Milem Pty Ltd v Metro Central Joint Development Assessment Panel - [2018] WASC 371

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] WASC 371
Decision Date: 30 NOVEMBER 2018

CaseChat Overview and Summary

Milem Pty Ltd sought judicial review of a decision made by the Metro Central Joint Development Assessment Panel. The Panel had rejected Milem's application to develop a site in Sydney. The dispute centred around whether the Panel had exercised its discretion in accordance with the relevant legislation, specifically whether it had given due regard to certain matters. The matter was heard in the Supreme Court of New South Wales.

The legal issues the court needed to address were whether the Panel had correctly interpreted and applied the statutory requirement to give due regard to specific matters, and if the Panel's decision was unreasonable. The court considered whether the Panel had adhered to the correct legal principles, correctly applied, and whether it had exercised its discretion in a manner that was legally reasonable. The court also examined the extent to which the Panel's failure to give due regard to the required matters affected its decision-making process.

The court found that the Panel had failed to give due regard to the required matters, which resulted in the decision being unreasonable. The court held that the Panel's decision was outside its jurisdiction because it had not complied with the statutory requirement to give due regard to the specific matters. The court emphasised that the failure to give due regard to these matters was material and affected the outcome of the decision-making process. The court concluded that the Panel's decision was a jurisdictional error and therefore invalid.

The court ordered that the decision of the Metro Central Joint Development Assessment Panel be quashed and remitted to the Panel for reconsideration in accordance with the law. The court also directed that the Panel give due regard to the matters it had failed to consider in its original decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.