Marshall v Metropolitan Redevelopment Authority

Case [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…

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Details
AGLC
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Case
[2015] WASC 226
Decision Date

CaseChat Overview and Summary

In this case, the applicants, Robert Marshall and the East Perth Residents' Association, sought judicial review of a decision by the Metropolitan Redevelopment Authority (MRA) to approve a Development Application for the construction of three new stow roads, the extension of two existing stow roads, and other infrastructure on a site owned by the Public Transport Authority (PTA) in East Perth. The primary legal issue was whether the MRA acted in excess of its power, failed to take into account relevant considerations, took into account irrelevant considerations, did not satisfy itself of certain matters, and whether the decision was manifestly unreasonable.

The court found that the MRA's decision-making process was procedurally sound and that the MRA had considered relevant factors, such as noise impact assessments and State Planning Policy 5.4. The MRA had also sought and reviewed expert opinions on acoustic issues. However, the court held that the MRA had not adequately considered the City of Perth's recommendation to seek an alternative site due to noise concerns. The court found that the MRA had not acted in excess of its power but had failed to take into account a relevant consideration by not adequately addressing the City of Perth's recommendation.

The court dismissed the application for judicial review, finding that the MRA's decision, while not ideal, was not manifestly unreasonable. The court held that the MRA was not required to be satisfied of certain matters before approving the Development Application and that the decision was not unreasonable given the context and statutory parameters. The court also found that the MRA had not taken into account irrelevant considerations and that the decision was within the bounds of the MRA's discretionary power.

In conclusion, the application for judicial review was dismissed, and the MRA's decision to approve the Development Application was upheld. The court found that the MRA had considered relevant factors and had not acted in excess of its power, despite not adequately considering the City of Perth's recommendation. The decision was deemed to be within the statutory parameters and not manifestly unreasonable.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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] 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].

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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. 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). 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.

Ratio Decidendi

Legal Principle Established

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; and12.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.