Marshall v Town Planning Appeal Tribunal of Western Australia

[2004] WASCA 202

MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2004] WASCA 202

Link to Appeal :

[2006] WASCA 146

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 202
Court:	THE FULL COURT (WA)
Case No:	FUL:147/2003	Heard:	20 MAY 2004
Coram:	MURRAY J ROBERTS-SMITH J MCLURE J	Delivered:	8/09/04
No of pages:	17	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	INGRID MARSHALL RAYMOND MARSHALL THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA THE WESTERN AUSTRALIAN PLANNING COMMISSION
Catchwords:	Extension of time to appeal Application for order nisi for a writ of certiorari Long delay in challenging decision Whether an arguable case Discretionary considerations Turns on own facts
Legislation:	Evidence Act 1906 (WA), s 58, s 65 Metropolitan Region Town Planning Scheme Act 1959 (WA) Rules of the Supreme Court, O 3 r 5, O 56 r 11, O 65 r 3 Town Planning and Development Act 1928 (WA), s 20, s 61, s 67 Town Planning Regulations 1967 (WA), reg 22 Western Australian Planning Commission Act 1985 (WA), s 57
Case References:	Jackamarra v Krakouer (1998) 195 CLR 516 Marshall v Kierath [2001] WASCA 70 Marshall v MacTiernan [2001] WASC 294 Marshall v MacTiernan [2002] WASCA 274 Marshall v MacTiernan [2003] WASCA 67 Marshall v Town Planning Appeal Tribunal of Western Australia [2003] WASC 175 Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170 Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Brady v Mazurak [1983] WAR 291 Central Control Board (Liquor Traffic) v Cannon Brewery Company Ltd [1919] AC 744 Craig v The State of South Australia (1995) 184 CLR 163 Esber v The Commonwealth of Australia (1992) 174 CLR 430 Gallo v Dawson (No 2) (1992) 109 ALR 319 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Inland Revenue Commissioners v National Federation of Self­Employed and Small Business Ltd [1982] AC 617 Kingscape Holdings Pty Ltd v Shire of Capel [2003] WASC 200 Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA; Library No 990195; 16 April 1999 Pinder Architects Pty Ltd v City of Stirling [1996] 92 LGERA 165 R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 Re Anastas; Ex parte Welsby [2001] WASC 178 Re Capobianco; Ex parte Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998 Re Matthews; Ex parte Harrison [2001] WASC 61 Re Matthews; Ex parte Mackenzie [2000] WASC 147 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Re Smith; Ex parte Rundle [1992] 5 WAR 295 Re Walker; Ex parte Fremantle Islamic Association Inc [20030 WASC 176 Rendell v Release on Licence Board (1987) 10 NSWLR 499 Roper v Taylor's Central Garages (Exeter) Ltd (1951) 2 TLR 284 RSL v Liquor Licensing Commission [1999] VSCA 37 State Planning Commission v Wallasley Pty Ltd, unreported; SCt of WA; Library No 950254; 26 May 1995 Talbot v Lane (1994) 14 WAR 120 The King v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 The King v Electricity Commissioners; Ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 171 Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2004] WASCA 202 CORAM : MURRAY J

ROBERTS-SMITH J
MCLURE J

HEARD : 20 MAY 2004 DELIVERED : 8 SEPTEMBER 2004 FILE NO/S : FUL 147 of 2003

FUL 148 of 2003

BETWEEN : INGRID MARSHALL

RAYMOND MARSHALL
Appellants

AND

THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA
First Respondent

THE WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MCKECHNIE J

Citation Number : [2003] WASC 175

File Number : CIV 1792 of 2003

Catchwords:

Extension of time to appeal - Application for order nisi for a writ of certiorari - Long delay in challenging decision - Whether an arguable case - Discretionary considerations - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 58, s 65

Metropolitan Region Town Planning Scheme Act 1959 (WA)
Rules of the Supreme Court, O 3 r 5, O 56 r 11, O 65 r 3
Town Planning and Development Act 1928 (WA), s 20, s 61, s 67
Town Planning Regulations 1967 (WA), reg 22
Western Australian Planning Commission Act 1985 (WA), s 57

Result:

Appeal dismissed

Category: B

(Page 3)

Representation:

Counsel:

Appellants : In person
First Respondent : No appearance
Second Respondent : Mr R M Mitchell

Solicitors:

Appellants : In person
First Respondent : No appearance
Second Respondent : State Solicitor

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

Jackamarra v Krakouer (1998) 195 CLR 516
Marshall v Kierath [2001] WASCA 70
Marshall v MacTiernan [2001] WASC 294
Marshall v MacTiernan [2002] WASCA 274
Marshall v MacTiernan [2003] WASCA 67
Marshall v Town Planning Appeal Tribunal of Western Australia [2003] WASC 175
Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286

Case(s) also cited:

Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Brady v Mazurak [1983] WAR 291
Central Control Board (Liquor Traffic) v Cannon Brewery Company Ltd [1919] AC 744
Craig v The State of South Australia (1995) 184 CLR 163
Esber v The Commonwealth of Australia (1992) 174 CLR 430
Gallo v Dawson (No 2) (1992) 109 ALR 319
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125


(Page 4)

Inland Revenue Commissioners v National Federation of Self­Employed and Small Business Ltd [1982] AC 617
Kingscape Holdings Pty Ltd v Shire of Capel [2003] WASC 200
Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA; Library No 990195; 16 April 1999
Pinder Architects Pty Ltd v City of Stirling [1996] 92 LGERA 165
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
Re Anastas; Ex parte Welsby [2001] WASC 178
Re Capobianco; Ex parte Castelli, unreported; SCt of WA; Library No 980567; 25 September 1998
Re Matthews; Ex parte Harrison [2001] WASC 61
Re Matthews; Ex parte Mackenzie [2000] WASC 147
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Smith; Ex parte Rundle [1992] 5 WAR 295
Re Walker; Ex parte Fremantle Islamic Association Inc [20030 WASC 176
Rendell v Release on Licence Board (1987) 10 NSWLR 499
Roper v Taylor's Central Garages (Exeter) Ltd (1951) 2 TLR 284
RSL v Liquor Licensing Commission [1999] VSCA 37
State Planning Commission v Wallasley Pty Ltd, unreported; SCt of WA; Library No 950254; 26 May 1995
Talbot v Lane (1994) 14 WAR 120
The King v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54
The King v Electricity Commissioners; Ex parte London Electricity Joint Committee Company (1920) Ltd [1924] 1 KB 171
Toolan v Metropolitan (Perth) Passenger Transport Trust [2001] WASCA 131


(Page 5)

1 MURRAY J: I agree with McLure J. These appeals are entirely without merit. They should be dismissed.

2 ROBERTS-SMITH J: I have had the benefit of reading the reasons for decision of McLure J in draft. I agree with her Honour's reasons and conclusions. I would add only the following brief observations.

3 This appeal is against the decision of McKechnie J on 25 August 2003, refusing an application for an extension of time within which to appeal and dismissing the appellants' application for an order nisi for a writ of certiorari.

4 The delay here of more than 7½ years is such that the appellants would have to show not only a reasonable explanation for it, but also that the grounds they seek to advance are so strong that they would almost certainly succeed.

5 This is not a case in which the appellants have not had an opportunity to appeal or to otherwise challenge the decision of the Tribunal made on 24 November 1995, nor the various decisions made by the Minister since then. The history of the matter has been set out by McLure J. It reveals considered challenges and appeals being made by the appellants against progressive decisions on a range of grounds sometimes repeated.

6 The fact is, all the numerous grounds or bases upon which they have sought to rely over the course of the matter have failed. Nothing was advanced on this appeal which would persuade me those previous decisions were either wrong or procedurally flawed. None of the grounds expressly relied on by the appellants before McKechnie J or raised by them on the hearing of this appeal have to my mind any prospect of success. That circumstance, combined with the inordinate delay and the lack of any reasonable, much less cogent, explanation for it, leads necessarily to the conclusion that his Honour was right to refuse the application for the order nisi and for the extension of time to appeal.

MCLURE J:

Background

7 The appellants are the registered proprietors of land at the corner of Susan Street and Gwenyfred Road in Kensington ("the land"). The land comprises an area of 1034 sq metres and has a house constructed on it.

(Page 6)

8 In November 1994 the appellants applied to subdivide the land into two lots of 530 sq metres and 504 sq metres. That application was made on the basis that the land was classified "Residential R", with an R-code density of "R15" under the City of South Perth Town Planning Scheme No 5 ("TPS5").

9 On 14 March 1995 the second respondent, the Western Australian Planning Commission ("Commission") refused the subdivision application on the ground that the proposal did not satisfy the minimum and average lot size requirements (550 sq metres and 666.66 sq metres respectively) of the R15 density code. After the Commission refused a request for reconsideration of that decision, the appellants on 11 May 1995 appealed to the first respondent, the Town Planning Appeal Tribunal of Western Australia ("Tribunal"). On 24 November 1995 the appellants' appeal to the Tribunal was dismissed.

10 On 11 July 1997 the Minister for Planning dismissed an appeal against a subsequent subdivision application in the same form.

11 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 then appealed to the Minister for Planning against a deemed refusal of the development application. On 14 April 2000 the Minister for Planning dismissed that appeal on the ground that, inter alia, "the form of development sought cannot be permitted under current and operative legislation". Due to the size of the land, the development was prohibited under residential planning codes incorporated in TPS5. The appellants applied for certiorari and mandamus in respect of the Minister's decision of 14 April 2000. On 13 March 2001 this Court discharged the order nisi (Marshall v Kierath [2001] WASCA 70).

12 The appellants then sought declarations as to, inter alia, the validity of TPS5 and its application to the land. This application was dismissed (Marshall v MacTiernan [2001] WASC 294) as was an appeal from that decision (Marshall v MacTiernan [2002] WASCA 274). The appellants then sought a stay of the order dismissing the appeal on the ground that the TPS5 map did not in fact zone the land residential with the result that the residential planning codes were inapplicable. This application was also dismissed (Marshall v MacTiernan [2003] WASCA 67 ("the stay decision").

(Page 7)

13 Having exhausted all possible avenues of challenging the Minister's decision of 14 April 2000 in relation to their development application, the appellants then turned their attention to the Tribunal's 1995 decision in relation to their subdivision application.

14 On 7 July 2003 the appellants filed an application for an order nisi for writ of certiorari to quash the Tribunal's 1995 decision. The application came on for hearing before McKechnie J on 25 August 2003. By an oral application made on the day of the hearing, the application was amended to include an application for an extension of time within which to appeal against the Tribunal's 1995 decision. The only substantive ground stated in the application was that a residential density code of R15 did not in fact apply to the land.

15 It appears that at the hearing the appellants applied to add a ground of appeal in terms that "there has been jurisdictional error by the Town Planning Appeal Tribunal". The basis of the jurisdictional error was not further particularised in oral or written submissions before McKechnie J.

16 On 25 August 2003 McKechnie J dismissed the application for an order nisi for a writ of certiorari and for an extension of time within which to appeal. He did so primarily on the ground that there was no arguable case of error by the Tribunal as to the "R" coding of the land.

17 On 6 October 2003 Pullin J ordered that the appellants have leave to appeal the decision of McKechnie J refusing an extension of time within which to appeal.

18 The appellants assert they have a right of appeal from the Tribunal's decision. They do not. The time for appealing has long since passed. The application was filed some 7 years and 9 months after the Tribunal's decision. An appeal from a decision of the Tribunal must be filed within 21 days from the date of the decision against which the appeal is made: O 65 r 3(1) of the Rules of the Supreme Court ("Rules"). Further, there is no appeal to the Supreme Court except on a question of law (s 67 of the Town Planning and Development Act 1928 ("Town Planning Act")).

19 The application for an order nisi was also made well out of time. An order nisi for a writ of certiorari shall not be granted unless the application for the order is made within six months after the date of the decision: O 56 r 11(1) of the Rules. However, the court has a discretion to extend the period within which a person is required by the Rules to do any act (O 3 r 5 of the Rules). Thus, an extension of time is required for the appeal and prerogative relief application.

(Page 8)

20 The factors to be taken into account in considering 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 to the respondents: Jackamarra v Krakouer (1998) 195 CLR 516. To succeed in this appeal the appellants must demonstrate not only that the Judge erred in some material respect but also that his decision was wrong. I propose to start with the merits of the appellants' case.

Whether an Arguable Case

21 The appellants have represented themselves since the hearing the subject of the stay decision. They are now relatively practised advocates who speak the language of administrative law and rely in part on the reasons of the court in the various applications associated with their development applications.

22 As they appear in person, the appellants receive procedural indulgences usually denied to litigants represented by legal counsel. The applicants raise for the first time in this appeal a number of additional grounds on which they assert the Tribunal erred in its 1995 decision. I propose to shortly deal with what I understand to be each of the grounds advanced by the appellants.

23 The first ground is that expressly rejected by McKechnie J. It is to the effect that the land was not within a residential zone (or any zone) under the scheme map forming part of TPS5. The scheme map comprises seven sheets, one of which (sheet 7), contains a legend for the various zones under TPS5. There are three residential zones; Residential-R, Residential-RO and Aged or Dependent Person Dwellings. The appellants' argument depends on alleged differences in colour between the legend for the residential zones in the TPS5 scheme map and that portion of the scheme map in which the land is shown. Their argument bears a striking similarity to that dealt with by the Full Court in the stay decision.

24 It is necessary to understand the background to that decision. On 4 October 2002 the Full Court dismissed an appeal from the decision of a Master. Among the issues ventilated in the appeal was whether the Metropolitan Region Scheme made pursuant to the Metropolitan Region Town Planning Scheme Act 1959 (WA) ("MRS Act") or TPS5, or both of them, applied to the land and governed the appellants' application for development approval. The appellants then applied for a stay of the judgment of the Court given on 4 October 2002 and sought declarations that "the land is not within a residential zone under TPS5, the R-15

(Page 9)

density code does not apply to the land, the land is zoned 'Urban' under the MRS, and earlier decisions inter alia of the [Tribunal] are 'null and void'."

25 The stay motion was heard by the Full Court on 27 February 2003. Notwithstanding the procedural irregularities, the Full Court dealt with the substantive issues. Parker J gave detailed reasons. Murray and Anderson JJ agreed.

26 Parker J noted a number of difficulties with the appellants' application. The first was that the appellants had presented their case before the Master and before the Full Court on the factual basis that the land was zoned Residential-R with an R-code density of R-15 under TPS5. To depart from that undisputed factual foundation after having failed in the appeal was described by Parker J as "without more, ... an affront to the due administration of justice".

27 Parker J identified the appellants' submission on the merits in the following terms:

"It is the submission of the appellants, however, that when the shade of colour depicted for the Residential-R zoning on the sheet containing the legend is closely compared with the shade of colour used for the land on the relevant sheet of the Scheme Map applicable to the land of the appellants, a difference can be discerned. As the submission was put - 'they looked different, therefore they are different'. It follows, it is submitted, that if they are different the land can't be zoned Residential R because it isn't coloured the same as the legend for Residential-R."

He then identified the difficulties associated with this submission. The first was that the court was being invited to compare copies of two sheets of the scheme map. The court did not have the original scheme map. Secondly, when the relevant shades of colour of the two copy sheets of the scheme map were compared it was not obvious that there was a difference of shade of colour affecting the Residential-R zoning. Thirdly, the object of the distinctive colouring, in some cases together with borders, hatching and lettering, depicted on the legend of the scheme map is to delineate and identify each of the zones, and to differentiate each one of them from the others. Using the copies of the relevant sheets there was no difficulty in determining which of the zones of TPS5 was applicable as the colours used in the legend of the scheme map are so distinctive that together where applicable with the devices of borders, hatching and

(Page 10)

lettering, any slight difference of the shade of colour which might be found between two different sheets of the scheme map was not sufficient to give rise to doubt as to the intended zoning. Fourthly, the relevant sheet of the scheme map depicts the land as being contained within an area which is bordered in brown. The legend depicts the Residential-R zone not only by colour but also as delineated by a brown border. Fifthly, the area delineated by the brown border has superimposed on it "R15". Under cl 7(4) of TPS5, code density numbers are superimposed on the areas within the zones. TPS5 only applies the R codes to land within residential zones. Parker J continued:

"Thus, it is also clear from the relevant sheet of the Scheme Map, that the land of the appellants is within an area zoned residential by virtue of the brown bordering and the superimposing of 'R15'. ... TPS5 provides for only three types of residential zoning. These cannot be confused on the Scheme Map because the other two residential zones are distinguished from Residential-R, in one case by hatching and in the other by distinctive colouring and hatching. Thus, if there were any uncertainty by virtue of some difference in shade of colour, which is not the case in my view, by virtue of the matters just considered, the intention of TPS5 to zone the land of the appellants as Residential-R is manifest."

Parker J concluded that there was no reason to conclude that the land was zoned other than Residential-R under TPS5.

28 When the appellants were pressed to identify to this Court why this proposed ground of challenge had not been effectively resolved against them by Parker J in the stay decision it was said the Full Court only had copies of two of the seven sheets comprising the scheme map before it.

29 When the application came before McKechnie J the respondents tendered in evidence a certified complete copy of the TPS5 scheme map (Ex A) and the current town planning scheme (TPS6) map (Ex B). They are certified by an officer of the Commission said to be duly authorised under s 57 of the Western Australian Planning Commission Act 1985 (WA) ("WAPC Act") and reg 22(3) of the Town Planning Regulations 1967 (WA) ("Regulations").

30 The appellants contend that McKechnie J erred in permitting the tender on the ground that the scheme maps were not admissible under s 57 of the WAPC Act, reg 22(3) of the Regulations ors 58 and s 65 the Evidence Act 1906 (WA). The position is this. The appellants did not

(Page 11)

adduce in evidence as part of their application the scheme map or a copy thereof, in whole or in part. In support of this ground, the appellants rely on assertion and belief as explained in their affidavit. That is an inadequate factual foundation for their claim. If, as the appellants contend, the scheme map must be proven by admissible evidence and a properly certified copy of the scheme map or the original was not before McKechnie J, the appellants' claim on this ground fails at the first hurdle. However, the original TPS5 scheme map was tendered in evidence in this Court and I propose to consider the appellants' submissions by reference to the original scheme map. In these circumstances, it is unnecessary to rule on the admissibility of the certified copy of TPS5 or the correctness of McKechnie J's observations in relation to the certified copy of the TPS5 scheme map.

31 The appellants' land is on sheet 2, plate 2 of the scheme map. On the original scheme map there is no difference in the colour of the Residential-R zone in the legend of the scheme map and the colour of the Residential-R zone on all the remaining sheets comprising the scheme map, including sheet 2, plate 2 on which the land is shown. In addition, the other difficulties with the appellants' submission which were comprehensively identified by Parker J in the stay decision are equally applicable to the original TPS5 scheme map. Having regard to the colour correspondence and the other matters identified by Parker J, I am satisfied that there is no arguable case that the land is zoned other than Residential-R with an R-code density of "R15" under TPS5. Indeed, the original scheme map establishes that the appellants' land is zoned Residential-R with an R-code density of "R15" under TPS5.

32 I turn now to the other proposed grounds of challenge to the Tribunal's 1995 decision. The appellants contend that the Tribunal failed to take into account relevant considerations. Relying on Parker J's reasons in the stay decision, they identify in their outline of submissions the relevant considerations as being that:

(i) TPS5 and the Metropolitan Region Scheme regulated development of the land at the relevant time;

(ii) notwithstanding the purported zoning and density coding TPS5 did not cause the provisions of the Metropolitan Region Scheme to retreat;

(iii) s 20 of the Town Planning Act enables the Commission to delegate powers of development approval to local government;

(Page 12)

(iv) the MRS Act prevails over the Town Planning Act to the extent to which they are in conflict or inconsistent.

33 Proposition (ii) is not entirely accurate. The land is and was at the material time zoned urban under the Metropolitan Region Scheme. The Full Court in the stay decision concluded that there was no inconsistency between the urban zoning of the land under the Metropolitan Region Scheme and the more particular Residential-R zoning under TPS5 and even if there was an inconsistency, the Residential-R zoning prevails by virtue of cl 21 of the Metropolitan Region Scheme (per Parker J at [39]).

34 It is the case that the Tribunal does not in its reasons for decision (Marshall v Western Australian Planning Commission (1995) 15 SR (WA) 170) refer to the specified matters. No doubt that is because they are not directly or indirectly raised in the appellants' grounds of appeal from the Commission's decision. The failure to expressly refer to a matter in reasons for decision does not establish a failure to have regard to that matter. It is even more difficult to establish a failure to have regard to a relevant matter if it is outside the issues in contest between the parties which the decision maker is called upon to resolve. The appellants have not provided a sufficient evidential foundation for this claim. Further, and in any event I am not persuaded it is arguable that the specified matters are appropriately characterised as matters to which the decision maker is required to have regard.

35 The specified matters were addressed by the Full Court in the stay decision in the context of an appeal from a deemed refusal of an application to develop the land (to which cl 84(4) of TPS5 applies). The Tribunal in its 1995 decision was considering an appeal from the Commission's rejection of an application to sub-divide the land under s 20 of the Town Planning Act. There is nothing in the reasons of Parker J in the stay decision or in the relevant legislative framework (including subsidiary legislation such as TPS5) to support the appellants' contention suggest the Commission (and on appeal the Tribunal) were required to have regard to the specified matters in the exercise of the discretion under s 20 of the Town Planning Act.

36 The appellants also submit that the Tribunal took into account irrelevant considerations. Under this rubric the appellants contend that the Tribunal was obliged to satisfy itself by examination of the TPS5 scheme map that it applied to the land. The contention is without merit. The appellants conducted their appeal to the Tribunal on the factual basis that the land was zoned Residential-R with a code density of "R15"under TPS5.

(Page 13)

37 The appellants further contend that the Tribunal regarded itself as bound by the residential planning codes ("Codes") and the Commission's departure policy.

38 Section 5AA of the Town Planning Act provides that the Commission may prepare statements of planning policy. Statement of Planning Policy No 1: "Residential Planning of Western Australia Manual and Codes" was first published in 1985. Appendix 1 of the Codes set out a Model Scheme Text to be used by local authorities as a means of including the Codes within a planning scheme. TPS5 adopted the model text in Appendix 1 of Codes. Under TPS5 the City of South Perth had no discretion to approve a development application that did not comply with the Codes: Marshall v Kierath [2001] WASCA 70 at [20] – [22]; Marshall v MacTiernan [2002] WASCA 274 at [48].

39 However, by virtue of s 20(5) and s 61 (formerly s 56) of the Town Planning Act the Codes do not bind the Commission or the Tribunal. In its 1995 reasons for decision the Tribunal notes that the Codes are directed to construction and development and do not refer at all to subdivision nor do they state a set of absolute minimum requirements for subdivisions. The Tribunal then notes that they have been "appropriated by the Commission as a guide to the general exercise of discretion in the approval of subdivision". However, at the material time the Commission had a policy or practice of approving subdivisions under the minimum where the subdivision:

• did not represent a reduction of more than 10 per cent in the average size of lots set by the Codes;

• did not represent a reduction of more than 10 per cent in the minimum size of lots set by the Code;

• would not result in development which would adversely affect the residential character of the surrounding area (although it should be recognised that lot size is only one aspect of residential character);

• assisted in using housing land to its best advantage;

• took into account any limitations imposed by the shape and location of the site, local street system and adjacent subdivision;

(Page 14)

• was generally consistent with the objectives of the local authority town planning scheme and (where available) the local housing strategy;

• was supported by the local authority.

40 The Tribunal considered the surrounding area and concluded that the applicants' subdivision proposal interfered with the integrity of lot sizes and the consequent character of the surrounding area. It also had regard to the fact that if the proposed subdivision was allowed it would open the way for a significant number of similar applications. The Tribunal continued:

"When there is a code, such as the R Codes which are incorporated in Schemes, the precedent argument enforces the concept that the instances for departure should be minimal as the law requires and supports consistency in the application of a code. In appropriate circumstances, of course, the code should be departed from to support an approval. The Commission should not close its ears to the application of a developer but it can maintain a strong commitment to the R Codes and depart from them sparingly in applications for residential subdivision."

41 Having regard to the Tribunal's consideration of relevant matters and the role of the Codes it is not arguable the Tribunal was acting under dictation: see Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] - [28].

42 Finally, the appellants contend that McKechnie J did not determine the application on a proper basis or give the appellants a proper hearing. The first aspect of this complaint relates to the issue of delay and the second is a general fairness issue which I understand to be in effect that the appellants did not have a proper opportunity to put their case. McKechnie J handed down an extempore judgment on the day of the hearing. He subsequently published his reasons (Marshall v Town Planning Appeal Tribunal of Western Australia [2003] WASC 175). On delay, McKechnie J said:

"As I pointed out to the applicants in oral argument, the prospects of succeeding on an application for a writ of certiorari after such a delay are zero, in part because time has marched on, and there is now indeed a new town planning scheme. The prospects for an application for leave to appeal may be slightly more hopeful, but only slightly, after such a time. There would

(Page 15)

have to be cogent evidence explaining why there was such a delay and why the decision of the tribunal was wrong."

43 The appellants submit that the Judge erred in failing to have regard to the "cogent explanation for the significant delay". I do not accept the appellants' characterisation of the reasons for delay as cogent, a matter to which I will return. However, there is no merit in the appellants' contention that the Judge failed to consider their explanation for the delay. It is clear from the record of proceedings that the Judge had read the applicants' papers in advance of the hearing which enabled him to deal with the application on an extempore basis. The appellants also say that the existence of the new town planning scheme was an irrelevant consideration because if they are correct and their land is not zoned Residential-R under TPS5 then TPS6 (under which the land was also zoned Residential-R with a density coding of R15) effected a change in the zoning which altered their rights which would be governed under the building by-laws current at the time. Assuming for the purposes of argument the correctness of their assertion, the promulgation of TPS6 is not an irrelevant consideration in the context of the prejudice to the public interest caused by delay in challenging decisions. The respondents and other interested or affected bodies such as local authorities are entitled to rely on decisions which are not the subject of challenge.

44 However, the Judge did not decide the application on the basis of delay alone. He considered the merits of the appellants' contention that the land was not zoned Residential-R under TPS5. On that subject he said:

"Turning to [TPS5], the residential zones are shown as a bold colour with a heavy outline. That colour, together with the marking 'R15' is shown on the Town Planning Scheme map as encompassing the applicant's land.

…

As I say, that true copy [of the TPS5 scheme map] clearly shows without any doubt to my mind that the land the subject of the application is within the area zoned 'R15'. Having observed that document I reach the same conclusion as Parker J did, with respect, in relation to the documents before the Full Court.

My conclusion is that there is simply no arguable case of error and the application should therefore be refused."

(Page 16)

45 It is not strictly correct to say that the land is "zoned" R15. That is the density coding. However, the substance of the Judge's conclusion is that Parker J's decision in the stay application is correct. He dismissed the applications because there was no arguable ground of error.

46 Finally, I am not persuaded that there was any relevant procedural unfairness to the appellants. After making their application to amend, the appellants made their submissions. The only substantive ground of challenge to the Tribunal's 1995 decision addressed by the appellants was the zoning issue ruled on by McKechnie J. After counsel for the respondents had made his submissions and tendered certified copies of TPS5 and TPS6 the application was adjourned to give the appellants the opportunity to inspect the scheme maps. On reconvening, the appellants made further submissions focussing on their opposition to reliance on the scheme maps produced by the respondents. McKechnie J then delivered oral reasons dismissing the application. The respondents sought costs and although the Judge thought there was much to be said for that application he made no order as to costs. At no stage did the appellants request an adjournment or clearly inform the Court that they wanted to challenge the Tribunal's 1995 decision on grounds that went beyond the zoning issue.

Other Discretionary Factors

47 Even if the appellants did have one or more grounds of challenge to the Tribunal's 1995 decision which raised an arguable error of law, I am satisfied that McKechnie J did not err in refusing the relief. There are very compelling discretionary grounds for refusing the applications.

48 Firstly, the delay is very considerable. The appellants explain the delay in affidavits sworn on 3 July and 9 August 2003. In the July affidavit they say that it was only on 30 May 2003 after other proceedings in this Court that they had cause to inspect the TPS5 scheme map for themselves. Yet during much of the period up to this time the appellants were represented by legal practitioners who were advising on matters directly relevant to the zoning of the land. If the point was of sufficient legal merit it could and should have been raised many years ago.

49 I infer from their affidavit of 9 August that the appellants did not challenge the Tribunal's 1995 decision because they had sought and obtained legal advice from Clayton Utz in December 1995 and February 1996 and were advised against appealing to the Supreme Court from the Tribunal's 1995 decision. They subsequently obtained a second opinion from Phillips Fox to the same effect. Those opinions address the prospects of an appeal succeeding and not simply whether there was an arguable case. There is nothing in the material put before this Court to suggest the legal advice was wrong. There is a strong public interest in the finality of decisions of courts and tribunals once the time for challenging a decision as of right has expired. The appellants' explanation for the delay is not cogent or compelling.

50 Secondly, the appellants' case to the Tribunal was based on the assumption that the land was zoned Residential-R with a density coding of R15. That was the factual basis on which all of the litigation conducted on behalf of the appellants between 1995 and October 2002 proceeded until they commenced acting for themselves.

51 Thirdly, their primary contention is in all material respects identical to that put before the Full Court on 27 February 2003 in the stay application. The appellants should have placed before the Full Court hearing the stay application all of the evidence and submissions made to us concerning the zoning of the land. Further, none of the additional grounds raised in this appeal were raised in the appeal to the Tribunal and the appellants refrained from appealing the Tribunal's 1995 decision on legal advice.

52 The dismissal of the applications is in my view entirely in accord with the public interest in the fair, timely and efficient administration of justice. I would dismiss the appeal in FUL 147 and 148 of 2003.