Marshall v The Town Planning Appeal Tribunal of Western Australia
[2006] WASCA 146
•26 JULY 2006
MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2006] WASCA 146
| Link to Appeal : | [2008] WASCA 258 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 146 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:148/2003 | 23 NOVEMBER 2005 | |
| Coram: | MALCOLM CJ McLURE JA MURRAY AJA | 26/07/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application in FUL 148 of 2003 dismissed Application in FUL 176 of 2004 dismissed | ||
| B | |||
| PDF Version |
| Parties: | RAYMOND MARSHALL INGRID MARSHALL THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA THE WESTERN AUSTRALIAN PLANNING COMMISSION THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE |
Catchwords: | Appeal Stay of orders Leave to re-open Adequacy of reasons for refusal of order nisi Challenge to validity of town planning schemes Res judicata and issue estoppel Anshun estoppel Whether arguable case Turns on own facts |
Legislation: | Rules of the Supreme Court 1971(WA), O 56 r 11 Town Planning and Development Act 1928 (WA) Town Planning Regulations 1967 (WA) Western Australian Planning Commission Act 1985 (WA) |
Case References: | Blair v Curran (1939) 62 CLR 464 Garrett v Nicholson (1999) 21 WAR 226 Jackamarra v Krakouer (1998) 195 CLR 516 Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2001) 120 LGERA 24 Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2002) 124 LGERA 118 Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231 Marshall & Anor v The Honourable Graham Kierath MLA, Minister for Planning (2004) 136 LGERA 21 Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 Archer v Howell (1992) 7 WAR 33 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Bonton Pty Ltd v City of South Perth [1982] WAR 213 Dousi v Colgate Palmolive Pty Ltd (1989) 9 NSWLR 374 Esber v The Commonwealth of Australia (1992) 174 CLR 430 Helena Valley v State Planning Commission (1990) 2 WAR 422 Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326 Johnson v Johnson (2000) 201 CLR 488 Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Marshall v Town Planning Appeal Tribunal of Western Australia [2003] WASC 175 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister of Health v The King; Ex parte Yaffe [1931] AC 494 Pearse v City of South Perth [1968] WAR 130 Public Trustee v Taylor [1978] VR 289 R v Minister of Health; Ex parte David [1929] 1 KB 619 R v Webber (1988) 15 NSWLR 49 Re David Smith and The Western Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295 Re Finance Sector Union of Australia; Ex parte Illation Pty Ltd (1992) 66 ALJR 583 Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 Talbot v Lane (1994) 14 WAR 120 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 Yougarla v Western Australia (2001) 207 CLR 344 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2006] WASCA 146 CORAM : MALCOLM CJ
- McLURE JA
MURRAY AJA
- INGRID MARSHALL
Appellants
AND
THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA
First Respondent
THE WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent
- INGRID MARSHALL
Appellants
AND
- THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J, ROBERTS-SMITH J, MCLURE J
Citation : MARSHALL - v - THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [2004] WASCA 202File No : FUL 147 of 2003, FUL 148 of 2003
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIACoram : MASTER SANDERSON
File No : CIV 2358 of 2004Catchwords:
Appeal - Stay of orders - Leave to re-open - Adequacy of reasons for refusal of order nisi - Challenge to validity of town planning schemes - Res judicata and issue estoppel - Anshun estoppel - Whether arguable case - Turns on own facts
Legislation:
Rules of the Supreme Court 1971(WA), O 56 r 11
Town Planning and Development Act 1928 (WA)
Town Planning Regulations 1967 (WA)
Western Australian Planning Commission Act 1985 (WA)
Result:
Application in FUL 148 of 2003 dismissed
Application in FUL 176 of 2004 dismissed
(Page 3)
Category: B
Representation:
FUL 148 of 2003
Counsel:
Appellants : In person
First Respondent : Mr R M Mitchell
Second Respondent : Mr R M Mitchell
Solicitors:
Appellants : In person
First Respondent : State Solicitor's Office
Second Respondent : State Solicitor's Office
FUL 176 of 2004
Counsel:
Appellants : In person
Respondent : Mr R M Mitchell
Solicitors:
Appellants : In person
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Blair v Curran (1939) 62 CLR 464
Garrett v Nicholson (1999) 21 WAR 226
Jackamarra v Krakouer (1998) 195 CLR 516
Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2001) 120 LGERA 24
Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2002) 124 LGERA 118
Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231
(Page 4)
Marshall & Anor v The Honourable Graham Kierath MLA, Minister for Planning (2004) 136 LGERA 21
Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295
Case(s) also cited:
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Archer v Howell (1992) 7 WAR 33
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Bonton Pty Ltd v City of South Perth [1982] WAR 213
Dousi v Colgate Palmolive Pty Ltd (1989) 9 NSWLR 374
Esber v The Commonwealth of Australia (1992) 174 CLR 430
Helena Valley v State Planning Commission (1990) 2 WAR 422
Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326
Johnson v Johnson (2000) 201 CLR 488
Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Marshall v Town Planning Appeal Tribunal of Western Australia [2003] WASC 175
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister of Health v The King; Ex parte Yaffe [1931] AC 494
Pearse v City of South Perth [1968] WAR 130
Public Trustee v Taylor [1978] VR 289
R v Minister of Health; Ex parte David [1929] 1 KB 619
R v Webber (1988) 15 NSWLR 49
Re David Smith and The Western Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295
Re Finance Sector Union of Australia; Ex parte Illation Pty Ltd (1992) 66 ALJR 583
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
Talbot v Lane (1994) 14 WAR 120
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Yougarla v Western Australia (2001) 207 CLR 344
(Page 5)
1 MALCOLM CJ: I have had the advantage of reading in draft the response to be published by McLure JA. I am in complete agreement with her Honour's reasons and the conclusion that the appellant's application should be dismissed.
2 McLURE JA: There are two matters before this Court. In FUL 148 of 2003 Mr and Mrs Marshall (who, for the sake of convenience, I will refer to as "the appellants") apply for a stay of the order dismissing, and leave to re-open, the appeal in Marshall v The Town Planning Appeal Tribunal of Western Australia (2004) 136 LGERA 276 ("Marshall v The Tribunal"). In FUL 176 of 2004 the appellants appeal from an order made by Master Sanderson on 17 November 2004 dismissing their application for an extension of time for an order nisi for a writ of certiorari and other relief.
FUL 148 of 2003
3 On 8 September 2004 the Full Court delivered judgment in Marshall v The Tribunal and ordered that the appeals in FUL 147 of 2003 and FUL 148 of 2003 be dismissed. The appellants have discontinued their application for a stay of the order dismissing the appeal in FUL 147 of 2003.
4 In FUL 148 of 2003 the appellants challenged a decision of McKechnie J in CIV 1792 of 2003 refusing an order nisi for a writ of certiorari to quash a decision made by the Town Planning Appeal Tribunal ("Tribunal") dismissing the appellants' appeal to that Tribunal. The appeal to the Tribunal was from a decision of the Western Australian Planning Commission ("Commission") refusing the appellants' application to subdivide their land in Gwenyfred Road, Kensington ("the land"). The Tribunal's decision was made in November 1995. The appellants' application for a writ of certiorari was made many years later in July 2003.
5 There has been a long history of litigation commenced by the appellants in this Court and elsewhere relating to their so far entirely unsuccessful attempts to subdivide the land or develop it by constructing two buildings thereon. The history of the litigation is detailed in pars [8] - [17] of my reasons in Marshall v The Tribunal and discussed below. For present purposes it is sufficient to note that this is not the first occasion on which the appellants have sought a stay and leave to re-open an appeal following delivery of reasons: Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and
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- Infrastructure (2002) 124 LGERA 118; Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231 ("First Stay Case").
6 The appeal in FUL 148 of 2003 was dismissed on two separate grounds being first, that the appellants had no arguable case and second, that regardless of the merits, there were compelling discretionary considerations for refusing relief. The discretionary considerations are detailed in pars [47] - [52] of my reasons in Marshall v The Tribunal and not repeated here.
7 By an amended notice of motion the appellants seek a stay of the order dismissing the appeal in FUL 148 of 2003, an order that the appeal be re-opened and that they have leave to rely on additional grounds. The additional grounds are detailed in seven pages. In essence the appellants now wish to contend in FUL 148 of 2003 that the City of South Perth Town Planning Schemes 5 ("TPS5") and 6 ("TPS6") are ultra vires and invalid. There is a considerable overlap between the grounds the appellants wish to pursue in this matter and the challenge the subject of FUL 176 of 2004. The merits of the challenge to the validity of TPS5 and TPS6 are discussed below. However, it is unnecessary to consider the merits in this application because the substantive and discretionary considerations that justified the dismissal of the appeal are unaffected by the grounds which the appellants now wish to pursue. The appellants also seek to re-argue matters already determined in Marshall v The Tribunal,such as the costs order.
8 Although the orders were not extracted at the time of the application, the jurisdiction to re-open is still only exercised in exceptional circumstances: First Stay Case at [31]. This reflects the strong public interest in the finality of litigation. There is no proper basis on which to re-open the decision in Marshall v The Tribunal. I would dismiss the application and order that the appellants pay the respondents' costs of the application.
FUL 176 of 2004
9 The appellants filed a notice of motion dated 19 October 2004 for an extension of time for a writ of certiorari to quash the respondent's decision to approve TPS6. The appellants also seek a declaration that TPS5 is ultra vires or alternatively, that decisions made by the former Minister for Planning in respect of the development of the land while TPS5 was in operation be declared null and void. The grounds of the application are as follows:
(Page 7)
- "1. [TPS6] is ultra vires.
2. TPS6 is purported to have been made in terms in which it was not made.
3. There is an error of law on the face of the record.
4. [TPS5] was ultra vires. Decisions made while TPS5 was in operation prejudice/eradicate the Applicants rights."
10 On 17 November 2004 Master Sanderson ordered that the application be dismissed with costs. After hearing oral submissions on behalf of the appellants as to the basis for the challenge to TPS5 and TPS6, the Master summarily dismissed the application as follows:
"THE MASTER: You have been to the Full Court four times on this matter, haven't you?
MARSHALL, MR: This matter hasn't been dealt with, Master.
THE MASTER: No, no, but the issue that you're litigating is the right to build two dwellings on your land, to subdivide the land.
MARSHALL, MR: We have a more general interest as well in respect too – and there is a public interest in respect to the scheme being carried out, the Region Scheme Act together with the region scheme being obeyed. There's an express provision and it sets out the procedure. Until the procedure is followed, then any inconsistency is not ironed out because it’s the procedure that irons out the inconsistency.
THE MASTER: Let me tell you that I won't grant you the order nisi.
MARSHALL, MR: No, but we will be asking for an extension of time, Master, so that this can go to the – the Full Court has not considered whether the scheme is duly made and whether it's valid. We claim it's ultra vires.
…
THE MASTER: Well, I won't grant you the order nisi. Where you take it from there is a matter for you but in my view this
(Page 8)
- matter is absolutely beyond doubt, there's nothing in your point and I won't grant the order nisi."
11 The appellants seek leave to appeal to this Court. They also sought leave to amend their proposed grounds of appeal and to adduce further evidence. Those applications were not opposed by the respondent. Leave is granted.
12 The appellants' grounds of appeal from the Master's decision include failure to give adequate reasons, apparent bias, lack of jurisdiction to determine the substantive matter and failure to properly consider the merits of the claim that TPS6 was invalid.
13 Before going further, it is appropriate to identify a number of relevant legal principles that arise for consideration. First, the application before the Master was for an extension of time for an order nisi for a writ of certiorari. The factors to be taken into account in determining whether an extension of time should be granted include the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice: Jackamarra v Krakouer (1998) 195 CLR 516. An application for an extension of time must be refused unless the appellants demonstrate an arguable case. However, as this is a claim against the Minister (not the Tribunal) the six month limit in O 56 r 11 of the Rules of theSupreme Court 1971 (WA)does not apply. Even so, a writ of certiorari is a discretionary remedy and undue delay remains a relevant consideration: Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295 at 319. Further, the appellants must demonstrate that they have an arguable case before the Court can issue an order nisi for a writ of certiorari.
14 The appellants will be unable to establish they have an arguable case if the doctrines of res judicata, cause of action estoppel or "Anshun" estoppel apply. These doctrines are of particular relevance in this case because of the significant history of prior litigation and determinations.
15 The doctrine of res judicata provides that where an action has been brought and final judgment on the merits has been entered in that action, no other proceedings may be maintained on the same cause of action. To determine what is res judicata, only the record may be examined. Only the parties to the action and their privies are bound.
16 The doctrine of issue estoppel applies where there is a final judicial determination directly involving an issue of fact or law that disposes once and for all of the issue, so that it cannot afterwards be raised between the
(Page 9)
- same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion: Blair v Curran (1939) 62 CLR 464 at 531 - 532 per Dixon J.
17 Anshun estoppel applies to matters which were not raised in prior proceedings but which could and should have been raised: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The estoppel will apply where the matter relied on in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it in the first action. The principle is based on the policy that parties to litigation should bring forward their whole case and not seek to re-open issues in subsequent litigation, not only to avoid the possibility of inconsistent decisions but also to make efficient use of court resources and judicial time (see Halsburys Laws of Australia Vol 12 at [160] - [165]).
18 Turning to the grounds of appeal, there is merit in the appellants' claim that the Master failed to give adequate reasons for dismissing the application. Although the Master gave no express reasons, it can be inferred from the transcript of proceedings that the Master dismissed the application because he regarded the claim for the order nisi as being without merit having regard to the history of litigation relating to the appellants' land. However, there is nothing in the Master's reasons to indicate why and in what respect the history of litigation impacted on the merits of the application. Reasons will be sufficient if the reasoning process which led to the result is disclosed with sufficient certainty to enable a litigant to know why the result ensued and to secure the statutory right of appeal: Garrett v Nicholson (1999) 21 WAR 226 at 248 per Owen J. I am satisfied that the Master's reasons in this case are inadequate and give rise to an appealable error. However, an appealable error arising from inadequate reasons does not necessarily result in a new trial. The Court of Appeal is entitled to consider and, if it can do so, may decide the matter: Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at [29]. I agree with the respondent's submission that this Court has the necessary material to determine the application before the Master. I will proceed on the basis that an extension of time is not required.
19 In the circumstances it is unnecessary to determine whether the decision made by the Master should be set aside on the grounds of apprehended bias or excess of jurisdiction.
(Page 10)
20 In considering the merits of the appellants' case, it is necessary to separately consider the grounds relating to TPS5 and TPS6. The appellants seek a declaration that TPS5 is ultra vires or alternatively, that decisions made by the Minister in respect of the development of the applicants' land while TPS5 was in operation, be declared null and void. They are identified as the Minister's Appeal Decisions dated 11 July 1997, 17 February 1999, 14 July 1999, 14 April 2000 and the Minister's Section 18 Inquiry decision dated 4 January 2000.
21 It is necessary to refer to the background. In November 1994 the appellants applied to subdivide the land into two lots of 530 square metres and 504 square metres. That application was made on the basis that the land was classified "Residential-R" with an R-Code Density of "R15" under TPS5. The Commission refused that subdivision application on the ground that it did not satisfy the minimum and average lot requirements of the R15 density code. The appellants appealed to the Tribunal from that decision. On 24 November 1995 the appellants' appeal to the Tribunal was dismissed. On 11 July 1997 the then Minister for Planning, Mr Kierath, dismissed an appeal against a subsequent subdivision application in the same form.
22 Following the failure of their subdivision applications, the appellants lodged a number of development applications seeking approval to construct a second dwelling on the land. These culminated in an application dated 5 August 1999 to the City of South Perth for approval to commence a duplex development on the land. The appellants appealed to the Minister for Planning against a deemed refusal of the development application. On 14 April 2000 the then Minister for Planning dismissed that appeal. The appellants applied for certiorari and mandamus in respect of the Minister's decision of 14 April 2000. On 13 March 2001 the Full Court discharged the order nisi: Marshall & Anor v The Honourable Graham Kierath MLA, Minister for Planning (2004) 136 LGERA 21 ("Marshall v Kierath"). The appellants appeared in person in that appeal as they have in all subsequent matters. The question in that case was whether the appellants had a right to have the then Minister for Planning consider an appeal which in turn depended on whether or not the development application was governed by TPS5. If it was governed by TPS5 there was no right of appeal to the Minister. The appellants did not challenge the validity of TPS5. Rather, they contended that the land had not been "zoned for some other use" within the meaning of cl 25 of the Metropolitan Region Scheme and that their right to develop the land by building a duplex on it still subsisted under the Uniform Building By-laws. The Full Court rejected the submission holding that the governing
(Page 11)
- instrument was TPS5, relying on cl 21 of the Metropolitan Region Scheme.
23 The appellants then commenced fresh proceedings seeking a declaration that TPS5 was required by law to be consistent with, and complementary to, the Metropolitan Region Scheme. The matter was heard and determined at first instance by Master Sanderson: Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2001) LGERA 24. The Master noted that the appellants contended that TPS5 was invalid because it was inconsistent with the Metropolitan Region Scheme and the Uniform Building By-laws made under that scheme. The Master determined that there was no relevant conflict between the Metropolitan Region Scheme and TPS5 but concluded that even if there was, the TPS5 would prevail by reason of cl 21 of the Metropolitan Region Scheme.
24 The appellants also contended that the proper processes and procedures for the validity of TPS5 had not been followed. The Master considered the detail of this submission and concluded (at [6]) that there was no question but that TPS5 was properly adopted according to law. The Master dismissed the appellants' application with costs. The appellants appealed from that decision. Once again they were unsuccessful: Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2002) 124 LGERA 118. Before the Full Court the appellants challenged the validity of TPS5 on the basis that it was inconsistent with the Metropolitan Region Scheme and ought not to have been approved or was invalid to the extent of the inconsistency. The Full Court recognised (at [15]) that there may be issues of res judicata or issue estoppel as a result of Marshall v Kierath but proceeded to deal with the substantive issue. The Full Court concluded there was no relevant inconsistency between the Metropolitan Region Scheme and TPS5 but even if there was, TPS5 would prevail by virtue of cl 21 of the Metropolitan Region Scheme. The Court also noted that that was the result provided TPS5 had been duly made and approved and in that regard the Court noted (at [35]):
"Ground of appeal 3, which had asserted that it had not been established that TPS5 had been made, approved and gazetted as required by the Planning Act, has been abandoned."
25 The Full Court also considered the interaction between the Uniform Building By-laws, the Metropolitan Region Scheme and TPS5. It concluded that TPS5 was valid and effective and prevailed over the
(Page 12)
- by-laws and the Metropolitan Region Scheme. The Full Court ordered that the appeal be dismissed.
26 After the Full Court order had been extracted, the appellants applied for a stay of the order dismissing the appeal and for leave to re-open the appeal to seek declarations that the land was not within a residential zone under TPS5, that the R15 density code did not apply and that the land was zoned "urban" under the Metropolitan Region Scheme. The Full Court considered and rejected the claim that the land was not zoned Residential-R with an R-Code density of R15 under TPS5: First Stay Case.
27 As already noted, the appellants then turned their litigious attention to challenging the Tribunal's decision made in 1995 and again contended that the land was not zoned Residential-R with an R-Code density of R15 under TPS5 (see Marshall v The Tribunal).
28 It is apparent from the appellants' oral and written submissions in relation to the validity of TPS5 that the issues they now raise (or their substance) have already been considered and determined against them in Marshall v Kierath and at first instance and on appeal in Marshall v MacTiernan. The doctrines of issue estoppel and res judicata prevent the appellants from re-issuing a challenge to the validity of TPS5. Further, even if the issues did not entirely overlap, they could and should have been raised in the previous litigation in this Court to which I have referred. The Master was correct to refuse to grant an order nisi for a writ of certiorari so far as TPS5 is concerned.
29 All the relevant decisions made to date in relation to the appellants' subdivision and development applications were made under TPS5. However, McKechnie J relied on the fact that TPS6 was (insofar as it related to the appellants' applications to subdivide and develop the land) in materially the same terms as TPS5 when refusing an order nisi and an extension of time to appeal the Tribunal's 1995 decision. In Marshall v The Tribunal the appellants unsuccessfully argued that TPS6 was an irrelevant consideration. Now they say for the first time that TPS6 is invalid because of substantive and procedural defects. I should make it clear that even if that is correct, it would not affect the outcome in Marshall v The Tribunal because the grounds that justified the disposal of the appeal would be unaffected. However, I will address the submissions because they have not been considered previously.
(Page 13)
30 The appellants' substantive objections to TPS6 are the same as for TPS5 and do not require separate consideration. I see no justification for departing from the reasoning and conclusions of the Full Court in Marshall v Kierath and Marshall v MacTiernan as to the relationship and effect of the Metropolitan Region Scheme, the UniformBuilding By-laws and TPS5 (which apply by analogy to TPS6).
31 As to the claimed procedural defects, the appellants bear the onus of adducing evidence in proper form to establish their assertion that TPS6 is invalid on the ground that the procedural steps were not properly taken.
32 Sections 7 and 7A of the Town Planning and Development Act 1928 (WA) ("Planning Act") set out the steps to be taken in adopting a town planning scheme. After a town planning scheme has been prepared or adopted by a local government authority (and subject to compliance with s 7A), it must be advertised for public inspection and then be submitted to the Minister for Planning for her approval.
33 Regulations 15 - 17 of the Town Planning Regulations 1967 (WA) ("Regulations") deal with advertising a scheme, making submissions on the scheme, consideration of the submissions by the local government authority and others, readvertising if necessary and then forwarding the scheme to the Minister for approval under s 7(2)(a) of the Planning Act.
34 There is evidence that the City of South Perth resolved to adopt the proposed TPS6. There is also evidence that the proposed TPS6 was advertised and submissions invited. The Council of the City recommended modifications to the proposed TPS6 in 1999 after considering public submissions. The amended scheme was then readvertised and further modifications were recommended by the Council in 2002. The Minutes of the Council meeting on 26 November 2002 record that there would be no further opportunity for the Council to modify, or make recommendations to modify, the scheme documents and therefore resolved:
"That the City of South Perth Town Planning Scheme No. 6 is hereby deemed to be finally adopted by this Council when it has been modified to the extent required by the Minister for Planning under Regulations 21(1) and 21(2) of the Town Planning Regulations, and the Council hereby authorises the affixing of the Common Seal of Council to three copies of the Scheme documents, as required by the Regulation 22(1)."
(Page 14)
35 Regulation 20 of the Regulations provides for consideration of the scheme by the Minister. If the Minister approves the scheme (with or without amendments) the responsible authority is required to forward three copies of the scheme to the Commission for final approval. Regulation 22 then provides:
"(1) The 3 copies of the Scheme for final approval shall be executed by the responsible authority by the affixing of its seal to the documents comprising the Scheme, and be lodged with the Commission.
(2) The Commission shall further endorse one of the copies of the Scheme and submit that copy to the Minister for endorsement by him of his final approval.
(3) A person authorised in writing on that behalf by the Commission may certify that a copy of the Scheme is a true copy of that Scheme as approved by the Minister."
36 The execution page of TPS6 confirms the adoption of the proposed TPS6 by resolution of the Council, the adoption for final approval by resolution of the Council (the City's common seal is affixed), the recommendation and submission of TPS6 for final approval by the Commission which purports to be signed by a person delegated under s 20 of the Western Australian Planning Commission Act 1985 (WA) ("WAPC Act") and the grant of final approval by the Minister on 6 April 2003.
37 The appellants contend that there was no evidence that TPS6 was adopted or finally adopted by Council on the basis that "no signatures were affixed to the documents on the relevant dates" which is said to be the date on which the Council passed each resolution. It is the case that the resolutions pre-date the execution by Council of the scheme for final approval but that does not impact on the validity of either the resolutions or the subsequent execution by the City of the scheme document for final approval as required by reg 22.
38 The appellants also rely on the fact that the person executing on behalf of the Commission was not its chairman or secretary and cannot be identified from his or her signature. Section 20 of the WAPC Act empowers the Commission to delegate to an eligible person any of its functions under that Act or any other written law. The performance of a function by a delegate is deemed to be the performance of the function by the Commission (s 20(3)). Eligible person is widely defined to include persons or bodies outside the Commission.
(Page 15)
39 Section 57 of the WAPC Act deals with the execution of documents by the Commission. Section 57(1)(b) provides that a document is duly executed by the Commission if it is signed on behalf of the Commission by the member or members or officer or officers of the Commission authorised by the Commission to do so. Under s 57(4) a document purporting to be executed in accordance with s 57 shall be presumed to be duly executed until the contrary is shown. My preliminary view is that an appropriately worded delegation under s 20 could empower a delegate to execute a document on behalf of the Commission even if the delegate is not a member or officer of the Commission; that is, s 20 is an independent source of power. However, it is unnecessary to determine the question because there is no evidence in this case that the person who executed the document on behalf of the Commission was not a duly authorised member or officer of the Commission or not duly delegated under s 20 of the Act.
40 In my view, the grounds on which the appellants seek an order nisi and a declaration do not raise an arguable case. Accordingly, the appellants' application must be dismissed. I would hear from the parties on costs.
41 MURRAY AJA: I agree with McLure JA that, for the reasons given by her Honour, to which there is nothing I could usefully add, the application for the stay of proceedings in FUL 148 of 2003 should be refused and the appeal FUL 176 of 2004 should be dismissed.
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