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
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- Case
- [2014] WASC 164
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Minister was required to take into account specific considerations when deciding whether to approve an amendment to a local planning scheme. Leighton argued that the Minister was bound to consider the 'advice' of the Environmental Protection Authority (EPA), and that this advice must be 'correct and up-to-date.' The court had to interpret the relevant sections of the Act to determine whether the Minister was indeed required to take these considerations into account.
The court found that the Minister was not bound to take into account the advice of the EPA in approving a local planning scheme amendment. It was determined that the considerations required by the Act were those explicitly stated or those implied by the subject matter, scope, and purpose of the Act. The court held that neither section 86 nor section 123 of the Act required the Minister to consider the EPA's advice in deciding whether to approve an amendment. Consequently, the Minister's failure to take this advice into account did not render the decision unlawful.
The court dismissed Leighton's application for judicial review. The Minister's decision to amend the local planning scheme was found to be made in accordance with the Act. As such, the applicant's claims of failure to consider relevant matters, inclusion of irrelevant matters, and unreasonableness were rejected.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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]. 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. 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. 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.