was obliged to consider, I am satisfied on this evidence that he did.

17. The Minister also had advice before him that the Department of Planning considered that there was not sufficient information to formally designate the Wattle Grove area for future urban development, and that there were technical investigations and statutory planning processes that should be progressed before any urbanisation of the area. Based upon those strategic planning considerations, the Minister was advised that the amendment was premature and there was still too much uncertainty whether this part of Wattle Grove would be urbanised, and no timeframe available for when it would be adequately serviced. These considerations bear directly on the factors in s 69 of the Act. They are the substance of the second and third paragraphs of his reasons.

18. In circumstances where the Minister was not required to set out findings of fact or, indeed, to state his reasons, the two statements he gave of his reasons do not support an inference that he failed to have regard to the issue of servicing, as it affects the amenity, health and convenience of the local community.  When regard is had to the material placed before the Minister for the purposes of his decision, the applicant has not made out this ground.

19. The last of the relevant considerations on which the applicant relies is the failure to make inquiries of the proponent regarding the possibility of prefunding reticulated sewerage.  The advice provided by the Water Corporation, as it was included in the summary document prepared by Ms Vyner, is set out above.  

20. The applicant has not made out this ground.

21. First, the applicant has not demonstrated that his ability to prefund connection to the sewerage system was a matter the Minister was required to take into account under the Act.  The argument that it was 'vital' does not overcome the problem that it is not a factor which, either expressly or by implication, the Act required the Minister to consider in deciding whether the subject land should be rezoned.  As counsel for the Minister submitted, the decision was not whether to approve a subdivision or development application, applying to a particular owner or developer within a limited time period.  The approval of Amendment 18 would alter the zoning of the land for any future owner.  For a decision of this nature, the capacity of the existing owner to prefund works may be factually relevant, so that the Minister would not err if he did consider it, but it is not a factor that is legally critical to the decision. 

22. Second, the Department of Planning made further inquiries of the Water Corporation regarding the prefunding option.  The advice from the Water Corporation was not confined to the issue of cost, but included advice that planning for sewerage in the relevant area was reliant on a range of factors, including the urbanisation of the area and surrounding land along the scarp.  Prefunding by a developer was not an option.  The applicant does not identify what further inquiry could or should have been made, or what critical fact could have been ascertained by obvious inquiry.  On the basis of the Water Corporation's advice, it was not simply an inquiry about the applicant's financial resources.

23. Third, in my opinion, the line of authorities on which the applicant relies is not applicable to the statutory scheme under which the Minister made his decision.  In Minister for Immigration and Citizenship v SZIAI, the plurality considered the application of the line of cases about a 'duty to inquire', stemming from Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155, 167 ‑ 170. They said [25]:

    Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a 'duty to inquire', that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.

24. In the context of a decision under s 87 of the Act, there is no question of failure to review. The decision to be made by the Minister is legislative. The Act sets out matters necessary for the lawful exercise of the power, for example in s 86 and s 123. But the Minister is not called upon to determine questions of fact as a condition for the lawful exercise of the power to refuse to approve an amendment.

Unreasonable decision making

1. The applicant relies upon the recent reconsideration of the standard of reasonableness in Minister for Immigration and Citizenship v Li. There may be some differences in the three judgments in that case regarding the potential scope of this ground. But all recognised an implied legislative intention that a statutory power or discretion must be exercised reasonably: [29] (French CJ), [64] (Hayne, Kiefel and Bell JJ), [90], [92] (Gageler J). So that, while there is an area of 'decisional freedom' within which reasonable minds may reach different conclusions about the correct or preferable decision, that freedom does not allow decision making that is arbitrary, capricious or which abandons common sense: [28], [66]. The requirement that a decision be reasonable, in this sense, is something more than the absence of some vitiating error such as failure to have regard to relevant considerations, or acting for an improper purpose. Unreasonableness is a conclusion which may be applied to a decision which, on the true construction of the statute, lacks 'an evident and intelligible justification': [76]. Review by a court of the reasonableness of a decision made by an administrative decision‑maker may include consideration of 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law': [105] Gageler J.

2. The court emphasised, however, that it was concerned with the lawfulness of decisions, and review on the grounds of reasonableness does not involve the court substituting its own view as to how a discretion should be exercised for that of a decision-maker. Gageler J referred also to the practical difficulty for a court reviewing the exercise of a statutory power where the repository of the power is required to be satisfied of matters of policy: [108], [111].

3. The application identifies five bases upon which the decision of the Minister is said to be unreasonable:

   a.He did not give proper, genuine and realistic consideration to the merits of Amendment 18;

   b.He accepted the amended recommendation of the Commission to approve Amendment 18 only on the condition that it could be connected to reticulated sewerage, knowing that the amended recommendation was flawed because it was made in response to the information contained in the letter from the EPA which incorrectly stated the position and views of the Department of Health;

   c.His response to the EPA's advice was unreasonable given the provisions of s 48I(3) of the Environmental Protection Act (that is, any implementation of the proposal would require environmental assessment because one or more of the environmental issues raised by the proposal had not been assessed);

   d.The level of strategic planning required was unreasonable; and

   e.He failed to give adequate weight to relevant factors of great importance, being:

   (i)the immediate need for development of aged care facilities in the area; and

   (ii)the locational benefits of the property, including its proximity to Forrestfield.

1. The applicant submits that it was unreasonable to refuse to exercise the delegated legislative power in relation to this particular amendment, and that is all he needs to show.  Senior counsel for the Minister submitted that the applicant must show that the only reasonable decision the Minister could have arrived at was that:

   (a)the provisions currently made in the Local Planning Scheme for the subject land (the zoning as Special Rural) are inappropriate; and

   (b) there should be substituted provisions that would zone the land Special Use (Aged Residential Care) and permit development only for those purposes.

2. In my opinion, the submission of the Minister may put the matter too strongly.  But I accept that the question of reasonableness cannot be divorced from understanding that the decision relates to the amendment of a planning scheme, and requires consideration of the provision currently made for zoning of the land and its surrounding locality, its zoning in the region scheme, and the effect of rezoning.

Proper, genuine and realistic consideration of the merits

1. I have referred, above, to the caution required when confronted by the claim that there was a failure to give 'proper, genuine and realistic consideration', and the need to recognise that the merits of the decision are not for the court.

2. The applicant's first argument is that the Minister failed to consider rezoning on the basis of 'an alternative system approved by the Department of Health', because of the advice he was given by the EPA that it would result in reconsideration of Amendment 18 by the EPA.  The submission ignores the advice given to the Minister in the summary document.  The applicant says the court should infer that the Minister had regard only to the letter of Dr Vogel, in which he described reconsideration of the amendment by the EPA as not 'regulatory efficient or sensible'.  By implication, this would mean that the Minister had no regard to the advice of his own department that he could approve the rezoning on the basis of onsite effluent disposal, despite the advice of the EPA.  The inference relied on by the applicant does not arise from either statement of the Minister's reasons for his decision.  I am not satisfied that I should draw such an inference, on the basis of one letter put before the Minister, and in the face of the detailed advice he was given.  The factual basis for the applicant's claim is not established.

3. The applicant also argues that the Minister's requirement that the Shire investigate alternative sites and rank them means that he failed to logically consider the merits of Amendment 18.  The evidence shows the requirement was unusual.  That is not enough. 

4. First, it was imposed at the stage of advertising. Consultation with those likely to be affected by the amendment is part of the statutory scheme: see the Act s 83; and the Town Planning Regulations discussed above.  Second, it was done in the context of a proposed rezoning, where the subject land failed to meet several criteria designated in policy for the proposed use of the land, should the proposal be implemented.  The Minister imposed that requirement after the Commission had advised him that the proposed amendment was inconsistent with orderly and proper planning of the Wattle Grove locality; the land use and development facilitated by the proposed amendment would be inconsistent with the established rural character and amenity of the locality; the rural zone of the Metropolitan region is an inappropriate location for aged persons accommodation and facilities, which should be provided within or contiguous to established or planned urban areas with ready access to facilities and amenities and closer integration with established communities; and the land use and development facilitated by the proposed amendment would constitute an undesirable precedent for use and development of land is zoned rural, and would constitute an undesirable precedent for use and development of the locality and the foothills area generally, especially having regard to the current lack of urban services. 

5. In 2012 when the Minister refused to approve Amendment 18, he gave reasons which disclose that he believed there were other possible alternatives within the Shire.  

6. When regard is had to the whole of the statutory scheme for amendment, and the advice the Minister had received before he imposed the requirement to investigate alternative sites, I am not satisfied that the applicant has shown the Minister's requirement was unreasonable.  On the contrary, within the terms of the Act and the amendment process, it had an intelligible justification.

The recommendation of the Commission

1. I am not satisfied that the Minister accepted the recommendation of the Commission, knowing it was flawed.

2. First, at a basic level, the Minister did not accept the recommendation of the Commission but decided not to approve Amendment 18, despite that recommendation.

3. Second, the Minister's decision may be understood as based on a position, perhaps a policy position, that a development of the kind proposed should be able to be connected to the sewer system before the land is rezoned. That in itself does not show that the Minister acted on a mistaken understanding that the land could not be serviced by an onsite effluent disposal system, or that he accepted a recommendation that was affected by flawed advice.

4. Third, the material that was before the Statutory Planning Committee of the Commission when it amended its recommendation to remove the alternative of an approved onsite effluent disposal system does not show any reliance on the statement by the EPA that the Department of Health did not support onsite treatment.  The report to the Committee, dated 27 February 2012 stated:

   The Amendment Site is not currently serviced by reticulated sewer and the Water Corporation (WC) advises that it has no plans to extend its sewer infrastructure to this locality in the foreseeable future …

   During advertising the Department of Health (DoH) advised the Shire that the proposed development will need to be serviced by reticulated sewerage in order to comply with the Government Sewerage Policy.  Although the planning consultant engaged by the applicant recently submitted an email indicating support from an officer of DoH for an on‑site effluent disposal system of some 8000 m², no written evidence from DoH been provided confirming this.

   The applicant is of the view that this now finalises the issue which can be dealt with at the development approval stage.  The matter of servicing the site is far too critical an issue to be left as a subsidiary matter to be resolved at the development application stage and ought to be addressed at this stage of the process.  This position is supported in the draft Government Sewerage Policy recently released by DoH for comment, which states:

   'For all development, subdivision or rezoning proposals that will not be connected to reticulated sewerage, it is the responsibility of the applicant to ensure that the intention to use on-site sewage management is clarified at an early stage in the planning process, preferably at the rezoning stage.'

5. In its conclusion, the report to the Committee stated:

   The subject land cannot be connected to sewerage in the foreseeable future and the provision of an alternative waste water treatment system has not been resolved and should be addressed as part of the rezoning process.

6. The report concluded that the Commission should recommend that the Minister refuse to grant final approval to the amendment.  That was not accepted by the Commission, which recommended that the Minister approve the amendment on the basis that there be confirmation that proposed developments of the site can be serviced by connection to either the Water Corporation sewerage system within the locality, or an onsite effluent disposal system which is to be approved by the Department of Health and the Shire.

7. The later report, dated 25 May 2012, advised the Committee that since its recommendation, the EPA had advised:

   •… that the EPA's decision to 'Not assess' Amendment No 18 was based on the EPA's understanding, confirmed in the Shire's documentation, that the proposed development on the land the subject of the Amendment, would be serviced by reticulated sewerage.  The EPA also advises that if at the time of the initial assessment had it been informed that sewerage is not to be provided, the EPA in all likelihood would have made a very different decision …

   •In light of the EPA advice it is no longer appropriate for the WAPC to recommend approval of the proposed Amendment subject to confirmation that the proposed development for the site can be serviced by an approved on‑site effluent disposal system.  It is therefore recommended that the SPC resolution of 27 March 2012 be amended to delete reference to this as a requirement of the WAPC recommendation to the Minister to grant final approval to the Amendment.

8. In the light of that material, the applicant has not demonstrated the factual premise for its allegation that the decision was unreasonable. 

Environmental Protection Act s 48I(3)

1. Under s 48I(3), if a responsible authority (which includes the Shire) determines that one or more of the environmental issues raised by a proposal was not assessed in any assessment of the assessed scheme, it shall refer the proposal to the EPA or refuse to approve the implementation of the proposal. For the purposes of pt IV of the Environmental Protection Act, which includes s 48I, an assessed scheme includes a scheme in respect of which the EPA has advised under s 48A(1)(a) that the scheme should not be assessed.

2. In effect, the Shire would have to refer any development application that included onsite effluent disposal to the EPA for assessment, as the environmental issues had not been assessed.  The applicant argues that because the Shire has the power to refuse implementation of the proposal, or to refer it to the EPA, it was not an issue for the Minister to address at the level of considering the scheme amendment.  Although the application puts this as a ground on which the decision is said to be unreasonable, the argument seems to be that the Minister misapprehended his powers under the statutory scheme.

3. I am not, however, satisfied that the decision of the Minister was unreasonable in the way argued, or resulted from a misapprehension.

4. First, if the Minister approved Amendment 18, after it had been published in the Gazette it would have effect as if enacted.  The subject land would be zoned so that it could be developed only for the uses permissible under the new zoning.  The applicant argues that a landowner would still be able to make legal nonconforming use of the land.  That may be so, but it makes the rezoning pointless.

5. Second, as the Minister said in his reasons, there would be false expectation regarding the future use of that site.

6. Third, the statutory scheme does not confine consideration of environmental considerations to the responsible authority. In particular, s 48A(1) of the Environmental Protection Act provides for the EPA to give advice to the responsible authority and any other relevant person on the environmental issues raised by a scheme.  It was within the terms of that section for the EPA to advise the Minister.  It was open to the Minister to have regard to the position of the EPA as conveyed to him by the Chairman.  Within the terms of the legislation, the applicant has not shown that it was unreasonable for the Minister to have regard to that advice, or that it was unreasonable, as a policy position, to regard likely environmental issues arising from the inability to connect to the sewerage system as a reason to not approve rezoning.

The level of strategic planning

1. Section 87(2) of the Act gives a discretion to the Minister that is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 505 (Dixon J). The applicant does not contend that strategic planning is such an extraneous consideration. That could not be maintained in the face of s 3, by which the purposes of the Act include to provide for an efficient and effective land use planning system in the State, and to promote the sustainable use and development of land in the State.

2. The applicant's complaint is that the level of strategic planning required by the Minister was unreasonable.  To make out this ground, the applicant needs to show that the level of planning required fell outside a proper application of the Act.

3. The evidence of Mr Webb, the applicant's planning consultant, is that it is the first time he has encountered a Planning Minister requiring such a high level of strategic planning to the final approval of a scheme amendment relating to one single individual parcel of land.

4. Mr Trevor, Director of the Schemes, Strategies and Amendments Team within the Perth and Peel Planning Division of the Department of Planning, describes various levels of planning documents used in planning decisions, with high level documents providing a framework for the more detailed planning and recommendations contained in planning documents at a lower level.  On the basis of his experience, Mr Trevor says that it is usual for planning officers in the Department to consider strategic planning documents when preparing reports to the Commission and the Minister, and that it is consistent with the purpose of those documents for officers and for the Commission to recommend that a proposed amendment be refused 'because it is contrary to the relevant strategic planning documents and policies which form the planning framework for the consideration of the proposal'.  Where there are no relevant strategic planning documents, or where those documents are still being prepared, it is usual to consider whether the proposed amendment may prejudice future strategic planning for the land and the general area and therefore be premature.  Mr Trevor describes how it may be particularly important to consider strategic planning documents where it is proposed to rezone land from rural to a higher density form of land use, and that proposal might prejudice the future strategic planning for the land in the general area.

5. In Minister for Immigration and Citizenship v Li, Gageler J referred to the practical difficulty of a court being satisfied that the test of reasonableness is met where the exercise of the power is legitimately informed by considerations of policy.  This is such a case.  The applicant says the proposed rezoning was of one single individual parcel of land.  The rezoning was to facilitate a development in which about 180 new dwellings and associated facilities would be built on that land, while the surrounding area remained rural, at least in the immediate future.  In the light of Mr Trevor's evidence, I am not satisfied that the applicant has shown that the level of strategic planning the Minister required before approving that change was unreasonable.

6. The applicant relied upon another argument, that the Minister did not consider the draft Local Planning Strategy itself, but relied only upon extracts from the report to the Commission.  To succeed on this basis, the applicant must show that the process followed by the Minister in relying on extracts and the summary and advice provided by his department, was unreasonable within the terms of the statutory scheme.  For example, the applicant may show that the process resulted in the Minister being unable to make a decision that was reasonable within the terms of the Act, on the basis of the advice he had been given.

7. The Minister was advised that the Local Planning Strategy had been received by the Commission, but not yet assessed.  He was, however, advised that the Local Planning Strategy proposed Wattle Grove as an Urban Investigation Area.  He was provided with an extract relating to the Wattle Grove area, in which the draft Local Planning Strategy was discussed in the context of higher level planning documents.  The extract on the Wattle Grove area concluded, 'At this time it is not considered that there is sufficient information available to say with certainty that this area should be formally designated for future urban development'.

8. The Minister was also provided with an extract relating specifically to 'Planning for Aged and Dependent Persons' in the Shire of Kalamunda draft Local Planning Strategy.  The extract contained an analysis, based on relevant planning documents, of the Shire's Aged Person Accommodation Strategy, the approaches taken by other local governments, and submissions received during the advertising period.  The analysis concluded that the Shire's draft Local Planning Strategy was not a sufficient strategic framework for aged and dependent person's accommodation.  It further advised that, from time to time, there may be a need to consider proposals ahead of the development of a comprehensive planning framework, with every proposal having to be considered on its merits.

9. The material before the Minister was, in my opinion, sufficient to enable him to make a decision within the terms of the Act.  I am not satisfied that the applicant has shown it was unreasonable for the Minister to proceed on the basis of the material collated by Ms Vyner for his consideration.

Relevant factors of great importance

1. Finally, the applicant relies on matters to which he claims the Minister failed to give adequate weight.  The amended application sets out two matters:

   (i)the immediate need for development of aged care facilities in the area; and

   (ii)the locational benefits of the property, including its proximity to Forrestfield.

2. In written submissions, the argument was put differently, with the applicant referring to:

   (i) the Shire's conclusion that no other single landholding within the Shire was better suited to this type of facility;

   (ii) the desperate need for aged care facilities in the Shire; and

   (iii)the Department of Health's conditional approval of onsite effluent disposal; and

   (iv)other aged care facilities in the Shire which are located in predominately rural areas; and

   (v) 'aged/dependent dwelling' is not a prohibited use on land zoned rural in some other local government areas.

3. There may be circumstances where the consequence of failure to give adequate weight to a relevant factor of great importance is that the decision is 'manifestly unreasonable':  Minister for Immigration and Citizenship v Li [72]. Whether a factor is one of great importance is to be determined by reference to the scope and purpose of the statute. The question in each case is whether the decision-maker has been unreasonable in a legal sense.

4. When considered in this way, it is immediately apparent that the location of other aged care facilities in predominately rural areas, and the permitted uses in rural zones in other areas, are not matters of legal consequence.  They are factual coincidences, not factors on which the Act operates or which condition the exercise of the Minister's discretion. 

5. When it comes to the weight which should be given to the need for aged care facilities, and the suitability of other sites, those are factual matters to be weighed together with (and to some extent against) the suitability of this site, including the availability of services, and what were described as 'locational factors'.  The Minister gave reasons for refusing approval.  The applicant has not shown that it was wrong to take into account whether the area could be urbanised in the short or medium term, and the ready availability of urban services and utilities.  In a decision of this nature, where policy considerations may predominate, it is very difficult to limit the area of decisional freedom.  

1. The issue of the Department of Health's support for onsite effluent disposal was also dealt with in the application as a relevant consideration to which the Minister failed to have regard.  I will not repeat my reasons for rejecting that argument.  In short, I am satisfied that the Minister had the issue properly brought to his attention.  The merits of his decision are not for the court.

Having regard to irrelevant considerations

1. The applicant identifies two matters as 'irrelevant considerations', that is matters which on a proper construction of the Act are so extraneous to the statutory scheme that taking them into consideration indicates a failure to decide in accordance with the statute:  see Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (39 ‑ 40); Water Conservation and Irrigation Commission (NSW) v Browning (505). They are:

   a.the opinion of the EPA as to the Department of Health's position in relation to onsite effluent disposal; and

   b.that in response to his requirement the Shire of Kalamunda had undertaken what was characterised as 'preliminary investigations' and had identified six sites within the Shire locality that may be suitable at some indeterminate time for development for aged care facilities.

2. As to the first of these matters, the applicant does not suggest that the approval by the Department of Health for onsite effluent disposal is irrelevant.  The argument is based upon the information being incorrect.  Even if it is accepted that a consideration is irrelevant because of a factual error in the evidence, the applicant has not shown that the Minister took incorrect advice into account.  His reasons do not contain any finding that the Department of Health would not approve onsite disposal, nor does the statement he published on 21 November 2012.  

3. The applicant supports its allegation that the EPA advice 'tainted' the decision by reasoning that the EPA advice led the Commission to alter its recommendation and delete the alternative of onsite effluent disposal, as approved by the Department of Health. It argues that the recommendation of the Commission was 'highly influential' on the decision of the Minister. The applicant refers to the statement made by the Minister on 21 November 2012, in which he said that he always made decisions regarding planning scheme amendments 'following a recommendation of the WAPC'. The statutory scheme provides for the Commission to advise the Minister and make recommendations on local scheme amendments: the Act s 14(a)(iii), and Town Planning Regulations reg 19 and reg 25.

4. The material put before the Minister for the purpose of the decision included the letter of the Department of Health, and a summary document which correctly stated the Department of Health's position.  One of the options presented for his decision was to modify the recommendation of the Commission to allow for onsite effluent disposal.  The applicant asked the court to infer that the Minister 'failed to read the full document or didn't turn the page and read that the Department of Health supported an onsite effluent disposal'.  The suggestion has no merit.  This would also require the court to assume that the Minister was incapable of recognising any inconsistency in the correspondence from the Department of Health and the EPA, and was incapable of understanding the advice he had been given.

5. I am satisfied that the material before the Minister properly identified the issue and the options available to him.  Having regard to that material and to the Minister's statements of reasons, the applicant has not shown he decided on the basis of any wrong advice from the EPA.  

6. The applicant's second 'irrelevance' ground, as argued, was that the identification of alternative sites was irrelevant because, until there is a developer and the conditions for developing at a particular site have been met, an alternative site is not a true alternative.  The irrelevant consideration was to have regard to alternatives which, at the time of the decision, were purely speculative. 

7. There is support for the claim that the Minister took the issue of possible alternative sites into account, at least in the process leading to the decision.  In giving consent to advertise the proposed amendment, he advised the Shire that he would only consider intensification of land use and development in Wattle Grove 'following comprehensive planning for the wider locality', and that through its review of the Local Planning Strategy the Shire should investigate and rank alternative sites for aged persons development.  In both of his statements of reasons, the Minister referred to other possible sites.

8. On behalf of the Minister, it was submitted that he was required to consider Amendment 18 on its merits. Those merits could be affected by the existence of a need for aged persons accommodation, and how that need might otherwise be met. If there were no other sites, that would count in favour of approving the amendment. If there were alternative sites, the policy arguments in favour of rezoning the subject land would have less force. In my opinion, this submission is correct. There is nothing in the Act that excludes the consideration of alternative sites that might meet an identified need in the local area from the matters which may properly be considered. In my opinion, the consideration of alternatives falls within the general purposes the Act set out in s 3.

9. There is no evidence that the Minister had regard to any particular site, or that he regarded any of them as other than 'possible'.  The advice to the Minister did not elevate the importance or suitability of those sites.  He was advised that there were no details of the criteria used by the Shire in identifying the sites, that the Shire's investigations were of a preliminary nature only, and that the six sites that had been identified to date 'have been based on limited investigation, with notable information lacking in respect of the accessibility of each site by public transport to commercial and community activities and the ability to be effectively serviced by infrastructure'.

10. In the circumstances, I am not satisfied that the Minister's 'advice' to the Shire evidences a failure to decide in accordance with the Act.

Conclusion

1. None of the applicant's grounds has been established.  The application should be dismissed.