Nairn v Metro-Central Joint Development Assessment Panel

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 [2002] WASCA 100
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Edge Visionary Living Pty Ltd v Nairn [2016] WASCA 211
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Geographical Indications Committee v O'Connor [2000] FCA 1877
Ibsester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Kirk v Industrial Court (New South Wales) [2010] HCA 1; (2010) 239 CLR 531
Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shau Liang [1996] HCA 6; (1996) 185 CLR 259
Nairn v Metro‑Central Joint Development Assessment Panel [2016] WASC 56
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
The Shire President, Councillors and Ratepayers of the Shire of Swan Hill v Bradbury [1937] HCA 15; (1937) 56 CLR 746
Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492

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.

The development property and its place within the Scheme area

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.
Precinct 15 itself is divided into four sub‑precincts. They include the 'Mends Sub‑Precinct'. The Mends Sub‑Precinct includes part of an area designated 'Special Design Area'.[9]
[9] Nairn No 2 [4]; WB vol 7, 1731.
The land the subject of the proposed development is 74 Mill Point Road, South Perth (the property). The proposed development is a 'comprehensive new development', within the meaning of TPS6 sch 9.
The property is:
(a)within the 'Scheme area';
(b)within the 'South Perth Station Precinct' and thereby special control area SCA1;
(c)within the Mends Sub‑Precinct of the South Perth Station Precinct; and
(d)part of the area referred to by TPS6 sch 9 as a 'Special Design Area'.
In broad terms (discussed in more detail later), Edge ultimately sought development approval for a development of the property involving a 34‑storey building, including four commercial office tenancies, 100 serviced apartments, and 83 residential dwellings. The proposed height was 116.65 m and the proposed residential plot ratio was 5.55.
In general terms, TPS6 sch 9 provides, relevantly in effect, that subject to approved variations, the building height for the property should be 25 m, and the residential plot ratio is not to exceed 1.5. It is convenient, at this point, to set out the material provisions of TPS6, sch 9.

Special Control Area 1 - SCA1 and TPS6, sch 9

Purpose and structure

The purpose of SCA1 is set out in sch 9 of TPS6 as follows:[10]
To introduce very specific development requirements relating to comprehensive new development within the Special Control Area for South Perth Station Precinct which will encourage future development in the area to focus on a more intensive and mixed use form where a variety of daily activities are closely integrated with substantial growth for an increasingly dense commercial centre. (emphasis added)
[10] WB vol 7, 1715.
The term 'comprehensive new development' is defined in TPS6 sch 9 to mean 'a development which is determined by Council not to be a minor alteration, addition or extension to an existing development and therefore is subject to the provisions of this Schedule'.
Schedule 9 of TPS6 includes 'Table A: Development Controls', 'Table B: Performance Criteria', 'Plan 1 - Sub Precincts', 'Plan 2 - Special Design Area' and 'Plan 3 - Building Height'.
Table A consists of three columns. The first column is entitled 'Element', the second column is entitled 'Guidance Statements' and the third column is entitled 'Development Requirements'.
Element 13 of sch 9 Table A also refers to 'Special Design Area', which is defined in Sch 9 to mean the area identified in Plan 2, forming part of sch 9.
The term 'preferred land use' to which reference is made in Element 1 of Table A is defined to mean 'land uses which are considered to contribute to the vision of the Sub Precinct'.

Plot ratios

Schedule 9 Table A refers to 'plot ratio' and 'plot ratio area', each of which is defined in schedule 1 of TPS6. A 'plot ratio' is, in effect, the ratio of the gross total of the areas of all floors of a building, to the area of land within the lot boundaries. In calculating the gross total of the areas of all floors for this purpose:
(a)In relation to any residential dwelling, the floor area is measured in the manner defined in the Residential Design Codes; and
(b)In relation to any non‑residential building or part of a building, the floor area is measured from the inner faces of external walls, and does not include the area of any lift shaft, toilet, stairs, plant room, kitchen, lunch room, store area, storage room, passage or any area within the building used for parking of vehicles or for vehicular access.
A 'plot ratio area' is defined in sch 1 of TPS6 to mean the floor area of a building as calculated in accordance with the definition of 'plot ratio'.[11]
[11] WB vol 7, 1662.
Under Appendix 1 of the Residential Design Codes (relevant to the calculation of floor area in residential dwellings), 'plot ratio area' is defined to mean in effect the gross total area of the floors of the building excluding, amongst other things, amenity areas common to more than one dwelling.

Non‑residential and residential uses

Schedule 9 Table A also refers to the terms 'non residential'[12] and 'residential' uses. The term 'non‑residential' is defined in schedule 1 to mean a Use or combination of Uses listed in TPS6 Table 1 within the category entitled 'Non‑Residential Uses'. The term 'residential' is defined in schedule 1 to mean a Use or combination of Uses listed in TPS6 Table 1 within the category entitled 'Residential Uses'.[13]
[12] TPS6 sch 9 uses the term 'non residential' without a hyphen, whereas the remainder of TPS6 uses the term 'non‑residential' with a hyphen.
[13] WB vol 7, 1661, 1664. Table 1 is at WB vol 7; GB 1637 ‑ 1638.
'Non‑residential' uses in TPS6 Table 1 include 'Tourist Accommodation' in certain RC Code Areas.[14] The term 'Tourist Accommodation' is defined in Schedule 1 of TPS6 to include 'serviced apartment',[15] which itself is a defined term in Schedule 1 of TPS6.[16]

Schedule 9 Table A: Development Controls

[14] WB vol 7, 1637 ‑ 1638. See also WB vol 7, 1555.

[15] WB vol 7, 1666.

[16] WB vol 7, 1664.

The relevant parts of sch 9 Table A appear as follows:[17]
[17] WB vol 7, 1716 ‑ 1726, emphasis added.

Element

Guidance Statements

Development Requirements

1. Land Use

…

(a) It is intended that this development area is to consolidate its role as an employment destination.

(b) Non residential uses should predominantly comprise office and commercial land uses, educational establishments, tourist oriented development and small scale and specialty retail.

For the Mends Sub Precinct, small scale commercial/retail uses are encouraged to retain Mends Street's traditional function as the main retail and lifestyle area in South Perth. Land uses with higher intensity visitation should be located on the ground floor, with non residential land uses encouraged on the lower floors and residential on the upper floors.

…

(e) South Perth Esplanade Sub‑Precinct

For the South Perth Esplanade Sub‑Precinct, land uses which preserve a residential character are encouraged.

(f) Stone-Melville Sub‑Precinct

For the Stone Melville Sub‑Precinct, land uses which preserve a residential character are encouraged, with limited commercial development.

Preferred and Discretionary Land Uses

1.1 Mends Sub‑Precinct

1.1.1 Preferred land uses for the Mends Sub Precinct are: Café/Restaurant, Cinema/Theatre, Convenience Store, Hotel, Local Shop, Mixed Development, Office, Tourist Accommodation, Specialty Retail, Multiple Dwelling, Grouped Dwelling, Aged or Dependent Persons Dwelling, Single Bedroom Dwelling and Residential Building.

1.1.2 Discretionary land uses for the Mends Sub Precinct are: Consulting Rooms, Educational Establishments and Public Parking Station.

…

Element

Guidance Statements

Development Requirements

3. Plot Ratio and Land Use Proportions

…

(a) With the exception of the South Perth Esplanade and Stone Melville Sub-Precincts, any comprehensive new development should consist of predominantly non residential uses to ensure the precinct consolidates its role as an employment destination.

(b) To ensure that all developments that include a residential component provide diversity in dwellings, including single bedroom dwellings.

…

3.1 There is no maximum plot ratio within the precinct.

3.2 All comprehensive new development to have a non residential component with a minimum plot ratio of 1.0.

3.3 Where the total plot ratio is 3.0 or less, the residential plot ratio area is not to exceed 50% of the total plot ratio area of the development; and

3.4 Where the total plot ratio exceeds 3.0, the residential plot ratio is not to exceed 1.5 unless the [City] approves a higher plot ratio under Table B of this Schedule.

3.5 The provisions of the Codes relating to dwelling size in activity centres shall apply.

3.6 For comprehensive new development that includes residential dwellings, the provisions of the Codes relating to essential facilities in activity centres shall apply.

…

5. Building Height

…

(a) The building height limits that define the allowable building envelope are shown on Plan 3 Building Heights. For sites identified in Plan 2 as being in the Special Design Area, variations from the height limits may be approved where the performance criteria in Table B of Schedule 9 are met.

…

5.1 Building heights shall be limited to the heights shown on Plan 3 Building Heights contained in this Schedule unless the [City] approves a variation as provided for elsewhere in this Schedule.

5.2 The height limit for sites within the Special Design Area may be varied subject to all of the relevant performance criteria in Table B of this Schedule being met.

…

Element

Guidance Statements

Development Requirements

13. Special Design Area

(a) The lots comprising the Special Design Area front onto streets which have a high degree of visibility, either by virtue of their aspect or proximity to high volumes of movement. As such, these lots offer the potential to establish buildings with a strong visual presence and landmark qualities.

(b) Subject to satisfying Performance Criteria relating to exceptional design quality, sustainability and community benefit, the properties within the Special Design Area are provided with the potential to achieve greater development yields than permissible by the requirements of Table A of this Schedule.

13.1 For sites within the Special Design Area comprising lots depicted on Plan 2 Special Design Area, the requirements of Element 3. 'Plot Ratio and Land Use Proportions' and Element 5. 'Building Height' of this Table A may be varied where it can be demonstrated to the satisfaction of the [City] that the development -

(a) is consistent with the Guidance Statements applicable to those Elements; and

(b) specifically meets all of the relevant Performance Criteria in Table B of this Schedule.

Relevantly, Plan 3 - Building Height identifies the building height limit for the area of land in which the property is situated as '25 metres (measured to the finished floor level of the upper-most storey).'[18]

Schedule 9 Table B: Performance Criteria

[18] WB vol 7, 1732.

Table B sets out performance criteria for minimum lot area and frontage, design quality, overshadowing, dwelling density and type, vehicle management, car parking, additional community benefits and resource efficiency. The introductory paragraphs to Table B provide:[19]
For properties that are contained within the Special Design Area as identified in Plan 2 'Special Design Area' of Schedule 9, the Council may permit a variation from the development requirements of Element 3 'Plot Ratio and Land Use Proportions' and Element 5 'Building Height' of Table A of this Schedule, where every relevant Performance Criterion in Table B is met to the Council's satisfaction.
Applicants seeking a variation of the development requirements of Elements 3 and 5 are required to submit a report demonstrating how the relevant guidance statements and performance criteri are met. A variation of those development requirements will not be permitted unless the proposed development satisfies every performance criterion which applies to the proposed development. (emphasis added)
[19] WB vol 7, 1728.
The Table B Performance Criteria are set out later in these reasons at [112] ‑ [113] below.

TPS6 and planning approval generally[20]

[20] As at 25 May 2015.

Clause 1.2 of TPS6 provides in effect that the responsible authority for implementing TPS6 is the City.[21] That provision is to be read in the light of s 171A(2)(a) of the Planning and Development Act 2005 (WA), referred to later in these reasons.

Scheme objectives

[21] 'Council' is defined in sch 1 to TPS6 as the 'Council of the City of South Perth'.

Clause 1.6 provides:
(1)The overriding objective of the Scheme is to require and encourage performance based development in each of the 15 precincts of the City in a manner which retains and enhances the attributes of the City and recognises individual precinct objectives and desired future character as specified in the Precinct Plan for each precinct.
(2)The general objectives of the Scheme are to:
(a)Maintain the City's predominant residential character and amenity;
(b)Introduce performance‑based controls supported by planning policies and Precinct Plans;
(c)Facilitate a diversity of dwelling styles and densities in appropriate locations on the basis of achieving performance based objectives which retain the desired streetscape character …
…
(e)Ensure community aspirations and concerns are addressed through Scheme controls;
(f)Safeguard and enhance the amenity of residential areas and ensure that new development is in harmony with the character and the scale of existing residential development;
(g)Protect residential areas from the encroachment of inappropriate uses;
…
(j)In all commercial centres, promote an appropriate range of land uses consistent with:
(i)the designated function of each centre as set out in the Local Commercial Strategy; and
(ii)the preservation of the amenity of the locality.

Planning approvals under TPS6

Part VII of TPS6 deals with applications for planning approval within the Scheme area and the procedure for dealing with such applications. It consists of cls 7.1 - 7.13.
Clause 7.1(1) provides, relevantly, that all development, except as otherwise provided, requires the prior planning approval of the City in each case and, accordingly, no person shall commence or carry out any development without first having applied for and obtained the planning approval of the City pursuant to the provisions of Part VII of TPS6.
Clause 7.5 of TPS6 sets out the matters to be considered by the City when assessing a development application. It is in, relevantly, the following terms:
In considering an application for planning approval, the Council shall have due regard to, and may impose conditions with respect to, such of the following matters, as are, in the opinion of the Council, relevant to the proposed use or development the subject of the application:
(a)the objectives and provisions of this Scheme, including the objectives and provisions of a Precinct Plan and the Metropolitan Region Scheme;
(b)the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment which has been granted consent for public submissions to be sought;
…
(i)the preservation of the amenity of the locality;
(j)all aspects of design of any proposed development, including but not limited to, height, bulk, orientation, construction materials and general appearance;
…
(l)the height and construction materials for retaining walls on or near lot boundaries, having regard to visual impact and overshadowing of lots adjoining the development site;
…
(n) the extent to which a proposed building is visually in harmony with neighbouring existing buildings within the focus area, in terms of its scale, form or shape, rhythm, colour, construction materials, orientation, setbacks from the street and side boundaries, landscaping visible from the street, and architectural details;
…
(t)the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety. (emphasis added)
Clause 7.8(1)(a) provides that, subject to cl 7.8(2), the City may approve an application unconditionally or subject to such conditions as it thinks fit where the application does not comply with site requirements prescribed by TPS6 with respect to certain matters, including minimum lot area, plot ratio, setbacks and car parking.[22] Clause 7.8(1)(b) provides that the power conferred by cl 7.8(1) may only be exercised if the City is satisfied of certain specified matters.
[22] WB vol 7, 1613 ‑ 1614.
Clause 7.8(2)(d) provides, importantly for present purposes, that the power conferred by cl 7.8(1) shall not be exercised by the City with respect to the provisions in sch 9 applicable to a comprehensive new development within SCA1 South Perth Station Precinct.[23]
[23] WB vol 7, 1614.
Clause 7.9 deals with the determination of applications for planning approval. Clauses 7.9(1) and (2) provide, relevantly:[24]
(1)Planning approval shall not be granted for any proposed development of land unless the Council considers that the proposal will be satisfactory in relation to the matters referred to in clause 7.5 which the Council considers to be relevant.
(2)In determining an application for planning approval, after having given due consideration to the matters referred to in clause 7.5 the Council may:
(a) grant planning approval with or without conditions; or
(b)refuse to grant planning approval. (emphasis added)

Deemed provisions

[24] WB vol 7, 1615.

By s 256(1) of the Planning and Development Act, the Minister may make certain regulations. Section 256(5) provides that the regulations must designate each provision prescribed as either a 'model provision' or a 'deemed provision'. A 'deemed provision' is one to which s 257B applies. By s 257B, a 'deemed provision' means a provision designated as a deemed provision under s 256(5)(b). Such provisions have effect and may be enforced as part of each local planning scheme to which they apply, whether they are prescribed before or after the scheme comes into force.
By reg 10(1) of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Planning Regulations), the provisions in schs 1 and 2 are prescribed for the purposes of s 256 of the Planning and Development Act.
Schedule 2 of the Planning Regulations is headed 'Deemed provisions for local planning schemes'. Part 9 of sch 2 is headed 'Procedure for dealing with applications for development approval'. Schedule 2 part 9 includes the following:
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 -
…
(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;
…
74.Approval subject to later approval of details
(1)The local government may grant development approval subject to a condition that further details of any works or use specified in the condition must be submitted to, and approved by, the local government before the developer commences the development.
(2)The local government may only impose a condition referred to in subclause (1) if the local government is satisfied that the further matters that are to be approved would not substantially change the development approved.
We will refer to these provisions as Deemed Provisions 67(m) and 74 respectively.

The Panel's role and appeals to the Tribunal

Section 171A(2)(a) of the Planning and Development Act provides that the Governor may make regulations providing that a prescribed development application is to be determined by a 'DAP' as if the 'DAP' were the responsible authority. Under s 4(1) of the Planning and Development Act, a 'DAP' or 'Development Assessment Panel' means a 'Joint Development Assessment Panel' or a 'Local Development Assessment Panel' established under s 171C.
In this regard, reg 5 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA)[25] (Panel Regulations) provided that:
[25] As at 1 May 2015.
5.Mandatory DAP Applications (Act s. 171A(2)(a))
Any development application that -
(a)is not an excluded development application; and
(b)in the case of an application for development in the district of the City of Perth - is for the approval of development that has an estimated cost of $20 million or more; and
(c)in the case of an application for development in a district outside of the district of the City of Perth - is for the approval of development that has an estimated cost of $10 million or more;
is of a class prescribed under section 171A(2)(a) of the [Planning and Development Act 2005].
Panel Regulation 8 of the Panel Regulations provided:
8.Applications to be determined by [Panels]
(1)Despite any other provision of the [Planning and Development Act 2005] or a planning instrument, any DAP application for approval of development within a district for which DAP is established -
(a)must be determined by the [Panel] as if the [Panel] were the responsible authority under the relevant planning instrument in relation to the development; and
(b)cannot be determined by the local government for the district or the Commission.
The effect of these provisions, for present purposes, is that the Panel is the responsible authority for approving (or otherwise) Edge's development application.
Panel Regulation 12(2) provided relevantly, in effect, that the City must give the presiding member of the Panel a report on the development application in an approved form. Pursuant to Panel Regulation 12(5), the report must provide sufficient information to enable the Panel to determine the application, including:
(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.
By Panel Regulation 12(6) the Panel is to have regard to, but is not bound by, the recommendation contained in the report.
Part 14 of the Planning and Development Act, read with the State Administrative Tribunal Act 2004 (WA) (SAT Act) and reg 18 of the Panel Regulations, provides, relevantly for present purposes, that a decision by the Panel is amenable to review by the Tribunal. The relevant matters are outlined in [174] ‑ [185] below.

The Panel's 19 October 2016 reasons for decision and the imposition of conditions 30 and 31

The Panel's reasons

In its reasons for decision on 19 October 2016,[26] the Panel, by majority, said relevantly:[27]
1.There were insufficient grounds to warrant refusal of the proposal and that the alternate of an approval with conditions should be supported.
2.The Panel had due regard to the aims and provisions of [TPS6], and the requirements of orderly and proper planning including proposed Amendment No 46 … [which] proposes to remove [the property] from the Special Control Area and [under which] the maximum allowable height [limit] of building would be 25 metres.
3.The draft Amendment No 46 was neither certain or [sic] imminent and therefore sufficient weight could not be placed on the draft to warrant the refusal of the proposal.
4.[T]he proposed development was not taller than other buildings approved in the locality such as the 39 story [sic] building on the Civic Triangle Site where the same planning controls apply. Whilst … the [Panel] was not constrained by previous decisions as each case needs to be judged on its merits it was in this case preferable that there is a consistency in the decision making process.
5.It was also noted that the RAR report stated that the proposal met, with the exception of vehicle management, the planning performance requirements of Schedule 9, Table A and B of Town Planning Scheme 6. …
6.Based on the report by AEC provided and the review by Pracsys commissioned by the Department of Planning the [P]anel held that on further review the proposed mix of non‑residential land uses (serviced apartments) meet the guidance statement Table A Schedule 9 … which requires the precinct to consolidate its role as an employment destination. …
7.Late evidence was provided by Council Administration that revised plot ratio calculations showed that the building may not meet the requirement for the provision of predominately [sic] non‑residential floor space. [Edge] stated that if this proved to be the case then floors could easily be changed to ensure that the requirement was met. It was decided that the plot ratio requirement could be met if revised plans were submitted to the City and a condition with this requirement could be made.
[26] See BB 23 ‑ 24.
[27] The paragraph numbers have been added for ease of reference. The Panel did not number its paragraphs in its reasons for decision.
The 'RAR report', referred to by the Panel in par 5, is the City's 'Responsible Authority Report', prepared by the City for the purposes of Panel Regulation 12(2). The City addressed what it evidently saw as two separate matters, as follows:
1.The proposed development's ability to 'deliver' employment in the context of 'satisfying Guidance Statement 3(a)' by 'consolidating the precincts [sic] role as an employment destination'.[28]
2.Whether the non‑residential plot ratio exceeded the residential plot ratio in order to meet the requirement that, 'to the satisfaction of the [City] … the development consists of predominantly non‑residential uses'.[29]
[28] WB vol 4, 1001.
[29] WB vol 4, 1006.
As to the second of those matters, the City said in the Responsible Authority Report:[30]
[Edge's] latest amendments … provide a non‑residential plot ratio of 5.56 (10,023 m²) compared to a slightly lower residential plot ratio of 5.55 (10,008 m²). Given the slightly greater non‑residential plot ratio it is considered that the guidance statement has been met … (emphasis added)
[30] WB vol 4, 1006.
The 'AEC' report, referred to by the Panel in par 6 of the Panel's decision, stated that its 'overriding purpose' was:[31]
to present a high level economic analysis outlining how the proposed … development … may impact on the local (City of South Perth Local Government Area) and Western Australia economies over the construction and operation of the development … particular focus has been directed towards the contribution that the proposed … serviced apartment element will deliver to the South Perth visitor (tourism) economy.
[31] WB vol 5, 1197.
The 'Pracsys' review, referred to by the Panel in par 6, was dated August 2016 and related to an earlier iteration of the development when it comprised 44 storeys. The 'Pracsys' review states that it was a briefing note which 'investigates the economic impact of the … 44 storey mixed use development' and that the work encompassed the tasks of reviewing background materials, reviewing the AEC Economic Impact Assessment, assessing the potential economic impact of the development with respect to employment generated from the proposed mix of uses, and comparing the employment typically generated by office uses with employment generated by serviced apartments.[32]

Conditions 30 and 31

[32] WB vol 5, 1239.

In connection with its decision to approve the development on 19 October 2016, the Panel imposed various conditions including conditions 30 and 31 as follows:
(30)That revised plans shall be provided which clearly identify that the non-residential plot ratio area is greater than the residential plot ratio area to the satisfaction of the City.
(31)Any planning approval granted for serviced apartments will be conditional upon the applicant registering on the Certificate of Title for the lot, a notification informing prospective purchasers that serviced apartments are not permitted to be occupied by the same temporary tenant for more than 6 months within any 12 month period.
The City will not issue a building permit for proposed serviced apartments until such time as the applicants, at their cost, have registered the required notification on the Certificate of Title relating to the occupancy restriction.
If the owner wishes to extend the period of occupancy it is the owner's responsibility to obtain approval from the City for a change of use of the premises.

The Tribunal decision of 3 April 2017

On 3 April 2017, there was a mediation conference between the parties to the Tribunal proceedings, namely Edge and the presiding member of the Panel, with officers of the City also in attendance,[33] following which orders were made deleting condition 30 and deleting condition 31 and substituting it with a new condition. The Tribunal ordered:[34]
[33] See further, [172] ‑ [173] below.
[34] BB 26.
1.By consent of the parties the approval of the [Panel] dated 19 October 2016 is amended as follows:
(a)Condition 30 is deleted.
(b)Condition 31 is deleted and substituted with the following:
'31. Prior to occupation of any serviced apartments, [Edge] must register on the certificate of title for each relevant strata lot, a notification informing prospective purchasers that serviced apartments are not permitted to be occupied by the same temporary tenant for more than 6 months within any 12 month period.'
(c)Condition 32 is affirmed.
2.Pursuant to s 46(1) of the [SAT Act] [Edge] has leave to withdraw this proceeding and the proceeding is hereby withdrawn.

Application for judicial review

There are eight grounds of judicial review.[35] By grounds 1 ‑ 6, the applicants challenge the Panel's 19 October 2016 decision, and by grounds 7 and 8, they challenge the Tribunal's 3 April 2017 decision.
[35] WB vol 1, 26 ‑ 35.
The grounds are to the following effect:
1.The Panel approved, or purported to approve, the December 2015 development application on the basis that there were insufficient grounds to warrant its refusal. It thereby exceeded its jurisdiction because it was obliged to be positively satisfied that the Revised December 2015 development application would be satisfactory in relation to the matters referred to in cl 7.5 of TPS6, and not merely that there were insufficient grounds to warrant refusal.
2.Further and/or alternatively, the Panel failed to satisfy itself that the proposed development was consistent with Guidance Statement 3(a) of sch 9[36] that the development should consist of predominantly non‑residential uses to ensure the precinct consolidates its role as an employment destination, and thereby failed to satisfy itself of an essential condition to the existence of any power to approve the development with a residential plot ratio in excess of 1.5.
[36] Required by cl 13.1(a) of the 'Development Requirements' column in sch 9 Table A.
3.Further and/or alternatively, the Panel took into account an irrelevant consideration, namely that approval was consistent with approvals that had been granted for development of other high rise buildings within the Special Design Area, when other high rise buildings within the Special Design Area were predominantly residential developments the approval of which was inconsistent with Guidance Statement 3(a), which required that the development should consist of predominantly non‑residential uses.
4.Further and/or alternatively, the Panel exceeded its jurisdiction by approving, or purporting to approve, the proposed development with a building height of 116.65 m, as it exceeded the true scope, extent and limit of any discretion to vary the maximum building height of 25 m, and the decision was unreasonable and one which no reasonable decision‑maker could properly have made.
5.Further and/or alternatively, the Panel exceeded its jurisdiction by approving, or purporting to approve, the proposed development with a residential plot ratio of 5.55, as it exceeded the true scope, extent and limit of any discretion to vary the maximum residential plot ratio of 1.5, and its decision was unreasonable and otherwise one which no reasonable decision‑maker could properly have made.
6.Further and/or alternatively the Panel's decision was made in circumstances where there was a reasonable apprehension of bias on the part of the Presiding Member of the Panel.
7.Alternatively, if the Panel's 19 October 2016 decision was valid, the orders of the Tribunal of 3 April 2017 that condition 30 be deleted and condition 31 be deleted and replaced, were made in denial of procedural fairness to the applicants.
8.Further and/or alternatively, if the Panel's decision of 19 October 2016 was valid, the Tribunal exceeded its jurisdiction by ordering on 3 April 2017 that condition 30 of the approval be deleted and that condition 31 be deleted and replaced, in that:
(a)the Tribunal made those orders in reliance on the consent of the developer and the Presiding Member of the Panel, but without the consent of other members of the Panel and without determining the merits of the developer's appeal against those conditions;
(b)further and/or alternatively, the Tribunal made those orders without first determining that the proposed development was consistent with Guidance Statement 3(a), namely that the development should consist of predominantly non‑residential uses to ensure the precinct consolidates its role as an employment destination; and
(c)further and/or alternatively, the Tribunal failed to give reasons for decision as required by s 77 of the SAT Act.

Parties' submissions on grounds 1 - 5

Ground one

Applicants

The applicants refer to cl 7.9(1) of TPS6,[37] which they say required that the Panel achieve 'a particular state of positive satisfaction', namely that it considers that the development application will be satisfactory in relation to the matters set out in TPS6 cl 7.5 which it considers to be relevant.[38] It is submitted that the reasons of the Panel reveal that the Panel (by majority) did not achieve that state of satisfaction. In particular, it is submitted that the majority only determined 'that there were insufficient grounds to warrant refusal of the proposal', and thereby asked itself the wrong question, or applied the wrong test, and fell into jurisdictional error.[39] They submit that, read as a whole, the majority's reasons confirm that the majority took the view that once it was apparently established that the proposed development met the necessary preconditions for approval, they were then required to be persuaded that the proposed development should not be approved. Further, they say that the reasons do not identify that the majority considered the development would be satisfactory in relation to the matters referred to in cl 7.5 by TPS6.[40]

Edge

[37] WB vol 7, 1614.

[38] Applicants' submissions, par 14.

[39] Applicants' submissions, par 15.

[40] Applicants' submissions, pars 16 ‑ 17.

Edge submits that the Tribunal's reasons should not be read, as the applicants accept, with an eye finely attuned to the perception of error. It says that on the proper construction of the Panel's reasons, it is evident that the majority of the Panel was satisfied that planning approval should be granted.

Ground two

Applicants

The applicants submit that the Panel had no power (under cl 13.1 of the Development Requirements in sch 9 Table A) to approve the development application unless it was satisfied that the development was consistent with Guidance Statement 3(a), namely that it 'should consist of predominantly non residential uses to ensure the precinct consolidates its role as an employment destination'.
It is said that that state of satisfaction must have been reasonably formed, and must be demonstrable and based on material which is reasonably capable of supporting the conclusion that the development is consistent with Guidance Statement 3(a). Consistency with Guidance Statement 3(a) requires adherence to the specified means of pursuing the stated planning outcome. A development which does not consist of predominantly non-residential uses cannot be consistent with Guidance Statement 3(a) on the basis that it seeks to achieve the object of ensuring that the precinct consolidates its role as an employment destination by some other means.[41]
[41] Applicants' submissions, pars 18 ‑ 19.
The applicants submit that Edge has introduced the minimum number of serviced apartments thought necessary to achieve 'a bare majority of non‑residential floor area measured in terms of plot ratio'. On Edge's calculations, the non-residential plot area was 5.57 (50.09%), compared with a residential plot area of 5.55 (being 49.91%).[42] The applicants submit that in design terms, the newly included serviced apartments were virtually identical to the previously designed residential apartments.
[42] Applicants' submissions, par 21.
The applicants say that a construction that promotes the object of TPS6 should be preferred, that TPS6 should be read as a whole, and that it should be construed broadly, rather than pedantically, and with a sensible practical approach. It is submitted that the Panel majority did not adopt this approach, and instead assumed that Guidance Statement 3(a) required, relevantly, that they be satisfied only that there was a bare numerical majority in non-residential plot ratio over residential plot ratio. It is submitted that the majority therefore did not consider the correct question.[43] It is contended that the majority engaged in a mere mechanical weighing-up of the non-residential and residential plot ratios, when consistency with Guidance Statement 3(a) required the Panel to consider all aspects of the proposed development. This included not only the proportion of the floor area attributed to non-residential uses, but also the particular non-residential uses proposed and the capacity of those uses to generate employment within the precinct.
[43] Applicants' submissions, pars 22 ‑ 29.
Further and in any event, the applicants say that, even if Guidance Statement 3(a) only required the Panel to be satisfied that there was a bare majority in the non-residential plot ratio, the majority of the Panel still failed to satisfy themselves of that requirement. Rather, the applicants submit, the majority said that the development 'may not meet' the requirement 'for the provision of predominantly non-residential floor space' and imposed condition 30 requiring revised plans to be submitted to the City. It is said that the Panel thereby delegated its decision to the City. It is submitted that this was a jurisdictional error.[44]

Edge

[44] Applicants' submissions, pars 30 ‑ 35.

Edge submits that in considering the development, it is relevant that Guidance Statement 13(b) refers to the 'aspiration' that properties within the Special Design Area are to have greater development yields than are otherwise permissible under sch 9 Table A. It submits that the aspiration is not a Development Requirement but a guide. Edge submits that to vary the height, the Panel need simply be satisfied that the Performance Criteria in sch 9 Table B are met, and that there is no issue as to the satisfaction of those matters. In this context, Edge submits that the applicants' submissions should be rejected for essentially three reasons:
1.As a matter of the proper construction of TPS6, to the extent that any non‑residential plot ratio exceeds the residential plot ratio, the development 'is predominantly for non‑residential uses'. The word 'predominantly' bears its ordinary meaning 'mostly' or 'mainly'.
2.The requirement of Development Requirement 13.1(a), read with Guidance Statement 3(a), is that the Panel is satisfied that the development is consistent 'with a guide that developments should have a particular character so as to ensure a particular purpose. These terms convey a degree of discretion'. The word 'should' in the phrase in Guidance Statement 3(a) that 'the development should consist of predominantly non‑residential uses' means 'ideally but not necessarily',[45] and that the real 'imperative aspect' of Guidance Statement 3(a) is that the development should consolidate the role of the area as an employment destination.[46]
3.In relation to the non‑delegation point, Edge contends that:
(a)The applicants have misstated the effect of condition 30. Condition 30 simply required that any revised plans showing non‑residential plot ratio exceeding residential plot ratio be provided to the City. Someone other than the proponent would have to be satisfied that such revised plans in fact provided that non‑residential plot ratio exceeded residential plot ratio, but this did not involve the delegation of the decision. Properly understood, condition 30 means:
That revised plans shall be provided to the City which clearly identify that the non‑residential plot ratio area is greater than the residential plot ratio ~~to the satisfaction of the City~~.
(b)Further, there was no delegation to the City because on 3 April 2017 the Tribunal deleted condition 30.
(c)Even if the development proposal at the meeting on 19 October 2016 contained a proposal with a residential plot ratio in excess of the non‑residential plot ratio, the Panel had jurisdiction to hear the application by reason of Deemed Provision 74.

Ground three

Applicants

[45] Appeal ts 82.

[46] Appeal ts 80.

Ground three alleges that the Panel exceeded its jurisdiction by approving, or purporting to approve, the proposed development, involving a maximum height of 116.65 metres and a residential plot ratio of 5.55 by reference to approvals that had been granted for the development of other buildings within the Special Design Area. It is said, in effect, that those approvals, such as the development on the 'Civic Triangle Site', were approved prior to the decision in Nairn No 1 (affirmed on appeal) and should not have been approved because they were predominantly residential (not non‑residential) developments, and were accordingly inconsistent with Guidance Statement 3(a) of sch 9 Table A.
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

[47] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [24] - [27], [63] - [65], [71] - [75], [84], [90] - [91], [105].

[48] Applicants' submissions, pars 39 - 40.

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

Applicants

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).
The applicants contend that, on a proper interpretation of TPS6, both as a matter of its ordinary meaning, and having regard to certain contextual matters, a departure from the prescribed limits is not a 'variation' within the meaning of Development Requirement 13.1 'if it in fact produces something of a different kind or character, or of a different general class, than that contemplated by the prescribed limits'.[54]
[54] Applicants' submissions, par 44.
The relevant contextual matters asserted by the applicants are as follows:[55]
1.The Panel was required by TPS6 to have due regard to the requirements of orderly and proper planning.
2.In the Mends Sub Precinct, small‑scale commercial/retail uses are encouraged to retain Mends Street's traditional function as the main retail and lifestyle area in South Perth.
3.The express purpose of SCA1.
4.The overriding objective, referred to in TPS6 cl 1.6(1), to require and encourage performance‑based development in a manner which retains and enhances the attributes of the City and recognises individual precinct objectives and desired future character as specified in the Precinct Plan for each precinct.
5.The general objectives of TPS6 include, under cl 1.6(2)(f), safeguarding and enhancing the amenity of residential areas and ensuring that new development is in harmony with the character and scale of existing residential development.
6.The property is surrounded by land zoned either residential or mixed‑use commercial, in a primarily residential area surrounded by development up to prescribed maximum height limits of 25 m or 28 m.
7.There was no power to increase the residential plot ratio or the building height limit outside of the Special Design Area in SCA1, and no power to increase the building height limits outside of SCA1.
[55] Applicants' submissions, pars 49 - 55.
The applicants submit that the decision to approve a building of 116.65 metres in height with a residential plot ratio of 5.55 cannot sensibly be described as a 'variation' of the prescribed maxima of 25 metres and 1.5 respectively. Rather, the applicants submit that those features reflect a development of an entirely different nature, kind or class than that contemplated by sch 9 of TPS6, and that, accordingly, the Panel's approval fell outside the true scope, extent and limit of any power of approval.

Edge

Edge adopts the reasoning of Chaney J in Nairn No 1 [121] ‑ [134]. It submits that the power of variation is simply one to allow something different than otherwise required. There is no basis to infuse an evaluative element into the notion of 'variation'. If a proponent seeks something different from what is otherwise required, then the proponent seeks a variation. Development Requirements 5.1 and 5.2 provide a near unlimited power to vary. So long as the proposed development meets the Table B Performance Criteria it satisfies Development Requirement 5.2. Further, having regard to Guidance Statement 5(a), so long as the proposed development meets the Table B Performance Criteria, the height limit can be varied.

Disposition - grounds 1 - 5

Ground 1

As noted earlier, the applicants, in effect, contend that the Panel's reasons, when properly construed, indicate that it approved the proposed development merely on the basis that there were 'insufficient grounds to warrant refusal', whereas the Panel was required to be satisfied, in accordance with TPS6 cl 7.9(1), that the proposed development is satisfactory in relation to the matters referred to in TPS6 cl 7.5.
Ground 1 essentially depends upon the proper construction of the Panel's reasons for decision on 19 October 2016. It was not in dispute that the Panel's reasons were not to be construed minutely and finely with an eye keenly attuned to the perception of error.[56]
[56] Minister for Immigration and Ethnic Affairs v Wu Shau Liang [1996] HCA 6; (1996) 185 CLR 259, 272, referring to Collector of Customs v Pozzolanic Enterprise Pty Ltd [1993] FCA 322; (1993) 43 FCR 280, 287.
The Panel's decision, in terms, was not confined to a finding that there were 'insufficient grounds to warrant refusal'. In the same sentence of the Panel's reasons for decision to which the applicants refer, the Panel said that 'an approval with conditions should be supported'. The wording 'should be supported' indicates a positive satisfaction of a state of affairs by the Panel. Also, the Panel said in terms that it had due regard to the aims and provisions of TPS6, and the requirements of orderly and proper planning. These observations indicate that the Panel had in mind the requirements of TPS6 in general and, in particular, cl 7.5(a) and cl 7.5(b) of TPS6.
Further, the Panel's reasons are to be understood in the context of the carriage, by majority, of the 'Alternate Recommendation (as Amended)'. This referred, in terms, to a reconsideration of the Panel's earlier decisions 'in accordance with cl 7.9' of TPS6.[57]
[57] BB 16.
Ground 1 should be dismissed.

Ground 2

Ground 2 alleges, in effect, that the Panel failed to satisfy itself, in accordance with Development Requirement 13.1(a), that the proposed development was consistent with Guidance Statement 3(a), which provides that the proposed 'development should consist of predominantly non residential uses to ensure the precinct consolidates its role as an employment destination'. This ground raises questions as to the proper construction and application of Development Requirement 13.1(a).

Proper construction

In Nairn No 2,[58] this court made a number of observations concerning the proper construction and operation of Development Requirement 13.1(a) read with the Guidance Statements to which it refers. Those observations apply equally here.
[58] Nairn No 2 [17] - [19], [25] - [27].
'Guidance Statements', as their name implies, may, generally speaking, be understood in this context to mean statements intended by the City to be used as a guide to the nature, type, features and objects of developments sought to be fostered by the City, in specified areas.
In relation to Guidance Statement 3(a), the development sought to be fostered, in the case of a comprehensive new development, is one consisting of 'predominantly non residential uses to ensure the precinct consolidates its role as an employment destination'. In this regard, Guidance Statement 3(a) identifies a planning outcome sought to be achieved by the City. As this court observed in Nairn No 2:[59]
The Guidance Statement identifies a planning outcome - that comprehensive new development should consist of predominantly non‑residential uses. The Guidance Statement also expressly states the purpose of provision for predominantly non-residential uses: ensuring that the precinct consolidates its role as an employment destination. The Guidance Statement does not contemplate any other means of pursuing that object. It specifies both the end and the means by which that end is to be achieved.
[59] Nairn No 2 [25].

'Development Requirements', as their name implies, deal with requirements for development. Development Requirement 13.1 allows, within the limits imposed by pars (a) and (b) of that provision, a variation to the development requirements of elements 3 (residential plot ratio) and 5 (height) in the Special Design Area. It operates in the context that, by virtue of TPS6 cl 7.8(2), the general power under TPS6 of cl 7.8(1) to approve an application for planning approval which does not comply with site requirements, including with respect to plot ratio, may not be exercised with respect to the provisions in sch 9 applicable to a comprehensive new development within SCA1.
In Development Requirement 13.1(a), the reference to the proposed development being 'consistent with', relevantly, Guidance Statement 3(a), means that the proposed development must be conformable with Guidance Statement 3(a). Accordingly, Development Requirement 13.1(a) requires, relevantly, that the City (or Panel) be satisfied, before exercising its power of variation, that the development is conformable with the planning outcome identified in Guidance Statement 3(a), namely that the development should consist of predominantly non‑residential uses. A comprehensive new development which does not consist of predominantly non‑residential uses is not consistent, or conformable, with Guidance Statement 3(a).
Development Requirement 13.1(a), read with Guidance Statement 3(a), does not give the Panel (relevantly for present purposes) latitude to depart from the relevant development requirement otherwise applicable on the basis that the planning outcome identified in Guidance Statement 3(a) should 'ideally but not necessarily' be met. Edge's argument to the contrary should be rejected. Development Requirement 13.1(a) does not invoke Guidance Statement 3(a) merely as a guide to the type of development sought to be fostered by the City in the Special Design Area. In its plain and ordinary meaning, and in context, Development Requirement 13.1(a) requires the Panel to be satisfied that any comprehensive new development is conformable with the planning outcome to which (in effect) Guidance Statement 3(a) refers, as a condition for the exercise of the power to vary the relevant development requirement otherwise applicable to the development.
Also, Edge's contention that the only 'imperative aspect' of Guidance Statement 3(a) in the present context is that the development should consolidate the area's role as an employment destination cannot be accepted. That submission is, in substance, one previously advanced by Edge and properly rejected by this court in Nairn No 2, where it was said:[60]
Consistency with [Guidance Statement 3(a)] requires adherence to the specified means of pursuing [the stated] object. A development which does not consist of predominantly non-residential uses cannot be consistent with the Guidance Statement on the basis that it seeks to achieve the object by some other means.
[60] Nairn No 2 [25].
Nor can a proposed development be consistent with the Guidance Statement on the basis that it advances that object even though it does not consist of predominantly non‑residential uses.
Further, Development Requirement 13.1(a) evidently proceeds[61] on the basis that greater density is acceptable within the Special Design Area providing (amongst other things) that any new comprehensive development should 'consist of' predominantly non‑residential uses. The words 'consist of' refer to the composition of the development. They indicate that the development should be composed or made up of,[62] 'predominantly' non‑residential uses.
[61] See also Guidance Statement 13(b).
[62] Macquarie Online Dictionary definition of 'consist'.
The word 'predominantly' in Guidance Statement 3(a) connotes, in its ordinary meaning, having ascendancy or supremacy, or prevailing.[63] It invokes, in this context, a concept not reducible to mere mathematical inquiry. In the context of Guidance Statement 3(a), with its stated object of consolidating the precinct's role as an employment destination, a comprehensive new development comprising 'predominantly' of non‑residential uses is one in which non‑residential uses are ascendant in the development, or are the prevailing influence in the development. It is true, as Edge emphasises,[64] that there is, relevantly, a binary classification of uses: residential or non‑residential. Nevertheless, if the extent of residential and non‑residential uses is substantially equal, it cannot be said that the development 'consists of predominantly non residential uses'.[65] Contrary to Edge's submission,[66] that does not involve identifying a substitute minimum percentage of non‑residential uses. Rather, a single evaluative judgment must be undertaken once the residential and non‑residential uses are identified.
[63] Macquarie Online Dictionary and Oxford English Dictionary Online.
[64] Edge's submissions, par 17.
[65] Compare, in a very different context, AWB Ltd v Cole [2006] FCA 571; (2006) 152 FCR 382 [106].
[66] Edge's submissions, par 17.
Also, it is to be noted that Development Requirement 13.1(a) is not expressed in terms that the Panel must be satisfied that the non‑residential plot ratio area exceeds the residential plot ratio area. Plot ratio areas, which are based on the calculation of floor area in a particular way, lend themselves to precise mathematical comparison. Plot ratios are specifically dealt with in Development Requirements 3.1 ‑ 3.4. However, Development Requirement 13.1(a) is not drawn in those terms. Instead, it invokes Guidance Statement 3(a) which is expressed in the quite different terms to which we have already referred. This also tends to confirm that the criterion invoked by reference to Guidance Statement 3(a) has a qualitative aspect to it, and goes beyond mathematical comparison.
Moreover, plot ratio areas are not necessarily an accurate reflection of use. The plot ratio area for residential dwellings excludes floor space associated with shared amenities areas. On the other hand, floor space in respect of such areas is not excluded from the calculations for non‑residential plot ratio area. The point is illustrated in this case by the exclusion of the amenity areas for residents on the 15th floor,[67] whilst the amenity areas for the serviced apartments on the 4th floor are included in the floor area for the purpose of calculating the non‑residential plot ratio area.[68]
[67] WB vol 5, 1011, 1014, 1034, 1067, 1080.
[68] WB vol 5, 1014, 1034, 1065, 1080.
The extent to which the non‑residential plot ratio area exceeds the residential plot ratio area may no doubt be a factor, and perhaps commonly an important factor, to which regard may be had in forming the required evaluative judgment. But satisfaction that the proposed development comprises predominantly non‑residential uses cannot be understood as merely involving the mechanical task of being satisfied that the non‑residential plot ratio (or area) exceeds to some extent the residential plot ratio (or area).
Further, no doubt some non‑residential uses, such as office or retail, will likely better serve the object of consolidating the precinct's role as an employment destination than others, such as serviced apartments (as the City recognised in this case).[69] However, the power to vary plot ratio requirements under Development Requirement 13.1(a) is conditioned relevantly on the Panel being satisfied that a development is composed of predominantly non‑residential uses. Only one single evaluative judgment is required. There are not two elements (predominantly non‑residential use and consolidating employment) in respect of which the Panel must be satisfied under Development Requirement 13.1(a). The degree to which the stated object is achieved is a matter that may be taken into account[70] and weighed against other considerations,[71] in exercising the relevant discretion as to whether to approve the development under TPS6 cl 7.9, once that single, threshold, question has been affirmatively determined.

The Panel's error

[69] WB vol 4, 1001.

[70] Under, for example, TPS6 cl 7.5(a) ('the objectives and provisions of this Scheme').

[71] For example, those under TPS6 cl 7.5(i) - (j), (l), (n), (t).

The Panel's reasons for decision[72] and the reports for materials to which it referred, are set out in [47] ‑ [51] above. It is evident from the Panel's decision that it approached its task by:
1.Treating the relevant inquiry with respect to Guidance Statement 3(a) as comprising two discrete elements, one being whether the proposed development would contribute to the generation of employment in the area and the other being whether the proposed development consisted of predominantly non‑residential uses.
2.Treating the latter matter, ie, whether the development consisted of predominantly non‑residential uses, as a mathematical exercise as to whether the non‑residential plot ratio exceeded by any amount (however slight), the residential plot ratio.
[72] All references to the Panel are to be understood as references to the Panel, by majority.
These matters are evident from the text, structure and logic of pars 5, 6 and 7 of the Panel's reasons for decision which are, for convenience, repeated below:
5.It was also noted that the RAR report stated that the proposal met, with the exception of vehicle management, the planning performance requirements of schedule 9, Table A and B of Town Planning Scheme 6. …
6.Based on the report by AEC provided and the review by Pracsys commissioned by the Department of Planning the [P]anel held that on further review the proposed mix of non‑residential land uses (serviced apartments) meet the guidance statement Table A Schedule 9 … which requires the precinct to consolidate its role as an employment destination. …
7.Late evidence was provided by Council Administration that revised plot ratio calculations showed that the building may not meet the requirement for the provision of predominately [sic] non‑residential floor space. [Edge] stated that if this proved to be the case then floors could easily be changed to ensure that the requirement was met. It was decided that the plot ratio requirement could be met if revised plans were submitted to the City and a condition with this requirement could be made. (emphasis added)
Paragraphs 6 and 7 treat Guidance Statement 3(a) as requiring two separate inquiries rather than involving one composite inquiry of an evaluative character. Paragraph 7 proceeds on the basis that the question of whether the development consists of predominantly non‑residential uses is determined by undertaking the mechanical exercise of comparing non‑residential with residential plot ratio calculations. In referring to 'late evidence' casting doubt on the 'plot ratio calculations', the Panel evidently had in mind that 'late evidence' had emerged casting doubt on the City's statement in the Responsible Authority Report[73] to the effect that Guidance Statement 3(a) had been 'met', 'given' that the non‑residential plot ratio was 'slightly higher' than the residential plot ratio (by a difference of .01 m). The Panel referred to 'the requirement for the provision of predominately [sic] non‑residential floor space'.[74] The Panel said that the revised plot ratio calculations 'showed' that the building may not meet that requirement. This language strongly suggests that the Panel treated plot ratio calculations as governing the question, not merely informing it. That is reinforced by the Panel's reference, in the final sentence, to the 'plot ratio requirement'. In this way, the Panel was, in terms, characterising the requirement as one that related to plot ratio.
[73] Referred to by the Panel in par 5.
[74] Our emphasis.
The Panel's approach is also apparent from its decision with respect to condition 30.[75] The Panel's reasons state that it decided to impose a condition requiring the applicant to submit revised plans to the City that met the plot ratio requirement. The reason given for the amendment of condition 30 to its final form was said to be '[t]o provide the applicant the opportunity to clarify with staff relevant definitions and to provide complying plans'.[76] Condition 30 provides that the revised plans should 'clearly identify that the non‑residential plot ratio area is greater than the residential plot ratio area to the satisfaction of the City'.[77] The Panel evidently considered that the question of whether the proposed development consisted of 'predominantly' non‑residential uses could be left to the City's examination of the different plot ratios as revealed by the new floor plans. That reflects and reveals the Panel's erroneous view that compliance with Guidance Statement 3(a) was determined by whether the non‑residential plot ratio area was greater than the residential plot ratio area.
[75] BB 20.
[76] BB 16.
[77] BB 16.
This is not a case where the Panel has merely given excessive weight to the plot ratio calculations in determining whether the development consisted of predominantly non‑residential uses. Were it merely a weighting matter, there would be no error of a kind justifying interference in judicial review proceedings. Rather, for the reasons outlined above, it appears that the Tribunal has approached its task on the basis that there were two separate inquiries rather than one and that on its understanding, the second of those inquiries, concerning whether the development consisted of predominantly non‑residential uses, was governed by whether the non‑residential plot ratio area exceeded, to any extent, the residential plot ratio area. The Panel thereby misapprehended or disregarded the nature or limits of its functions or powers under Development Requirement 13.1(a).[78] Accordingly, jurisdictional error has been established and ground 2 should be upheld.
[78] Kirk v Industrial Court (New South Wales) [2010] HCA 1; (2010) 239 CLR 531 [72]; Craig v The State of Western Australia [1995] HCA 58; (1995) 184 CLR 163, 177 ‑ 178.
If, contrary to the above, plot ratios governed the question of whether the development consisted of predominantly non‑residential uses, the imposition of condition 30 indicates that Edge had not demonstrated, to the satisfaction of the Panel, that the development was consistent with Guidance Statement 3(a). The Panel evidently left that matter to the satisfaction of the City. Whilst the Panel may be entitled to impose conditions, as Edge contends, under Deemed Provision 74 upon a grant of development approval, the anterior question here is whether the Panel, prior to the grant of approval, was satisfied that the development was consistent with, relevantly, Guidance Statement 3(a). The Panel's satisfaction with respect to that threshold matter could not, by the imposition of a condition, be left to a third party.

Ground 3

The relevant part of the Panel's decision is reproduced below:
4.[T]he proposed development was not taller than other buildings approved in the locality such as the 39 story [sic] building on the Civic Triangle Site where the same planning controls apply. Whilst … the [Panel] was not constrained by previous decisions as each case needs to be judged on its merits it was in this case preferable that there is a consistency in the decision making process.
The Panel had approved the Civic Triangle Site development in 2015. It was clear that the proposed building was predominantly if not entirely residential.[79] Senior counsel for Edge did not contend otherwise.[80]
[79] WB vol 6, 1371, 1411.
[80] Appeal ts 87.
Further, the Civic Triangle Site development application was decided before Chaney J's decision in Nairn No 1 and this court's decision in Nairn No 2. The effect of those decisions was that under Development Requirement 13.1(a), satisfaction that the development consists of predominantly non‑residential uses is a precondition for the valid exercise of the power to increase plot ratios. On 19 October 2016, it may be inferred the Panel was aware of Chaney J's decision to this effect. Accordingly, on the facts known to the Panel as at 19 October 2016, it was plain that the previous approval of the Civic Triangle Site development had proceeded on an erroneous understanding of the legal requirements governing the application.
None of these matters was contentious in this application. Rather, Edge submitted that they were immaterial. That was because, Edge contended, in effect, the Panel's reasons should simply be read as the Panel having regard to Deemed Provision 67(m), which concerns 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'.[81]
[81] Appeal ts 86 - 87.
The Panel's reasons cannot reasonably be read in that manner. The Panel did not rely or purport to rely on Deemed Provision 67(m). It referred specifically to the fact that the 'same planning controls' applied to the Civic Triangle Site. Moreover, the Panel, with reference to the Civic Triangle Site, said, expressly, that it was 'preferable that there is a consistency in the decision making process'. The Panel's focus was entirely on consistency in 'decision making' where the 'same planning controls apply'. It was not taking into account, as a planning consideration, the extent to which the proposed development was compatible with its setting, including its compatibility with adjoining land or other land in the locality.
Consistency in decision‑making is no doubt a matter to which the Panel could properly have regard in appropriate circumstances.[82] That is so where the decision‑making process to which regard is had for that purpose is itself lawful. Consideration of an earlier decision‑making process, at least when known by the (later) decision‑maker to have been undertaken contrary to the requirements of TPS6, is not a consideration which the Panel may properly take into account having regard to the purpose, scope and subject matter of TPS6.[83] That is so whether or not the earlier, unlawful, decision has been the subject of challenge. Accordingly, the Panel proceeded on an irrelevant consideration and the Panel thereby exceeded its jurisdiction. Ground 3 is established.

Grounds 4 and 5

[82] Dilatte v MacTiernan [2002] WASCA100 [60] ‑ [63].

[83] cf Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40.

Grounds 4 and 5 allege, in effect, that by approving the development with a building height of 116.65 m and a residential plot ratio of 5.55, the Panel exceeded the true scope, extent and limit of any discretion to vary those matters, and thereby exceeded its jurisdiction. These grounds require a consideration of the power to vary the height limit and residential plot ratio in the Special Design Area.

Special Design Area

The Special Design Area, as Guidance Statement 13 indicates, is an area where:
(a)The lots front onto streets which have a high degree of visibility, either by virtue of their aspect or their proximity to high volumes of movement, and the lots, accordingly, offer the potential to establish buildings 'with a strong visual presence and landmark qualities' (emphasis added).
(b)Subject to satisfying sch 9 Table B Performance Criteria relating to exceptional design quality, sustainability and community benefit,[84] the properties within the Special Design Area are provided with 'the potential to achieve greater development yields than [otherwise] permissible by the requirements of Table A of [sch 9]' (emphasis added).

Development Requirements

[84] Ie, Nos 2, 7 and 8 in Table B Performance Criteria.

The effect of Development Requirement 13.1, read with Development Requirement 3.1, is that there is no maximum total plot ratio applicable to buildings in the Special Design Area. In other words, in general terms, there is no limitation on the total floor area for a development on a site in the Special Design Area. That in turn implies, in general terms, that density is left to be regulated to the extent that there are controls on height, which are the subject of the Development Requirements in respect of Element 5.

The applicable scale items were not identified in the judgment.

The bill of costs and taxation

The applicants prepared a bill of costs for taxation and claimed costs and disbursements in the amount of $131,912.30. A copy of the applicants' bill of costs is reproduced at sch A to these reasons.
The applicants claimed costs under scale items 10, 11, 15, 23, 29 and 30, together with disbursements. Scale item 11 makes allowance for 'Motions and originating process', and scale item 11(a) refers to 'Originating motion, originating summons or originating application and applications for Judicial Review under Order 56'. Scale item 23 makes allowance for 'Appeals to the Court of Appeal and Single Judge Appeals (Including appeals by way of case stated) and applications for leave to appeal'.
The fourth respondent disputed the bill of costs and the matter proceeded to a taxation hearing before a registrar (as taxing officer) on 9 November 2018. The bill was taxed in the sum of $100,944.36.
At the taxation hearing, and before the allocatur was signed, the taxing officer made programming directions should any party object and seek review under the RSC O 66 r 53.

The review by the taxing officer

On 2 November 2019, the fourth respondent applied for a review of the taxation by the taxing officer and filed written objections to the taxation. Three objections were pressed. First, that the taxing officer made an error of principle in permitting the applicants to recover amounts under scale item 23. Secondly, if the fourth defendant was wrong in relation to its first objection, then the taxing officer made an error of principle in the approach to apportioning the costs recoverable under scale items 11 and 23. Thirdly, that the taxing officer made a further error of principle by allowing the applicants to recover for the costs of having three legal practitioners attend the final hearing in the matter, in circumstances where 'Counsel' had not been engaged.
The applicants took issue with the objections raised by the fourth respondent and filed submissions in reply. The fourth respondent filed further responsive submissions on 17 December 2018.
On 21 December 2018, the taxing officer gave written reasons for decision, in which the general principles to be applied by a taxing officer in determining an application for a review under the RSC O 66 r 53 were identified.[174] The taxing officer then dealt with each objection in turn.
[174] Decision on a request for review of the taxation of the applicant's bill of costs (21 December 2018) [4] ‑ [6], citing Zgteek Pty Ltd v Michael Lurie & Associates [2012] WASC 419 [26] ‑ [27].

Objection 1 – scale item 23

The first objection pressed was that the taxing officer made an error of principle in permitting the applicants to recover amounts under scale item 23. The error was said to relate to the allowance sought under items 3, 10, 11, 12, 13, 15, 16, 17 and 18 of the applicants' bill of costs.
After setting out the competing submissions made in relation to the objection, the taxing officer found as follows:
15.Whilst the proceeding commenced as a Form 67A judicial review proceeding (Item 11 of Table B of the Determination 'Item 11')) it ultimately was transferred from the General Division to the Court of Appeal and proceeded to hearing on the basis of the usual programming orders required in an appeal pursuant to which the provisions of Part 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA) ('the CA Rules') apply (Item 23 of Table B of the Determination ('Item 23')).
16.This transfer fundamentally changed the amount of work that had to be undertaken and, as was found on the taxation hearing, fundamentally impacted on the costs which can be recovered by the successful party. The situation is directly analogous to a proceeding that is commenced on originating summons but where pleadings are ultimately ordered. In such circumstances it would be completely unreasonable not to allow the successful party to recover the costs of drafting pleadings.
17.The review is, on this review, as on the taxation hearing, ultimately determined by the Taxing Officer's view as to the costs consequences of the Orders made by Registrar Eaton on 31 May 2017 ('the Orders') and whether part of the Bill of Costs falls to be determined under Item 11 and part under Item 23.
18.On 31 May 2017 the Court of Appeal Registrar ordered that the provisions of Part 5 of the CA Rules applied, and hence the Applicants had to prepare those documents required for an appellant's case on an appeal; that is, documents above those otherwise required for a judicial review proceeding commenced pursuant to a Form 67A under Order 56 of the Rules when heard in the General Division. This meant that costs would be increased accordingly. The Fourth Respondent submits that this additional work is limited to preparing appeal books, but concedes that costs could have been allowed for that task under Item 23.
19.Two things may be said to that submission. Firstly, the Fourth Respondent cannot have it both ways – either there is a point of principle on review that the costs are to be taxed entirely under Item 11 and without regard to Item 23, or, there is not. The Fourth Respondent cannot pick and choose which parts of Item 23 could be allowed without thereby showing that there is no point of principle. Secondly, as a statement of general principle, any practitioner who has appeared as counsel in the Court of Appeal can attest to the fact that significantly more preparation is required for a Court of Appeal hearing than one in the General Division. In my view, although I accept the Fourth Respondent's contention that the proceeding always remained a judicial review proceeding, it would be inequitable to confine the Applicants' costs to Item 11 in those circumstances and not to permit the Applicants to recover, from the date of the Orders, costs under Item 23.
20.I find that rule 68 of the CA Rules, which refers to orders which are made in order to decide the matter more efficiently, economically and expeditiously, cannot be applied to limit costs in the circumstances where orders of the kind comprised in the Orders were made. The words efficiently, economically and expeditiously apply to factors relevant to the determination of the facts in issue in the proceeding and are qualified by the words may facilitate. Such wording cannot be applied to limit costs properly and reasonably incurred consequent on orders made pursuant to a general case management power. The Court required the appeal to progress in a manner whereby, for the appeal to be properly determined, it was transferred from the General Division to the Court of Appeal and the provisions of part 5 of the CA Rules thereafter applied; the respective costs of the parties thereby de facto increased from those originally contemplated in a Form 67A judicial review proceeding.
21.Ultimately, his Honour Justice Chaney (at the costs hearing on 25 February 2016) declined to divide the costs order as between those matters which were successful on the appeal and those which were not. Accordingly, the Fourth Respondent must pay the Applicants reasonable scale costs of preparing for, and arguing, each ground of appeal on the hearing of the appeal.
22.Clearly principles of proportionality have to apply to the costs recoverable under Item 11 prior to the Orders and the costs recoverable under Item 23 after the Orders. It would not be reasonable and proportionate for instance, for those two items simply to have been added together to increase the scale limit. The relevant principles of proportionality were applied on the taxation in determining the costs allowed before and after 31 May 2017.
23.It became a question, on the taxation, as to how much of the claim, in the Bill of Costs, for $40,000 as against Item 11 should be allowed, given that the scale maximum for Item 11 is $44,660. Proportionality, based on the relevant stage of the appeal, was clearly relevant and the claim for costs under Item 11 was reduced accordingly (to $20,000). Also, when considering costs claimed under Item 23, work done prior to the Orders was considered against the Applicants' claim in the Bill of Costs under Item 23. The total costs allowed (under Item 11 and Item 23) fairly reflect the work that had to be undertaken, both prior to and consequent on the Orders, in the context of the actual appeal on foot.
24.In any event, any dispute in relation to the allowance made on the taxation as to Item 11 and Item 23 (absent an error of principle therein) would be a dispute as to quantum and therefore irrelevant on a review unless Objection 1 were allowed on the review.
25.There is no error of principle established by the Fourth Respondent under Objection 1 and that objection is dismissed.

Objection 2 – apportionment between scale items 11 and 23

The second objection pressed was that if the fourth defendant was wrong in relation to its first objection, then the taxing officer made an error of principle in the approach to apportioning the costs recoverable under scale items 11 and 23.
As recorded in the taxing officer's reasons for decision, the fourth defendant contended that if scale item 23 was to apply, then an award of $20,000 under scale item 11 would be manifestly excessive in the circumstances,[175] and further that:[176]
[175] Fourth respondent's objections to taxation filed 23 November 2018 par 31.
[176] Fourth respondent's further responsive submissions on objections to taxation filed 14 December 2018 par 10.
[E]ven if both Item 11 and Item 23 apply in this case, then it would result in an extreme outcome to allow the Applicants to recover close to half of the maximum allowed under Item 11, in circumstances where only the originating process had been filed, prior to the matter being transferred to the Court of Appeal and where the actual work performed up to this stage has only been described by the Applicants in very vague and general terms.
In relation to the second objection, the taxing officer determined as follows:
25. The contention is that the items of work allowed under item 11, on the taxation, were in error as the only item which fell for determination/allowance under Item 11 should be the drafting of the Form 67A and the associated grounds of judicial review. The Fourth Respondent's submissions in reply at paragraph 10 seem to suggest that the scale limit is more than just a cap on recoverable fees; implicit in the submission is the contention that for the Taxing Officer to allow half the scale limit the applicants would have had to have done half the work (or thereabouts. This is not so.
26. The reality is that this is an argument as to quantum rather than an argument as to principle. A reasonable amount was allowed for the Item 11 work, which was done prior to the Orders and which was reasonably required prior to the Orders. For example, costs were incurred in order to comply with the Court's orders of 21 February 2017. Work done under Item 11 was reasonably and necessarily done and, would have, formed part of the basis by which the Court determined how the matter should proceed (when the Orders were made).
27. Even if Objection 2 can be established to be an argument as to an error of principle, the Fourth Respondent's objection fails to establish that, up to the time of the Orders, the work was not reasonably, and necessarily, done. The Taxing Officer found, on the taxation, that work was reasonably required, and costs necessarily incurred, up to the time of the making of the Orders and allowed the sum of $20,000 for such work against a claim of $40,000.
28. On the taxation a fair amount, pursuant to scale, was determined for the Appellants reasonable costs incurred under Item 11, prior to the Orders being made, and under Item 23, after the Orders were made.
29. No error of principle is established by the Fourth Respondent and Objection 2 is dismissed.

Objection 3 – allowance for three legal practitioners at the final hearing

The third objection pressed was that the taxing officer made a further error of principle by allowing the applicants to recover for the costs of having three legal practitioners attend the final hearing in the matter, in circumstances where 'Counsel' had not been engaged.
After setting out the competing submissions made in relation to the third objection, the taxing officer found as follows:
34.The Fourth Respondent contends that the Taxing Officer made a further error of principle by allowing the Applicant to recover the costs of having three legal practitioners attend the final hearing in the Appeal; essentially where independent counsel had not been engaged from the Bar as junior counsel.
35.Both junior counsel and the instructing solicitor present at the hearing of the appeal were legal practitioners working at Squire Patton Boggs. In essence, the Fourth Respondent contends that Mr Halls, appearing as junior counsel, is not a barrister and would not have invoiced Squire Patton Boggs for his fees as a disbursement and that hence (applying the wording of the Determination) a costs award cannot be made in respect of Mr Halls appearance as junior counsel. The Fourth Respondent contends that Mr Halls, and the instructing solicitor (Ms Tannock) from Squire Patton Boggs, can both only be found (for the purposes of a costs determination) to have appeared as instructing solicitors and hence costs can only be recovered in respect of one of them.
36.This objection seems to rely on a Taxing Officer being compelled to find that a law firm cannot use an in house practitioner as counsel and to recover for such person as counsel; because this is the only possible interpretation open under the Determination.
37.The reference to Counsel in the determination means a practitioner acting as a barrister other than a Senior Counsel. Nowhere, in the Determination, is there a statement that 'a barrister' is defined exclusively as a practitioner practising solely as a barrister; the words practitioner acting as imports a broader concept. A person admitted to practice in Western Australia, as a legal practitioner, has a right of audience as counsel, that is, as a barrister.
38.Practitioners from law firms regularly appear as counsel in all Courts and Tribunals in this jurisdiction and recover costs accordingly, as counsel under scale. Such counsel are often instructed by another practitioner from the same firm. Again, there will regularly be a costs allowance for that second practitioner as an instructor.
39.Table A in clause 11 of the Determination refers to fees charged by in house Counsel with no associated reference/qualification to such fees being charged as a disbursement to practitioners. There is no authority to contend against a finding that the phrase in house counsel incorporates reference to in house counsel within a law firm representing a client.
40.In this matter, Mr Halls appeared, robed, as junior counsel with Senior Counsel. An instructing solicitor was also present in Court. There is nothing unusual in this arrangement and nothing which precludes Mr Hall appearing as junior counsel and both counsel being instructed by Ms Tannock. Costs for Mr Halls have only been allowed at the junior counsel rate, not at the senior practitioner rate which would otherwise apply.
41.The Taxing Officer made a finding on the hearing of the taxation that it was reasonable for the Applicants to be represented by Senior Counsel, junior counsel and an instructing solicitor. Nothing is raised on the review which shows any error of principle in that finding.
42.Accordingly, Objection 3 is dismissed.
Having found that there had been no error of principle, the taxing officer dismissed the objections raised by the fourth respondent. The allocatur was signed in the amount of $100,944.36 and the certificate of taxation was issued.

The application for a review of the taxation of costs

By chamber summons filed on 21 January 2019, the fourth respondent applied for a review of the taxation of costs pursuant to the RSCO 66 r 55. The grounds for review were framed as follows:
1. Registrar Whitbread made an error in principle in allowing the Applicants to recover amounts under Item 23 in Table B in the Schedule to the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (Determination) in circumstances where the matter was an application for judicial review as opposed to an appeal.
2. In the alternative, if ground 1 is not accepted and it is held that it was acceptable for the Applicants to recover amounts under Item 23 of the Determination, then Registrar Whitbread made an error in principle by allowing the Applicants to still recover amounts under Item 11 of the Determination.
3. Also in the alternative, if ground 1 above is not accepted and it is held that it was permissible for the Applicants to recover amounts under Item 23 of the Determination, then Registrar Whitbread made an error in principle in allowing the Applicants to recover an amount under Item 23(g) of the Determination, in circumstances where the Applicants had not engaged "counsel" for the final hearing, as that term is defined in the Determination.

Principles governing a review of taxation

The RSC O 66 r 55 entitles a party who is dissatisfied with the certificate of a taxing officer as to any item or part of an item objected to under the RSC O 66 r 53, to apply to a judge in chambers for an order to review the taxation as to that item or part of an item. The RSC O 66 r 55(2) provides that the judge, if of the opinion that the taxing officer has made an error in principle, may make such order to rectify the error as the judge thinks just.
The review by a court is not a review de novo of the taxing officer's decision and the usual principles governing review of administrative decisions, particularly those in the nature of decisions concerning practice and procedures, apply.[177] As noted by Martin J in W J Green & Co (1984) Pty Ltd v Tace Pty Ltd (No 4):[178]
[177] Sanders v Snell (No 2) (2000) 174 ALJR 53 [11] (Kirby J); see also Dal Pont G E, Law of Costs (4th ed, 2018) 688.
[178]WJ Green & Co (1984) Pty Ltd v Tace Pty Ltd (No 4) [2010] WASC 363 [23].
Fundamentally, an application to a judge seeking review pursuant to O 66 r 55(1) is limited in the scope of the review undertaken. The envisaged process is not in any sense a review de novo. Rather, it is a review confined to an examination directed at ascertaining whether or not the already reconsidered decision of the taxing officer contained an error of principle. A review by a judge under O 66 r 55(1) is no occasion for new points of challenge to emerge, or for issues not raised to the taxing officer, or for points inadequately argued before the taxing officer to be re-ventilated afresh. Obviously, taxing officers hold expertise in taxations about costs determinations. They deal in the day-to-day nitty-gritty of assessing the costs in litigation, by reference to scales and allowances at a level of detail that judges do not. That is one reason why any further review opportunity window that is allowed under O 66 r 55 to a judge is an extremely limited one. See the observations by EM Heenan J in Gibson v Commonwealth of Australia [2002] WASCA 323.
The application made by fourth respondent is to be heard and determined upon the evidence that was before the taxing officer, and no further evidence is to be received, unless otherwise directed by the reviewing judge.[179] Further, the decision of the taxing officer on all questions of fact are final.[180]
[179] The RSC O 66 r 56.
[180] The RSC O 66 r 43; discussed in Dal Pont G E, Law of Costs (4th ed, 2018) 688.

As noted by Kitto J in Australian Coal & Shale Employees' Federation v The Commonwealth:[181]
[181]Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, 628.
The court will always review a decision of a taxing officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer's decision even where an exercise of discretion only is involved and will do so freely on a proper case, using its own knowledge of the circumstances, but it will in general interfere only where the discretion appears not to have been exercised at all, or would have been exercised in a manner which is manifestly wrong, and where the question is one of amounts only, will do so only in an extreme case.
Further, as observed by Ipp J in Mossensons (A firm) v Coastline Associates:[182]
[182] Mossensons (A firm) v Coastline Associates (Unreported, WASC, Library No 970661, 2 December 1997) 9.
The point is that there must be an error in principle before a Judge will carry out a review under O 66 r 55. Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. In my opinion, an error in principle on this basis can only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.
As noted by Mitchell J in Soia v Bennett:[183]
[183] Soia v Bennett [2014] WASCA 204 [33] citing Rankilor v Circuit Travel Pty Ltd[2012] WASCA 155 [75] ‑ [77].
Errors in principle are to be contrasted with questions of mere quantum. Nevertheless, errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed. An error in principle may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong.
The fourth respondent bears the onus of satisfying the court that the decision reached by the taxing officer was wrong,[184] that is, that the taxing officer proceeded upon a wrong principle.
[184] Australian Coal & Shale Employees' Federation v The Commonwealth 627.

Disposition – did the taxing officer err in principle in in permitting the applicants to recover amounts under scale item 23?

I turn to the question of whether the taxing officer erred in principle in permitting the applicants to recover amounts under scale item 23.
It is well established that an error in principle may occur in determining whether an item should be allowed.[185] However, the question of whether allowance may be made under scale item 23 in circumstances where an application for judicial review is transferred to the Court of Appeal does not appear to have been the subject of judicial consideration.
[185] Australian Coal & Shale Employees' Federation v The Commonwealth 628; Soia v Bennett [33]; Rankilor v Circuit Travel Pty Ltd [76]; City of Belmont v Saldana [No 2] [2018] WASC 278 [39].
For the reasons set out below, I find that ground 1 is made out.
The RSC O 66 sets out the applicable rules as to costs, and O 66 r 11(3) clarifies that costs determinations made under the Legal Profession Act apply as between party and party.
As observed by Buss P, Murphy JA and Beech JA in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11]:
By s 280(1) of the [Legal Profession Act], a party's recoverable costs are confined, in effect, by the scale limits. To that extent, s 280(1) is protective of the party charged and, more generally, serves the due administration of justice by limiting the allowable scope for legal costs.
In this case, I find that the taxation proceeded upon a wrong principle in so far as allowance was made under scale item 23. That is, there was an error in that the applicants' recoverable costs were not confined to the applicable scale limits.
Scale item 11 makes allowance for 'Motions and originating process', and specifically, scale item 11(a) refers to applications for judicial review under the RSC O 56. The application determined by the Court of Appeal was an application for judicial review.
The application of a scale item is to be determined by a plain reading of the 2016 Determination. A plain reading of the 2016 Determination favours an interpretation that allowance for costs incurred in prosecution of an application for judicial review is to be determined by reference to scale item 11. Further, the 2016 Determination serves a regulatory (or controlling) purpose, and such reading is consistent with a regulatory purpose, as it is simple, clear and unambiguous.
On a plain reading of the 2016 Determination, in the context of an application for judicial review, I find that there is no proper basis for an allowance to be made under scale item 23.
The orders made by Chaney J and the Court of Appeal Registrar concerned matters of procedure in the prosecution of the application for judicial review. The RSC O 56 r 5 concerns the procedure on an application for judicial review, and sub‑rule (4) expressly provides that a single judge dealing with an application for judicial review may, without deciding it, order that it be heard by the Court of Appeal. Upon the making of the order by Chaney J on 18 May 2017, the Court of Appeal proceeded to hear and determine an application for judicial review. While the order of Chaney J determined the coram, it did not change the character of the application from an application for judicial review to an appeal to the Court of Appeal.
On 31 May 2017, the Court of Appeal Registrar ordered that pursuant to the CA Rules r 68, pt 5 of the CA Rules would apply to the proceeding. Again, the order did not change the character of the application from an application for judicial review to be determined by the Court of Appeal, to an appeal to the Court of Appeal.
I note that the taxing officer expressly accepted the fourth respondent's contention that the proceeding always remained a judicial review proceeding.[186] However, the taxing officer also found that the transfer to the Court of Appeal 'fundamentally changed the amount of work that had to be undertaken and, as was found on the taxation hearing, fundamentally impacted on the costs which can be recovered by the successful party.'
[186] Decision on a request for review of the taxation of the applicant's bill of costs (21 December 2018) [19].
The taxing officer's reasons reveal that the taxing officer had regard to what was described as 'a statement of general principle'. That is, that 'any practitioner who has appeared as counsel in the Court of Appeal can attest to the fact that significantly more preparation is required for a Court of Appeal hearing than one in the General Division.' The taxing officer also reasoned that '…it would be inequitable to confine the Applicants' costs to Item 11 in those circumstances and not to permit the Applicants to recover, from the date of the Orders, costs under Item 23.'
It is not possible to discern whether the 'statement of general principle' as described by the learned taxing officer is correct or a widely held view. In any event, I find that considerations of fairness, and the potential for an 'inequitable' outcome, which appear to have informed the taxing officer's approach, were not proper grounds upon which to make an allowance under scale item 23.
As conveniently summarised in Dal Pont G E, Law of Costs (4^th ed, 2018), at 508, the courts speak in terms of 'fair', 'qualified', or 'unreasonable' indemnity. This limits the costs payable by the unsuccessful litigant. That limit has historically been set by reference to the costs a taxing officer considers 'necessary or proper' for the attainment of justice or the protection of rights of the party by whom they were incurred.
A taxing officer may only set limits and make allowance under applicable scale items. The limits fixed by the scale may result in an outcome that is not adequate or proper for the attainment of justice. This may be mitigated by the recovering party securing a special costs order.
In this case, the Court of Appeal considered an application for a special costs order and concluded that such an order was not appropriate. Had the court been satisfied that a special costs order was appropriate, then the limits fixed in scale item 11 may have been raised. The court may also have made any order or given any direction for the purposes of enabling costs above those in the 2016 Determination to be ordered or assessed.[187]
[187] Legal Profession Act s 280(2)(d).

Conclusion and orders

For the reasons set out above, ground 1 is made out. I make no findings in relation to the second and third grounds of review as they were framed in the alternative and premised on the first ground not being accepted.
The RSC O 66 r 55(2) provides that the judge, if of the opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the judge thinks just.
Subject to hearing from the parties as to the appropriate form of orders, I propose to make orders the effect of which will be to set aside the certificate of the taxing officer and to refer the bill of costs to another taxing officer. I will also hear from the parties as to the costs of this review.
In light of these reasons, the applicants may seek to amend their bill of costs and a taxing officer has the power to allow amendment. That being a matter for the taxing officer, I will make no direction in that regard.

Schedule A – Applicants' party / party bill of costs for taxation

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EP
Associate to Principal Registrar Strk

14 NOVEMBER 2019

[2018] WASCA 18 (S2)

15 NOVEMBER 2019