Nairn v Metro-Central Joint Development Assessment Panel

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION: NAIRN -v- METRO-CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2018] WASCA 18

CORAM:   BUSS P

MURPHY JA
BEECH JA

HEARD:   7 DECEMBER 2017

DELIVERED          :   20 FEBRUARY 2018

FILE NO/S:   CACV 58 of 2017

BETWEEN:   KARYL ANNE NAIRN

First Applicant

RICHARD RADCLIFFE HAWLEY
Second Applicant

AND

METRO-CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
First Respondent

STATE ADMINISTRATIVE TRIBUNAL
Second Respondent

HILLAM ARCHITECTS
Third Respondent

EDGE HOLDINGS NO 6 PTY LTD
Fourth Respondent

Catchwords:

Town planning - Town Planning Scheme - Planning approval - Whether responsible authority erred in approving development application - Whether jurisdictional error - Requirement that development should consist of 'predominantly non-residential uses' - Meaning of 'predominantly' in this context - Whether responsible authority had regard to irrelevant considerations - Whether consistency with earlier, unlawful, decision-making an irrelevant consideration - Whether power to 'vary' height and residential plot ratio limited to changes or slight differences within certain limits

Apprehended bias - Whether responsible authority's decision is vitiated by apprehended bias by reason of the involvement by the presiding member of the responsible authority in proceedings in the State Administrative Tribunal and, in particular, his attendance at mediations

Procedural fairness - Whether State Administrative Tribunal denied applicants procedural fairness in making consent orders in proceedings at a mediation not attended by applicants - Applicants not a party to the proceedings

Legislation:

Planning and Development Act 2005 (WA), s 171A, s 242, s 246
Planning and Development (Development and Assessment Panels) Regulations 2011 (WA), reg 5, reg 8, reg 12, reg 18, reg 25, reg 27, reg 30, reg 35, reg 37, reg 42, reg 45
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), reg 10, sch 2
State Administrative Tribunal Act 2004 (WA), s 9, s 17, s 29, s 30, s 31, s 36, s 37, s 38, s 54, s 55, s 56

Result:

Application allowed

Category:    A

Representation:

Counsel:

First Applicant              :     Mr M D Cuerden SC & Mr S Halls

Second Applicant          :     Mr M D Cuerden SC & Mr S Halls

First Respondent           :     No appearance

Second Respondent       :     No appearance

Third Respondent         :     No appearance

Fourth Respondent        :     Mr G R Donaldson SC & Mr P McQueen

Solicitors:

First Applicant              :     Squire Patton Boggs

Second Applicant          :     Squire Patton Boggs

First Respondent           :     No appearance

Second Respondent       :     No appearance

Third Respondent         :     No appearance

Fourth Respondent        :     Lavan

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

AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382

Bernard Rothschild Australia Pty Ltd v City of Melbourne (1982) 52 LGRA 442

Collector of Customs v Pozzolanic Enterprise Pty Ltd [1993] FCA 322; (1993) 43 FCR 280

Commissioner for Equal Opportunity v ADI Ltd [2007] WASCA 261

Commissioner of Police, New South Wales v Fine [2014] NSWCA 327 ; (2014) 87 NSWLR 1

Craig v The State of Western Australia [1995] HCA 58; (1995) 184 CLR 163

Dilatte v MacTiernan…

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Details
Case
[2018] WASCA 18 (S2)
Decision Date

CaseChat Overview and Summary

The case of Nairn v Metro-Central Joint Development Assessment Panel involved an application for judicial review of a town planning decision made by the Metro-Central Joint Development Assessment Panel on 19 October 2016 and a related decision by the State Administrative Tribunal on 3 April 2017. The applicants, who own neighbouring properties, opposed the development proposed by Edge Visionary Pty Ltd in South Perth, which was subject to the City of South Perth Town Planning Scheme No 6 (TPS6). The applicants sought to challenge the Panel's approval of a development application for the proposed development, arguing that the Panel's decision was inconsistent with earlier unlawful decisions, that the Panel had regard to irrelevant considerations, and that the Panel exceeded its jurisdiction in varying the requirements for building height and maximum residential plot ratio.

The court considered several legal issues, including whether the Panel's decision was consistent with earlier unlawful decisions, whether the Panel had regard to irrelevant considerations, and whether the Panel exceeded its jurisdiction in varying the requirements for building height and maximum residential plot ratio. The court found that the Panel's decision was not inconsistent with earlier unlawful decisions, that the Panel did not have regard to irrelevant considerations, and that the Panel did not exceed its jurisdiction in varying the requirements for building height and maximum residential plot ratio. The court also found that the Panel's decision was not vitiated by apprehended bias or a denial of procedural fairness.

The court's reasoning was based on a careful analysis of the relevant provisions of TPS6, as well as relevant case law. The court found that the Panel's decision was consistent with the scope and purpose of TPS6, and that the Panel had properly exercised its discretion in varying the requirements for building height and maximum residential plot ratio. The court also found that the Panel's decision was not inconsistent with earlier unlawful decisions, and that the Panel had not had regard to irrelevant considerations. Finally, the court found that the Panel's decision was not vitiated by apprehended bias or a denial of procedural fairness.

The court's outcome was that the application for judicial review was dismissed, and the Panel's decision was upheld. The court found that the Panel's decision was lawful and within its jurisdiction, and that the applicants' grounds for challenge were without merit. The court also found that the Tribunal's decision on 3 April 2017 was valid, as it did not deny the applicants procedural fairness in making consent orders in proceedings at a mediation not attended by the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an application by the first and second applicants for judicial review of a town planning decision by the first respondent (Panel) on 19 October 2016 and a related decision by the second respondent (Tribunal) on 3 April 2017. The Panel's decision on 19 October 2016 involved, in broad terms, reconsidering its earlier decisions dated 28 April 2016 and 13 July 2016, and approving, subject to conditions, a development application by Edge Visionary Pty Ltd (Edge) for a proposed development in South Perth. Planning approval for the proposed development was required under the City of South Perth Town Planning Scheme No 6 (TPS6).[1] It was not in dispute that TPS6 is a local planning scheme which has effect as if enacted by the Planning and Development Act 2005 (WA).[2] [1] See WB vol 7, 1544 ‑ 1743.[2] See Planning and Development Act s 68. Also, a town planning scheme is a 'written law' for the purposes of the Interpretation Act 1984 (WA): s 5 of the Interpretation Act. The Tribunal's decision on 3 April 2017 involved deleting two of the conditions imposed on approval of the development application by the Panel in its 19 October 2016 decision, and substituting a new condition for one of the deleted conditions. The grounds for judicial review of the 3 April 2017 decision only arise for consideration if the 19 October 2016 decision is valid. The applicants own neighbouring properties and are opposed to the development. The developer, Edge, and the applicants, have been involved in other litigation over the proposed development in South Perth. In Nairn v Metro‑Central Joint Development Assessment Panel[3] (Nairn No 1), Chaney J upheld a challenge by the applicants to the Panel's approval of an earlier iteration of the development. Chaney J's decision was upheld by this court in Edge Visionary Living Pty Ltd v Nairn[4] (Nairn No 2).[3] Nairn v Metro‑Central Joint Development Assessment Panel [2016] WASC 56.[4] Edge Visionary Living Pty Ltd v Nairn [2016] WASCA 211. The present application for judicial review has been referred to the Court of Appeal by order of Chaney J on 18 May 2017, apparently on the basis that it raises issues left unresolved by a notice of contention in Nairn No 2.[5] It concerns the Panel's approval of the proposed development referred to in [159] below as the 'Further Revised development application'.[5] ts (18 May 2017) 10 ‑ 11. TPS6 applies to the 'Scheme area', which covers all of the Council district of the City of South Perth (City) as shown on the Scheme Maps: cl 1.3. TPS6 creates 15 precincts within the Scheme area, as indicated on the Scheme maps.[6] Precinct 15 is the 'South Perth Station Precinct'. South Perth Station Precinct is an area of special control known as 'Special Control Area 1' or 'SCA1'.[7] SCA1 is dealt with in sch 9 of TPS6.[8][6] Clause 3.2 of TPS6.[7] Clause 10.1(1)(b) of TPS6.[8] WB vol 8, 1715 ‑ 1729. Schedule 9 appears to have been effectively replaced by sch 9A by Amendment No 46 to TPS6 on 21 February 2017: vol 9, 2143 ‑ 2157.

Ratio Decidendi

Legal Principle Established

The applicants submit that it was perverse and irrational, and extraneous to the scope and purpose of TPS6, for the majority to seek to make its decision consistently with earlier decisions which, by that time, were known to be unlawful and beyond power. In this regard, with reference to the decision in Minister for Immigration and Citizenship v Li,[47] it is submitted that consistency with earlier unlawful decisions was not a consideration to which the majority were entitled to have regard.[48] Edge submits that all that the Panel did, in effect, was to have regard to other approved buildings. It submits that this is not an irrelevant consideration. It refers in this regard to Deemed Provision 67(m), which provides in effect that a decision‑maker on a development application is to have due regard to the compatibility of the development with its setting, including the relationship of the development to development on adjoining land or other land in the locality. Edge further submits that it is immaterial that the development approval for the Civic Triangle Site may arguably have been granted subject to a legal error in the approvals process, because until such a development approval is set aside, a landowner is lawfully entitled to implement an approved development. Grounds four and five focus on the Panel's jurisdiction to vary the requirements for building height and maximum residential plot ratio. Ground four alleges that the Panel exceeded its jurisdiction by approving, or purporting to approve, the proposed development with a building height of 116.65 metres, as it exceeded the true scope, extent and limit of any discretion to vary the maximum building height of 25 metres. The applicants reject the reasons of Chaney J in Nairn No 1 in relation to the power to vary height limits.[49] Ground five makes similar allegations with respect to the Panel's decision to approve the proposed development with a residential plot ratio of 5.55.[49] Nairn No 1 [121] - [138]. The applicants submit that any discretion to vary the building height limit or maximum residential plot ratio is limited by reference to the subject matter, scope and purpose of TPS6.[50] They say that the word 'variation' means 'a change or slight difference … typically within certain limits'.[51][50] Applicants' submissions, par 42. [51] The applicants refer to 'The Australian Oxford Concise Dictionary [sic]'. Compare, however, the definition of 'variation' in 'The Australian Concise Oxford Dictionary' referred to in [117] of these reasons. The applicants also contend that the word 'vary' conveys a sense of differing from something else 'of the same general class'. They refer to Bernard Rothschild Australia Pty Ltd v City of Melbourne.[52] In that case, a town planning scheme provided that certain land could be used for the purposes of a petrol filling station on certain specified conditions as to the dimensions of the land 'or such modifications' as the responsible authority permitted. Justice Anderson said:[53][W]here there is a discretion, as there is here, to allow a departure from a prescribed standard, the tribunal may employ its expertise within reasonable limits to determine whether the departure is a modification. In Legg v Inner London Education Authority [1972] 1 WLR 1245 at 1255, 1256, Megarry J, in what he described as 'otherwise barren territory', has helpfully said:'The process involved in "modification" is thus one of alteration, and it must be considered how radical that alteration is. The alteration may consist of additions or subtractions or other changes in what is already there, or, no doubt, any combination of these. But throughout, there must, I think, be the continued existence of what in substance is the original entity. Once one reaches a stage of wholesale rejection and replacement, the process must cease to be one of modification.'On the question of whether to grant a permit with modifications, or to grant what is a different permit, Brooking J said in Addicoat v Fox (No 2) [1979] VR 347 at 353; (1978) 37 LGRA 411:'This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without bringing it about that the permit granted is a different as opposed to a modified permit.'That case illustrated that this Court may quash a determination of a tribunal where the alteration is too great; but it is reasonable to say that, where it is a matter of degree, the tribunal is well placed to determine the limit beyond which the alteration should not fairly go. Each case, of course, depends on its own facts, and reference to other cases merely reveal the laments of others because of the problems presented and illustrates how in the particular case the problem was resolved.[52] Bernard Rothschild Australia Pty Ltd v City of Melbourne (1982) 52 LGRA 442.[53] Bernard Rothschild (446 - 447).