Milem Pty Ltd v Metro Central Joint Development Assessment Panel
[2018] WASC 371
•30 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MILEM PTY LTD -v- METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2018] WASC 371
CORAM: ARCHER J
HEARD: 19 & 31 JULY 2018, and further submissions
DELIVERED : 30 NOVEMBER 2018
FILE NO/S: CIV 1249 of 2018
BETWEEN: MILEM PTY LTD
Applicant
AND
METRO CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
First Respondent
FABCOT PTY LTD (ABN 55 002 960 983)
Second Respondent
Catchwords:
Application for judicial review - Joint Development Assessment Panel - Due regard - Unreasonableness
Legislation:
Planning and Development (Development Assessment Panels) Regulations 2011 (WA)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA)
Planning and Development Act 2005 (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 Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38
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
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408
Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153; (2009) 180 FCR 510
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Mohammadi v Bethune [2018] WASCA 98
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Reid v Western Australian Planning Commission [2016] WASCA 181
S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191
Western Australian Planning Commissioner v The Board of Valuers [2018] WASCA 145
TABLE OF CONTENTS
Introduction
Background facts
Legal principles
Jurisdictional error
Reasonableness
Unreasonable not to inquire?
Legislative framework
Joint Development Assessment Panels
Responsible Authority Reports
Deemed provisions
Clause 67(t)
'Due regard'
Contextual considerations
Planning and Development Act 2005 (WA)
Grounds of review
Ground 1
Ground 1(b) - did the Second Panel have to consider what had been sought be the First Panel?
Ground 1(a) - did the Panel have to make a finding of fact about the actual traffic situation?
Milem's propositions
The nature of JDAPs and their proceedings
Parties' submissions
Analysis
Should it have been obvious that the City was wrong?
The documentary evidence
Milem's criticisms of Riley's response
The meeting
Conclusion on the second proposition
Unreasonable to accept City's Second Report
Conclusion on ground 1(a)
Ground 2
Did the Second Panel impose the conditions for the purpose of easing congestion?
The conditions
The comments of the Second Panel members
The minuted reasons
Conclusion on purpose of conditions 21 and 22
Conclusion on ground 2
Conclusion
ARCHER J:
Introduction
The applicant (Milem) seeks judicial review of a decision made on 14 August 2017 (Decision) by the first respondent, the presiding member of a 'Joint Development Assessment Panel'.
The Decision granted approval, on conditions, 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 development application had been made by the second respondent (Fabcot).
The development was to include a supermarket to be operated by Woolworths. Milem owns and operates a supermarket on Canning Highway, known as 'Canning Bridge IGA'. The Woolworths supermarket would compete with Milem's supermarket.
Milem alleges that the panel acted unreasonably in three respects and thereby fell into jurisdictional error. Milem alleges that it was the panel's process of reasoning that was legally unreasonable, rather than the outcome.
The essence of Milem's first complaint, ground 1(a), can be summarised in this way:
(1)It was mandatory for the panel to have 'due regard' to the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety.
(2)The panel accepted the assurances of the City of Melville that there was no need for any further traffic analysis and, in effect, that the traffic impact of the proposed development could be accommodated without difficulty.
(3)The panel was obligated to read all of the material provided to it.
(4)If the members of the panel read all of the material, it should have been obvious to them that what the City was telling them was wrong, in that there were factual disputes as to the traffic impact of the proposed development that needed to be resolved.
(5)The nature of the panel's constitution and the regulatory framework meant that it was not permitted to merely accept the City's assurance in those circumstances. To do so was to fail to have 'due regard' to the amount of traffic likely to be generated.
(6)In those circumstances, the panel acted unreasonably, and fell into jurisdictional error, in approving the development application without resolving the factual disputes.
Milem acknowledged that establishing that the panel was not entitled to accept the City's assurance would be 'a difficult battle'.[1] However, Milem submitted that, in view of the nature of the panel's constitution and the regulatory framework, a higher standard was expected of the panel than would be expected of a local government.[2]
[1] ts 19.
[2] ts 33.
Milem's second complaint, ground 1(b), can be summarised in this way:
(1)An earlier panel had deferred making a decision on the application so that further information could be obtained in relation to, among other things, the traffic impacts.
(2)The subsequent panel had to consider for itself whether the evidence the first panel had sought had been provided, given the following circumstances:
(a)there was evidence to the effect that the information sought by the first panel had not been provided; and
(b)there was no evidence as to why the subsequent panel should find that the first panel's requests were not required to be answered, or that the evidence sought by the first panel need not be provided.
Milem's third complaint, ground 2, relates to two of the conditions of the panel's approval. Ground 2 complains, in essence, that the panel acted unreasonably in imposing conditions based on an assumption that they would reduce congestion, without knowing whether performance of the conditions would actually achieve that.
Milem's application raises many issues. However, the critical issues to be determined in relation to each ground are:
(1)Ground 1(a):
(a)must a panel read all the material it is given?
(b)to what extent can a panel accept advice?
(c)should it have been obvious to the panel that there were factual disputes as to the traffic impact of the proposed development that needed to be resolved and that what the City was telling them was wrong?
(d)was it unreasonable for the panel to accept the City's advice in the circumstances?
(2)Ground 1(b): did the panel have to consider for itself whether the evidence the first panel had sought had been provided?
(3)Ground 2: did the panel impose conditions based on an assumption that they would reduce congestion?
Before considering the issues, I will set out the relevant background facts, the relevant legal principles and the regulatory framework.
Background facts
On 30 September 2016, Fabcot lodged an application with a joint development assessment panel for planning approval of a two storey mixed‑use development (Application). The development proposed to contain retail shops, a medical centre, and various offices. The retail element included a supermarket to be operated by Woolworths. The proposed development was to be situated at the corner of Canning Highway in Applecross and Reynolds Road in Mt Pleasant, within the City of Melville (Site).
The Application was submitted with a 'Traffic Impact Assessment' prepared by Riley Consulting dated September 2016. This assessment was later revised in December 2016 (revised TIA).[3]
[3] Affidavit of Gregory Ian Brindle sworn 14 February 2018 (Brindle Affidavit), page 266.
As will be discussed later,[4] the City of Melville was required to give the panel a 'responsible authority report' (RAR). An RAR was required, among other things, to provide sufficient information to enable the panel to determine the application, including a recommendation as to how the application should be determined.
[4] See under the heading 'Legislative framework'.
For the purposes of preparing the RAR, the City caused Riley's revised TIA to be peer reviewed by a company called 'Cardno'.
Cardno provided a report dated 10 January 2017 (Cardno's Report).[5] In its report, Cardno raised a number of queries in relation to Riley's revised TIA. Cardno summarised the points to note from its report in an email (Cardno's Summary).[6]
[5] Brindle Affidavit, page 311.
[6] Brindle Affidavit, page 335.
The City also consulted with the Main Roads Department of WA (Main Roads). Main Roads has responsibility for Canning Highway, while the City has responsibility for the local roads, including Reynolds Road.
Main Roads wrote to the City on 22 February 2017 (Main Roads' Letter).[7] Main Roads advised that it had completed an extensive review of the traffic flow data and 'SIDRA' model used by Riley in the preparation of the revised TIA. (SIDRA modelled traffic generated by both the development and independently of the development through the intersection.) Main Roads set out its views as to the impact on traffic in peak hours. Main Roads concluded:
It is considered that the above impacts to Canning Highway, especially those in the [afternoon peak period] will contribute to making an existing congested situation worse. Main Roads is inclined to not object to the development, having regard to the intent to further develop the broader precinct, and the ability to prioritise movement along Canning Highway. The obvious consequence of this will be a further deterioration of the flow of traffic on and along local side roads such as Reynolds Road.
[7]Affidavit of Mark Andrew Etherington sworn 2 May 2018 comprising 313 pages (Etherington First Affidavit), pages 151 ‑ 152.
The City provided an RAR dated 17 March 2017 (City's First Report). It supported the Application and recommended its approval subject to conditions.[8]
[8] Brindle Affidavit, page 215.
On 22 March 2017, Ms Herget‑Lansdell of Move Consultants (Move) submitted a report to the City and the panel (Move's First Report). The report was commissioned, in effect, by Milem.[9] The report was critical of Riley's revised TIA and asserted that the proposed development was likely to cause significant adverse traffic impacts.[10]
[9] Move's First Report par 1 (in Brindle Affidavit, page 315), the Brindle Affidavit [1] and Affidavit of Mark Andrew Etherington sworn 2 May 2018 comprising 61 pages (Etherington Second Affidavit), page 20. Milem referred to Move as 'the Applicant's consultant' in its submissions - see Applicant's Outline of Submissions in Reply filed 28 June 2018 (Milem's Reply Submissions) [18(c)].
[10] Brindle Affidavit, pages 315 ‑ 326.
The Application was considered by a Joint Development Assessment Panel on 27 March 2017 (First Panel). The 'specialist members'[11] of the First Panel were Messrs Birch, Higham and D'Alessandro. The local government representatives were councillors Mr Schuster and Ms Foxton.
[11] The composition of Joint Development Assessment Panels is explained in the next section.
During the meeting of the First Panel, Ms Herget‑Lansdell made a presentation against the Application, expressing her view that the likely traffic impacts were so adverse that the Application should be refused.[12]
[12] Affidavit of Heidi Herget-Lansdell sworn 14 February 2018 [3].
The First Panel deferred making a decision for a period of a further three months, to enable Fabcot to submit a Retail Sustainability Assessment (not related to the judicial review application) and to address five matters relating to the potential impact of the development. Four of those matters related to traffic. The minutes record that the First Panel considered that there was a lack of clarity around the potential impact of traffic on the access arrangements to the development and the road design requirements to minimise this impact.[13]
[13] Brindle Affidavit, pages 223 - 224.
As a consequence of the resolution by the First Panel to defer planning approval, the Application was deemed to be refused. Fabcot lodged an application for review of the deemed refusal in the State Administrative Tribunal. This led to a mediation and an agreement that the decision would be reconsidered. A different panel was constituted for this purpose (Second Panel). This panel was comprised of Messrs Johnston, Antill and D'Alessandro as specialist members, and councillors Mr Schuster and Ms Foxton as the local government representatives. Milem does not suggest that the Second Panel was the same entity or same decision‑maker as the First Panel.[14]
[14] See ts 186 ‑ 187 and ts 212 ‑ 213.
Between the meeting of the First Panel and the meeting of the Second Panel, the following three documents were provided.
(1)Riley Consulting submitted a 'Technical Note', dated 16 June 2017.[15]
(2)The City provided a second RAR dated 30 June 2017 (City's Second Report). In this, the City recommended that the Second Panel refuse to grant development approval. This recommendation was made on the basis of issues that were not related to traffic. The City recommended refusal on the basis that the proposed development would undermine the 'Activity Centres Hierarchy'.[16]
(3)On 7 August 2017, Ms Herget‑Lansdell provided a further report (Move's Second Report) which, among other things, referred to Riley's Technical Note.[17]
[15] Brindle Affidavit, pages 327 ‑ 339.
[16] The State Government planning policy 'Activity Centres for Perth and Peel', 'SPP4.2', advocates a hierarchical approach to 'Activity Centres' to allow for the planning, management, and control of Activity Centres. Activity Centres are 'community focal points'. They include activities such as commercial, retail, higher density housing, entertainment, and medical services. Activity Centres are ranked according to the existing or planned role and function of that centre, the needs of the community it serves, and the accessibility to employment opportunities it provides. So, for example, a development with a large shop floor area should ordinarily be placed within a 'District Centre' level Activity Centre, not a 'Local Centre' level Activity Centre. See Etherington First Affidavit, pages 170 ‑ 182 and SPP4.2.
[17] Brindle Affidavit, pages 340 ‑ 351.
The Second Panel met on 14 August 2017.
The Second Panel rejected the recommendation of the City and approved the Application on conditions. The conditions were relevantly[18] the same conditions that had been recommended by the City in the City's First Report. Two of the conditions related to traffic.[19]
[18] Some minor changes were made to conditions 14, 16 and 17 - see Brindle Affidavit, page 364.
[19] Brindle Affidavit, page 367.
Six months later, on 14 February 2018, Milem filed its application for judicial review. This was the last day on which the application could be filed without leave.[20] Milem seeks certiorari to quash the approval.
[20] Order 56 r 2 of the Rules of the Supreme Court 1971 (WA).
The Second Panel has filed a notice that it intends to abide by the decision of the court.
Legal principles
In dealing with the application for judicial review, the court's jurisdiction does not extend to engaging in a review of the merits of the Decision. The court's jurisdiction is confined to determining whether the Second Panel made a jurisdictional error in reaching the Decision.[21]
Jurisdictional error
[21] Milem did not allege errors of law on the face of the record.
In Re Refugee Review Tribunal; Ex parte Aala,[22] Hayne J explained:
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[22] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. This statement was applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] ‑ [88].
As was recently explained by the High Court in Hossain v Minister for Immigration and Border Protection,[23] determining the limits of a decision‑maker's functions and powers is a question of statutory construction.
[23] 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.[24]
[24] 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'.[25] It is also ordinarily an implied condition that the decision‑maker comply with the standard of legal reasonableness.[26]
[25] Hossain [29].
[26] 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.[27]
[27] 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'.[28]
[28] Hossain [29] ‑ [30].
As was recently said by the Court of Appeal in Mohammadi v Bethune,[29] '[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'.
[29] Mohammadi v Bethune [2018] WASCA 98 [31]. See also all of [31], and [32] ‑ [36].
In Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton,[30] 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.
Reasonableness
[30] Australian Unity Property Limited as responsible entity for the Australian Unity Diversified Property Fund v City of Busselton [2018] WASCA 38 [77] ‑ [85].
Both grounds of the judicial review application allege that the Second Panel committed jurisdictional error by acting unreasonably.
In Minister for Immigration and Border Protection v Eden,[31] the Full Court of the Federal Court summarised the relevant principles (citations omitted):
First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision‑making.
Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.
Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an 'outcome focused' conclusion without any specific jurisdictional error being identified.
…
Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of 'decisional freedom' within which a decision‑maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power.
Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision‑making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.
Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.
Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. … The expressions that have been utilised include decisions which are 'plainly unjust', 'arbitrary', 'capricious', 'irrational', 'lacking in evident or intelligible justification', and 'obviously disproportionate'. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a 'checklist' exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
[31] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 [58] ‑ [60], [62] - [65], cited by Buss P in Western Australian Planning Commissioner v The Board of Valuers [2018] WASCA 145 [172].
In Minister for Immigration and Border Protection v SZVFW,[32] Nettle and Gordon JJ reinforced the need to evaluate the evidence:
Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.
Unreasonable not to inquire?
[32] SZVFW [84].
In Minister for Immigration and Citizenship v SZIAI,[33] the High Court said:[34]
The failure of an administrative decision‑maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
[33] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429.
[34] SZIAI [20].
In SZIAI, the High Court was considering a duty to review imposed on the tribunal by the Migration Act 1958 (Cth). The court said:[35]
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a 'duty to inquire', that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[35] SZIAI [25].
However, the court said that it was not necessary to explore these questions of principle in that case. One reason for that was that there was nothing on the record to indicate that any further inquiry by the tribunal could have yielded a useful result.[36]
[36] SZIAI [26].
Information cannot be 'critical' when the only indications available at the time were that the information, even if obtained, would not have yielded a different outcome.[37]
[37] Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153; (2009) 180 FCR 510 [50].
Further, for a fact to be critical it must at least be decisive of, or crucially important to, an anterior issue which provides 'a sufficient link' to the outcome.[38]
[38] Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 [40].
Legislative framework
Joint Development Assessment Panels
The Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (Panel Regulations) provides, among other things, for the establishment of Development Assessment Panels (called DAPs). DAPs may be either Joint Development Assessment Panels (called JDAPs) or Local Government Assessment Panels.
As noted earlier, Milem submitted that, in view of the nature of the constitution of a JDAP and the regulatory framework, a higher standard was expected of the panel than would be expected of a local government. Milem referred to the requirements of the Panel Regulations as to the decision‑making process and the qualifications, experience and training of panel members.
A JDAP is to be constituted by two local government members and three persons appointed as 'specialist members'.[39] To be eligible to be a 'specialist member', a person must:[40]
[39] Panel Regulations reg 25(1).
[40] Panel Regulations regs 35(1) and 37(1).
(a)have experience in one or more of the following areas of expertise -
(i)town planning;
(ii)architecture;
(iii)urban design;
(iv)engineering;
(v)landscape design;
(vi)environment;
(vii)law;
(viii)property development or management;
and
(b)have -
(i)a tertiary qualification relevant to their area of expertise and experience practising or working in their area of expertise that is, in the opinion of the Minister, sufficient to allow them to perform the duties of a specialist member; or
(ii)extensive experience practising or working in their area of expertise that is, in the opinion of the Minister, sufficient to allow them to perform the duties of a specialist member.
At least two of the specialist members must have experience, and a tertiary qualification, in town planning.[41]
[41] Panel Regulations reg 37(4).
It can be seen, therefore, that three members of a JDAP must have specialist qualifications in one or more of the listed specialist areas. At least two must have experience and qualifications in town planning. The Panel Regulations do not, however, require that a panel have a member with experience and qualifications in traffic engineering.
The Panel Regulations also provide that officers of the Planning, Land and Heritage Department (department) and members of parliament may not be members of a JDAP.[42]
[42] Panel Regulations reg 35(2) and the definition of 'department' in reg 3(1).
A panel member cannot perform any functions until the Director General is of the opinion that the member has satisfactorily completed the training provided by the department.[43] There was no evidence as to the type of training that is provided.
[43] Panel Regulations reg 30(1).
Any DAP meeting to determine a development application must be open to the public. The presiding member of a DAP may invite a person to advise, inform, or make a submission to, the DAP in respect of a development application.[44] Accurate minutes of DAP meetings must be kept. Where a meeting determines a development application, the minutes must include a record of the reasons for the determination. The minutes must also be published on the DAP website.[45]
Responsible Authority Reports
[44] Panel Regulations reg 40.
[45] Panel Regulations reg 44.
DAP applications are required to be made, in the first instance, to the local government responsible for the area in which the development is proposed to occur. On receiving a DAP application, the local government must give the presiding member of the DAP a report on the application. The local government is called, in this context, the 'responsible authority'. The local government's report is called a 'responsible authority report', which, as I have noted, I will refer to as an 'RAR'.
The RAR must be given within a certain period of time.[46]
[46] Panel Regulations reg 12. The period is either 48 or 78 days after the application was made or 12 days before the application would be deemed to be refused, depending on the circumstances.
The RAR must provide sufficient information to enable the DAP to determine the application, including:[47]
(a)a recommendation as to how the application should be determined; and
(b)copies of any advice received by the responsible authority from any other statutory or public authority consulted by the responsible authority in respect of the application; and
(c)any other information that the responsible authority considers is relevant to determining the application.
[47] Panel Regulations reg 12(5).
The DAP must have regard to, but is not bound to give effect to, the recommendation included in the RAR.[48]
[48] Panel Regulations reg 12(6).
The presiding member of a DAP may, at any time after the DAP is notified of an application, direct the responsible authority to give to the DAP technical advice and assistance and/or information in writing in connection with the application. The responsible authority must comply with such a direction.[49]
Deemed provisions
[49] Panel Regulations reg 13.
The provisions of sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) are deemed to be provisions in local planning schemes (Deemed Provisions).[50]
[50] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) pt 2 reg 10(4) and the Planning and Development Act 2005 (WA) s 256 and 257B.
Parts 7, 8 and 9 of the Deemed Provisions govern matters requiring planning approval for any proposed development, as part of the local planning scheme of the City.
Clause 67(t)
Clause 67 of the Deemed Provisions requires a local government considering an application for development approval to have due regard to a long list of factors 'to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application'.
In these proceedings, Milem alleged that the Second Panel did not have due regard to the factor in cl 67(t). However, as Milem relied on all of cl 67 as part of the relevant context, it is appropriate to reproduce cl 67 in its entirety.
67.Matters to be considered by local government
In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application -
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
(d)any environmental protection policy approved under the Environmental Protection Act 1986 section 31(d);
(e)any policy of the Commission;
(f)any policy of the State;
(g)any local planning policy for the Scheme area;
(h)any structure plan, activity centre plan or local development plan that relates to the development;
(i)any report of the review of the local planning scheme that has been published under the Planning and Development (Local Planning Schemes) Regulations 2015;
(j)in the case of land reserved under this Scheme, the objectives for the reserve and the additional and permitted uses identified in this Scheme for the reserve;
(k)the built heritage conservation of any place that is of cultural significance;
(l)the effect of the proposal on the cultural heritage significance of the area in which the development is located;
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following -
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
(o)the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;
(p)whether adequate provision has been made for the landscaping of the land to which the application relates and whether any trees or other vegetation on the land should be preserved;
(q)the suitability of the land for the development taking into account the possible risk of flooding, tidal inundation, subsidence, landslip, bush fire, soil erosion, land degradation or any other risk;
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
(s)the adequacy of -
(i)the proposed means of access to and egress from the site; and
(ii)arrangements for the loading, unloading, manoeuvring and parking of vehicles;
(t)the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;
(u)the availability and adequacy for the development of the following -
(i)public transport services;
(ii)public utility services;
(iii)storage, management and collection of waste;
(iv)access for pedestrians and cyclists (including end of trip storage, toilet and shower facilities);
(v)access by older people and people with disability;
(v)the potential loss of any community service or benefit resulting from the development other than potential loss that may result from economic competition between new and existing businesses;
(w)the history of the site where the development is to be located;
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;
(y)any submissions received on the application;
(za)the comments or submissions received from any authority consulted under clause 66;
(zb)any other planning consideration the local government considers appropriate.
'Due regard'
Milem initially submitted that cl 67(t) requires a panel to know what the existing state of the traffic is. Milem said that a panel could not otherwise know what impacts there will be. Milem accepted that this did not require a panel to know precisely what the actual traffic situation is, but submitted that the panel needed to have a reasonable estimate of it.[51]
[51] ts 36 ‑ 37.
Later, Milem qualified this position. Milem submitted that a panel could act reasonably, and pay 'due regard' as required by cl 67(t), by accepting an RAR at face value, unless there was material before it that would put the panel reasonably on notice that there was a disputed fact that required resolution.[52] Milem said, for example, that a panel could accept at face value advice in an RAR to the effect that the development would not have a substantial traffic impact, unless other evidence indicated that the advice was wrong and clearly inconsistent with the evidence.[53]
[52] ts 141 ‑ 142. See also ts 104 ‑ 108, 110 ‑ 111, 115 ‑ 116, 129 and 143 ‑ 145. I give more detail of Milem's final position in dealing with ground 1(a).
[53] ts 143 ‑ 145.
In Marshall v Metropolitan Redevelopment Authority,[54] Pritchard J considered the meaning of 'due regard' in the context of the Metropolitan Redevelopment Authority Act 2011 (WA). Her Honour found that, in that context, the phrase 'have due regard for' or 'have regard to' required the Metropolitan Redevelopment Authority (MRA) to take into account, or give consideration to, the matters listed. Her Honour found that, in the context of that Act, the requirement meant that the MRA must give 'active or positive consideration to the matters listed, to the extent that they apply in any particular case'.[55]
[54] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226.
[55] Marshall [115].
Her Honour noted that the content of an obligation on a decision‑maker to 'have regard to' or 'have due regard for' particular matters must be determined by a process of statutory interpretation. That process requires that the words used in the statute be construed within their statutory context.[56]
Contextual considerations
[56] Marshall [106] ‑ [109].
In support of its submissions, or at least its initial submissions, as to what was required by cl 67(t), Milem sought to distinguish cl 67 from the clauses under consideration in Marshall. Milem submitted that some of the factors listed in cl 67, including sub‑clause (t), are quite focused and specific, whereas the clauses under consideration in Marshall were very general.
Milem pointed out that traffic issues would be encompassed by the broadly worded factor in cl 67(b). However, cl 67(t) is specifically directed to 'the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety'.
The clauses under consideration in Marshall were very general. Her Honour noted that they were 'not of a substantive or measurable kind - they [did] not require the MRA to be satisfied of the existence of particular facts, criteria or effects, for example'. They were 'not matters which could necessarily be applied, or complied with, when the MRA made a decision on a development application'.[57]
[57] Marshall [110] ‑ [111].
Fabcot accepted that cl 67(t) has a higher level of specificity than the clauses under consideration in Marshall. However, Fabcot pointed out that cl 67(t) did not set out objective criteria, such as a formula, set figure or percentage. It simply referred to the amount of traffic likely to be generated and the probable effect on traffic flow and safety. Fabcot submitted that cl 67(t) did not require anything more than that the panel give active or positive consideration to those matters.
In S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale,[58] Pritchard J dealt with, among other things, an allegation that a council had failed to comply with the requirement in cl 67 of the Deemed Provisions to have regard to the listed factors. Her Honour noted that she had discussed the content of a requirement to 'have regard to' planning considerations 'in a similar context' in Marshall. Her Honour said that, on the case before her, it was not necessary to reach any final conclusion as to the content of the requirement on the council to have 'due regard' to the matters in cl 67. This was because, 'whether or not the Council was required to give those considerations it considered to be relevant … 'active and positive', or 'proper, genuine and realistic' consideration, or some lesser degree of consideration, the Council did so'.[59]
[58] S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191.
[59] S & L Lenz [168].
Ultimately, this issue is of little moment. Milem did not appear to contend that the obligation in cl 67 required the Second Panel to do anything more than give active or positive consideration to the relevant listed matters, provided that the Second Panel properly construed what the listed matters were.[60] Fabcot did not contend that the obligation could be discharged by something less.[61] Further, as I have said, Milem later changed, or 'clarified', its position on what the Second Panel was required to do in order to have 'due regard' to cl 67(t). As will be seen, Milem ultimately submitted that what was required depended on whether it should have been obvious to the Second Panel that the City's advice was wrong.[62]
[60] ts 43 and 171. See also Milem's Reply Submissions [11], [15], [18(h) - ''realistic consideration'].
[61] Second Respondent's Outline of Submissions and List of Authorities filed 25 June 2018 [32].
[62] See the discussion of ground 1(a) below.
In my view, although there is a higher level of specificity in some of the sub‑clauses of cl 67 than the provisions under consideration in Marshall, the requirement to have 'due regard' in cl 67 is no higher than a requirement to give active consideration to those matters that the JDAP considers to be relevant.
Clause 67 does not require that a JDAP be satisfied of the existence of particular facts, criteria or effects. Rather, cl 67 requires the JDAP to consider various facts, if relevant, such as the built heritage conservation value. It requires the JDAP to consider various effects, such as the effect on the cultural heritage significance of the area or the probable effect of the amount of traffic likely to be generated. Clause 67 does not list, for example, preconditions that must be met before approval can be given. It lists matters that the JDAP should consider, if the JDAP believes them to be relevant.
Further, the purpose of the Deemed Provisions appears to be similar to the purpose of the Act under consideration by Pritchard J in Marshall. Her Honour said (citations omitted):[63]
Given the range and character of the matters to which the MRA is to 'have regard', the legislative purpose appears to be to ensure that when the MRA comes to determine a development application, it will have before it all of the information and sources of guidance which will enable it to make a sound planning decision, and that in reaching its decision, the MRA will use such of that information as it considers relevant to the application before it. That legislative purpose would be achieved if the MRA were required to give 'active consideration' to the matters listed in s 66(1), while retaining a discretion to give such weight to those considerations as it considers appropriate in the circumstances.
[63] Marshall [114].
In my view, on a proper construction of cl 67, 'due regard' requires active consideration to those listed matters that the JDAP considers to be relevant.
Planning and Development Act 2005 (WA)
The relevant regulations were made under the Planning and Development Act 2005 (WA).One of the purposes of that Act is to provide for an efficient and effective land use planning system in the State.[64]
[64] Section 3(1)(b).
Grounds of review
The judicial review application relied on two grounds which were, with respect, unclear. Following some exploration of what ground 1 intended to allege, I invited Milem to prepare an amended ground to more clearly reflect its argument.[65] The proposed amended ground was filed prior to the second day of hearing. On the second day of hearing, I granted leave to amend ground 1 in those terms.
[65] See ts 124 ‑ 126.
The amended ground 1 alleged that the Second Panel committed jurisdictional error by unreasonably exercising its statutory discretion to approve the Application, in that:
(a)it failed to make findings of fact required to resolve disputed facts about the actual traffic situation at peak hours at the intersection of Canning Highway and Reynolds Road, and particularly on Reynolds Road south of Canning Highway, necessarily required to pay due regard to clause 67(t) of [the Deemed Provisions], as a mandatory relevant consideration; and
(b)it failed to consider for itself whether the evidence it sought at its meeting on 27 March 2017, for the reason expressed (that there was insufficient clarity about the actual traffic situation in order, implicitly, for it to properly assess likely traffic impacts for the purposes of paying due regard to clause 67(t) of the Deemed Provisions) had been provided in order for it to make the findings of fact required to resolve the disputed factual issues about the actual traffic situation described above, instead accepting (by majority) the unsupported and unreasoned assurance of the City of Melville in its Responsible Authority Report provided for the purpose of the [Panel's] meeting dated 14 August 2017 that it need not do so, when:
(i)there was evidence accompanying the Responsible Authority Report to the effect that the evidence sought by the [Panel] in answer to the request of the [Panel] at its first meeting on 27 March 2017 had not been provided; and
(ii)no other evidence appeared in the Responsible Authority Report, or accompanying it, as to why the [Panel] should find that its requests (particularly requests 4 and 5) of that first meeting were not required to be answered, or the evidence sought by it provided.
Ground 2 alleged that the Second Panel 'did not satisfy a condition of the proper exercise of its power, by unreasonably, and incorrectly, assuming that the likely adverse traffic impacts caused by the development for which approval was being sought was capable of being addressed by the imposition of conditions, when the true likely nature and extent of adverse traffic impacts justified refusal of the Application'.
Ground 1
As the outcome of ground 1(b) could influence ground 1(a), I will discuss ground 1(b) first.
Ground 1(b) - did the Second Panel have to consider what had been sought be the First Panel?
Milem relied heavily on the resolution of the First Panel to defer making a decision to enable Fabcot to address specific issues, four of which related to traffic. Milem submitted that, in light of the First Panel's decision, it was incumbent on the Second Panel to ensure that the traffic issues had been properly addressed.
I do not accept this submission.
Following the deemed refusal, the Application was to be reconsidered. The Second Panel was not bound to take the same view of the evidence as the First Panel had taken. It was not bound to consider that the same issues needed to be addressed. It was only bound to consider any mandatory relevant considerations on the evidence before it. This is what it purported to do.
Nor do I accept that, if the approach taken by the First Panel was reasonable and appropriate, that this was the only approach that would be reasonable and appropriate. In my view, the thought processes or conclusions of the First Panel are entirely irrelevant to evaluating the reasonableness of the Second Panel's decision.
Accordingly, ground 1(b) of the application for judicial review should be dismissed. The Second Panel did not have to consider whether the evidence sought by the First Panel had been provided.
I do, however, accept that part of the material before the Second Panel included the fact that inquiries had been made about traffic issues. This has some relevance to ground 1(a).
Ground 1(a) - did the Panel have to make a finding of fact about the actual traffic situation?
Milem's propositions
Ground 1(a) alleges that, in order to pay due regard to cl 67(t), the Second Panel had to make 'findings of fact required to resolve disputed facts about the actual traffic situation'.
As noted earlier,[66] Milem's submissions on what was required by cl 67(t) changed, or perhaps was more clearly articulated, in the course of the hearing. Ultimately, Milem submitted that a panel could act reasonably, and pay 'due regard' as required by cl 67(t), by accepting an RAR at face value, unless there was material before it that would put the panel reasonably on notice that there was a disputed fact that required resolution.[67]
[66] See under the heading 'Due regard'.
[67] ts 141 ‑ 142. See also ts 104 ‑ 108, 110 ‑ 111, 115 ‑ 116, 129 and 143 ‑ 145.
Milem said, for example, that a panel could accept at face value advice in an RAR to the effect that the development would not have a substantial traffic impact, unless other evidence indicated that the advice was wrong and clearly inconsistent with the evidence.[68]
[68] ts 143 ‑ 145.
Similarly, Milem said that a panel could accept at face value advice in an RAR to the effect that it was not necessary to conduct further traffic analysis, unless it would have been obvious to a reasonable member of the panel that the evidence showed that the advice was wrong.[69]
[69] ts 96 ‑ 98, 104 ‑ 108, 141 ‑ 142.
After some exploration of what Milem was contending, Milem agreed that its propositions could be summarised in this way:[70]
(1)The Second Panel had to read all the material that was before it.
(2)If the members of the Second Panel read all of the material, it should have been obvious to them that what the City was telling them was wrong, in that there were factual disputes as to the traffic impact of the proposed development that needed to be resolved.
(3)Therefore, it would be 'seriously illogical' (and would therefore be legally unreasonable) for them to conclude there was not a substantial traffic impact without resolving the factual disputes.
[70] ts 145, read with ts 141 ‑ 145.
Each of these propositions was informed by Milem's submissions as to the nature of a JDAP and its proceedings. I will discuss the nature of a JDAP and its proceedings next and, in doing so, I will address Milem's first proposition and touch upon the third proposition. Then, I will deal with Milem's second proposition.
The nature of JDAPs and their proceedings
Parties' submissions
Milem submitted that the regulations relating to training and qualifications demonstrate an objective intention that a DAP was required to act to a far higher standard than would be expected of, for example, local authorities.[71] Milem submitted that the purpose of the provisions relating to meetings and minutes was to make a DAP publicly accountable and to require a DAP to act with procedural fairness.[72]
[71] ts 29 ‑ 30.
[72] ts 31.
Fabcot pointed out that many of the matters raised by Milem would apply equally to a local government. Further, even though a local government is not always required to provide written reasons, it must do so where its decision significantly differs from the written recommendation of the relevant committee or employee.
Fabcot also pointed out that JDAPs are convened on an application by application basis. There is no single permanent JDAP, unlike a local government that will remain static between elections.
In addition, a decision of a JDAP has effect as if it was a determination of the responsible authority. In other words, the JDAP stands in the shoes of the local authority.[73]
[73] Planning and Development Act s 171A(3) and Panel Regulations regs 8(1)(a) and 16.
Further, Fabcot noted that, while a JDAP may permit a person to provide information, advice, or make submissions, it does not have the power to take evidence.
Milem pointed out that, unlike a JDAP, members of a local government do not have to have training or tertiary qualifications.
Milem submitted that JDAPs were intended to have a degree of expertise that would enable them to assess matters on their merits in a more substantive manner.[74]
[74] ts 209.
Milem submitted that the provisions relating to responsible authorities demonstrate that the JDAP's task is not to take the report of the responsible authority at face value, but that the JDAP must look at the facts and the evidence and decide for itself whether the evidence supports the facts it needs to find.[75] Milem further submitted that these provisions demonstrate that the obligation to determine what material it should receive rests on the JDAP, not on the responsible authority.[76]
[75] ts 34.
[76] ts 34 ‑ 35.
Milem submitted that the overall purpose of the Panel Regulations was to establish a specialised body with particular expertise, including tertiary qualifications in planning, and a body that was depoliticised by permitting only two of its five members to be council members of the local authority.[77]
Analysis
[77] ts 209.
The evaluation of what is required of a JDAP and the limits of its authority requires attention to the text, context and purpose of the Panel Regulations.
Milem's first proposition is that a JDAP must read all of the material before it.
Milem's third proposition assumes that a JDAP would act unreasonably if it accepted advice in circumstances where it should have been obvious to it from the materials before it that the advice was wrong.
I will deal with the first proposition and then the assumption in the third proposition.
Did the Second Panel have to read all of the material?
It was initially accepted by Fabcot that the Second Panel did have to read all the material that was before it. However, Fabcot appeared to later qualify that.[78]
[78] ts 189.
I do not accept that a JDAP has to read all of the material put before it. It is conceivable that long, irrelevant documents could be submitted. In addition, material provided at an earlier time may have been overtaken by subsequent events. It would be unduly burdensome to require a JDAP to read such documents.
I do, however, accept that a JDAP must read all of the relevant material. This will include the agenda and attached papers, and any other documents provided to it that appear to be relevant.
In later considering Milem's second proposition, I set out the materials before the Second Panel. With one qualification, all of that material was relevant. The qualification relates to Move's Second Report. As will be seen, I consider it would have been open to the Second Panel to approach that report with caution on the basis it lacked independence.
To what extent may a JDAP rely on advice?
As noted, Milem's third proposition assumes that a JDAP would act unreasonably if it accepted advice in circumstances where it should have been obvious from the materials before it that the advice was wrong, in that there were factual disputes as to the traffic impact of the proposed development that needed to be resolved.
I agree that the text, context and purpose of the Panel Regulations demonstrate that a JDAP is intended to have a degree of expertise beyond what would be expected in a local government. I agree that it is intended that it be depoliticised. I do not accept, however, that it is intended to be more than that.
At least two members must have experience and qualifications in town planning. The Panel Regulations do not, however, require that a panel have a member with experience and qualifications in any of the other listed fields, including engineering.
Further, unlike a local government, JDAPs are convened on an application by application basis.
In addition, the responsible authority must give a JDAP a report which provides sufficient information to enable the DAP to determine the application, including a recommendation as to how the application should be determined. Although the JDAP is not bound to give effect to that recommendation, it is entitled to have regard to it.
Finally, the JDAP may, at any time, require the responsible authority to provide technical advice, assistance or information.
In my view, a JDAP is expected to apply its town planning expertise in considering development approval applications. However, it is nevertheless entitled to take advice in that field of expertise. Further, a JDAP is entitled to take advice in relation to any other area of expertise, including advice from traffic engineers in relation to traffic impacts. Its entitlement to receive advice, assistance or information is only limited by the implied requirement that the advice, assistance or information be relevant to the issues it is considering.
Accordingly, a JDAP is entitled to receive advice, assistance or information in relation to matters to which it is required to have 'due regard'. It will ordinarily satisfy the requirements of 'due regard' if the JDAP is given and accepts advice in relation to those matters.
However, in my view, if it is plain on the face of that advice that the advice is wrong or flawed, the JDAP should not accept the advice at face value. To do so would be to fail to have due regard to a matter to which it was required to have regard. Provided it met the materiality threshold,[79] it would be a legally unreasonable exercise of its power, and it would thereby have acted outside of the limits on its powers.
[79] See the discussion under the heading 'Jurisdictional error'.
It is not possible to conclude in the abstract whether a JDAP would act unreasonably in accepting advice if the advice was not flawed on its face but was shown to be flawed by the other materials before the JDAP. The answer will depend on the particular facts in each case. Milem did not contend otherwise. In evaluating Milem's second proposition, I will consider the particular facts. However, as will be seen, I find that the City's Second Report was not shown to be wrong by the materials before the Second Panel. Accordingly, the question of whether the Second Panel acted unreasonably in accepting advice that was shown to be wrong by other materials does not arise.
Should it have been obvious that the City was wrong?
Milem's second proposition is that, if the members of the Second Panel read all of the material before them, it should have been obvious that what the City was telling them was wrong, in that there were factual disputes as to the traffic impact of the proposed development that needed to be resolved.
In order to deal with this, it is necessary to examine the evidence in some detail. I will also set out what occurred during the Second Panel's meeting and the reasons for the Second Panel's decision.
The documentary evidence
According to the affidavit of Mr Etherington, the agenda and materials before the Second Panel at the meeting comprised 160 pages.[80]
[80] Etherington First Affidavit, pages 153 ‑ 313.
The materials were:
(1)the minutes of meetings on 13 July 2017 and 20 July 2017, neither of which related to the Application.[81] (The minutes of the First Panel meeting were not included);
(2)the City's Second Report;
(3)a letter from Fabcot to the State Solicitor's Office,[82] which attached Riley's Technical Note and its attachments.[83] The attachments to the Technical Note included, among other things, Cardno's Summary and a memo to Main Roads;
(4)a Retail Sustainability Assessment report and two information papers on this topic (not relevant to the judicial review application);[84] and
(5)extracts from the City's Local Planning Strategy document (also not relevant).[85]
[81] Etherington First Affidavit, pages 157 ‑ 169.
[82] Etherington First Affidavit, page 200.
[83] Etherington First Affidavit, page 222.
[84] Etherington First Affidavit, pages 235 ‑ 307.
[85] Etherington First Affidavit, pages 308 ‑ 313.
During the hearing, however, the parties referred to several other documents on the implicit assumption that they had been before the Second Panel. Accordingly, after reserving my decision, I raised with the parties whether I should read Mr Etherington's affidavit as asserting that the listed documents were the only documents before the Second Panel. I was told that was not the intended assertion. The parties elected to make inquiries of the Second Panel and advise me whether it had the other documents referred to during the hearing. I have now been advised that the Second Panel also had Move's Second Report.[86]
[86] Letter from the State Solicitor's Office dated 16 November 2018.
I will deal with the materials that were before the Second Panel in their chronological order.
Cardno's Summary (10 January 2017)
As noted earlier, Cardno was engaged by the City to undertake a peer review of Riley's revised TIA.
Cardno summarised the points to note from its report as follows:[87]
1.No calibration has been undertaken for the SIDRA analysis; the modelled queue lengths on Canning Highway (westbound through) are approximately 3x the observed. Calibration of intersection queue lengths is also a requirement under WAPC Transport Assessment Guidelines (August 2016).
2.The SIDRA volumes are inconsistent for the different scenarios analysis. For example, the AM Base (existing) has a total of 4,069 vehicles through the intersection. With the addition of the McDonalds and BP, this increases by 89 vehicles. With the addition of the Woolworths, this increases by an additional 3 vehicles (to a total of 4,161).
3.The 35% pass‑by trips do not appear to have been properly accounted for in the analysis.
4.For the PM peak, the Optimisation scenario (Appendix H) has 127 less vehicles than the 'normal' PM peak (Appendix G).
5.MRWA are unlikely to reduce the green time to Canning Highway due to their recent traffic signal optimisation project for Canning Highway.
[87] Brindle Affidavit, page 335.
I will refer to these points as 'the Cardno Issues'.
Riley's Technical Note (16 June 2017)
Riley's Technical Note[88] summarised the traffic investigation undertaken and the exchanges between Riley, Main Roads and the City.
[88] Brindle Affidavit, pages 327 ‑ 339.
It also referred to a meeting with Main Roads on 6 December 2016. In that meeting, a Main Roads' officer, Mr Reveley, apparently accepted that the proposed development would have minimal impact on traffic during the morning peak period. However, he raised a concern as to whether the volume of traffic used in the SIDRA model for the afternoon peak period was accurate. As a result, it was agreed that Fabcot would undertake a video survey of the Canning Highway/Reynolds Road intersection (the Intersection) on 9 December 2016. The traffic counts (Austraffic data) found that there were some differences between the volume used in the modelling and in the Austraffic data. The Technical Note said that the Austraffic data was subsequently used in the SIDRA modelling.[89]
[89] Brindle Affidavit, page 331.
Riley's Technical Note said it provided the following in response to the Cardno Issues:[90]
1.Calibration of the model was undertaken, but due to the variations in traffic signal green times provided by Main Roads and those occurring on-site, exact calibration was not possible. The length of queue in the Sidra model is longer than recorded by the PM peak survey, however Main Roads has accepted that as the queue is longer the assessment is not under-estimating the future impacts.
2.Revised traffic demand plans were provided to MRWA on the 8 February 2017 and accepted for the purpose of the Sidra analysis.
3.The rate of 35% pass‑by trips was queried by the City of Melville. ITE Trip Generation Handbook (USA) provides a table identifying various pass-by rates for land uses (refer Appendix D). The ITE data table contained in Edition 2 of the Trip Generation manual was provided to the City of Melville which shows an average of 36% pass by for USA shopping centres.
4.The traffic flows have been updated and accepted by MRWA.
5.It is acknowledged that MRWA may not utilise Sidra traffic signal timings, that is their prerogative. The key issue is that Sidra shows the intersection does NOT operate over-capacity as a result of the proposed development. No developer can control the outcomes of MRWA signal timings.
[90] Brindle Affidavit, pages 332 - 333.
Riley's Technical Note asserted:[91]
It is understood that the City of Melville are satisfied that, through the additional SIDRA analysis undertaken in conjunction with MRWA, the issues raised in the Cardno review have been suitably addressed.
[91] Brindle Affidavit, page 333.
As will be seen, the City's Second Report referred to Riley's Technical Note and confirmed, in effect, that the traffic issues had been suitably addressed.
Riley's Technical Note also commented on Main Roads' Letter and Move's First Report.[92]
[92] Brindle Affidavit, pages 331 ‑ 332 and 333 ‑ 334.
In commenting on Main Roads' Letter, the Technical Note referred to Main Roads' stated intention to further develop the broader precinct. Riley reported that this related to proposed structure planning of the Canning Bridge precinct, which was forecast to significantly increase local traffic movements. The Technical Note said that Main Roads was aware that this would create a need for 'the grade separation solution proposed'. The Technical Note said that, as a result, the traffic signals at Reynolds Road will only cater for the turning movements from Canning Highway and local traffic demands.
The City's Second Report (30 June 2017)
In the City's Second Report, the City recommended that the Second Panel refuse to grant development approval. This recommendation was made on the basis of concerns unrelated to traffic impacts.[93]. In relation to traffic issues, the City essentially advised that these had been sufficiently analysed and that traffic impacts did not provide a reason to refuse the Application. In what follows, I will deal only with the City's comments in relation to traffic issues.
[93] Etherington First Affidavit, pages 170 ‑ 182.
The City's Second Report advised that Main Roads and the City had been provided with the opportunity to review additional material provided by Fabcot prior to and during the mediation (on 12 June 2017) and since. The City's Second Report stated:
MRWA [Main Roads] have indicated that there is no objection raised in principle to the development as proposed, noting that road widening and the provision of a right turn pocket can be provided within the limitations of the existing road reserve subject to detailed designs being developed and approved.
The City reported that the views expressed by Main Roads 'are shared by officers of the City's technical services directorate'.
The City's Second Report also referred to the issues that had been raised by the First Panel. As noted earlier, the First Panel had raised a number of issues, four of which related to traffic. Those four issues had been numbered by the First Panel (3) ‑ (6), as follows:[94]
(3)Further detail of the proposed off site road improvements to Reynolds Road in relation to the required road geometry including any additional road widening requirements to effect the south bound turning pocket; should that be one of options;
(4)Further traffic analysis to provide greater understanding and certainty that the vehicle access to the development for customers, delivery and waste vehicles will not be impacted by vehicles queuing in Reynolds Road at the intersection of Canning Highway;
(5)Further traffic analysis to review current traffic volumes, particularly at peak times in Reynolds Road south of Canning Highway, and the current traffic queuing that occurs in Reynolds Road having particular regard to the peer review comments of Cardno;
(6)Further detail on any potential changes required for the Canning Highway/Reynolds Road intersection to allow satisfactory traffic management around this proposed development.
[94] Brindle Affidavit, page 223.
The City's Second Report set out and addressed each of these issues using their original numbering. I will refer to issue 3 and 6 collectively as the 'Road Changes Issues'. I will refer to issues 4 and 5 collectively as the Traffic Analysis Issues.
The Road Changes Issues asked for details as to any proposed works including any changes to the road geometry or to the Intersection. The City's Second Report noted that these changes would be the creation of a right turn pocket (pocket turn) and localised road widening.
The City reported that Fabcot had submitted details which were considered in the mediation and which had been reviewed by the City's technical services department and Main Roads, 'both of whom are supportive of the development as proposed'. The City noted that Main Roads had 'since adjusted the design of the right turn pocket, the point being that the road improvements can be achieved, subject to detailed final designs being provided prior to construction, and the right turn pocket being available for use prior to the use becoming operational'.
The City's Second Report said that Fabcot had lodged the concept design[95] for the pocket turn and that 'Main Roads and the City's engineers are satisfied with the design as it demonstrates that the required works are feasible and will not have a detrimental impact on the functionality at the intersection'.
[95] The concept design is in the Etherington First Affidavit, page 199.
In response to the Traffic Analysis Issues, the City's Second Report stated:[96]
Both the City and MRWA consider that further traffic analysis is not required. Substantial traffic analysis had been undertaken between consultants on behalf of the applicant (Riley Consulting), MRWA and the City's own traffic engineers in order to address the matters raised following submission of the version 2 of the TIA. The further traffic analysis undertaken by MRWA, the City and the applicant, addressed the matters raised in the peer review undertaken by Cardno on behalf of the City, and the initial comments raised by MRWA. It is noted that a third party peer review undertaken in respect of version 2 of the TIA [this was Move's First Report] was considered by the City as a submission to the initial planning application, the details of which were provided to the JDAP in the initial RAR.
To address the matters raised in points 4 and 5 of the deferral, the applicant has submitted a traffic memo [the Technical Note] that contains a chronological list of the traffic inputs provided, a summary of liaison between parties and the extent of the further traffic analysis to address the matters raised by MRWA and the Cardno peer review.
[96] Etherington First Affidavit, page 181.
The City's Second Report concluded as follows:[97]
While the section 31 application has satisfied the reasons for deferral in respect of [the various matters] and clarified the position in respect of further traffic analysis being provided, the information provided in the RSA[98] has raised concerns regarding the real impacts [unrelated to traffic] that will accrue from the development if it was allowed to proceed. …
On that basis, it is the reconsidered opinion of the City that the development the subject of this section 31 reconsideration should be refused planning permission for the reasons stated.
Move's Second Report (August 2017)
[97] Etherington First Affidavit, pages 181 - 182.
[98] Retail Sustainability Assessment.
Milem referred to Move's Second Report[99] in its written submissions, but did not address it orally. The written submissions referred to two points made in Move's Second Report, in relation to the need for actual traffic surveys and the proposed pocket turn.
The need for actual traffic surveys
[99] Brindle Affidavit, pages 340 ‑ 351.
Milem submitted[100] that Move's Second Report reiterated that its initial concerns on the accuracy of the prediction of the likely traffic impacts had not been answered. Move criticised Riley's failure to undertake actual traffic surveys after McDonald's had commenced operation (on 22 December 2016).[101]
[100] Applicant's Written Submissions filed 12 June 2018 (Milem's Written Submissions) [39] and [40(c)(ii)].
[101] Brindle Affidavit, page 346.
In my view, Move's comments on this topic would not cause a reasonable panel to conclude that there was, or might be, a factual dispute that needed to be resolved, in all of the circumstances. Riley's Technical Note and the City's Second Report indicated that the concerns and queries raised by Main Roads and the City (through Cardno) had been addressed. This included Riley undertaking video survey evidence to check the accuracy of the volume of traffic used in the SIDRA modelling, and then using the resulting Austraffic data in the SIDRA modelling. Given that the City and Main Roads were not asking for any further traffic counts to be conducted, there was no reason for the Second Panel to conclude that there was, or might be, a need.
Pocket turn
Milem submitted[102] that Move's Second Report 'also appeared to critique the right‑hand pocket turn on Reynolds Road for south‑bound traffic into the proposed development, but did not direct the critique to the design apparently made by Pritchard Francis'. Milem submitted that the proposed design would not be practically achievable as expanding the road width would require an acquisition from residential owners.[103]
[102] Milem's Written Submissions [39].
[103] Milem's Written Submissions [35].
It is possible that Milem made these submissions without the benefit of page 12 of Move's Second Report. This page was omitted from the affidavit of Mr Brindle.[104] On discovering the omission after reserving my decision, I asked to be provided with the missing page and have now received it. On that page, Move said that the design did not illustrate the impacts to existing properties on the east side of Reynolds Road. Move asserted that the pocket turn would require realignment of the kerb which would encroach on some existing front boundary fencing.
[104] Brindle Affidavit, pages 340 ‑ 355.
The pocket turn was also orally addressed by Ms Herget‑Lansdell, on behalf of Move, in the Second Panel's meeting. I discuss the pocket turn issue further when dealing with what happened during the meeting.[105]
[105] See under the heading 'The meeting'.
In my view, Move's criticisms would not cause a reasonable panel to conclude there was, or might be, a dispute that needed to be resolved in all of the circumstances. The City's Second Report specifically addressed the pocket turn issue, stating that Main Roads and officers of the City's technical services directorate considered that 'road widening and the provision of a right turn pocket can be provided within the limitations of the existing road reserve subject to detailed designs being developed and approved'. Condition 22 ensured that would happen. Further, as will be seen, during the Second Panel's meeting, the panel asked the City's representatives about the pocket turn issue, and was told that the works could take place within the road reserve, and without any prejudice to any third party ownership.[106]
Pass by traffic reductions
[106] See under the heading 'The meeting'.
Although not raised in relation to Move's Second Report, Milem did make submissions about two other topics that were discussed in Move's Second Report. These were pass‑by reductions and the road safety audit. Milem addressed these topics when discussing reports that, as it emerged, were not before the Second Panel.
Move's Second Report dealt with pass‑by reductions on page 8.[107] Move's comments on this topic occupy half a page of the report. Unfortunately, the formatting of the report and typographical errors[108] make it difficult to follow. Nevertheless, the thrust of Move's criticism can be discerned.
[107] The topic was also mentioned on pages 6 and 10.
[108] See, for example, the second last sentence above the first bullet point on page 8 of the report, Brindle Affidavit, page 347.
In assessing the amount of traffic that will be generated by a development, account is taken of the fact that some traffic that attends the site will have been passing by the site in any event. Obviously, it would over‑estimate the traffic impact of a development if a reduction is not made to allow for 'pass‑by' traffic.
Move asserted that Riley wrongly applied the pass‑by reduction to the total traffic attending the Site. Move asserted this was wrong because all of the traffic must enter the Site through the single access point. Therefore, the pass‑by reduction should only be applied to traffic that was already on Reynolds Road and then decided to enter the Site.
The issue of pass‑by reductions is the third Cardno Issue. I deal with this in discussing Milem's criticisms of Riley's Technical Note.[109] As I there explain, I do not accept that a reasonable panel member would have thought that there might be a factual dispute in relation to pass‑by reductions that needed to be resolved or that further analysis might be required.
The City representatives
[145] Etherington Second Affidavit, page 36.
Three officers from the City attended the meeting, offering to answer any questions that the Second Panel had. They were Steve Cope, the Director of Urban Planning, Peter Prendergast, the Manager of Statutory Planning, and Mark Scarfone, Planning Services Coordinator. They were also supported by Greg Davis, a Director from 'Tactics 4', to assist with answers to questions on retail planning.[146]
[146] Etherington Second Affidavit, page 38.
The officers were asked numerous questions on a wide range of topics. Mr D'Alessandro referred specifically to the issues raised by the First Panel, and various members of the Second Panel asked questions about those issues.[147]
[147] Etherington Second Affidavit, pages 42 ‑ 48.
One member asked 'hopefully the Council does seem to be confident with Main Roads and the City's position on the road widening and the traffic?' Mr Cope replied:[148]
Yes the City's representative is not here today but was involved in the mediation of the SAT and has been involved in the correspondence that we have been going to from, including Main Roads and are happy that the offside works of roads improvement can take place within the road reserve.
[148] Etherington Second Affidavit, page 43.
This obviously contradicted Ms Herget‑Lansdell's statement that the pocket turn could not be accommodated within the road reserve. In addition, Mr Prendergast later said that the City's engineers were satisfied it could be accommodated without prejudice to any third party ownership.[149]
The members' comments in relation to traffic
[149] Etherington Second Affidavit, page 48.
The application for judicial review focused solely on traffic issues. In reviewing the comments of the panel members in relation to the traffic issues, it is important to remember that the members spoke at length about many matters other than the traffic issues.
Councillors Schuster and Foxton spoke in favour of rejecting the Application. They further proposed a motion to add additional reasons for refusing it. As noted earlier, the City recommended the Application be refused on the ground it was contrary to the 'Activities Centres Hierarchy', an issue unrelated to traffic. The councillors proposed that the Application be refused for two additional reasons, one of which related to the traffic impact on users of Reynolds Road.[150]
[150] Etherington Second Affidavit, pages 50 ‑ 51.
Two panel members spoke against the proposed additional reasons for refusal: Mr Johnston and another panel member who was not named in the transcript but who must have been Mr Antill.
Mr Antill said, in relation to the traffic impact, 'I think that there is already impact on Reynolds Road. From all the reports that I've read and all the information including Main Roads, I think that that has been addressed and it is clear that this development does not significantly increase that. The problem already exists'.[151]
[151] Etherington Second Affidavit, page 53.
Mr Johnston said:[152]
Firstly … these reasons, these additional reasons, reflect some of the concerns of the residents nearby the development and I certainly acknowledge that those concerns represent the … at least the perceived impacts of the development. Against that we have to weigh the issues in regards to the evidence about those impacts to confirm whether they are likely to be significant or not. [I]n this case, the advice from the City Administration, and also the Main Roads and the context of the traffic impact, notwithstanding that we did have some experts from the deputations which raised these concerns. On balance, I believe that I cannot find significant enough evidence to justify the refusal on these grounds, on these 2 grounds, based on the evidence that the City has provided with the Main Roads. So the City, the Design Advisory Panel, the Main Roads Department have said that these impacts are manageable and for that reason I can't support the amendment. So I am voting against them.
[152] Etherington Second Affidavit, page 53.
The motion to amend the reasons for refusal was then voted on, and failed.
Then, the recommendation to refuse the Application, unamended, was considered. Each of Messrs D'Alessandro, Antill and Johnston spoke against the recommendation to refuse.
Mr D'Alessandro said:[153]
Mr Chair I would like to speak against the recommendation on the basis that I was at the previous JDAP and it was clear that the deferral was on the basis of 3 items and they were traffic, amenity and the retail sustainability assessment. Having had due regard to all the papers that were received and the reports, previous reports, reports before us, I'm not supportive of the refusal …
[153] Etherington Second Affidavit, page 54.
Mr D'Alessandro explained his reasons in relation to each of the three issues. In relation to traffic, he said:[154]
Main Roads and the City have confirmed the suitability. There is obviously going to be a traffic impact from this development, but there already is an issue on Reynolds Road which needs to be addressed. I don't see, and the reports confirm, that there is an undue impact on traffic and there are conditions in the alternative which actually address that.
[154] Etherington Second Affidavit, page 54.
Mr Antill said he echoed Mr D'Alessandro's words. He said that the Application was deferred to allow Fabcot to address a number of matters and that the City acknowledged that the revised application had satisfied the reasons for deferral in respect of two of the matters and had clarified the position in respect of further traffic analysis being provided.[155]
[155] Etherington Second Affidavit, page 55.
Mr Johnston referred to a number of non‑traffic issues and explained why he did not consider they provided a proper basis to refuse the Application. He said he would therefore be voting for the Application 'with suitable conditions to control the impact of the development'.[156]
[156] Etherington Second Affidavit, pages 55 ‑ 56.
Councillor Schuster spoke in favour of refusing the Application, including on the basis of traffic.[157]
[157] Etherington Second Affidavit, page 56.
The recommendation to refuse the Application, unamended, was then voted upon, and failed. Each of Messrs D'Alessandro, Antill and Johnston voted against it.
An alternative motion, to approve the Application, on conditions, was then put forward.
Mr D'Alessandro and Mr Antill spoke briefly in support. Relevantly, Mr D'Alessandro said 'Clearly it has addressed traffic, amenity and retail sustainability which were the issues raised … [by the] previous JDAP'.[158]
[158] Etherington Second Affidavit, page 58.
Councillor Schuster then spoke against the approval of the Application.[159]
[159] Etherington Second Affidavit, page 59.
Mr Johnston then spoke in favour of approval. He discussed matters unrelated to traffic and concluded by saying:[160]
So with that I'm going to vote for the approval with conditions. I've been through those conditions. I think they are sound conditions. There is room for further work in respect to some of the traffic issues which are important to refine. Condition 22. So, and I believe that there is a sufficient control in the construction management plan to deal with this operation.
The Decision
[160] Etherington Second Affidavit, page 59.
The motion passed. The Application was approved on 23 conditions. The conditions were relevantly[161] the same conditions that had been recommended in the City's First Report. Two of the conditions related to traffic, conditions 21 and 22.[162]
[161] Some minor changes were made to conditions 14, 16 and 17 - see Brindle Affidavit, page 364.
[162] Brindle Affidavit, page 367. The conditions are set out later in these reasons, under the heading 'The conditions'.
Mr Johnston said that he would draft reasons and circulate them to the panel members and, if the reasons were agreed, they would be incorporated into the minutes.[163]
The minutes
[163] Etherington Second Affidavit, page 60.
The minutes record the reasons as follows:[164]
The Panel in the majority formed the view that the application could be approved having regard for the range of views being expressed and the advice provided through deputations and the RAR Report. Some of the deputations raised concerns about the amenity and traffic impacts of the proposal however these were not supported by technical advice from the City of Melville or Main Roads WA.
The design modifications to the proposal were considered to satisfactorily ameliorate the development to adjoining neighbours noting that the City's design review panel were satisfied with the previous design.
A concept design for a right‑hand turn pocket in Reynolds Street by the applicant has been presented. Main Roads WA and the City were satisfied that the design demonstrates that the works are feasible and will not have an impact on the functionality of the intersection. The right‑hand turn pocket has been designed in such a manner to accommodate delivery and waste vehicles safely into the site without impact by vehicles queuing on Reynolds Road. The detailed design of this improvement is included in a condition of approval.
…
In summary it was agreed that whilst Panel Members might prefer the supermarket to be located in a larger activity centre it could not be said that the proposal before the Panel could be refused on that basis having regard for its acceptable amenity and traffic impacts.
Conclusion on the second proposition
[164] Brindle Affidavit, page 368 - 369.
There was nothing in the materials before the Second Panel that made it obvious the City's Second Report was wrong. The City's Second Report referenced Cardno's Report. It said further traffic analysis had been done by Main Roads, the City and Fabcot to address the Cardno Issues. The City's Second Report also referenced Move's First Report, and said it had been considered as part of the City's First Report. Move's Second Report would not have caused a reasonable panel member to conclude that there might be a factual dispute that needed to be resolved or that further analysis might be required.
The most that can be said is that reading all of the materials could have shown that the City's Second Report did not explain the particular analyses that were said to have been done that addressed the Cardno Issues.
Unreasonable to accept City's Second Report
Milem's third proposition was built upon the second proposition. The third proposition was that it would be legally unreasonable for the Second Panel to conclude there was not a substantial traffic impact without resolving the factual disputes, in circumstances where, according to the second proposition, it should have been obvious to the Second Panel that what the City was telling them was wrong.
As I have indicated, I do not accept that it should have been obvious to the Second Panel, from all of the materials before it, that what the City was telling them was wrong. Accordingly, the third proposition does not arise. I have considered whether I should address the third proposition on the basis that I may be wrong about the second proposition. In view of the interwoven nature of the relevant considerations, I consider this would be a fruitless exercise. Nevertheless, I do propose to address the issue of unreasonableness more generally. I accept, however, that the value of this discussion is limited by the fact that it inevitably includes my findings that it would not have been obvious from any of the other material before the Second Panel that there might be a factual dispute that needed to be resolved or that further analysis might be required.
The City's Second Report described the consultations that had taken place, including with Main Roads. It referred to the mediation in which Main Roads was involved, and noted that further information had been provided. It set out Main Roads' current position, and the view of the City's own technical officers.
The City's Second Report discussed the issues that had been raised by the First Panel.
It referred to the Cardno Report. Cardno's Report was prepared for the City, at the City's request. It was not requested by the Second Panel (or the First Panel).
From the City's Second Report, and the comments made by its officers during the meeting, it appears that the City used Cardno's Report as a tool, and that the City's own expert traffic engineers then considered the issues and undertook their own traffic analysis.
The City's Second Report said that the Cardno Issues were addressed by further traffic analysis undertaken by Main Roads, the City and Fabcot. The Technical Note was referenced as providing, among other things, a summary of the further traffic analysis.
The Second Panel did not have Cardno's Report before it. All it had was Cardno's Summary. There was no reason why the Second Panel would conclude that the Cardno Issues set out in that summary had not been addressed in the further traffic analysis the City referred to and the responses in the Technical Note (including the response in the Technical Note to Move in relation to the pass‑by reduction).
I also note that, even if the Second Panel had had Cardno's Report, my conclusion would be the same. The Second Panel knew that traffic issues had been raised by Cardno, the entity engaged by the City to assist it with its RAR. The City advised the Second Panel that, in response to those issues, more analysis had been done, including with the involvement of its own traffic engineers, and that this addressed the issues that had been raised.
As I have previously found, there was nothing in the materials that made it obvious the City's Second Report was wrong. The most that can be said is that reading all of the materials could have shown that the City's Second Report did not explain the particular analyses that were said to have been done that addressed the Cardno Issues.
It was not incumbent on the Second Panel to demand an explanation from the City. It was open to the Second Panel to do so, but it was not legally unreasonable for it not to do so.
It was open to the Second Panel to accept the City's advice in the circumstances.
The Second Panel was required to have due regard to 'the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety'.
The minutes of the meeting demonstrate that the Second Panel had regard to the traffic issues. The minutes demonstrate that the Second Panel had regard to the various views expressed, and was aware of the concerns that had been raised about the traffic impacts of the proposal. The minutes show, however, that the Second Panel noted that those concerns were not supported by technical advice from the City or Main Roads. The reasons provided an 'evident and intelligible justification for the decision'.[165]
[165] Eden [64]. See also SZVFW [84].
In my view, the Second Panel demonstrably gave active and positive consideration to the amount of traffic likely to be generated by the development as required by cl 67.
It was open to the Second Panel to form the view it was unnecessary to further explore the issues, given what it had been told was the position of the City and Main Roads. The Second Panel would, no doubt, have considered that the City and Main Roads would be knowledgeable about roads within their respective jurisdictions and would not lightly consent to a development that would have significant negative impacts on those roads. The City, which had engaged Cardno, had involved its own internal experts in considering the events that followed Cardno's Report, and was content that the traffic issues had been addressed. Main Roads did not object in relation to Canning Highway. The only remaining voice of dissent was Move, which had been engaged by Milem, used language that suggested advocacy, and which had not been involved in the discussions and analysis engaged in by the City, Main Roads and Riley following Cardno's Report.
It is also worth remembering that the Second Panel did not just accept everything the City said. The City had recommended that the Second Panel refuse to grant development approval. This recommendation was made on the basis of concerns unrelated to traffic impacts. The Second Panel rejected this recommendation.
Conclusion on ground 1(a)
Accordingly, ground 1(a) should be dismissed.
Ground 2
Ground 2 alleged that the Second Panel 'did not satisfy a condition of the proper exercise of its power, by unreasonably, and incorrectly, assuming that the likely adverse traffic impacts caused by the development for which approval was being sought was capable of being addressed by the imposition of conditions, when the true likely nature and extent of adverse traffic impacts justified refusal of the Application'.
A condition will only be validly imposed if a factual connection is established between the likely or possible consequences of the proposed development and the purpose for which the condition is imposed.[166]
[166] Reid v Western Australian Planning Commission [2016] WASCA 181 [26], [35], [37] and [40].
Milem submitted that two of the conditions that were imposed did not have that factual connection because the Second Panel imposed those conditions for the purpose of easing congestion when there was no indication that they would assist in easing congestion.[167]
[167] ts 137 ‑ 140.
After some exploration,[168] it emerged that Milem's argument relied upon the following propositions:[169]
[168] ts 135 ‑ 139.
[169] ts 140 ‑ 141, 146. See also ts 137 ‑ 139, 167 ‑ 168, 170, 211 ‑ 212 and Milem's Written Submissions [52], [64].
(1)The Second Panel imposed conditions 21 and 22 for the purpose of easing congestion.
(2)The Second Panel simply assumed that those conditions would ease congestion.
(3)On the material available to the Second Panel, it was not open to the Second Panel to make that assumption because:
(a)the material showed there was a dispute about the traffic;
(b)in those circumstances, the Second Panel was not permitted to simply accept the City's views;
(c)the Second Panel had the power to seek more information; and
(d)if the Second Panel had sought more information, it would not have been a fruitless inquiry.
(4)In those circumstances, it was legally unreasonable to make the assumption (and therefore legally unreasonable to impose the conditions).
As will be seen, Milem's argument fails at the first hurdle.
Did the Second Panel impose the conditions for the purpose of easing congestion?
The conditions
As noted earlier, the Second Panel ultimately approved the Application on 23 conditions. The conditions were relevantly the same conditions that had been recommended in the City's First Report. The challenged conditions were the two that related to traffic, conditions 21 and 22.
Condition 21 stated:
Prior to the commencement of the development an independent Road Safety Audit (RSA) shall be undertaken. The recommendations of the RSA shall be included in the final detailed design, and implemented prior to the initial occupation of the development.
Condition 22 stated:
In accordance with the detailed traffic information supplied in support of the development and prior to the commencement of the development, a detailed design for the provision of off site road improvements to facilitate access into the development from Reynolds Road south bound, shall be provided to and approved in writing by the City. The agreed measures shall be implemented and made available for use prior to initial occupation, and shall be provided at the applicant's expense.
Neither condition is, on its face, directed to reducing congestion.
Condition 21 requires a road safety audit. A road safety audit was described by Ms Herget‑Lansdell (Milem's consultant) as being for the purpose of identifying any roadside and on‑site safety and conflict points and any modifications to existing median islands and road seal, line marking and signage which may be required to accommodate site‑generated traffic.[170] There is no evidence to suggest that the road safety audit was for any purpose other than safety. While I accept that, in some circumstances, easing congestion may improve safety, I do not accept that the condition, on its face, could properly be described as a condition directed to reducing congestion.
[170] Brindle Affidavit, page 350.
Condition 22 required a detailed design for the works relating to the Site access (which included the proposed pocket turn) to be submitted to the City for its approval.
Fabcot had provided a concept design. The City was satisfied that the concept design demonstrated that the works were feasible and would not have an impact on the functionality of the Intersection.[171] Condition 22 was directed to giving the City the power to verify that the detailed design did not cause the City to change its assessment. The concern related to Reynolds Road. This road was the City's responsibility, not Main Roads.
[171] Etherington First Affidavit, page 181.
While condition 22 was aimed at ensuring that the City's assessment (that the works would not have an impact on the functionality of the Intersection) was maintained, it was not itself directed at reducing congestion. It was a mechanism to ensure that the concept design was able to be reflected in a detailed design. It was not a condition imposed for the purpose of easing congestion. It was imposed to ensure that what had been foreshadowed would be delivered.
The comments of the Second Panel members
Milem accepted that, to establish that the Second Panel had imposed the conditions for the purpose of easing congestion, it had only the transcript of the meeting to rely upon.[172]
[172] ts 211 ‑ 212.
Earlier, I set out the various comments made by the members of the Second Panel in relation to traffic issues.[173] The only comments that connected traffic issues with the conditions came from Mr Johnston and Mr D'Alessandro.
[173] See under the heading 'The meeting'.
As noted above, Mr Johnston referred to a number of non‑traffic issues and explained why he did not consider they provided a proper basis to refuse the Application. He said he would therefore be voting for the Application 'with suitable conditions to control the impact of the development'. In the context of what preceded the quoted phrase, I do not consider he was there referring only to the two conditions that related to traffic, or that he was referring to conditions which would ease congestion.
Later, in speaking in favour of approval, Mr Johnston discussed matters unrelated to traffic and concluded by saying:
So with that I'm going to vote for the approval with conditions. I've been through those conditions. I think they are sound conditions. There is room for further work in respect to some of the traffic issues which are important to refine. Condition 22. So, and I believe that there is a sufficient control in the construction management plan to deal with this operation.
Again, there were 23 conditions of which two related to traffic. Mr Johnston's comments appear to be limited to condition 22. As I have said, neither of the traffic conditions were directed to easing congestion. Mr Johnston appears only to be noting that, in relation to condition 22, it was important that the detailed design be approved by the City.
Milem submitted that, in saying there 'is room for further work in respect to some of the traffic issues which are important to refine', Mr Johnston was saying that condition 22 was designed to improve the traffic conditions. Milem submitted that 'refine' in this context meant 'improve'.[174] I do not accept this. Condition 22 required that the City approve a detailed design in circumstances where the City was content with the concept design. In that context, 'refine' was an appropriate word to refer to the perfection of the design by the provision of detail to the underlying concept.
[174] ts 139.
Mr D'Alessandro did refer to conditions in connection with the impact on traffic. However, this was in the context of his view that he was satisfied that there would not be an undue impact on traffic from the development. In other words, he concluded that there would be an impact on traffic, but it would not be 'undue' and, in any event, the conditions would address the traffic impact.[175]
[175] This was accepted by Milem - see ts 119.
It would be wrong to elevate this single comment of one member of the Second Panel, in the course of a long debate over many issues, as defining the Second Panel's reasons for imposing each of the conditions. The reasons can more reliably be drawn from the minutes.
The minuted reasons
The minuted reasons are reproduced earlier.[176]
[176] See under the heading 'The meeting'.
Even if it was permissible to apply a fine tooth comb to those reasons, which it is not, they could not support a conclusion that the conditions were imposed for the purpose of easing congestion. The minutes expressly state that 'Some of the deputations raised concerns about the amenity and traffic impacts of the proposal however these were not supported by technical advice from the City of Melville or Main Roads WA'. They later refer to condition 22, in terms which demonstrate that the Second Panel saw that condition as simply ensuring that the design shown at the concept level could be reflected in the detailed design.
Conclusion on purpose of conditions 21 and 22
For these reasons, I do not accept that the conditions were imposed for the purpose of easing congestion. The conditions on their face are not directed to reducing congestion. A single comment of one member of the Second Panel, in the course of a long debate over many issues, cannot be equated with the Second Panel's reasons for imposing each of the conditions. The reasons for decision recorded in the minutes do not suggest any condition was imposed for the purpose of reducing congestion.
Conclusion on ground 2
As I have found that the Second Panel did not impose the conditions to ease congestion, it follows that I find the Second Panel did not simply assume that they would ease congestion.
It also follows that Milem's third proposition, that the Second Panel acted unreasonably by making this assumption, fails.
Accordingly, ground 2 should be dismissed.
Conclusion
I have found that the Second Panel did not act legally unreasonably as alleged by the grounds of judicial review.
The application for judicial review should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
ASSOCIATE TO THE HONOURABLE JUSTICE ARCHER30 NOVEMBER 2018
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