Marshall v Metropolitan Redevelopment Authority - [2015] WASC 226

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MARSHALL -v- METROPOLITAN REDEVELOPMENT AUTHORITY [2015] WASC 226

CORAM: PRITCHARD J

HEARD: 16 & 17 MARCH 2015 & ON THE PAPERS

DELIVERED : 26 JUNE 2015

FILE NO/S: CIV 1951 of 2014

BETWEEN: ROBERT JOHN MARSHALL
ARTHUR RICHARD MARSHALL
ANDREW VAUGHAN BLAKE
Applicants
AND
METROPOLITAN REDEVELOPMENT AUTHORITY
First Respondent
PUBLIC TRANSPORT AUTHORITY
Second Respondent

Catchwords:

Administrative Law - Approval of development application by Authority - Whether Authority acted in excess of power - Failure to take into account relevant considerations - Taking into account irrelevant considerations - Whether Authority satisfied itself of certain matters - Whether decision unreasonable - Orderly and proper planning principles - Meaning of orderly and proper planning

Legislation:

Metropolitan Redevelopment Authority Act 2011 (WA), s 7, s 30, s 31, s 47, s 52, s 53, s 54, s 62, s 64, s 65, s 66
Metropolitan Redevelopment Authority Regulations 2011 (WA), reg 11, reg 14, sch 2
Planning and Development Act 2005 (WA), s 6, s 116
State Administration Tribunal Act 2004 (WA), s 22, s 27(2)

Result:

Application for judicial review dismissed

Category: A

Representation:

Counsel:

Applicants:     Mr C S Williams
First Respondent           :     Ms C A Ide
Second Respondent       :     Ms C A Ide

Solicitors:

Applicants:     Solomon Brothers
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     State Solicitor for Western Australia

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

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
AB v Western Australia [2011] HCA 42; (2011) 244 CLR 340
Agnew Clough Ltd v Town Planning Board (Unreported, Town Planning Board of Western Australia, Appeal No 1 of 1979, 1 May 1980)
Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8
Atlas Point Pty Ltd and Western Australian Planning Commission [2013] WASAT 33
Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239
Charkey‑Papp and Town of Cottesloe [2007] WASAT 319
CIC Insurance Ltd v Bankstown Football Club [1997] HCA 2; (1997) 18 CLR 384
Clive Elliott Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276; (2002) 122 LGERA 433
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Housing Authority of Western Australia and Western Australian Planning Commission [2010] WASAT 66
Housing Authority of Western Australian and Western Australian Planning Commission [2010] WASAT 66
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
McKenzie Constructions Pty Ltd v Development Assessment Commission [1999] SASC 386; (1999) 74 SASR 539
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; (2013) 249 CLR 332
Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Tobacco Institute of Australia Ltd v National Health & Medical Research Council (1996) 71 FCR 265
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480

PRITCHARD J: On 3 July 2013, the Public Transport Authority (PTA) made an application (the Development Application) to the Metropolitan Redevelopment Authority (MRA) for development approval for a development (the proposed Development) of the PTA's rail car depot in East Perth (the Site).[1]
[1] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK6.
On 19 December 2013, the Board of the MRA resolved to approve the Development Application subject to a number of conditions.[2] The MRA's approval was formally conveyed to the PTA on 8 January 2014 (the Decision).[3] The MRA did not provide written reasons for the Decision, and this Court does not have statutory power to require the provision of reasons.[4] However, the documents in evidence identified the MRA's decision‑making process. That process indicated that the Decision was reached following consideration by the MRA of a variety of documents, and of reports and recommendations made to it by officers of the MRA, and by the Central Perth Land Redevelopment Committee (LRC) which considered the Development Application at the request of the MRA. Those factual matters are discussed below.
[2] Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [66], Annexure RK20.
[3] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK21.
[4] cf State Administrative Tribunal Act 2004 (WA) s 22.
On 7 July 2014, the applicants brought an application for judicial review of the Decision. They seek a writ of certiorari to quash the Decision, and a writ of mandamus to compel the MRA to make the decision according to law (which they contend will have the result that the Development Application should be rejected). The applicants contend that in making the Decision, the MRA fell into jurisdictional error in numerous respects, and that the Decision was therefore invalid.
In making the Decision, the MRA was exercising a discretion as to whether to approve the Development Application and if so, on what conditions. It is important to bear in mind that in dealing with the application for judicial review of the Decision, this Court's jurisdiction does not extend to engaging in a review of the merits of the Decision.[5] Consequently, it is not the role of this Court to determine whether the Decision was the preferable decision[6] in all of the circumstances. Instead, the Court's jurisdiction is confined to determining whether the MRA made a jurisdictional error in reaching the Decision - or in other words, whether in reaching the Decision the MRA failed to act within the parameters set by the Parliament for the exercise of the discretionary power given to the MRA. Notwithstanding that they were clothed in the language of jurisdictional error, most of the grounds of review were, with respect, challenges to the merits of the Decision.
[5] A review of the merits of a decision on a development application is available in the State Administrative Tribunal pursuant to cl 8.14 of the Central Perth Redevelopment Scheme and pt 14 of the Planning and Development Act 2005 (WA).
[6] cf State Administrative Tribunal Act 2004 s 27(2); see also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [140] (Kiefel J).
For the reasons set out below, I have reached the conclusion that the application for judicial review should be dismissed.
In these reasons for decision I deal with the following matters:
1.The parties and the evidence;
2.The factual background, the Development Application and the applicants' opposition to the proposed Development;
3.The applicable planning scheme;
4.The decision‑making process;
5.The documents before the MRA when it made its decision;
6.The Decision;
7.The grounds of review and the relief sought;
8.The statutory parameters for the exercise of the MRA's power to make the Decision;
9.The ground of review alleging that the MRA acted in excess of power in approving the Development Application;
10.The grounds of review alleging that the MRA failed to take into account relevant considerations, and that the MRA took into account irrelevant considerations, in making the Decision;
11.The ground of review alleging that the MRA did not satisfy itself of matters of which it was required to be satisfied before it could approve the Development Application; and
12.The grounds of review alleging that the Decision was manifestly unreasonable.

The parties and the evidence

The MRA and PTA tendered an affidavit of Ryan James Bjorn Keys sworn 15 December 2014, and a further affidavit sworn by Mr Keys on 6 March 2015. Those affidavits set out the factual background to the Decision, and annexed relevant documents.
The applicants relied upon affidavits sworn by Mr Robert Marshall on 19 November 2014, and by Mr Andrew Blake on 20 November 2014 and on 3 March 2015.
The applicants also relied on affidavits sworn by Mr Dimitrios Athanasios Limnios, a real estate agent, sworn on 23 February 2015, and of Mr David John Caddy, a town planner, sworn on 22 September 2014.
In addition, the applicants tendered an affidavit of Ms Rebecca Ireland, an environmental scientist with expertise in acoustics, sworn on 21 November 2014. I provisionally admitted this affidavit into evidence following an objection by the respondents to the relevance of its contents. Ms Ireland was also cross‑examined on her affidavit.
The respondents objected to certain paragraphs of the affidavit of Mr Marshall sworn 19 November 2014, to certain paragraphs of the affidavit of Mr Blake sworn 20 November 2014, to certain paragraphs of the affidavit of Mr Caddy, to certain paragraphs of the affidavit of Mr Limnios, and to the entirety of the affidavit of Ms Ireland. Most of these objections were dealt with in the course of the hearing, save for objections as to relevance. In the course of the hearing I indicated I would deal with all objections on relevance grounds in the course of these reasons for decision, and with the benefit of a more thorough understanding of the applicants' case. My decision in respect of each of those objections is set out in Annexure 1 to these reasons for decision.

The factual background, the Development Application and the applicants' opposition to the proposed Development

The Site is situated at 122 Kensington Street East Perth.[7] On its northern boundary, the Site abuts the Perth to Armadale train line. Beyond that lies the Graham Farmer Freeway. On its southern boundary, the Site abuts Stokes Way in East Perth. Immediately to the west of the Site is East Parade. Beyond the eastern boundary of the Site lies the Swan River.
[7] The Site comprises all of Lot 1042 on Deposited Plan 190794 and all of Lot 500 on Deposited Plan 54478, being the land in Certificates of Title Volume LR 3100 Folio 401 and Volume 2655 Folio 138 respectively.
The Site is owned by the PTA. There are presently two dead end railway tracks on the Site (known as stow roads) and these have been used for the overnight storage and maintenance of rail cars known as A Series rail cars.
The two stow roads currently located on the Site extend off the Site in a westerly direction to the Claisebrook train depot, which is situated south west of the Site, and west of East Parade, in East Perth.
Immediately south of Stokes Way and running approximately parallel to Stokes Way, is Tully Road. Along the strip of land between Stokes Way and Tully Road (the Stokes Way/Tully Road land) there are single storey and double storey houses, and at the eastern end of the Stokes Way/Tully Road land are two multi‑storey apartment buildings located at Lot 168 and Lot 169 Tully Road (street numbers 39 and 41 Tully Road).
In 2005, the applicants and a number of other persons entered into a joint venture to purchase and develop Lot 169 Tully Road. They built an apartment building located on that land and they own apartments in that building.

The Development Application

The proposed Development for which the Development Application sought approval was for the construction of three new stow roads on the Site, the extension of the two existing stow roads, the construction of overhead traction power cables for each stow road, a new retaining wall at track level, a noise attenuation wall on the southern boundary of the Site (noise attenuation wall), a new track drainage system, and some re‑routing of the PTA's signalling and telecommunication cables.[8] The proposed Development was sought to enable the storage of additional rail cars on the Site. Maintenance and cleaning of these additional rail cars was also proposed to be undertaken on the Site.
[8] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK6.
The PTA estimated that, following the completion of the proposed Development, activity would occur on the Site for '22 hours per day, every day of the year, with significant activity occurring between 10pm and 6am, generated from cleaning and stowage of vehicles following evening services. … [R]ail movements will increase from 186 movements per day to 234 rail movements per day'.[9]

The applicants' opposition to the proposed Development

[9] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK14, page 348.

Mr Blake resides in one of the apartments in the apartment building on Lot 169. His apartment faces north, and overlooks the Site, across to the Old East Perth Power Station and the Swan River. Mr Blake's evidence was that when he and the other joint venturers purchased Lot 169, the two stow roads were located on the Site, and one of those lines was used to manoeuvre train carriages in and out of the Claisebrook Station rail maintenance depot. However, at the time, Mr Blake was not concerned about the impact of noise from the Site on residents of the apartment building 'as it occurred only a few times per week and was mostly afternoon/early evening'.[10]
[10] Affidavit of Andrew Vaughan Blake dated 20 November 2014 [10].
Mr Marshall also deposed that he was aware of the activity on the Site when the joint venturers purchased Lot 169, that he had seen the two stow roads on the Site, and observed them being used for stowage of trains, but that he had only seen trains moving on the Site two to three times per week at that stage.[11]
[11] Affidavit of Robert John Marshall dated 19 November 2014 [9].
The applicants are opposed to the proposed Development. Their objection to the proposed Development appears to have two primary bases. They are concerned about the potential impact of increased noise from the Site for residents of the apartment building on Lot 169, and are concerned that the proposed Development will consequently have an adverse impact on the amenity of the residential area adjacent to the Site. In turn, they are clearly concerned about the potential adverse impact that the activities conducted at the Site may have on the value of their investment in the apartments, if the proposed Development proceeds.

The applicable planning scheme

The Site is located within an area of land known as the Central Perth Redevelopment Area under reg 11 of the Metropolitan Redevelopment Authority Regulations 2011 (WA) (the MRA Regulations). Land within the Central Perth Redevelopment Area is subject to the Central Perth Redevelopment Scheme (the CPR Scheme)[12] which is an approved redevelopment scheme made pursuant to s 47 of the Metropolitan Redevelopment Authority Act 2011 (WA) (the MRA Act).[13] A copy of the CPR Scheme (as amended), which has been in force since 1 August 2012, was in evidence.[14]
[12] Prior to August 2012 the Scheme was known as the East Perth Redevelopment Scheme.
[13] The Site is also reserved for 'Railways' under the Metropolitan Region Scheme (MRS) but it was not contended that that reservation had any bearing on the present application.
[14] See Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [20], Annexure RK3. The reference to Annexure RK4 in [20] appears to be a typographical error.
By virtue of s 53 of the MRA Act, an approved redevelopment scheme has legislative effect, and has the status of subsidiary legislation made under the MRA Act. Accordingly, the CPR Scheme is subsidiary legislation made under the MRA Act.
In addition, s 54 of the MRA Act expressly provides that the MRA 'must perform its functions in relation to a redevelopment area in accordance with the approved redevelopment scheme for that area'. The functions of the MRA are set out in s 7 of the MRA Act. They include the control of development in each redevelopment area, pursuant to pt 6 of the MRA Act (which includes s 66 of that Act).
It is convenient at this point to highlight the broad structure of the CPR Scheme and some of its key features.

Overview of the CPR Scheme

Chapters 1 ‑ 4 of the CPR Scheme set out planning principles and objectives which are intended to guide the redevelopment of the Scheme Area. Chapter 5 of the CPR Scheme sets out how the MRA is to deal with managing the development of the Scheme Area. Chapter 8 deals with the administration of the CPR Scheme and ch 9 contains appendices which contain definitions of terms, and of land uses, referred to in the CPR Scheme.[15]
[15] Chapters 6 and 7 of the CPR Scheme are not presently relevant.
Under the CPR Scheme, the Central Perth Redevelopment Area is divided into various precincts. The Site is located within what is known as Precinct 16B PTA Transport Corridor.[16]

The 'vision' for the Scheme Area

[16] The Claisebrook depot is correspondingly designated as Precinct 16A PTA Depot under the CPR Scheme.

The CPR Scheme sets out a 'vision' for the Scheme Area and statements of intent for various precincts within the Scheme Area, describes the contemplated land use for various precincts within the Scheme Area, and deals with the management of development in the Scheme Area.
The MRA's 'vision and intent for the development of the Scheme Area' - which is 'the overall aim that underpins the preparation, content and application' of the CPR Scheme[17] - is expressed in the following way:
The Authority has a vision - to realise a new era for inner city Perth by facilitating the sustainable urban renewal of its Redevelopment Area. World leading urban renewal practices will connect the Authority's various Project Areas, which are dispersed across the inner city, to wider Perth and infuse the inner city with extra vitality, life and character.[18]
[17] CPR Scheme cl 1.1.
[18] CPR Scheme cl 1.2.
The CPR Scheme is described as 'the principal planning tool that will bring the Authority's vision to life'.[19] In the assessment and determination of all applications under the CPR Scheme, including development applications, the MRA is required to 'have due regard to the Vision set out in Chapter 1 and the Principles set out in Chapter 2 and will pursue the sustainable development of the Scheme Area'.[20]

CPR Scheme Principles

[19] CPR Scheme cl 1.3.

[20] CPR Scheme cl 5.2.

All development proposals are required to be consistent with 'Scheme Principles' set out in ch 2 of the CPR Scheme.[21] Those principles are described as the MRA's 'core principles of sustainable urban renewal and form the guiding principles of the Scheme'.[22] The Scheme Principles are described in the following way:
[21] CPR Scheme cl 2.1.
[22] CPR Scheme cl 2.1.
•Places for people;
•Critical mass;
•Quality design;
•Diversity;
•Connectivity; and
•Environmental integrity.
The principles include opportunities for enhanced social interaction, economic prosperity and a quality environment. Development in accordance with the principles to ensure the Scheme Area develops sustainably and will enrich inner city Perth's role as a premier destination for people to live, work, visit and recreate within a vibrant, attractive, mixed land use setting; and
All development proposals will be required to be consistent with the principles set out in this Chapter.[23]
[23] CPR Scheme cl 2.1.
The meaning of the Scheme Principles is expanded upon in cl 2.2 ‑ cl 2.7 of the CPR Scheme. By way of example, the key aspects of the 'Places for people' principle are described under headings including 'choice and accessibility', 'quality public realm', 'great places to be', 'liveability', 'health and wellbeing', 'social inclusion' and 'intergenerational equity'.[24] The text under those headings is expressed in broad terms. The 'great places to be' aspect of the 'Places for people' principle states that '[a] balance of quality design and development, conservation, and creativity creates great places, and engenders a sense of place, attachment and pride'.[25]
[24] CPR Scheme cl 2.2.
[25] CPR Scheme cl 2.2.

Similarly, the 'Quality design' principle is described in cl 2.4 of the CPR Scheme as follows:
High quality design in public and private places is essential to developing Perth as a distinct, world class, liveable city. Design and development of each Project Area, Precinct, place and building in the Scheme Area is to be based on the principles of excellent in design - including urban, architectural, landscape and artistic design. This requires a focus on innovation, aesthetics, function and materials; and the development of attractive, efficient and adaptable places and buildings.
The 'Quality design' principle is described as having 'key aspects' including that the 'design and development is responsive to the Perth context', that the 'Master Plans and Structure Plans of Project Areas and large sites respond to the context of the locality; [and] provide quality and variety in places, experiences and land uses', that 'the quality and enjoyment of the public realm is a central consideration in all design and development', that '[d]evelopment and land use at street level contribute to the activation of the public realm', and that 'innovation, creativity and art are infused into buildings, places and landscapes'.[26]

Project Areas under the CPR Scheme

[26] CPR Scheme cl 2.4.

The CPR Scheme Area is divided into various 'Project Areas'. Clause 3.1 of the CPR Scheme provides:
The Authority's Redevelopment Area is made up of several individual Project Areas. The Project Areas are dispersed across inner city Perth but together make up the 'Scheme Area'. New Projects Areas may be added and completed ones removed from the Scheme Area from time to time.
The Project Area Chapter identifies the Project Areas and Precincts that currently make up the Scheme Area and sets out the Authority's intent for the future development of each Project Area and Precinct.
A Project Area Map is provided for each Project Area and identifies the boundaries of the Project Area and each Precinct within that Project Area. The corresponding text for each Project Area sets out the Authority's vision for the development of that Project Area and the intent for each Precinct. All development within the Scheme Area is required to be generally consistent with the vision and intent set out in this chapter for the relevant Project Area and Precinct.
Part A of ch 3 deals with the 'Claisebrook Village Project Area'. Clause 3.2 of the CPR Scheme notes that the
redevelopment of the Claisebrook Village Project Area is substantially complete, however, there are some important Precincts that are still to be fully redeveloped, which will complete the project vision.
Twelve precincts of the Claisebrook Village Project Area remain in the Scheme Area.
Clause 3.3 then lists those 12 precincts, together with a Statement of Intent for each Precinct. Precinct 16B PTA Transport Corridor, and Precinct 16A PTA Depot (where the Claisebrook train depot is located) are within the Claisebrook Project Area.

Whether the Stokes Way/Tully Road land is subject to the CPR Scheme

It is convenient to mention an issue which arose in the course of the hearing and which is relevant to one of the grounds of review, namely whether the Stokes Way/Tully Road land is subject to the CPR Scheme. The area of residential developments on the Stokes Way/Tully Road land appears to have been encompassed by the Claisebrook Village Project Area under the CPR Scheme when that Scheme was first gazetted, and was designated as part of 'Precinct 8 Belvidere'. The applicants submitted that the Stokes Way/Tully Road land remained subject to the CPR Scheme. In contrast, Mr Keys deposed that by 16 December 2011, all of that land had been 'normalised', or, in other words, subtracted from the redevelopment area under the CPR Scheme.[27]
[27] Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [15] ‑ [17].
The Stokes Way/Tully Road land is not subject to the CPR Scheme, and was not subject to the CPR Scheme when the Development Application was made. The reasons for that conclusion are as follows.
The land which forms part of the Central Perth Redevelopment Area, and which is therefore the subject of the CPR Scheme, is described in reg 11 of the MRA Regulations. The land which is part of the Central Perth Redevelopment Area is also outlined in bold on a plan set out in sch 2 to the MRA Regulations. The Stokes Way/Tully Road land is not land which is outlined in bold on the plan for the Central Perth Redevelopment Area which is depicted in sch 2 to the MRA Regulations. That has been the position under the MRA Regulations since before the Development Application was made.[28] What appears to have occurred is that the Stokes Way/Tully Road land was originally part of the Scheme Area, but prior to 16 December 2011, the MRA Regulations were amended to remove that land from the Central Perth Redevelopment Area. (Under the MRA Act, regulations declaring land to be a redevelopment area may be amended to add land to, or remove land from, the redevelopment area.[29])
[28] See sch 2 to the MRA Regulations as in force at 30 December 2011.
[29] MRA Act s 31.
It appears that the text of the CPR Scheme has not been properly amended to reflect these changes in the Scheme Area.[30] In contrast, however, a map of the Claisebrook Village Project Area which is included in ch 3 of the CPR Scheme does not depict Precinct 8 Belvidere as forming part of the Scheme Area. Neither does a map of the entire Scheme Area which appears in ch 9 of the CPR Scheme. Each of those maps is entirely consistent with the map of the CPR Scheme Area contained in sch 2 to the MRA Regulations.
[30] The text of the CPR Scheme in fact appears to be out of date in several respects, including in so far as it defines the 'Authority' referred to in the CPR Scheme as the East Perth Redevelopment Authority, or EPRA, when the Authority is now known as the MRA.
The text of the CPR Scheme - in so far as it suggests that Precinct 8 Belvidere is currently part of the Claisebrook Village Project Area within the CPR Scheme Area - is thus inconsistent with the maps depicted within the CPR Scheme itself, and, more importantly, with the depiction of the Scheme Area in the MRA Regulations. In so far as it is inconsistent with the MRA Regulations, the provisions of the CPR Scheme are void, and the Scheme Area depicted in the MRA Regulations prevails.[31]

Statements of Intent for Precincts within the Scheme Area

[31] MRA Act s 52(2).

The Statements of Intent for Precinct 16A and Precinct 16B are clearly intended to be read together. The Statement of Intent for Precinct 16A PTA Depot is:[32]
The PTA Depot Precinct is a depot for the Perth Transport Authority (PTA). There is a need to retain transport infrastructure and activities in this area for a period of time, suitable to meet the needs of the PTA. Over the longer term however, there are critical mass and connectivity opportunities for the Precinct, with redevelopment into a mixed land use inner city precinct with a transit integrated development focus. Future land uses could include medium to high density residential development supported by retail, commercial and entertainment uses. Development along the Precinct's eastern boundary should provide an entry point to the Project Area from the north.
[32] CPR Scheme cl 3.3.
The Statement of Intent for Precinct 16B PTA Transport Corridor (the Site) is:[33]
The Transport Corridor Precinct is a relatively small precinct located along the northern edge of the Project Area adjacent to the rail line. Similar to Precinct 16A, this Precinct serves the infrastructure functions of the PTA. There is also the long-term potential for redevelopment of this site, should the transport infrastructure function be no longer needed. Future redevelopment of the precinct should integrate with the style of development within the adjacent Belvidere Precinct, whilst also providing an appropriate design response to its location adjacent to the river, the freeway and the Power Station Project Area.
[33] CPR Scheme cl 3.3.
As it was referred to in the applicants' grounds of review, the Statement of Intent for Precinct 8 Belvidere should also be noted. It is expressed in the following terms:[34]
The Belvidere Precinct provides predominantly for residential development, with some opportunities for commercial land uses. The Precinct functions as the gateway to the Perth inner city from the north and east. The Precinct will also have convenient access to the facilities and amenities of the neighbouring Power Station Project Area. Quality development will be located along the northern periphery of the Precinct, adjacent to the Public Authority Reserve.

Chapter 4 of the CPR Scheme - Land Use

[34] CPR Scheme cl 3.3.

Chapter 4 of the CPR Scheme sets out provisions 'guiding the use of land within the Scheme area'.[35] It does so by reference to a 'Precinct based Preferred and Contemplated land use system' rather than by reference to land use zones and reserves, or residential density zoning.[36] The Chapter:[37]
establishes a land use system based on identifying the preferred activities for which a site should be used for, whilst generally allowing for a flexible approach to encourage mixed land use, diversity and economic prosperity. The chapter also includes specific considerations for certain land uses, to enable a compatible land use mix in the Scheme Area.
[35] CPR Scheme cl 4.1.
[36] CPR Scheme cl 4.4.
[37] CPR Scheme cl 4.1
'Preferred Uses' are those 'which are considered to contribute to the Project Area Vision and Precinct Statement of Intent for a location, as set out in Chapter 3 - Project Areas'.[38]
[38] CPR Scheme cl 4.5.
'Contemplated Uses' are 'land uses which the [MRA] may consider suitable for a Precinct if it can be shown that such a use would not detract from the Precinct intent and the amenity of the locality'.[39]
[39] CPR Scheme cl 4.6.
If a development application seeks approval for the use of land which is not a 'Preferred Use' or 'Contemplated Use', that use will generally be considered inconsistent with the Precinct intent and may be inappropriate for that Precinct. However, uses which are not 'Preferred' or 'Contemplated' may nevertheless be considered for approval.[40]
[40] CPR Scheme cl 4.7.
The 'Preferred' and 'Contemplated' uses for each precinct within the CPR Scheme Area are set out in Table 4.2 of the CPR Scheme. They are defined by reference to seven land use categories which are set out in Table 4.1 of the CPR Scheme.
Table 4.2 indicates that the 'Contemplated Uses' of Precinct 16B are 'Category 2 Commercial', 'Category 3 Light Industry', 'Category 5 Residential' and 'Category 6 Community'. Of particular relevance for present purposes is 'Category 3 Light Industry' which is described as:[41]
Low to moderate impact businesses, predominantly based in skilled trades, manufacturing, goods handling, the automotive industry and other land uses of an industrial nature. The land uses usually require large purpose built premises and may not be appropriate for mixed-use buildings or residential areas.
[41] CPR Scheme Table 4.1.
Various examples of that category of use are then set out. These include 'Transport Depot'.[42] The term 'Transport Depot' is defined in the CPR Scheme to mean 'land and associated buildings for the holding or storage and ancillary servicing of transport vehicles such as trains, trams, buses and trucks and related infrastructure, equipment and offices'.[43]

Chapter 5 of the CPR Scheme - Development Management

[42] CPR Scheme Table 4.1.

[43] CPR Scheme Appendix 3.

As I have already observed, the provisions of ch 5 of the CPR Scheme are largely concerned with how the MRA is to deal with development applications. Three provisions in ch 5 warrant particular mention in the present case.
Clause 5.24 of the CPR Scheme provides that in the determination of a development application, the MRA may approve the application without conditions, approve the application subject to conditions, or refuse the application.
Clause 5.22 of the CPR Scheme deals with the matters which the MRA must consider in determining a development application in respect of the Scheme Area. That clause provides that the MRA:
[S]hall have due regard for:
(a)the Scheme Vision and Principles and the achievement of sustainable development;
(b)any currently valid decision on an In-Principle Development Application or a Local Area Plan Application;
(c)all other relevant provisions of the Scheme;
(d)any relevant planning document adopted under the Scheme, including but not limited to a Design Guideline, Development Policy, Heritage Inventory, Community Asset Register or Development Contribution Plan;
(e)any submission received as a result of a referral to government bodies or public consultation, in accordance with clauses 5.15 and 5.16;
(f)any design or specialised advice obtained under clauses 5.17 and 5.18;
(g)the requirements of orderly and proper planning; and
(h)the current and intended amenity of the locality.'
In addition, cl 5.23 of the CPR Scheme provides that:
If an application does not comply with a provision of the Scheme or a provision of any other planning document adopted under the Scheme, the [MRA] may approve the application if it is satisfied that the development:
(a)is consistent with the Scheme Vision and Principles;
(b)is consistent with sustainable development and orderly and proper planning;
(c)would not have a significant adverse impact on the current or intended amenity of the locality of the proposed development; and
(d)would not compromise the vision or intent of the relevant Project Area and Precinct.

The source of the MRA's power to consider the Development Application and to make the Decision

Under the MRA Act it is an offence to undertake development on land to which an approved redevelopment scheme applies unless the development is authorised by a development approval.[44] As the Site is part of the Central Perth Redevelopment Area and is therefore subject to the CPR Scheme, any development of the land requires approval pursuant to the MRA Act.
[44] MRA Act s 62(2).
There are two sources of the MRA's power to determine whether a development application for a development of land within a redevelopment scheme should be approved. Section 66(2) of the MRA Act provides that after considering a development application, the MRA may refuse to issue a development approval or may issue a development approval for the proposed development. A development approval may be issued subject to any condition decided by the MRA.[45]
[45] MRA Act s 66(4).
In addition, as I have already noted, cl 5.24 of the CPR Scheme permits the MRA to refuse or approve a development application (and may impose conditions of approval).
The matters to which the MRA must have regard in making a decision in respect of a development application are set out in two provisions. First, s 66(1) of the MRA Act provides:
(1)In considering a development application, the Authority must have regard to the following -
(a)the approved redevelopment scheme that applies to the land on which the development is proposed;
(b)the objectives for the redevelopment area in which the development is proposed that are prescribed under section 30(5)(c);
(c)any submission received from a person notified under section 64;
(d)the requirements of orderly and proper planning;
(e)the desired amenity of the redevelopment area in which the development is proposed.
Secondly, as noted above at [55], cl 5.22 of the CPR Scheme itself lists a number of matters to which the MRA 'shall have due regard'.
It can immediately be seen that in many respects, the key provisions of ch 5 of the CPR Scheme to which I have referred are consistent, but not entirely co‑extensive, with s 66 of the MRA Act. The provisions in ch 5 provide greater detail as to how the MRA is to deal with development applications.

The decision‑making process

It is necessary to set out a rather detailed description of the process by which the Development Application was considered, in order to found a proper understanding of the Decision, and of the grounds of review.

Consideration of the Development Application

Upon receipt of the Development Application, the Chief Executive Officer of the MRA decided that it should be determined by the MRA, after consideration by the LRC. (The LRC is itself able to determine significant development applications relating to the Central Perth Redevelopment Area. In practice, where matters relevant to areas of the LRC's responsibility are to be considered by the MRA, they are first considered by the LRC.[46])
[46] Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [41].
In the course of considering the Development Application, further information was sought from, and provided by,[47] the PTA in respect of various matters including the noise attenuation wall, a noise impact assessment, the lighting of the Site, and landscaping. The PTA also provided a vibration assessment to the MRA.[48]
[47] Affidavit of Ryan James Bjorn Keys dated 6 March 2015 [6], Annexure RJK1.
[48] Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [35].
In support of the Development Application, the PTA submitted reports from SLR Consulting on the noise impact of the proposed Development (the SLR Reports).
Mr Keys deposed that because the MRA does not have technical expertise with respect to acoustic issues, it engaged a firm called Herring Storer to conduct a review of the noise reports prepared by SLR Consulting.[49] The MRA received a report from Herring Storer in November 2013 (the Herring Storer report).

Referral to relevant agencies

[49] Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [47].

The MRA then referred the application (and in due course the further information provided by the PTA) to the City of Perth and the Department of Environment and Regulation (Noise Management Division) (DER) for comment.[50]
[50] See MRA Act s 64 and cl 5.15 of the CPR Scheme.
The City of Perth advised that it 'totally disagree[d] with the concept' and recommended that the MRA should advise the PTA to seek an alternative site.[51] The City also recommended that further information should be obtained - in relation to matters such as the noise attenuation wall, noise mitigation measures, and vibrations - before the Development Application was determined.[52]
[51] Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [45], Annexure RK11.
[52] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK11.
The DER noted that it was 'difficult to identify applicable noise criteria for this project'.[53] However, the DER applied principles from State Planning Policy 5.4, which required that in the case of a redevelopment, practicable noise management and mitigation measures should be considered having regard to existing transportation noise levels, the likely changes in noise emissions resulting from the proposal, and the nature and scale of the works and the potential for noise amelioration.
[53] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK12.
The DER noted that existing background transportation noise levels reduced significantly between the hours of 2.00 am and 4.30 am daily (and 2.00 am and 6.00 am on Sundays) and that some operations on the Site could be carried out, and ancillary equipment operated, outside those hours when background noise was higher. The DER also noted that the 'existing two stow roads could be used in the same manner as the proposed development and, therefore, the noise emissions from the existing stow roads should be considered and used as a reference level to assess change'.[54]
[54] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK12.
Finally, the DER noted that
while fully enclosing the stow roads will by far provide the best noise attenuation benefits to all receivers located along Tully road, the [DER] understands that the costs involved are significant and potentially prohibitive. Conversely, the [DER] is also of the opinion that despite the proposed [noise attenuation wall] and targeted acoustic treatments, the elevated receivers at No. 37 and 45 Tully Road are likely to still be adversely impacted by the noise from the ancillary equipment.[55]
[55] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK12.

Accordingly, the DER recommended that the PTA should assess the changes in noise emissions resulting from the proposed Development by comparison with the potential use of both of the existing stow roads, and giving particular attention to the noise levels for 'elevated receivers' (that is, for residents on the upper floors of adjacent buildings) as a result of the use of ancillary equipment at the Site. The DER also recommended that the PTA should investigate the benefits and costs of building enclosures to specifically mitigate the noise levels for 'elevated receivers' on Tully Road, and that the PTA should present a full cost/benefit analysis for various combinations of noise mitigation measures to establish noise emissions which were as low as reasonably practicable.[56]

Public consultation

[56] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK12.

The Development Application was advertised and a number of objections, and a petition opposing the Development Application, were received by the MRA.[57]

Consideration by the LRC

[57] Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [34].

The LRC conducted an inspection of the Site in September 2013.[58] The LRC also held a meeting on 14 October 2013 at which persons who had made submissions in the course of the public consultation phase, and representatives of the PTA, were given an opportunity to make a presentation to the LRC.[59]
[58] Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [42].
[59] Affidavit of Ryan James Bjorn Keys dated 15 December 2014 [43] ‑ [44].
A report was then prepared by the Acting Director, Statutory Planning, MRA for the consideration of the LRC (the MRA Management Report).[60] In broad sweep, the MRA Management Report addressed the proposed Development as outlined in the Development Application; background information relating to the location of the Site within the Scheme; whether the proposed Development was consistent with the requirements of the Scheme; whether the proposed Development was consistent with other policies which were considered relevant, including Development Policy 3 - Sound Attenuation; whether the proposed Development was consistent with State Planning Policy 5.4 (SPP 5.4); the issues raised during the public consultation process; the issues raised as a result of consultation with the City of Perth and the DER; and the Herring Storer report.
[60] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK14.
The MRA Management Report contained a detailed discussion of the location of the Site within Precinct 16B, the history of that Precinct (including under the former East Perth Redevelopment Authority Scheme) and the Statement of Intent for Precinct 16B under the CPR Scheme. The MRA Management Report also noted that the proposed development
would be classified as 'Light Industrial' use or more specifically a 'Transport Depot', which is identified as a 'contemplated' land use in this location. In considering a development application for a light industrial use the Authority is required to have regard to the following objectives:
(a)ensuring the operation of the land use does not negatively affect the amenity of the locality, including operating hours, … noise … and other operations are compatible with surrounding uses;
(b)the appropriate interface of development with the surrounding environment, including amenity and quality streetscape; and
(c)ensuring the proposed development will not significantly detract from the vision for the Project Area and the intent for the Precinct.'[61]
[61] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK14.
The MRA Management Report went on to consider the impact of the proposed Development on the amenity of the surrounding area, and acknowledged that the proposed Development was a 'significant intensification of PTA's current operations on the subject site, which has the potential to affect the existing amenity of the nearby residents'. The Report recognised that unless appropriate noise mitigation strategies were implemented as a condition of approval, the proposed development would 'negatively affect the amenity of the locality'.[62]
[62] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK14.
The MRA Management Report also noted that:
The Vision for the project area is predicated on the provision of a diverse range of land uses in an easy accessibly, connected environment, while the Statement of Intent reflects the need to serve the infrastructure provisions of the PTA. It is recognised that the proposed facility aims to serve an important public transportation function, which may be considered to be in accordance with the Scheme provisions, if designed and operated in a manner that does not adversely affect the existing amenity of the area.[63]
[63] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK14.
The MRA Management Report recommended that the LRC resolve to recommend that the MRA Board approve the Development Application, subject to conditions.
On 5 December 2013, the LRC met to consider its recommendation to the MRA in respect of the Development Application. The LRC did not accept the recommendation in the MRA Management Report. Instead, the LRC resolved to recommend to the MRA that the Development Application be deferred pending the receipt of further information in relation to a noise mitigation strategy and the design of the noise attenuation wall.
The minutes of the LRC's meeting of 5 December 2013 noted that the LRC considered that a noise mitigation strategy should include a:[64]
Noise Management Plan demonstrating compliance with the MRA's Development Policy 3 - Sound Attenuation such that internal noise levels to sleeping areas (bedrooms) of adjacent residences at ground floor and above do not exceed Leq 40 Db(A) during the night time period (10pm to 6am).
[64] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK15.
The LRC recommended that the Noise Mitigation Strategy should include consideration of additional noise attenuation measures, namely the use of a supplementary air conditioning unit located at ground level on the northern side of the trains during the night; the construction of low level barriers to protect residences from noise emissions at 'wheel level'; the investigation of additional measures of noise attenuation including noise barriers to the bedroom windows of adjacent dwellings; the enforcement of operational measures to ensure trains on the southernmost track were the first to enter and the last to exit the facility (so as to effectively create a barrier of trains to reduce noise associated with train movements on the northernmost tracks, and to maximise the separation between the trains and the multi‑story residential developments on Lots 168 and 169 Tully Road); and ongoing noise monitoring and reporting.[65]

The Board's consideration of the Development Application

[65] Affidavit of Ryan James Bjorn Keys dated 6 March 2015, Annexure RJK4.

On 11 December 2013, the MRA met to consider the Development Application. In preparation for that meeting, a report was prepared for the MRA by the Director of Statutory Planning, MRA (the MRA December Report).[66]
[66] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK16.
The MRA December Report, which was before the MRA at its meeting on 11 December 2013, attached the MRA Management Report, set out an overview of the proposed Development, and set out the comments of the LRC and its recommendations. In relation to the LRC's comments and recommendations, the MRA December Report noted that:[67]
The [LRC] agreed that the [PTA] has failed to demonstrate that the noise emissions associated with the proposed development can be satisfactorily mitigated through an effective Noise Management Plan, particularly in relation to noise emissions to upper level receivers. The [LRC] also stated that the proposed noise [attenuation] wall and landscaping were not an acceptable design solution to mitigate the visual impacts of the proposed development and enhance the visual and functional amenity of the streetscape.
The [LRC] considered that the documentation submitted by the [PTA] did not sufficiently address these concerns and that it did not have the confidence that these matters could be resolved through conditions of approval.
The [LRC] resolved to recommend … that the application be deferred pending submission of the following additional information by the [PTA].
(The additional information the LRC recommended that the PTA should be required to provide was then set out in full.)
[67] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK16.
According to the minutes of the Board's meeting of 11 December 2013,[68] the Board understood that the MRA Management Report had recommended that the proposed Development be approved,
as it was considered, on balance, that the potential impacts associated with the proposed development could be satisfactorily mitigated through appropriate conditions of approval. The [LRC] resolved however to recommend the Board defer approval … pending the submission of additional information which demonstrates that noise emissions and the visual impact of the proposed development can be resolved.[69]
[68] Affidavit of Ryan James Bjorn Keys dated 6 March 2015, Annexure RJK5.
[69] Affidavit of Ryan James Bjorn Keys dated 6 March 2015, Annexure RJK5.
The minutes of the Board's meeting of 11 December 2013 also indicate that the Board then
considered whether it was satisfied that the recommended conditions attached to the approval recommended by Management were sufficiently robust to ensure the concerns with respect to the quality of the public realm and the design quality of the noise [attenuation] wall could be addressed appropriately by the PTA. The Board requested Management review the conditions and advice notes to strengthen the conditions to ensure these matters are addressed before any development work commenced.[70]
[70] Affidavit of Ryan James Bjorn Keys dated 6 March 2015, Annexure RJK5.
The Board of the MRA then reached the following conclusion:
Provided its concerns with respect to the quality of the public realm and the design quality of the noise [attenuation] wall could be addressed sufficiently, the Board was of the view that it could approve the development application.[71]
[71] Affidavit of Ryan James Bjorn Keys dated 6 March 2015, Annexure RJK5.
Consequently, the Board of the MRA then resolved
to request management revise the recommended conditions taking into account the Board's concerns. The Board requested the revised conditions be circulated to the Board out of session for its consideration and if acceptable, approval of the development application subject to the recommended conditions and advice notes.[72]
[72] Affidavit of Ryan James Bjorn Keys dated 6 March 2015, Annexure RJK5.
Mr Keys deposed that in accordance with the Board's resolution, a report and a set of revised recommended conditions were prepared by officers of the MRA for circulation to Board members out of session (the Out of Session Paper).[73] The Out of Session Paper noted that key issues in relation to the proposed Development were:
The proposed development will involve increased train movements and scheduled activities of an existing railcar storage area, which has the potential to impact on the amenity of the nearby residents. Noise emissions and the visual impact of the proposed Noise Attenuation Wall have been identified as the key issues associated with the proposal and are discussed in further detail below.[74]
[73] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK18.
[74] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK18.
In relation to noise emissions, the Out of Session Paper noted that the construction of the noise attenuation wall would have a direct benefit for residents of lower levels of adjacent buildings but not for residents of upper levels in the multi‑storey buildings at Lots 168 and 169 Tully Road. The Out of Session Paper went on to note that the SLR Reports and Herring Storer report had identified 'benefits that would be provided by upgraded glazing to neighbouring buildings'. The Out of Session Report noted that:
These reports, as well as the [MRA Management Report] did not take into consideration any acoustic glazing treatments that have already been installed to the residential buildings at Lot 168 and Lot 169 Tully Road to mitigate noise from the existing stow roads, neighbouring railway line and Graham Farmer Freeway.
…
Following a subsequent review of the working drawings for the residential apartment buildings at Lot 168 and Lot 169 Tully Road, it was identified that each building has been designed with 10.38mm thick 'acoustic' glass to the bedroom windows and some living area windows to reduce external noise. The Noise Management Plan prepared by SLR and dated 4 October 2013 suggests that glazing to this standard would be sufficient to reduce noise emissions to upper level receivers to an acceptable standard. This advice has also been confirmed by Herring Storer Acoustic Consultants.
On this basis it is considered that the remaining primary measures to be implemented for the expansion of the rail stow roads relate to operation and management rather than the more substantial physical works. Consequently, it is reasonable for the application to be approved, subject to a condition which requires a revised Noise Management Plan to be prepared to the satisfaction of the Authority. An Advice Note is also recommended which states that the revised Noise Management Plan is to incorporate an ongoing noise monitoring regime and communications plan which ensures that any complaints from residents are responded to in an effective and timely manner.[75]
[75] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK18.
The Out of Session Paper concluded:
The additional information presented in this report demonstrates that the residential buildings most impacted by the [proposed Development] which are located at Lot 168 and Lot 169 Tully Road, have been designed with glazing that will provide a suitable level of sound attenuation to reduce internal noise levels within sleeping areas to an acceptable level. The conditions of approval have also been reworded to ensure noise emissions … are both satisfactorily addressed prior to the commencement of any works.[76]
[76] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK18.
The Out of Session Paper also recommended an alternative condition in relation to the visual amenity of the Noise Attenuation Wall, so that the wall provided a 'quality architectural outcome which also enhances the visual and functional amenity of the immediate area'.[77]
[77] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK18.
Accordingly, it was recommended that the Board resolve to approve the Development Application subject to 13 conditions of approval which were set out in an attachment to the Out of Session Paper.

The documents before the Board when it made the Decision

Annexed to Mr Keys' affidavits were the Development Application, and what appear to have been all of the documents provided to the MRA in support of, or in relation to, the Development Application. In addition, the annexures to Mr Keys' affidavits included the MRA Management Report (which itself appears to have annexed copies of documents referred to in that Report), the Minutes of the LRC's meeting of 5 December 2013, the MRA December Report, and the Out of Session Paper. Further, the annexures to Mr Keys' affidavits also included an extract of the Minutes of the Board's meeting on 11 December 2013, an extract of its Out of Session Resolution of 16 December 2013, and a copy of the Approval to Undertake Development. The parties approached the hearing of the judicial review application on the basis that these documents set out all of the material before the Board, and thus comprised the totality of the material considered by it, for the purposes of reaching the Decision. I have approached the grounds of review on that basis.

The Decision

Following consideration of the Out of Session Paper, the Board resolved unanimously to approve the Development Application, subject to various conditions of approval.[78] Those conditions included:[79]
[78] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK20.
[79] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK21.
(2)a revised Noise Management Plan must be submitted to and approved by the [MRA] at the compliance package stage, in consultation with the City of Perth and the [DER].
The revised Noise Management Plan shall incorporate the measures identified in the Noise Management Plan prepared by SLR dated 4 October 2013 together with the following additional measures into the operation, management and development:
•Use of supplementary air conditioning units during the night time period;
•Construction of a suitable barrier near the southern most track to reduce noise emissions from the wheel/rail interaction noise, air compressor and air release;
•Enforcement of operational measures to reduce noise associated with train movements on the northernmost tracks;
•Maximising the separation between the trains and the multi-storey residential development on Lot 168 (No. 39) and Lot 169 (No. 41) Tully Road;
•A communications strategy which ensures that any complaints from residents are dealt with in an effective and timely manner; and
•An ongoing noise monitoring regime which demonstrates to the MRA that appropriate measures have been implemented to ensure that noise levels to the bedrooms of the adjoining residences will comply with acceptable standards.
…
(3)The approved Noise Management Plan must be implemented and complied with at all times.
(4)The Noise Attenuation Wall must be designed to provide a quality architectural outcome which also enhances the visual and functional amenity of the immediate area, details of which are to be provided at the compliance package stage to the satisfaction of the [MRA], in consultation with the City of Perth. …
(5)A Construction Management Plan, including details of proposed construction noise management measures, is to be submitted at compliance package stage to the satisfaction of the [the MRA] in consultation with the City of Perth.
In relation to conditions 2 and 4, the Advice Notes which accompanied the conditions noted:[80]
(b)With regard to Condition 2, the [PTA] is advised that the Noise Management Plan prepared by SLR dated 4 October 2013 has not sufficiently demonstrated that appropriate measures will be implemented to reduce noise levels within nearby residential buildings to acceptable levels.
(c)A revised Noise Management Plan must be prepared which demonstrates that the development has been designed and will be operated to meet the requirements of [SPP 5.4] MRA's Development Policy 3 - Sound Attenuation and the [Noise Regulations] with regard to the internal amenity of the adjacent residences. The revised Noise Management Plan shall also incorporate the proposed measures outlined in Section 6 of the SLR Noise Management Plan dated 4 October 2013.
(d)With respect to Condition 4, the [PTA] is required to demonstrate that consultation with local residents has occurred and that the residents' concerns in respect of the design of the Noise Attenuation Wall have been appropriately considered and resolved prior to finalisation of the design of the wall.
[80] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK21.

The grounds of review and the relief sought

The applicants sought a writ of certiorari to quash the Decision, and a writ of mandamus to compel the MRA to make a fresh decision which rejected the Development Application. Whether a writ of certiorari will lie in respect of a decision challenged by way of judicial review requires consideration as a threshold question.[81] The Decision clearly has an ongoing legal and practical effect. It is one in respect of which certiorari will lie, if jurisdictional error is made out.
[81] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [31], [40] (the Court).

The grant of the writ of certiorari enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, including jurisdictional error.[82] Where the writ is sought on that basis, the court entertaining the application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it.[83] (It was for that reason that the material which was before the MRA, including material considered by the LRC which was subsequently placed before the MRA, was properly placed before the Court.)
[82] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 175 ‑ 176 (the Court).
[83] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 175 ‑ 176 (the Court).
The applicants' re‑amended grounds of review contended that the Decision manifested five kinds of jurisdictional error, namely acting in excess of power, failure to take into account relevant considerations, taking into account irrelevant considerations, failure to be satisfied of matters about which the MRA was required to be satisfied, and that the Decision was manifestly unreasonable. There were numerous sub-grounds in respect of the failure to take into account relevant considerations and taking into account irrelevant considerations, and numerous matters were said to have rendered the Decision manifestly unreasonable.
Given that I have concluded that the grounds of review are not made out, it is unnecessary to give consideration to whether a writ of mandamus would have been necessary or appropriate in this case.
Before turning to consider each of the grounds of review, it is necessary to give further attention to the statutory parameters of the MRA's power to consider the development application.

The statutory parameters for the exercise of the MRA's power to make the Decision

Many of the grounds of review advanced by the applicants were premised on the view that the MRA was obliged to apply particular provisions of the CPR Scheme. I am not persuaded that the MRA is under an obligation to apply every provision of the MRA Act in respect of every development application (nor this one in particular), for three reasons. First, s 54 expressly makes clear that the obligation to act in accordance with a redevelopment scheme 'does not affect the discretion conferred on the [MRA] by section 66(1)'.[84] As I explain below, s 66(1) requires the MRA to give active consideration to the matters set out in that subsection, but leaves the MRA free to give those matters such weight as it considers appropriate in determining the development application.
[84] MRA Act s 54(2).
Secondly, not all of the provisions of the CPR Scheme will be engaged in respect of each development application. Many of the provisions of the CPR Scheme which provide guidance on the use of land within the Scheme Area are couched in extremely broad and general terms, or are expressed in aspirational language. The extent to which they will be engaged by a particular application will necessarily vary. In addition, not all of the provisions of the CPR Scheme purport to apply to every part of the Scheme Area, and not all of them are capable of application in relation to each development application which might conceivably be made. Clause 5.22 of the CPR Scheme recognises that not all provisions of the CPR Scheme will be relevant in respect of every development application. It requires the MRA to have 'due regard for' certain matters, including the Scheme Vision and Principles and for 'all other relevant provisions of the Scheme' (emphasis added).
Thirdly, the CPR Scheme expressly permits the MRA to approve a development application even if the application does not comply with a provision of the Scheme.[85]

The content of the requirement that the MRA must 'have regard to' the matters in s 66(1) of the MRA Act

[85] CPR Scheme cl 5.23.

It is also necessary to say something more about the requirement in s 66(1) for the MRA to 'have regard to' the matters listed in that subsection, and to the requirement in cl 5.22 of the CPR Scheme that the MRA 'have due regard for' the matters there set out. In my view, there is no material difference in the meaning and effect of those obligations, although of course the list of matters to which regard must be had is not identical.
The word 'regard', when used as a verb, is synonymous with 'consider' and 'take into account'.[86] In other words, the phrase 'have regard to' (or 'have due regard for') requires the MRA to take into account, or give consideration to, the matters listed. In my view, s 66(1) of the MRA Act and cl 5.22 of the CPR Scheme together identify the relevant considerations which the MRA is required to take into account in considering a development application.
[86] Oxford English Dictionary Online.
The question which then arises is the extent to which the MRA is required to give consideration to those matters. There are divergent authorities about the content of a requirement for a decision‑maker to take into account relevant considerations when exercising a statutory power.[87] One line of authority is to the effect that provided the relevant matter is given some consideration, the duty is discharged.[88] The alternative line of authority, which has received support in this State,[89] is to the effect that the requirement to take into account a relevant consideration is a requirement to give proper, genuine and realistic consideration to the relevant matter.
[87] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J).
[88] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 ‑ 41 (Mason J).
[89] Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 [60] (McLure JA, LeMiere AJA agreeing), but cf A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [88] ‑ [92] where Martin CJ and Murphy JA concluded it was unnecessary to determine which line of authorities was to be preferred.
However, in every case, the content of an obligation on a decision‑maker to take into account relevant considerations - or, as in this case, to 'have regard to' or to 'have due regard for' particular matters - must be determined by a process of statutory interpretation. That process requires that the words used in the statute be construed within their statutory context.[90]
[90] CIC Insurance Ltd v Bankstown Football Club [1997] HCA 2; (1997) 18 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); AB v Western Australia [2011] HCA 42; (2011) 244 CLR 340 [10], [23] ‑ [24], [36], [38] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).
In the present case, the statutory context includes the variety of matters which the MRA is required to consider under s 66(1) of the MRA Act. The matters set out in s 66(1) of the MRA Act are not of a substantive or measurable kind - they do not require the MRA to be satisfied of the existence of particular facts, criteria or effects, for example. Further, the matters to which the MRA must have regard includes submissions of agencies or authorities consulted about the proposed Development. Those submissions may contain the views of the agency as to whether the development application should be approved, or may identify matters which the agency considers warrant further investigation before a decision is made. In addition, the list of matters includes the applicable redevelopment scheme (that is, the CPR Scheme). Such planning instruments will typically set out broad guidelines or objectives for the use of land in a particular area, and will leave a large measure of discretion for a decision‑maker to determine whether a proposed development is consistent with those guidelines or objectives.
In other words, the matters in s 66(1) of the MRA Act are not matters which can necessarily be applied, or complied with, when the MRA makes a decision on a development application.
These contextual considerations suggest that the words 'have regard to' in s 66(1), and to 'have due regard for' in cl 5.22 of the CPR Scheme, give rise to something less than a requirement that the MRA must apply, or must act in compliance with, all of the matters listed.
The statutory context for s 66 extends to other provisions of the MRA Act, including s 54, which (as I have already explained) contains an obligation on the MRA to act in accordance with the CPR Scheme, but that obligation does not affect the MRA's discretion under s 66(1). Section 54 also supports the conclusion that the words 'have regard to' in s 66(1) give rise to something less than a requirement that the MRA must apply, or must act in compliance with, all of the matters listed.
The legislative purpose is also relevant in the construction of s 66. Given the range and character of the matters to which the MRA is to 'have regard', the legislative purpose appears to be to ensure that when the MRA comes to determine a development application, it will have before it all of the information and sources of guidance which will enable it to make a sound planning decision, and that in reaching its decision, the MRA will use such of that information as it considers relevant to the application before it. That legislative purpose would be achieved if the MRA were required to give 'active consideration'[91] to the matters listed in s 66(1), while retaining a discretion to give such weight to those considerations as it considers appropriate in the circumstances.
[91] cf Tobacco Institute of Australia Ltd v National Health & Medical Research Council (1996) 71 FCR 265, 277 (Finn J).
Accordingly, when all of these considerations are taken into account, the requirement to 'have regard to' the matters in s 66(1) means that the MRA must give active or positive consideration to the matters listed, to the extent that they apply in any particular case.
In my view, by a similar process of reasoning, the requirement to 'have due regard for' the matters listed in cl 5.22 of the CPR Scheme means that the MRA must give active or positive consideration to the matters listed, to the extent that they apply in any particular case.
In the absence of any statutory indication of the weight to be given to relevant considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to those matters, and the decision-maker will not err in law merely because it fails to place 'adequate weight' upon a consideration which it is bound to take into account.[92] Nothing in s 66(1) of the MRA Act, or in cl 5.22 of the CPR Scheme, dictates that particular weight should be given to any of the matters listed. Indeed, in so far as s 66(1) of the MRA Act is concerned, the MRA's discretion in relation to the weight to be given to the matters listed is confirmed by s 54(2) of the MRA Act.
[92] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41 (Mason J).
Consequently, in my view, the MRA is free to determine the weight which should be given to the matters listed in s 66(1) and in cl 5.22 of the CPR Scheme.
Finally, it is convenient to deal at this point with a further argument advanced by the applicants.[93] That argument was to the effect that the MRA failed to engage in what was a mandatory analysis of whether the proposed Development was desirable - judged against the provisions of the CPR Scheme and the objectives in reg 14 - and instead approached its decision‑making function on the basis that the Development should be approved so long as conditions could be imposed which sufficiently ameliorated the negative impacts of the Development on the surrounding residential area. The applicants submitted that for the MRA to approach its role in this way would generally be an error,[94] and was rendered unlawful by the mandatory requirements of s 66(1) of the MRA Act.
[93] Applicants' written submissions [37] ‑ [40].
[94] The applicants relied, in particular, on McKenzie Constructions Pty Ltd v Development Assessment Commission [1999] SASC 386; (1999) 74 SASR 539, 546 ‑ 547 [40] (Bleby J, Doyle CJ & Wicks J agreeing).
I do not agree that the MRA failed to perform is primary planning role of assessing the merits of the development application in this case. As I explain below, it is apparent from the MRA Management Report that the MRA was clearly of the view that the proposed Development constituted a use which was a contemplated use of the land in Precinct 16B under the CPR Scheme. It was clearly satisfied that the proposed Development was consistent with the Statement of Intent for Precinct 16B. The conditions the MRA imposed on the proposed Development were in large part directed to minimising the potential adverse effects of the proposed Development on the amenity of the locality, and particularly for those residents of the buildings on the Stokes Way/Tully Road land. But this was not a case where the conditions imposed so changed the nature of the proposed Development that it became something other than what was intended.[95] Instead, in my view, the conditions can properly be characterised as regulating incidental aspects of the proposed Development, such as the noise generated in the construction of the proposed Development, and during the operation of the stowage and maintenance work at the Site after the development was carried out.

The ground of review alleging that the MRA acted in excess of power in approving the Development Application
[95] cf McKenzie Constructions Pty Ltd v Development Assessment Commission [1999] SASC 386; (1999) 74 SASR 539, 546 ‑ 547 [41] (Bleby J, Doyle CJ & Wicks J agreeing).

Ground 1 of the grounds of review is in the following terms:
1.The [MRA] acted in excess of power by approving the Development in circumstances where the Development would result in development located along the northern periphery of Precinct 8, as identified in clause 3.3 of the Central Perth Redevelopment Scheme (the 'Scheme'), to cease to be quality development.
The essence of this ground is that the MRA had no power to approve the Development Application because its approval could only be given when the requirements of the CPR Scheme were met. The applicants contend that the requirements of the CPR Scheme were not met in this case because the Decision was inconsistent with the Scheme Principles applicable to Precinct 8 Belvidere under the CPR Scheme (see [31] and [45] above).[96] The applicants' case is that if the proposed Development proceeds, the development located along the northern periphery of Precinct 8 Belvidere (that is, the Stokes Way/Tully Road land) will cease to be a 'quality development' for the purposes of the CPR Scheme, because of the visual impact of, or the noise or vibrations generated by, or the destruction or diminution of the amenity of the Stokes Road/Tully Way land as a result of, the proposed Development.
[96] ts 61.
An administrative decision‑maker will exceed its authority or powers, and thus fall into jurisdictional error, if (amongst other things) it makes an error of law which causes it to ask itself a wrong question or, in some circumstances, to reach a mistaken conclusion, by which its exercise or purported exercise of power is affected.[97] Ground 1 of the grounds of review appears to allege a jurisdictional error of that kind.
[97] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (the Court); see also Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [67] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
Ground 1 of the grounds of review must be dismissed, for two reasons.
First, the MRA was required to 'have regard to' or 'have due regard for' the CPR Scheme in the manner explained above. There is no doubt that it did so. The information which was before the MRA when it made the Decision included a copy of the MRA Management Report and the MRA December Report. Both reports noted that the proposed Development was required to comply with the CPR Scheme, and discussed key issues arising from the CPR Scheme which were considered relevant to the proposed Development. It is apparent from the minutes of the MRA's meetings that Board members gave active consideration to those aspects of the CPR Scheme which they considered were applicable to the proposed Development. Nothing in the terms of the Decision itself is inconsistent with that conclusion.
Secondly, nothing in the CPR Scheme expressly prohibited the MRA from approving the Development Application. The applicants contended that the MRA was obliged to act in accordance with the CPR Scheme, and in particular, with cl 3.1 of the CPR Scheme which is set out at [35] above. However, cl 3.1 of the CPR Scheme simply required that development within the Scheme Area be 'generally consistent' with the vision and intent set out in ch 3 'for the relevant Project Area and Precinct'.
In so far as the applicants contended that, in considering the Development Application, the MRA was obliged to apply the statement of intent for Precinct 8 Belvidere which is set out in cl 3.3 of the CPR Scheme, that argument must be rejected. For the reasons outlined above, Precinct 8 Belvidere no longer falls within the Scheme Area. In addition, nothing in the CPR Scheme precluded the MRA from approving the Development Application unless the proposed Development was consistent with the statement of intent for Precinct 8 Belvidere.
Whether or not the proposed Development was 'generally consistent' with the vision and principles of the CPR Scheme was a matter for the judgment of the MRA. A review of any alleged error in that judgment would involve a review of the merits of that decision, rather than judicial review.
Ground 1 of the grounds of review should be dismissed.

The grounds of review alleging that the MRA failed to take into account relevant considerations, and that the MRA took into account irrelevant considerations, in making the Decision

The applicants contend that the MRA failed to take into account a number of relevant considerations, and took into account a number of irrelevant considerations, in making the Decision. A failure to take into account relevant considerations will result in the decision‑maker failing to exercise the power given to it within the parameters set by the legislature. It is for that reason that the decision constitutes an error of law which gives rise to jurisdictional error. The concept of 'irrelevant considerations' in the context of judicial review refers to factors which are extraneous to the proper exercise of power, so that to take them into account will also result in the decision‑maker failing to exercise its power within the parameters set by the legislature. To do so will result in an error of law in the nature of a jurisdictional error.[98]
[98] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J).
For the reasons set out above at [106] ‑ [116], the factors which are 'relevant considerations' in the exercise of the MRA's power to approve or refuse a development application are those set out in s 66(1) of the MRA Act and in cl 5.22 of the CPR Scheme.
Nothing in the MRA Act expressly precludes the MRA from taking into account any particular factor, an 'irrelevant consideration' for the purposes of its decision‑making power under s 66(2) of the MRA Act and cl 5.22 of the CPR Scheme.
The two categories of 'relevant' and 'irrelevant' considerations do not constitute an exhaustive description of matters which may be considered by a decision‑maker. There will, in very many cases, be a category of legitimate factors, consideration of which is neither mandated nor precluded.[99] If a decision‑maker takes such matters into account, or if it does not take them into account, in making its decision, it will not, for that reason, fall into jurisdictional error.
[99] Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239 [113] (Basten JA).

(b) The grounds of review alleging that the MRA took into account irrelevant considerations in making the Decision

Ground of review 3 contends that the MRA took into account various matters which were irrelevant, or were extraneous, to the exercise of the MRA's power under s 66(2) of the Act.
As I observed at [132], the MRA Act does not expressly prohibit the MRA from taking into account any particular factor, which might thus be identified as an irrelevant consideration for the purposes of its decision‑making power under s 66(2) of the MRA Act and cl 5.22 of the CPR Scheme.
The question whether matters other than those listed in s 66(1) of the MRA Act, and cl 5.22 of the CPR Scheme, constituted irrelevant considerations depends on whether there can be found in the subject‑matter, scope and purpose of the MRA Act (or the CPR Scheme, in so far as it constitutes subsidiary legislation) an intention to limit the matters which the MRA may take into account to those set out in s 66(1) and cl 5.22 of the Scheme.[125]
[125] cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40 (Mason J).
I am not persuaded that there can be discerned from the subject‑matter, scope and purpose of the MRA Act, an intention that the matters set out in s 66(1) of the MRA Act, and in cl 5.22 of the CPR Scheme, constituted an exhaustive list of the matters to which the MRA can have regard in considering a development application. Nor am I persuaded that any other provision of the Act supports the inference that certain factors were wholly irrelevant to the MRA's decision‑making. The MRA Act clearly confers a broad discretion on the MRA to determine whether development applications should be approved. It is entirely consistent with that broad discretion that the Parliament would require that the MRA have regard to specific considerations but would not seek to circumscribe the matters to which it might otherwise have regard.
A wide range of matters are required to be considered for the purposes of the MRA's decision in respect of a development application. As I have already observed, some of those matters are expressed in very broad and general, and in some cases, aspirational, terms. If s 66(1) were construed as an exhaustive list of considerations which may be taken into account, in practical terms, it would be extremely difficult to draw a distinction between matters legitimately arising from these broad and general considerations, and matters otherwise irrelevant to the exercise of the MRA's discretion. That suggests it is unlikely that it was intended that such a distinction would need to be drawn.
In addition, the matters to which the MRA must have regard include submissions from agencies which are consulted under s 64 of the MRA Act. There is no limit on the matters which those agencies may raise in support of, or opposition to, a development application. Those agencies may raise new considerations which are not otherwise referred to in s 66(1) or in the CPR Scheme. In that context, it is difficult to see any rational basis for an implication that the Parliament intended to limit the matters to which the MRA could have regard to those listed in s 66 of the MRA Act or cl 5.22 of the CPR Scheme.
The same considerations also warrant the conclusion that cl 5.22 of the Scheme was not intended to represent an exhaustive list of the matters which the MRA was permitted to consider in determining whether to approve a development application.

Ground 3.1 of the grounds of review

Ground 3.1 of the grounds of review is in the following terms:
3.1:The [MRA] took into account an irrelevant or extraneous consideration, namely that the Development purportedly serving an important public transportation function, which function was applicable to the broader Perth metropolitan passenger railway network, and not to Central Perth Redevelopment Area or any part thereof.
It is not at all apparent that the public transportation function served by the proposed Development can be considered extraneous to the contemplated use of the Site, and the Statement of Intent for Precinct 16B, to which the MRA is permitted to have regard under the CPR Scheme.
However, even if that public transportation function can be characterised as a factor falling outside the matters to which the MRA must have regard under s 66(1), ground 3.1 must nevertheless be dismissed, for the reasons outlined above.

Ground 3.2 of the grounds of review

Ground 3.2 of the grounds of review is in the following terms:
3.2:The [MRA] took into account an irrelevant or extraneous consideration, namely the fact that the Application had been deemed to have been refused pursuant to s 65(2) of the Act and clause 5.14 of the Scheme.
The minutes of the MRA's meeting of 11 December 2013 indicated that 'the MRA was advised that the development application was now in the deemed refusal period therefore the PTA was technically able to commence its development which whilst unlikely, made time of the essence for the MRA to make a decision.'[126] That advice was clearly erroneous. If there had been a deemed refusal of the Development Application, it would not have been open to the PTA to commence the Development.
[126] Affidavit of Ryan James Bjorn Keys dated 6 March 2015, Annexure RJK5, page 28.
Counsel for the applicants submitted that the MRA took that erroneous consideration into account, and as a result proceeded, with haste, to make a decision rather than to undertake the further consideration of the noise mitigation strategies which the LRC had recommended.
I am unable to accept that submission. In my view, it is apparent from the minutes of the Board's meeting on 11 December 2013 that notwithstanding that the MRA received that erroneous information, that information did not have any material effect on the Decision. The extract of the minutes of the Board's meeting of 11 December 2013 which was in evidence indicate that the MRA considered the issue of the adequacy of the conditions of approval of the Development Application which were proposed by the management of the MRA. Clearly the MRA was not satisfied with those conditions because it did not proceed to give approval to the Development Application at that meeting. Instead, the MRA
requested Management review the conditions and advice notes to strengthen the conditions to ensure these matters are addressed before any development work commenced [sic]. … The Board resolved to request Management revise the recommended conditions taking into account the Board's concerns. The Board requested the revised conditions be circulated to the Board out of session for its consideration.[127]
[127] Affidavit of Ryan James Bjorn Keys dated 6 March 2015, Annexure RJK5.
I am not persuaded that the inaccurate information on which the applicants rely had any material impact on the MRA's consideration of the Development Application or on the Decision.
In any event, for the reasons outlined above at [208] - [213], ground 3.2 must be dismissed.

Ground 3.3 of the grounds of review

Ground 3.3 of the grounds of review is in the following terms:
3.3:The [MRA] took into account an irrelevant or extraneous consideration, namely a communication from the CEO of the First Respondent's predecessor, the East Perth Redevelopment Authority, to the Second Respondent in 2007.
The basis for this ground is that the MRA Management Report contains an observation (the observation) in the following terms:[128]
It is noted that in 2007 the CEO of the EPRA wrote to the PTA advising that it 'has no objection to the balance of the land (the subject site) being used for depot purposes and specifically additional railway roads to stable trains'.
[128] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK14.
The applicants produced a copy of the letter[129] and contended that it did not concern the Site at all. Accordingly, the applicants submit that the observation was irrelevant to the Site, and was a consideration to which the MRA should not have had regard.
[129] Affidavit of Andrew Vaughan Blake sworn 3 March 2015, Annexure AVB20.
For the reasons outlined above at [208] ‑ [213] ground 3.3 of the grounds of review must be dismissed.
In any event, I note that the observation is included in a section of the MRA Management Report entitled 'Background'. Nothing in the balance of the MRA Management Report or in the other materials which were before the MRA suggest the observation had any material influence on the Decision.
Ground 3.3 should be dismissed.

The ground of review alleging that the MRA did not satisfy itself of matters of which it was required to be satisfied before it could approve the Development Application

Ground 4 of the grounds of review is that the MRA acted outside the scope of its power by failing to be satisfied of a matter of which it was required to be satisfied before it could approve the Development Application.
Ground 4 of the grounds of review is in the following terms:
4:The [MRA] did not satisfy itself of the matters prescribed in clause 5.23 of the Scheme, which was required because the Application did not comply with Development Policy 3 Sound Attenuation (being a planning document adopted under the Scheme by reason of clause 8.24 of the Scheme) and pursuant to s.66(1)(a) of the Act and clause 5.23 of the Scheme.
The applicants' case, in short, was that the Development Application did not comply with section B of DP3, in that it was not accompanied by a report which addressed the extent of compliance with the Noise Regulations. They contended that because the Development Application did not comply with DP3, the application was one which did not comply with a planning document adopted under the CPR Scheme, and approval of the Development Application could only be granted under cl 5.23 of the CPR Scheme (see [56] above). The applicants submitted that the MRA did not satisfy itself of the matters set out in cl 5.23 of the CPR Scheme, and that that constituted a jurisdictional error.
Section B of DP3 deals with Noise Emitting Development, which are defined to include, amongst other things, '[i]ndustrial land uses that generate a high degree of operational or equipment noise' and '[c]ommercial or other land uses that present, in the opinion of the Authority, a potential high degree of noise generation, such as from amplified music, equipment or other operational aspects'.[130] Clause B4 of DP3 provides:
[130] Affidavit of David John Caddy sworn 22 September 2014, Annexure DC6.
An acoustic report and associated plans are required detailing the developments compliance with the Performance Standards/Legislative Requirements for noise emitting development.
For noise emitting development a preliminary acoustic report will usually be required to be submitted to the Authority as a part of the Development Application to confirm that the premises is capable of being attenuated to ensure compliance with the [Noise Regulations]. Detailed reporting and plans will then be required at Working Drawings stage. Reports are to be prepared by a qualified and experience acoustic consultant.
The report to be submitted at Working Drawings stage is to include:
•The identification of all noise sources… ;
...
•Determination of noise source levels and character;
•The establishment of Assigned Levels for noise sensitive premises in the vicinity in accordance with the [Noise Regulations];
…
•A detailed description of the construction measures that are required to be included, or which have been included, in the proposed development to enable compliance with the [Noise Regulations]. …
•For premises that have external noise sources, a description of the measures that are required to be included, or which have been included in the proposed development to comply with the [Noise Regulations].
Under DP3, the Development Application is only required to be supported by a preliminary acoustic report which confirms that the premises is capable of being attenuated to ensure compliance with the Noise Regulations. It is only at the Working Drawings stage (which, as the conditions of approval and Advice Notes in this case recognised, follows the grant of approval for the Development Application) that a more comprehensive report is required from an acoustics expert which must identify the noise sources, their levels and character, and any noise sensitive premises in the locality, and identify the measures to be implemented, both at the construction and operational stages, to enable compliance with the Noise Regulations.
Ground 4 should be dismissed for three reasons. First, there is nothing in the evidence to indicate that when the MRA made the Decision it purported to act under cl 5.23 of the CPR Scheme. There is nothing which suggests that the MRA considered that the Development Application did not comply with DP3, or with a provision of the CPR Scheme, or with any planning document adopted under the CPR Scheme. Accordingly, I am not persuaded that this was a case in which the Decision was made in the exercise of the MRA's power under cl 5.23 of the CPR Scheme. Furthermore, nothing in cl 5.23 or cl 5.24 of the Scheme suggests that cl 5.23 is the only source of power for the MRA to give its approval to a proposed development when a development application fails to comply with a provision of the CPR Scheme or a planning document adopted under the CPR Scheme. On the contrary, when viewed in the context of the broad discretion conferred under cl 5.24 (which reflects s 66(2) of the MRA Act), cl 5.23 appears to constitute an additional avenue by which the MRA may give approval to a proposed development. Consequently, it was not necessary for the MRA to be satisfied of the matters set out in cl 5.23.
Secondly, the applicants have not established that the Development Application itself failed to comply with DP3, and thus that cl 5.23 applied in this case. The applicants' case, as I have said, was that DP3 required that the Development Application be accompanied by a report addressing how the proposed Development complied with the Noise Regulations. I do not accept that that was so.
In support of the Development Application the PTA submitted reports from SLR Consulting.[131] SLR assessed the noise which would emanate from the Site if development were approved, and the noise which would be generated during construction. SLR expressly recognised that construction noise was assessed in accordance with the Noise Regulations. As the Herring Storer report subsequently indicated, the SLR Report did not assess the noise emanating from the maintenance of the trains for its compliance with the Noise Regulations. But DP3 did not require an assessment of compliance with the Noise Regulations at the development application stage. Rather DP3 indicated that an acoustics report would 'usually' be required to confirm that the premises is capable of being attenuated to ensure compliance with the Noise Regulations.
[131] Affidavit of Ryan James Bjorn Keys dated 15 December 2014, Annexure RK8.
In this case, the MRA was clearly satisfied, having regard to the SLR Reports, the Herring Storer report and the information set out in the MRA December Report (in relation to the existing noise attenuation measures already in place on the windows of the adjacent multi‑storey buildings) that measures to attenuate the noise from the Site could be put in place to ensure compliance with the Noise Regulations.
Thirdly, even if this was a case in which cl 5.23 of the CPR Scheme applied, the evidence permits the inference that the MRA was satisfied of the matters set out in cl 5.23. For the reasons set out above, it is clear that the MRA gave active consideration to the CPR Scheme Vision and Principles, to the potential adverse impacts on the amenity of the locality as a result of the proposed Development, and to the principles of orderly and proper planning. The fact that it approved the proposed Development permits the inference that the MRA was satisfied that the proposed Development was consistent with the CPR Scheme Vision and Principles, and with the principles of orderly and proper planning, and that the imposition of conditions would adequately ensure that the proposed Development would not have a significant adverse effect on the amenity of the locality nor compromise the vision or intent of the Project Area or of Precinct 16B.

The grounds of review alleging that the Decision was manifestly unreasonable

Ground 5 of the grounds of review contends that the MRA 'acted unreasonably' (by which it was apparent that the applicants meant that the Decision was manifestly unreasonable) in a variety of ways.

(a) Principles in relation to manifest unreasonableness as a basis for jurisdictional error

It is well established that a decision‑maker will exceed his or her jurisdiction if the decision‑maker makes a decision which is manifestly unreasonable: in other words, a decision which is outside the parameters for reasonable decision‑making contemplated by the statute which confers the decision‑making power. The parameters of reasonable decision‑making contemplated by a statute fall to be discerned by the construction of the statute having regard to its terms, scope and purpose.[132]
[132] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 364 [67] (Hayne, Kiefel & Bell JJ).
Manifest unreasonableness may be discerned in a decision which is arbitrary, capricious, vague or fanciful,[133] or a decision which, having regard to the scope and purpose of the statute, involved an error in reasoning, or illogical or irrational reasoning, or gave disproportionate weight to some factor.[134] However, a decision which is manifestly unreasonable will not be limited to a decision which is, in effect, irrational, bizarre, or one which is so unreasonable that no reasonable person could have arrived at it.[135] Instead, if the decision is one which 'lacks an evident and intelligible justification',[136] that will signal jurisdictional error.
[133] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 351 [28] (French CJ), 363 [65] (Hayne, Kiefel & Bell JJ).
[134] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 352 [30] (French CJ), 365 ‑ 366 [72] (Hayne, Kiefel & Bell JJ), 370 ‑ 371 [90] (Gageler J).
[135] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 364 [68] (Hayne, Kiefel & Bell JJ).
[136] Minister for Immigration and Citizenship v Li [2013] HCA 13; (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel & Bell JJ).
In addition, a decision which manifests an error within one of the other well established categories of jurisdictional error (such as where the decision‑maker misconstrues the statute, takes into account an irrelevant consideration, or fails to take into account a relevant consideration) may also constitute a manifestly unreasonable exercise of the statutory power.[137]
[137] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 350 [26] ‑ [27] (French CJ), 365 [71] (Hayne, Kiefel & Bell JJ).
Whatever synonyms for manifest unreasonableness might be used, it remains the case that the test for manifest unreasonableness remains a stringent one.[138] Any other approach would risk a descent into wholesale merits review, where the court engaging in judicial review simply substituted its own view of the proper (or preferable) exercise of the discretion for that reached by the decision‑maker.

(b) The claims of manifest unreasonableness

[138] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 377 ‑ 378 [113] (Gageler J).

It is convenient to deal with all of the grounds of review in ground 5 together. Those grounds of review are in the following terms:
5.1:The [MRA] acted unreasonably for the reasons set out in grounds of review 1 to 4;
5.2:The [MRA] acted unreasonably in that the Development is inconsistent with each of:
5.2.1the matters to which the [MRA] is required to have regard by s.66(1)(a) to (e) of the Act;
5.2.2the objectives for the Central Perth Redevelopment Area prescribed in Regulation 14;
5.2.3the matters to which clauses 5.16(j) to (n) of the Scheme required the [MRA] to have regard;
5.2.4the Scheme vision, as set out in Chapter 1 of the Scheme;
5.2.5the Scheme principles, as set out in Chapter 2 of the Scheme;
5.2.6the First Respondent's intent for each of Precincts 8 and 16B, as stated in clause 3.3 of the Scheme;
5.2.7Development Policy 3 Sound Attenuation;
5.2.8the matters that clause 5.22 of the Scheme requires the [MRA] to have due regard for;
5.2.9orderly and proper planning; and
5.2.10the current and intended amenity of the locality.
5.3:The MRA acted unreasonably in that there is no provision in the Act, the Regulations or the Scheme that:
5.3.1contemplates or provides for a development or use in Precinct 16B in the nature of the Development;
5.3.2is consistent with the Development being undertaken on the Site; or
5.3.3provides for a purpose, principle, vision, intention or objective which is in any way advanced by the Development being undertaken on the Site.
5.4:The [MRA] acted unreasonably in that the noise report obtained by the [MRA] from SLR was based upon an anticipated 176 train movements per day, instead of the 234 moments anticipated by the PTA;
5.5:The [MRA] acted unreasonably in that the Approval was granted in circumstances where:
5.5.1:officers of the [MRA] had prepared a report that opined that:
5.5.1.1the Development had the potential to affect the existing amenity of nearby residents;
5.5.1.2a noise wall alone would not effectively reduce noise levels to upper floors of nearby residential buildings, and no alternative measures were proposed; and
5.5.1.3unless additional measures were proposed to reduce noise emissions, noise emissions from the Development were likely to have a significant adverse impact on the amenity of residents in the vicinity of the Site.
5.5.2:a Land Redevelopment Committee established for the Central Perth Redevelopment Area pursuant to s.26 of the Act recommended to the [MRA] that the [MRA's] consideration of the Application be deferred pending the submission of additional information by the PTA regarding noise and noise attenuation;
5.5.3the [MRA] considered that the deemed refusal of the Application (pursuant to s.65(2) of the Act and clause 5.14 of the Scheme) allowed the PTA to commence the Development;
5.5.4:no assessment of whether the Development would comply with the EPN Regulations was undertaken.

In my view there was nothing manifestly unreasonable about the Decision (in the Li sense of that test) for the following five reasons.
First, the decision was not unreasonable, for the reasons set out in respect of grounds of review 1 ‑ 4. Secondly, for the reasons set out at [170] above, the Decision permitted a use which was clearly a 'Contemplated Use' for the Site under the CPR Scheme. That use was one which was consistent with the existing use of the Site (albeit far more intense). Thirdly, in reaching the Decision the MRA took into account all relevant considerations under the MRA Act and the CPR Scheme. Fourthly, the Decision was made in circumstances where the MRA gave careful consideration to the potential adverse impacts - especially the adverse visual and aural impacts - of the proposed Development on the surrounding land, and where the MRA was clearly satisfied that the conditions it imposed (together with the existing noise attenuation measures in the adjacent multistorey apartment buildings) would ensure that those potential adverse impacts were minimised as much as possible. Fifthly, the decision was not rendered manifestly unreasonably because the MRA did not accept the LRC's recommendation to defer approval pending further investigations. The MRA's Decision to grant approval followed its being satisfied that noise attenuation measures already existed in the adjacent multistorey apartment buildings, and that those measures, in conjunction with the conditions the MRA decided to impose, would adequately address the potential adverse impacts of the proposed Development.
The grounds of review in ground 5 should be dismissed.

Conclusion and orders

For these reasons, the application for judicial review should be dismissed.

Annexure 1 - Objections to Evidence

Par [12] of Mr Marshall's affidavit sworn 19 November 2014, par [9] of the affidavit of Mr Limnios and par [11] of Mr Blake's affidavit sworn 20 November 2014

These paragraphs of the witness' evidence concerned some very vague evidence as to representations said to have been made to, and by, Mr Limnios (a real estate agent appointed by the East Perth Redevelopment Authority to sell land for development in Precinct 8 of the Claisebrook Village Project Area, including Lot 169) to the effect that adjacent land was to be used as a 'buffer'. The applicants' case was that that evidence was relevant to the question whether the MRA had regard to the principles of orderly and proper planning. For the reasons set out above at [178] - [185] and [204] - [206], this evidence is not relevant to the question whether the Decision was vitiated by jurisdictional error.

Par [26] of Mr Blake’s affidavit sworn 20 November 2014

This paragraph contained Mr Blake's evidence that he would not have purchased Lot 169 had he known of the potential to develop the Site in the manner now proposed. That evidence is irrelevant to the question whether the Decision was vitiated by jurisdictional error.

Annexures referred to in par [27] of Mr Blake’s affidavit sworn 20 November 2014

The annexures referred to in par [27] of Mr Blake's affidavit were the subject of an objection on relevance grounds. The documents comprised letters to Ministers from persons objecting to the proposed Development, and copies of Parliamentary Debates containing answers to questions about the proposed Development. Those documents are irrelevant to the question whether the Decision was vitiated by jurisdictional error.

Ms Ireland's affidavit sworn 21 November 2014

Ms Ireland's affidavit annexed a report in which she expressed the view that the SLR Reports and the Herring Storer report did not contain an assessment of the noise emissions (which would be generated by, or in the course of, the proposed Development) which complied with the requirements of the Noise Regulations or DP3. For the reasons set out above at [198] Ms Ireland's evidence was irrelevant to the question whether the Decision was vitiated by jurisdictional error.