Milem Pty Ltd v Metro Central Joint Development Assessment Panel - [2019] WASC 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MILEM PTY LTD -v- METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2019] WASC 207
CORAM:   ARCHER J
HEARD:   26 MARCH 2019
DELIVERED          :   20 JUNE 2019
FILE NO/S:   CIV 2726 of 2018
BETWEEN:   MILEM PTY LTD
Applicant
AND
METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
First Respondent
FABCOT PTY LTD
Second Respondent

Catchwords:

Application for judicial review - Amendment to existing development approval - Precondition to power to approve amendment - Would not 'substantially change the development approved' - Change in use classification - Change in 'use permissibility'

Legislation:

Planning and Development (Development Assessment Panels) Regulations 2011 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	M C Hotchkin
First Respondent	:	No appearance
Second Respondent	:	P G McGowan

Solicitors:

Applicant	:	Hotchkin Hanly
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	Clayton Utz

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

Australian Unity Property Ltd v City of Busselton [2018] WASCA 38
Baker Investments Pty Ltd and City of Vincent [2016] WASAT 115
Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594; (2006) 149 LGERA 41
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1
Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408
Mohammadi v Bethune [2018] WASCA 98
Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298
North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 97 LGERA 433
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd [2018] WASCA 213
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203

ARCHER J:

Introduction

On 14 August 2017, the first respondent, the Metro Central Joint Development Assessment Panel (Panel), granted development approval to the second respondent (Fabcot) for a two storey non‑residential development to be situated at the corner of Canning Highway and Reynolds Road in the City of Melville. The approved development was to incorporate shops, medical centres and office tenancies.
The applicant (Milem) applied for judicial review of the development approval. Milem owns and operates a supermarket on Canning Highway, known as 'Canning Bridge IGA'. Milem's application was dismissed.[1]
[1] Milem Pty Ltd v Metro Central Joint Development Assessment Panel [2018] WASC 371.
Milem now seeks judicial review of the approval of an amendment to the original development. Two amendments to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASC 207
Decision Date: 20 JUNE 2019

CaseChat Overview and Summary

Milem Pty Ltd sought judicial review of a decision by the Metro Central Joint Development Assessment Panel, which refused to amend an existing development approval. The applicant argued that the Panel had failed to properly consider whether the proposed amendment would substantially change the approved development. The Western Australian Supreme Court was tasked with determining the appropriate scope of review in this context.

The primary legal issue before the court was whether the Panel had jurisdiction to amend the existing development approval, and if so, whether it had correctly exercised that jurisdiction. This involved interpreting the statutory preconditions and conditions for approving amendments to development approvals under the Development Assessment Act 1993 (WA). The court had to determine whether the Panel's failure to properly consider the 'substantial change' criterion amounted to jurisdictional error.

The court held that determining whether the Panel had jurisdiction to amend the development approval was a question of statutory construction. The court emphasised that statutory interpretation requires attention to the text, context, and purpose of the Act, and that the meaning of the legislation must emerge from the statutory text. The court noted that a failure to comply with a condition does not necessarily result in jurisdictional error if the non-compliance could have made no difference to the decision made. The court found that the Panel had considered the 'substantial change' criterion, albeit briefly, and concluded that the amendment did not substantially change the approved development. Therefore, the Panel had not made a jurisdictional error in refusing the amendment.

The Supreme Court dismissed the application for judicial review, holding that the Panel's decision was not tainted by jurisdictional error. The court did not make any orders as the application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As was recently explained by the High Court in Hossain v Minister for Immigration and Border Protection,[9] determining the limits of a decision‑maker's functions and powers is a question of statutory construction.[9] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1. First, it is necessary to identify 'the preconditions which the statute requires to exist for the decision‑maker to embark on the decision‑making process'. It is also necessary to identify the conditions which the statute requires to be observed in order for the decision‑maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction.[10][10] Hossain [23], [27] (Kiefel CJ, Gageler & Keane JJ). It is ordinarily an implied condition that the decision‑maker proceed by reference to 'correct legal principles, correctly applied'.[11] It is also ordinarily an implied condition that the decision‑maker comply with the standard of legal reasonableness.[12][11] Hossain [29].[12] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle & Gordon JJ), and [134] (Edelman J). Second, if the decision‑maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non‑compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision‑maker purported to make it'. If so, the purported decision will involve 'jurisdictional error'; that is, the purported decision will have been made outside jurisdiction. Determining the extent of non‑compliance which will have this result is also a question of statutory construction.[13][13] Hossain [24], [27]. In Hossain, the plurality said that a 'statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non‑compliance. … [The] threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made'.[14] As was recently said by the Court of Appeal in Mohammadi v Bethune,[15] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.[15] Mohammadi v Bethune [2018] WASCA 98 [31]. See also all of [31], and [32] ‑ [36]. In Australian Unity Property Ltd v City of Busselton,[16] the Court of Appeal reiterated the primacy of the legislative text in determining legislative intention. The court emphasised that the meaning of the legislation must emerge from the statutory text, understood in its context and having regard to the statutory purpose being pursued.[16] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] ‑ [85].