Nairn v Metro-Central Joint Development Assessment Panel - [2016] WASC 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: NAIRN -v- METRO-CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2016] WASC 56

CORAM: CHANEY J

HEARD: 10 & 11 DECEMBER 2015

DELIVERED : 25 FEBRUARY 2016

FILE NO/S: CIV 2201 of 2015

BETWEEN: KARYL ANNE NAIRN
First Applicant
RICHARD RADCLIFFE HAWLEY
Second Applicant
AND
METRO-CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL
First Respondent
EDGE VISIONARY LIVING PTY LTD
Second Respondent

Catchwords:

Town planning - Development approval - Variation of plot ratio and height requirements - Significant increase over permissible height - Scope of discretion to vary - Precondition to exercise of discretion - Unreasonableness - Proper construction of town planning scheme - Scope object and purpose of scheme - Shortfall in minimum lot size - Standing to seek relief

Words and phrases - Minor variation

Words and phrases - Should consist

Words and phrases - Vary

Words and phrases - Consistent with

Legislation:

Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 12

Result:

Grounds 3 and 4 upheld
Remaining grounds dismissed

Category: B

Representation:

Counsel:

First Applicant              :     Mr M D Cuerden SC & Mr P D Lochore
Second Applicant          :     Mr M D Cuerden SC & Mr P D Lochore
First Respondent           :     No appearance
Second Respondent       :     Mr P McQueen

Solicitors:

First Applicant              :     Squire Patton Boggs
Second Applicant          :     Squire Patton Boggs
First Respondent           :     No appearance
Second Respondent       :     Lavan Legal

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

Australian Conservation Foundation Inc v The Commonwealth [1980] HCA 53; (1980) 146 CLR 493
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353
BHP Billiton Ltd v Parker [2012] SASCFC 73; (2012) 113 SASR 206
Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289
Lawrence v Fen Tigers Ltd [2014] AC 822; [2014] 2 All ER 622
Marion City Council v Kerta Weeta Construction Pty Ltd (1993) 81 LGERA 392
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Njegovan v Nayshon Pty Ltd [2014] WADC 111
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656
R v Cooke [2003] SASC 403
Re Smith; Ex Parte Rundle (1991) 5 WAR 295
Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432
South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35

CHANEY J: On 25 May 2015, the Metro-Central Joint Development Assessment Panel (JDAP) approved an application by the second respondent, Edge Visionary Living Pty Ltd (Edge), for the development of the building comprising 29 storeys plus two basements (proposed development) on land known as Lots 7‑20 (No 74) Mill Point Road (development site), within the City of South Perth (City). The approval was granted pursuant to…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Nairn v Metro-Central Joint Development Assessment Panel and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] WASC 56
Decision Date: 25 FEBRUARY 2016

CaseChat Overview and Summary

The case of Nairn v Metro-Central Joint Development Assessment Panel involved a dispute over the approval of a development application by the Metro-Central Joint Development Assessment Panel (JDAP). The applicants sought relief on the basis that the JDAP's approval of the proposed development was unreasonable and beyond the scope of the town planning scheme. The High Court was tasked with determining whether the JDAP's decision to approve the development was lawful and aligned with the objectives of the town planning scheme.

The primary legal issues included the scope and interpretation of the discretion to vary the plot ratio and height requirements under the town planning scheme. The applicants argued that the JDAP's decision to approve a development of the proposed size and scale was unreasonable and not within the discretion afforded by the scheme. They contended that the JDAP had exceeded its authority by effectively disregarding the specified limits. Additionally, the court had to consider whether the JDAP's decision was consistent with the objects and purposes of the town planning scheme, particularly concerning the permissible height and the impact on the surrounding environment.

The High Court held that the JDAP's decision to approve the proposed development was not unreasonable and was within the scope of the discretion granted by the town planning scheme. The court emphasised that the discretion to vary the plot ratio and height requirements should be interpreted broadly, consistent with the expansive meanings of the terms 'vary' and 'variation'. The court found that the JDAP had properly exercised its discretion and that the proposed development was consistent with the objects and purposes of the town planning scheme. The applicants' arguments that the JDAP had exceeded its authority by disregarding the specified limits were rejected. The court concluded that the JDAP's decision was not so unreasonable that no reasonable authority could have come to it, thereby affirming the approval of the proposed development.

The final orders of the court were that the applicants' application for judicial review be dismissed, and that the JDAP's decision to approve the proposed development be upheld. The court's reasoning underscored the importance of a broad interpretation of the discretion to vary and the need to align decisions with the overall objectives of the town planning scheme.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There can be no doubt that, as the passages referred to above from Minister for Immigration v Li demonstrate, an otherwise unlimited statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. As French CJ said in Minister for Immigration v Li: Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider 'they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it'. In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense [28]. The question is whether it can be said that, having regard to all of the terms of TPS6, and Schedule 9 in particular, those responsible for the enactment of TPS6 could never have intended that a building of the size and scale of the proposed development could be approved within the SDA. In asserting that the decision to approve the proposed development went beyond the scope and purpose of TPS6 and Schedule 9, the applicants rely on the various matters identified in the particulars to grounds 5 and 9. I have already concluded that the decision made by the JDAP was not properly or reasonably open to them by reason of the fact that the proposed development does not consist of predominantly non‑residential uses. I have upheld ground 4 for that reason. I therefore put aside, for the purpose of considering grounds 5 and 9, the question of the impact of the proposed use on the existence of the discretion. Rather, I take grounds 5 and 9 as turning on whether a development of the size and scale of the proposed development was capable of falling within the available discretion under TPS6 independently of its proposed use. Central to the applicants' contentions is the meaning which they attribute to the words 'vary' and 'variation'. They contend that the discretion to 'vary' does not encompass a discretion to remove or disregard the relevant limits. In my view, that constrained definition of the words 'vary' and 'variation' does not properly reflect the meaning to be attributed to them in the context of the relevant portions of Schedule 9. The Macquarie Dictionary (4th ed) definition of 'vary' includes 'to change or alter, as in form, appearance, character, substance, degree etc'. 'Variation' is described as 'the act or process of varying; change in condition, character, degree etc' and 'a different form of something'. In my view, those more expansive meanings are applicable to those words where they appear in Schedule 9.