Lord v City of Perth
[2002] WASC 119
LORD & ORS -v- CITY OF PERTH & ORS [2002] WASC 119
| Link to Appeal : |
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| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 119 | |
| Case No: | CIV:1243/2002 | 7 MAY 2002 | |
| Coram: | EM HEENAN J | 7/05/02 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Applications for orders nisi for certiorari refused | ||
| B | |||
| PDF Version |
| Parties: | KELVIN ERNEST LORD KAMINA HOLDINGS PTY LTD (ACN 009 178 474) KELDEN SECRETARIAL SERVICES PTY LTD (ACN 009 089 454) ROBERT JEFFREY BAKER VERONICA ANN BAKER CITY OF PERTH KERRYN BOHN ANTHONY BURTON LYNNE SYLVESTER BURTON CHRISTOPHER JAMES UPSTONE PAULA NEILAN MICHAEL PETER LOTYCZUCK PAUL MATTHEW WILSON DARON NOMINEES PTY LTD (ACN 009 199 526) REAGENT PTY LTD CHAD BENJAMIN HENVILLE DON COLASANTE ROBERT COLASANTE AMANDA LEE SUNIL VARMA PAUL JAMES BROWN CARRI SOREL BROWN |
Catchwords: | Certiorari Application for order nisi Town planning City of Perth Town Planning Scheme cl 48 Adverse impact Procedural fairness |
Legislation: | Nil |
Case References: | Nil ACI Operations v Port Stephens, unreported; NSWCA; 17 December 1998 Allen Commercial Constructions v North Sydney Municipal Council (1970) 44 ALJR 445 Collins v State of South Australia [1998] SASC 6960 Craig v South Australia (1995) 184 CLR 163 Ex parte Savage [1989] WAR 46 Excell v Harris (1983) 51 ALR 137 Gavranich v Shire of Wanneroo, unreported; SCt of WA (Miller J); 25 August 1998 GB & G Consolidated Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 641 Graham Investments Pty Ltd v City of Subiaco, unreported; WATPAT; No 44 of 1984; 12 April 1985 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Kioa v West sub nom Kioa v Minister for Immigration and Ethnic Affairs (ALR) (1985) 159 CLR 550 La Roche v Cormack (1991) 33 FCR 414 Masterbuilt v Hornsby Council (1995) 87 LGERA 169 Ocean View Plaza Pty Ltd v Western Australian Planning Commission [1999] WATPAT 5 Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71 Pinder Architects v City of Stirling [1996] 92 LGERA 165 Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295 Re the City of Bunbury; Ex parte Highway Hotel Pty Ltd [2000] WASC 62 Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153 Salemi v MacKellar (No 2) (1977) 137 CLR 396 Settlers Holdings Pty Ltd v Coles Myer Property Developments Pty Ltd [2000] WASCA 147 Shire of Swan Hill v Bradbury (1937) 56 CLR 746 Smith v East Elloe Rural District Council [1956] AC 736 Talbot v Lane (1994) 14 WAR 120 Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296 Thomas v Appleton (1994) 35 ALD 481 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- KAMINA HOLDINGS PTY LTD (ACN 009 178 474)
KELDEN SECRETARIAL SERVICES PTY LTD (ACN 009 089 454)
ROBERT JEFFREY BAKER
VERONICA ANN BAKER
- KAMINA HOLDINGS PTY LTD (ACN 009 178 474)
KELDEN SECRETARIAL SERVICES PTY LTD (ACN 009 089 454)
ROBERT JEFFREY BAKER
VERONICA ANN BAKER
Applicants
AND
CITY OF PERTH
First Respondent
KERRYN BOHN
ANTHONY BURTON
LYNNE SYLVESTER BURTON
CHRISTOPHER JAMES UPSTONE
PAULA NEILAN
(Page 2)
- MICHAEL PETER LOTYCZUCK
PAUL MATTHEW WILSON
DARON NOMINEES PTY LTD (ACN 009 199 526)
REAGENT PTY LTD
CHAD BENJAMIN HENVILLE
DON COLASANTE
ROBERT COLASANTE
AMANDA LEE
SUNIL VARMA
PAUL JAMES BROWN
CARRI SOREL BROWN
Second Respondents
- KAMINA HOLDINGS PTY LTD (ACN 009 178 474)
KELDEN SECRETARIAL SERVICES PTY LTD (ACN 009 089 454)
ROBERT JEFFREY BAKER
VERONICA ANN BAKER
- KAMINA HOLDINGS PTY LTD (ACN 009 178 474)
KELDEN SECRETARIAL SERVICES PTY LTD (ACN 009 089 454)
ROBERT JEFFREY BAKER
VERONICA ANN BAKER
Applicants
AND
CITY OF PERTH
First Respondent
KERRYN BOHN
ANTHONY BURTON
LYNNE SYLVESTER BURTON
CHRISTOPHER JAMES UPSTONE
(Page 3)
- PAULA NEILAN
MICHAEL PETER LOTYCZUCK
PAUL MATTHEW WILSON
DARON NOMINEES PTY LTD (ACN 009 199 526)
REAGENT PTY LTD
CHAD BENJAMIN HENVILLE
DON COLASANTE
ROBERT COLASANTE
AMANDA LEE
SUNIL VARMA
PAUL JAMES BROWN
CARRI SOREL BROWN
Second Respondents
Catchwords:
Certiorari - Application for order nisi - Town planning - City of Perth Town Planning Scheme cl 48 - Adverse impact - Procedural fairness
Legislation:
Nil
Result:
Applications for orders nisi for certiorari refused
Category: B
(Page 4)
Representation:
CIV 1243 of 2002
Counsel:
Applicants : Mr G J O'Hara
First Respondent : Mr A Roberts
Second Respondents : Ms F C E Davis
Solicitors:
Applicants : Kott Gunning
First Respondent : Minter Ellison
Second Respondents : Phillips Fox
CIV 1517 of 2002
Counsel:
Applicants : Mr G J O'Hara
First Respondent : Mr A Roberts
Second Respondents : Ms F C E Davis
Solicitors:
Applicants : Kott Gunning
First Respondent : Minter Ellison
Second Respondents : Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
ACI Operations v Port Stephens, unreported; NSWCA; 17 December 1998
Allen Commercial Constructions v North Sydney Municipal Council (1970) 44 ALJR 445
Collins v State of South Australia [1998] SASC 6960
Craig v South Australia (1995) 184 CLR 163
(Page 5)
Ex parte Savage [1989] WAR 46
Excell v Harris (1983) 51 ALR 137
Gavranich v Shire of Wanneroo, unreported; SCt of WA (Miller J); 25 August 1998
GB & G Consolidated Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 641
Graham Investments Pty Ltd v City of Subiaco, unreported; WATPAT; No 44 of 1984; 12 April 1985
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Kioa v West sub nom Kioa v Minister for Immigration and Ethnic Affairs (ALR) (1985) 159 CLR 550
La Roche v Cormack (1991) 33 FCR 414
Masterbuilt v Hornsby Council (1995) 87 LGERA 169
Ocean View Plaza Pty Ltd v Western Australian Planning Commission [1999] WATPAT 5
Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71
Pinder Architects v City of Stirling [1996] 92 LGERA 165
Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295
Re the City of Bunbury; Ex parte Highway Hotel Pty Ltd [2000] WASC 62
Rio Pioneer Gravel Co Pty Ltd v Warringah Shire Council (1969) 17 LGRA 153
Salemi v MacKellar (No 2) (1977) 137 CLR 396
Settlers Holdings Pty Ltd v Coles Myer Property Developments Pty Ltd [2000] WASCA 147
Shire of Swan Hill v Bradbury (1937) 56 CLR 746
Smith v East Elloe Rural District Council [1956] AC 736
Talbot v Lane (1994) 14 WAR 120
Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296
Thomas v Appleton (1994) 35 ALD 481
(Page 6)
1 EM HEENAN J: The Court has before it two applications for the grant of orders nisi for the issue of writs of certiorari against the City of Perth arising out of approvals given by the City under its town planning scheme for the development of a project at 990 to 994 Wellington Street, West Perth. The proposed development is the creation of a multistorey 32-unit dwelling on inner city land.
2 There is a history to the background of the matter which needs brief mention. The developer proposing this use of the land applied for development approval to the City of Perth some time in August 2000 and that development came to the notice of adjoining residents and occupants and prompted an objection by a person or persons, who include the present applicants, for relief. Having attracted that objection the application for development approval was evidently withdrawn or not pursued.
3 Later, however, the developer or would-be developer of the property made a fresh application for approval. That was dated 29 October 2000. No objections by the present applicants to that development were made, perhaps because it did not come to their notice, and approval was granted by the City of Perth on 13 February 2001. The approval of 13 February 2001 has been referred to in the course of the hearing today as the "first approval" by the City of Perth and it is useful to continue that description.
4 Having obtained that approval the developer then embarked on the next stage of implementation. Precisely what was done is set out in the affidavits but it is not necessary for me to mention that fully here except in a general way. It is sufficient to mention that additional expenditure on project implementation was undertaken, further planning no doubt was contemplated, but no building licence or construction agreement was at that stage obtained or entered into and the premises remained a vacant, unimproved lot.
5 Nevertheless, the developer or persons associated with the developer, entered into a series of conditional contracts for the sale to purchasers of units in the project to be constructed, took deposits and undertook obligations to complete within a specified time. It seems as if that period was about two years. So there are, at present, real obligations to provide completed apartments in conformity with the project as approved in February 2001 to a series of purchasers.
6 However, after the approval of 13 February 2001, the first approval, the applicants became aware of what had happened and, through
(Page 7)
- solicitors, protested to the City of Perth about alleged deficiencies in the process which led to that approval. This course of correspondence continued from late February 2001 through to November of 2001 with allegation and refutation following one another in sequence but it is sufficiently plain from the correspondence that the controversy as to whether or not a valid approval had been given in the sense that it was an approval which would withstand legal challenge in a court of competent jurisdiction was very much alive and was being debated between the solicitors for the City of Perth and the solicitors for the applicants.
7 On the evidence presently before the Court there is nothing to suggest that this continuing controversy was known to the owner-developer of the land or to the subpurchasers of units in the project to be constructed but nevertheless it is plain that this controversy did remain current.
8 One of the grounds upon which it was contended that the first decision of 13 February 2001 was voidable was that the application had not been signed or executed by the owner of the land, a requirement which appeared to be obligatory under the terms of the relevant town planning scheme. The owner at the time was the City of Perth, although the City of Perth was the vendor of this very property under an uncompleted contract for the sale of the land to the developer applicant.
9 Whatever may be the true position about whether or not the applicant was the owner within the special meaning of that term under the scheme, or whether, if not, the approval of the owner was nevertheless manifest because of the co-operation of the City of Perth in the approval process, the position seems to have been reached by October or November 2001 that there was sufficient doubt about the validity of the first approval to necessitate further action in order to withstand a challenge to that decision.
10 When I have said that a question arose as to the validity of the approval in February 2001 I immediately acknowledge that an approval once given is valid and efficacious whatever the shortcomings may have been in the process by which it was decided or in the compliance with the rules concerning procedural fairness or other comparable matters. These are decisions which, I am satisfied on the authority which has been produced to me, are valid unless set aside and they cannot be set aside by the council. Nevertheless the implication of the correspondence was that a challenge in a Court which would have jurisdiction to set aside the
(Page 8)
- decision was in contemplation and accordingly that the validity of the first approval of 13 February 2001 was, therefore, vulnerable.
11 This led to another application for approval of development on the site, the third which was made, originating by a letter from the developer of 9 November 2001. That was considered by the council and approved on 11 December 2001. That is what has been referred to in the course of these proceedings as "the second approval".
12 By the processes which they have brought to this Court the applicants seek orders nisi for writs of certiorari against both the first and the second approvals, that is, those dated 13 February 2001 and 11 December 2001. The first to be challenged was the second in point of time, namely that of 11 December 2001.
13 Upon it being challenged an order was made by Pullin J earlier in CIV 1243 of 2002 that the participants in the development should be joined as second respondents and they have been joined, they have entered appearances and have been heard on their representation by counsel in opposition to the application.
14 In relation to the second application for certiorari, that which attacks the first approval, which is the subject of proceedings CIV 1517 of 2002, no steps had been taken to join the developers. However, they sought leave to be heard as interested parties and were heard without objection. In the course of the hearing it became obvious that it was desirable that they should be joined as second respondents to that application and I made an order this morning to that effect, obtained an undertaking from their counsel that an appearance would be entered, and have treated the continuation of the hearing as including those persons as second respondents. So I am satisfied that all necessary parties have been joined to both sets of proceedings.
15 In view of the prima facie validity of any decision by the council giving development approval the response by the City of Perth and by the second respondents to the challenge to the second approval was, among other things, to submit that it would be futile to grant an order nisi because even if the decision were to be quashed there would be an anterior valid decision giving approval, namely the first approval of 13 February 2001. It was in response to that contention that the applicants then sought to challenge the first approval by the issue of the second set of proceedings, namely CIV 1517 of 2002.
(Page 9)
16 This sequence of procedure is relevant to issues about prejudice and delay which have been argued in the proceedings. First of all, it is prescribed by the Rules of the Supreme Court, O 56 r 11:
"An order nisi for a writ of certiorari to remove a judgment, order, conviction or other proceeding of an inferior court or tribunal, or of a magistrate or justices, for the purpose of its being quashed, shall not be granted unless the application for the order is made within 6 months after the date of the judgment, order, conviction, or other proceeding, or within such other period as may be prescribed by any enactment, or except where a period is so prescribed, the delay is accounted for to the satisfaction of the Court to which the application is made."
17 While the proceedings seeking an order nisi in respect of the second approval of 11 December 2001 have been brought promptly and within the six-month period, the belated challenge to the first approval is well outside that time limit, if it applies. Submissions have been made on behalf of the City of Perth and on behalf of the second respondents that the delay which has occurred is so great as to cause prejudice which should be sufficient to refuse the grant of an order nisi in any challenge to the validity of the first approval, and if that occurs a challenge to the second approval would be pointless on the grounds of the continued validity of the first approval.
18 The questions which therefore arise are whether the time limit referred to in O 56 r 11 applies in these proceedings and, if not, whether the delay, in any event, is so extensive as to refuse an order nisi in the exercise of the discretion which the Court undoubtedly has.
19 At this stage of the proceedings I consider it sufficient to say that the course of correspondence between the solicitors for the applicants and the City of Perth from February 2001 to November 2001 appears to have proceeded on the footing that the question as to the efficacy of the first approval remained an open subject, and I consider that there are grounds upon which the applicants could reasonably expect that their protests against the validity of that first decision were receiving serious attention.
20 Consequently, I do not consider that the delay which has occurred is indicative of any abandonment of rights by the applicants, nor of any disregard of the need to pursue proper compliance with the town planning scheme, nor any signification that the decision would pass without challenge. Accordingly, if it were necessary to extend time, I would be
(Page 10)
- disposed to grant an extension of time. Similarly, if no extension of time were necessary I would be disposed to accept that the delay which has occurred has been satisfactorily explained.
21 This brings me to the issue of whether or not an extension of time is necessary because, although being offered an opportunity to make such application, the applicants have not sought to do so. The reason for that is that the wording of O 56 r 11 relates the time limit to challenges of decisions of courts in the form of orders, judgments, declaration, convictions, and the like, and does not extend to administrative decisions of public authorities which are not judicial in their nature in the sense of determining questions of guilt or innocence or rights under some contract. This gives rise to the question of whether or not certiorari will lie in those circumstances, a question which seems to have been conceded on all sides in these present proceedings and which is unnecessary for me to pursue.
22 Accordingly, the question which remains is whether in these circumstances there is any reason to withhold, on discretionary reasons on grounds of prejudice or delay, the granting of an order nisi in respect of the first decision - the approval of 13 February 2001. I am satisfied that there is not, but that there are other reasons to consider whether or not an order nisi for certiorari should be made.
23 They concern the status and effect of the second decision. The second decision, as I have already indicated, was made on 11 December 2001. The challenge to the validity of this decision is the subject of the amended notice of originating motion for writ of certiorari in action CIV 1243 of 2002 dated 18 March of this year. It is contended on behalf of the applicants that that decision, approving the development, was arrived at in breach of principles of procedural fairness. Upon the particulars given this allegation depends upon whether or not it was necessary for the City of Perth to provide to the applicants details of a BSD Consultants' report to the planning officers of the city which was relied upon by the town planning officer in recommending to council that the development application be approved.
24 Secondly, it is contended that there were jurisdictional errors, or alternatively errors of law on the face of the record, by the City of Perth in approving the decision. The errors alleged are that the proposal, as submitted and approved, involved provisions for setbacks, for carparking entitlements, and allowances for dwelling density which were outside the scope of the town planning scheme which applied and which were approved by the council in reliance upon powers which were conferred
(Page 11)
- under cl 48 of the town planning scheme which, on certain conditions, contained a dispensing power.
25 It is necessary to look at cl 48 of the town planning scheme which is central to these contentions. That clause reads:
"48(1) If a development the subject of a town planning application or the subject of an application for a building licence under the Local Government Act 1960 as amended or re-enacted does not comply with a standard or requirement prescribed by the Scheme with respect to that development, subject to subclause (4) of this Clause the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council deems fit, if the Council is satisfied by an absolute majority that:"
- and the conditions are important:
"(a) if approval were granted, the development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
(b) the non-compliance will not have any adverse effect upon the occupiers or users of the development or the property in or on the inhabitants of the locality or the likely future development of the locality."
27 The argument in support of the positive contention to that effect is that the report of the planning officer which was before the council when the decision was made conceded that, in some respects, the relaxation of
(Page 12)
- the scheme requirements for setbacks may have a minor impact and that the decisions which were made to approve the proposed development insofar as it related to carpark requirements and density of inhabitants which were not in compliance with the terms of the scheme, did not directly address the issue of whether or not those departures involved any adverse impact within the meaning of cl 48(1)(b).
28 On an initial examination of the materials, which constituted the planning officer's recommendation to council, there may be some semblance of support for those contentions. On the other hand, when one gets to the minutes of the meeting of the City of Perth at which the second approval was granted it becomes clear that the planning officer directed the attention of the members of council expressly to the requirements of cl 48(1) subclauses (a) and (b) of the Town Planning Scheme and, therefore, to the need to satisfy those conditions before the dispensing or relaxing power could be exercised.
29 While it is true that the language used by the planning officer and in the minutes thereafter still acknowledged that there may be some impact on surrounding properties because of the variation in setback provisions and did not expressly address the issue of whether or not, if approval were granted, any non compliance would have any adverse effect upon the occupiers or users of the development or on the inhabitants of the locality, I do not consider that any reasonable construction of the minutes as a whole could result in any conclusion except that the decision of the council was made with a realisation of the requirements of cl 48(1) subclauses (a) and (b) in mind and that the attention of the members of council was properly and sufficiently directed to that requirement.
30 Whether or not the council should have been satisfied that non compliance would not have any adverse effect upon the occupiers or users of the development or upon the inhabitants is a decision for the council to make, bearing in mind that it is an elected body responsible to its own ratepayers and possessed of the authority to make these decisions according to law. As was said in the course of argument, certiorari is not a merits review. The only grounds upon which the merits would in any way become relevant would be if it could be contended, as an arguable proposition, that the decision of the council was so unreasonable or extreme, having regard to the materials which were properly before the council, that no council, bearing in mind its responsibilities, could reach such a decision. I am quite satisfied that the circumstances fall well short of that extreme and that, being properly directed to the issues upon which
(Page 13)
- their decision depended, the council could make a decision on the question of adverse effect and that it did so.
31 That conclusion disposes of the grounds of challenge to the second approval dealing with setbacks, carpark and dwelling density and I am satisfied that having examined the materials and listened to submissions on both sides, that no contrary conclusion is reasonably open even at this preliminary stage.
32 That leaves the objection against the validity of the second decision which depends on the grounds of lack of procedural fairness. This objection, as I have already mentioned, depends on the assertion that the applicant was wrongly deprived of an opportunity for sufficient consideration to be given to the BSD report which underlay the recommendation by the planning officer to the council to approve the development and that, further, the applicant was deprived of an opportunity of addressing the council at the meeting where the decision was up for approval.
33 I am satisfied in the present case that the applicants for certiorari seeking to challenge the second decision were adequately informed that a decision of the kind taken was under contemplation by the council, that it was to be taken at the meeting at which it was approved and that they had ample opportunity to make submissions outlining their objection to the proposed decision in sufficient time beforehand. By then, the applicants had been opposing this application since August of 2000, if not earlier. The grounds of their application setting out their objections were very comprehensively stated and were included in the planning officer's memorandum to council and were addressed by the council.
34 I do not consider that the need for procedural fairness extends to require an opportunity for the objectors to address every single submission or piece of information which may be before the council in circumstances where they have had a full opportunity to put their case, and accordingly I do not consider that it is arguable that the matters of which the applicants complain impaired their right to object to this decision or that they show that the decision was made other than in accordance with the requirements of procedural fairness. Accordingly, I would not be disposed to grant an order nisi in respect of the decision giving the second approval on those grounds.
35 The consequence of those conclusions is that I do not consider that an arguable case has been made out to justify the grant of an order nisi
(Page 14)
- against the second approval of 11 December 2001 and I will refuse to grant an order nisi in respect of that decision.
36 So long as that decision stands, it is quite unnecessary to go back to reconsider the propriety of the earlier approval in February 2001. Whether that be valid or not, the existence of the decision of 11 December 2001 is more than sufficient to justify the development and consequently it is pointless to grant an order nisi in respect of the first approval. I propose to refuse both applications for orders nisi.
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