NEILSON -v- CITY of SWAN [No 6] - [2013] WASC 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: NEILSON -v- CITY OF SWAN [No 6] [2013] WASC 53

CORAM: ALLANSON J

HEARD: 15-17 OCTOBER 2012

DELIVERED : 5 MARCH 2013

FILE NO/S: CIV 1341 of 2002

BETWEEN: MARK JAMES NEILSON
Plaintiff
AND
CITY OF SWAN
Defendant

Catchwords:

Town planning and development - Whether decision of local government authority to approve development plan unlawful - Turns on own facts

Tort - Misfeasance in public office - Turns on own facts

Legislation:

Local Government (Administration) Regulations 1996 (WA), reg 6, reg 7, reg 11(da)
Local Government Act 1995 (WA)
Parliamentary Commissioner Act 1971 (WA), s 23A
Planning and Development Act 2005 (WA)
Town Planning and Development Act 1928 (WA)

Result:

Plaintiff's action dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr G A Rabe

Solicitors:

Plaintiff: In person
Defendant: DLA Piper Australia

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

Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110
Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146
Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453
Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River [2004] WASCA 8; (2004) 137 LGERA 129
Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551
Khan v Minister for Immigration and Ethic Affairs [1987] FCA 457; (1987) 14 ALD 291
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Local Government Board v Arlidge [1915] AC 120
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 61
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475
Neilson v City of Swan [2006] WASCA 94
NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Peters v Attorney General (NSW) (1988) 16 NSWLR 24
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546
Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119; [2005] NSWCA 205
Re Minister for Planning; ex parte City of Canning [1998] WASCA 339; (1998) 101 LGERA 284
Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150
Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187
Rush v Commissioner of Police [2006] FCA 12; (2006) 150 FCR 165
Swift v SAS Trustee Corporation [2010] NSWCA 182
Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707

ALLANSON J: In August 1998, Toscana Pty Ltd and Glenmorris Holdings Pty Ltd applied to the council of the Shire of Swan (the Council) to approve an Outline Development Plan (ODP 106) for the development of land they owned at Lot 504, Toodyay Road, Gidgegannup. Lot 504 contained a large dam. Toscana and Glenmorris proposed to develop a tourist resort on the site, including 147 chalets and various commercial facilities.
Lot 504 is in an area that was zoned rural landscape under the town planning scheme in force in the Shire of Swan at the time, Town Planning Scheme No 9 (TPS 9). The Council was the authority responsible for enforcing observance of TPS 9 (cl 1.3).
On 10 February 1999, the Council resolved to 'adopt' ODP 106, subject to conditions and with some modifications.
Mr Neilson owns land adjacent to, and partially overlooking, Lot 504. Mr Neilson's home is there. He objected to the proposed development in 1998, and has maintained his objection since. He began these proceedings with his then wife, Dr Lisa Loggie, in 2002. Her claim was later separated, and has not gone to trial.
Since 1998, the Shire of Swan has become a City. Mr Neilson brings his claim against the City. At trial, the City expressly disavowed any point based on the present action being brought against the City and not the Council. Mr Neilson seeks a declaration that the adoption of ODP 106 by the Council was unlawful. He also claims damages for misfeasance in public office, based on the City of Swans' liability for the conduct of its then principal planner, Mr Martin Richardson.

TPS 9

TPS 9 was made under the Town Planning and Development Act 1928 (WA). On the repeal of that Act, TPS 9 was continued in force under s 68 of the Planning and Development Act 2005 (WA) as a local planning scheme. It was revoked by the City of Swan Local Planning Scheme No 17 on 18 February 2008. The current scheme does not provide for the making of outline development plans. It does, however, provide for structure plans, which include an outline development plan approved under the previous scheme 'where applicable to a structure planning area': cl 5A.1.1. As a result, ODP 106 may have continuing effect as a structure plan.
The general objects of TPS 9 are set out in cl 1.8. They include zoning the district 'so as to strategically promote the orderly and proper development of land by making suitable provisions for the use of land within the District'; to secure the amenity, health and convenience of the district and its inhabitants; and a range of other purposes, including promoting aesthetic control and design guidelines at all levels of land use and development, and protecting co‑ordinated development proposals from 'ad hoc and inconsistent development proposals'.
Part II contains general provisions common to planning schemes. Land, other than reserved land, is classified into zones. Zoning tables indicate, subject to the provisions of the scheme, 'the permissibility of uses in the various zones'. A use may be permitted by the scheme; not permitted unless special permission is granted by the Council; not permitted unless special approval is granted by the Council and the Council has followed procedures prescribed for advertising such a development; or not permitted unless it is determined by the Council to be incidental to a use determined by the Council to be the predominant use and is approved as such by the Council or not permitted in that zone. Council must refuse development approval for a use which is not permitted: cl 2.3.6.4.
If a particular use is not mentioned in the column of uses in the zoning table, it is not permitted unless special approval is granted by the Council and the Council has followed procedures prescribed for advertising the development application: cl 2.2.4.
Few of the listed uses in TPS 9 were permissible in the rural landscape zone. A single dwelling house was the only permitted use. The other permissible uses required the exercise of the Council's discretion whether to approve or refuse a development application.

The nature of the application

Council's approval was required for any development, which includes any change in the use of the land: cl 2.3.1, cl 2.3.2. Because the land owned by Toscana and Glenmorris was within the rural zone, before the Council could assess any proposal for subdivision or development of the land, TPS 9 provided that the Council 'shall require the preparation and adoption of an outline development plan'. Generally, all development or subdivision of the land was required to be in accordance with the adopted outline development plan for the locality: see TPS 9, pt VIII cl 8.2.6.3.
The use of outline development plans or structure plans is a feature of town planning law in Western Australia: see Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150; Gnarabup Beach Pty Ltd v Shire of Augusta-Margaret River [2004] WASCA 8; (2004) 137 LGERA 129 [9] - [10]. In Gnarabup Beach, at [15] - [17], Heenan J described the process of formulation and approval of a plan as 'the formulation and approval of an instrument which is legislative in character in the sense that it establishes criteria or "parameters" which require consideration when an applicant is seeking approval for subdivision or development' [15]. A plan differs from a planning scheme in that, when approved and adopted, it does not take effect as if enacted. But, within the confines of the scheme, it states the factors and more detailed planning criteria by reference to which Council or the Western Australian Planning Commission (the Planning Commission) will make decisions about whether to grant or refuse applications for development or subdivision approval.
An outline development plan for the rural landscape zone must be in accordance with the purpose and intent of the zone (set out in cl 8.2.6.1) and the criteria stated in cl 8.2.6.3 (discussed in more detail below). It also must show how the site and the proposed subdivision relate to the locality, and include the matters set out in cl 8.2.6.4 (a) to (m).
Some of these matters appear to be of limited relevance to a plan relating to the development of a single site. But the plan is for the locality. Locality is a flexible concept and extends beyond the particular site to be developed. Generally, it is for the responsible authority to decide what constitutes the appropriate locality within which to consider the effect of an application, having regard to the town planning impact of the proposed development: Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 187; Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119; [2005] NSWCA 205 [42].
The consideration, adoption and appeal rights in relation to an outline development plan are to be in accordance with the procedure set out in specified subclauses of cl 6.2: see cl 8.2.6.5.
An outline development plan may be prepared by the Council, or received by Council from a development proponent. By cl 6.2.1.2:
An Outline Development Plan prepared or received by Council in support of land within the Residential Development Zone will be considered by Council for adoption and in making its decision Council may:
(a)reject the plan;
(b)adopt the plan with or without certain modifications and in so doing resolve to prepare a town planning scheme for the implementation of the proposal or works associated with the proposal; or
(c)resolve that the Outline Development Plan as submitted or in a modified form is acceptable for the purposes of public advertisement and that in accordance with paragraph 6.2.1.3 the plan shall then form the basis for public consultation purposes and further consideration by Council. (emphasis added)
If Council, under par (c), resolves that the plan is acceptable for the purpose of advertisement and public consultation, it must then advertise it in accordance with the provisions cl 6.2.1.3 'to ensure that the Outline Development Plan is subject of public knowledge and that submissions from the public on any aspect of the Outline Development Plan are to be considered prior to the adoption and implementation of the Plan'. The advertisements must include the identity of the plan, the identity of the land affected by the plan, and the right and time period for the public to lodge submissions with Council on any aspect of the plan for consideration.
In resolving to proceed with the advertising of an outline development plan, Council may refer the plan to any authority it considers may provide comments or additional information.
Council shall consider any submission received within the specified time as part of the consideration of the outline development plan: cl 6.2.1.3(e).
By cl 6.2.1.3(f), upon further consideration of the plan with reference to any submissions received Council may resolve:
(i)to reject the plan;
(ii)to approve it as advertised and/or without modification;
(iii)to approve a modified plan; and
(iv)to stipulate conditions which Council would impose on any development or would seek to have imposed on any subdivision in accordance with the plan.
On a literal reading of cl 6.2.1.3, Council may approve, but does not adopt, the plan. Where an outline development plan is approved for land with potential for subdivision, Council shall send details of it, together with submissions and responses received, to the Planning Commission and request the Planning Commission to endorse and adopt the plan as the basis for its approval subject to conditions on subdivision within the plan area: cl 6.2.1.5. The requirement to transmit the plan to the Planning Commission is not confined to plans which include a proposed subdivision, but applies also to a plan for land with potential for subdivision.
Accordingly, at the time of the decision challenged in this matter, Council had power to approve ODP 106. Council could also adopt an outline development plan where, in so doing, it resolved to prepare a town planning scheme to implement it. At least where the plan related to land with potential for subdivision, the decision whether to adopt it as the basis for future decisions regarding subdivision lay not with local government but with the Planning Commission.
The proponent has limited rights of appeal from a decision of Council: cl 6.2.1.11. While the public are able to make submissions before a plan is approved, there is no right of appeal for persons other than the proponent.

The decision to approve a plan

TPS 9 required Council to consider any submissions received, and prescribed matters that an outline development plan must include. There were also several provisions of TPS 9 which set out matters to which Council shall or may have due regard in exercising its powers under the scheme. Some considerations applied only when Council was exercising its discretion on a particular type of application, such as an application for development approval or an application to approve a discretionary use: see, for example, cl 2.3.8.2, cl 2.3.8.3. But others applied more widely.
First, there were the matters to which Council 'shall have due regard' when exercising its discretion on an application for development approval or when exercising its discretion with respect to consideration of planning matters: cl 2.3.8.1 (a) to (j). These were expressed at a very high level of generality. They include any principles of law and any relevant legislation or subordinate legislation; the provisions of TPS 9 and the Metropolitan Region Scheme; approved policy, including any planning policy adopted by the Council pursuant to cl 2.4A; interests of orderly and proper planning; the preservation of the amenity of the relevant locality; and any other relevant planning principles.
Part VIII, dealing with the rural zones, provided a second layer of consideration for any development. In dealing with 'any matters' under pt VIII, Council was required to comply with cl 2.3.8, and in particular to have regard to any cl 2.4A policy: cl 8.1.2. Council 'could not recommend or support subdivision of land within a rural zone except in accordance with the provisions under Part VIII and any relevant Clause 2.4A policy and in any event minimum lot sizes prescribed under the Scheme were to apply': cl 8.1.3.
Third, there were the specific provisions relating to the landscape zone in cl 8.2.6. The purpose and intent of the landscape zone was 'to ensure that development is compatible with and will enhance the landscape and environmental qualities of the locality': cl 8.2.6.1.
Clause 8.2.6.2 required Council to have regard to the purpose and intent of the zone and to apply specified criteria when exercising its discretion on applications for development approval 'and other related matters in respect of land within the zone'. There were six criteria:
(a)development must be compatible with the land capability and suitability including the visual and environmental qualities which council considers to be worthy of conservation;
(b)remnant vegetation should be retained and linked, where possible, by corridors of vegetation of sustainable width;
(c)water quality and watercourses within existing and proposed water catchment areas shall be protected;
(d)land use and management practices should be compatible with the protection of landscape quality;
(e)there should be strategic re‑vegetation of cleared or degraded areas in order to blend development into the landscape; and
(f)there should be an assessment of the fire risk and fire management programme in accordance with the guidelines issued by the Bush Fires Board to address the risk.
Finally, the City had adopted the Gidgegannup Rural Strategy as a policy within the meaning of cl 2.4A of TPS 9. Council was required by cl 2.4A.3 to have regard to any cl 2.4A policy which in its opinion was relevant when exercising its discretion under cl 2.3.8.1. The parties agree that the Gidgegannup Rural Strategy was relevant. Before varying from the policy, Council was required to consider the extent to which variation from the policy would 'prejudice the intent and integrity of the policy, and the impact such a variation would have on the orderly and proper planning of the district, or any particular part of the district': cl 2.4A.3.1.
The locality of Lot 504 and Mr Neilson's land were in the Landscape 3 Precinct of the Gidgegannup Rural Strategy.

The outline development plan

Toscana and Glenmorris applied for approval of the outline development in August 1998. They had made an earlier application for development approval for a pay fishing proposal at Lot 504. At an ordinary Council meeting on 12 August 1998, Council resolved that the pay fishing proposal did not comply with the intent of the rural landscape zone, and that the proposal was considered to be a private recreation land use. That was not a use permitted in the zone. Council further resolved that an outline development plan was required, stating that the significance of the ultimate development had not been presented to council.
By the time Council had resolved to refuse the pay fishing proposal, Toscana and Glenmorris had sent a proposed outline development plan to council, under cover of a letter dated 5 August 1998. The plan dealt specifically and in some detail with the proposed development of a resort on Lot 504. It was supported by a series of appendices, including an environmental assessment overview, landscape assessment, building design report, and engineering services report.
The accompanying material referred to the proposal as 'a benchmark eco‑tourism development framed around the lake' and a tourism resort of 'State significance'. Tourism was not a use class dealt with in TPS 9, although individual components of the plan did come within uses defined in the scheme.
The focus of the development was the large dam, now referred to, more romantically, as a lake. The main components of the plan were:
•fishing village and trout masters residence;
•lake‑front lodge (including administration, craft shop, artisan centre, short stay accommodation, and general store);
•147 chalets/cabins;
•restaurant;
•reception/conference centre;
•aquaculture ponds;
•grid golf;
•two private residences;
•recreational facilities (including a nature trail, foreshore park, boardwalk, tennis court and observation tower); and
•vineyard.

The fishing village was said to be central to the commercial concept of the plan. It was to be the first stage of a staged development, with successive stages and development dependent upon market demand. As part of the proposal, the lake‑front lodge was to include fully serviced apartments. In later stages there were to be five separate areas containing clusters of chalets. Approximately one‑third of the site was to be used for the development. It is unclear whether that area included the lake.
ODP 106 did not include a subdivision plan. The accompanying information disclosed that some form of strata title was, at least, in the owner's contemplation. Under the heading 'Land Tenure', the outline development plan referred to strata titling '[should] further survey strata sites be required to accommodate independent ownership of the lodge and convention centre'. The plan was also accompanied by a letter from solicitors for the proponent which showed that the proponent had sought legal advice on strata title for the individual chalets.
Council first considered ODP 16 at a Council meeting on 4 November 1998. It accepted the recommendation of City planning officers that it should resolve that the proposed outline development plan was acceptable for the purpose of public advertisement, and that it should advertise and also seek comments of relevant statutory authorities. The planning officers also recommended that a development application be advertised concurrently with the outline development plan. Council did not accept that recommendation.
Following the meeting on 4 November 1998, public submissions were invited and the plan was advertised: a sign was erected on Lot 504; and an advertisement was placed in a local newspaper (the Hills Gazette) on 17 November 1998. Council sent letters to 57 landowners who were considered to be affected by the proposed plan. The letters included a summary of the proposal, and invited submissions on it. Mr Neilson and Dr Loggie were among those who received a letter. A full copy of the proposal was available for inspection. At some stage, Mr Neilson was provided with a copy. The City also sent letters to the Waters and Rivers Commission and the Department of Environmental Protection seeking their comments.
On 19 November 1998, Mr Neilson and Dr Loggie informed the chief executive officer of the Shire, Mr Lumsden, that they had legal advice that the outline development plan could not be accepted in its current form. Mr Richardson wrote to Mr Neilson, asking for the legal advice, as a basis for the Council to seek its own advice. On 7 December, Mr Neilson and Dr Loggie responded with excerpts from the advice, including the opinion that some of the proposed uses were not permissible within the landscape zone, and the uses could not be aggregated into a single composite use. Mr Neilson and Dr Loggie also lodged a detailed submission in relation to the advertised plan.
On 16 December 1998, Mr Richardson asked the Shire's solicitors to advise on the question of aggregating uses. On 13 January 1999, the City's solicitors responded, and advised that it was not appropriate for Council to treat the proposed development of the site as involving a single composite 'tourism' use, which could be dealt with as a 'use not listed'. Mr Richardson advised Mr Neilson and Dr Loggie of that advice on 14 January 1999.

The report and recommendation to Council

The decision to approve ODP 106 was made at a Council meeting on 10 February 1999. There was a detailed report before the Council, recommending that the plan be adopted. The evidence does not disclose who prepared the report. Mr Richardson agreed that, as principal planner, he was responsible for the report.
The report set out the background to the application, including a description of the site, existing land uses, and proposed uses in ODP 106. It briefly described the effect on surrounding property, including Mr Neilson's land (incorrectly described as Lot 12) which was said to overlook the valley and have views across the valley. Other properties were described as effectively isolated from the proposed development area by topography.
The report then set out and commented on (or, perhaps more accurately, summarised the proponents' submission on) each of the requirements in cl 8.2.6.4, pars (a) to (m), for an outline development plan in relation to development in the rural landscape zone. It briefly discussed whether the proposal was appropriate in the landscape zone, and commented on each of the criteria in cl 8.2.6.2. Specifically, it advised that Council must separate the uses into the defined use classes in the zoning table, and had no discretion to approve uses that were not permitted.
The report did not separately refer to the matters set out in cl 2.3.8.1, but it may be that the general nature of those matters does not accommodate separate discussion of each of them. Nor did it address the Gidgegannup Rural Strategy in any detail.
The comments in the report were brief. They supported the plan without any analysis, much less critical analysis, of what was proposed. For example, the report compared the environmental impact of the proposed land use, including the chalets and lawns and gardens, with 'other common uses of such land, eg grazing'. The comparison was favourable to the tourist resort. Another example is the treatment of the projected traffic flow of up to 700 vehicle movements a day. The report included this estimate, but commented that the development would foster walking and cycling, 'much like the atmosphere at Rottnest'.
The discussion of the requirements of pt VIII of TPS 9 was followed by an outline of the implications of adopting ODP 106, and the implications of refusing it.
An appendix to the report contained a summary of the submissions received, with comments on each of them, or at least those which objected to the proposal. The report and the comments appended to it either discounted or attempted to rebut the arguments of the objectors. This was both general (for example, describing the option of refusing ODP 106 as 'consistent with localised objections to the development from some adjacent landowners') and more specific. This approach to objections forms part of the claim of bias against both the City and Mr Richardson.
The report recommended that the Council resolve to adopt the plan, subject to 19 conditions and modifications. The modifications included deletion of the proposed grid golf, pay fishing, amphitheatre and general store, each of which was said to be a use not permitted under TPS 9. For some reason, not explained in either the report to Council or at trial, grid golf was treated as private recreation (a use not permitted) but the tennis court was 'recreation facilities' (a use not listed). Mr Neilson submits there are other similar anomalies.
Some of the conditions included were described by Mr Richardson as standard conditions, which were not tailored to the particular plan. For example, it required preparation of a development staging plan to specify likely proposed areas for strata titling, even though the plan submitted did not include a definite proposal to strata title. Other conditions were directed to the particular proposal. These included preparation of a dam and lake operating strategy addressing the rights of riparian users and the environment downstream, and a contingency plan should the water available fall (condition 4); modifying the plan regarding the bush trails and observation towers to maintain privacy of adjoining landowners (condition 13); and the installation of an approved effluent disposal system (condition 19).
The report also recommended that Council exercise its discretion under cl 3.1.2 of TPS 9 to waive development advertising requirements for an application for approval to commence development for those uses approved by ODP 106, 'to avoid unnecessary duplication of advertising'. In effect, this would waive the advertising requirement for every proposed use.
The report further recommended that Council request a report from the principal planner on the desirability of initiating a scheme amendment to cater for integrated tourist developments.

The report of Council

Council resolved to set aside the officer's recommendation and replace it. The motion passed resolved to adopt ODP 106, but modified some of the recommended conditions. In particular:
(a)Condition 4 was modified to include a requirement that the contingency plan for the dam detail action required should 'the quality of the water in the dam or Cookes Brooke deteriorate to the extent that the environmental values of the dam and the downstream environment are threatened'. The condition now also required that the dam 'shall comply or be modified' to comply with a criterion that the water quality, particularly nutrient levels, in the dam and Cookes Brook remain at 1998 levels.
(b)Condition 7 now included the requirement for a contingency plan in the event of inadvertent escape of exotic fish species.
(c)Condition 13 was modified so that the proposed 'observation towers' were to become 'viewing platforms' built close to the ground and located to maintain the privacy of adjoining landowners.
(d)Condition 19 now imposed additional restrictions on the location of effluent disposal systems in relation to the dam/lake/watercourse, and required an uninterrupted power supply to be designed into the scheme where pumping was required.
Council accepted the recommendation to waive advertising requirements for uses approved in ODP 106.
The City did not immediately send ODP 106 to the Planning Commission. The plan and the staff report on it were only sent in April 2000, but not with a request that the Planning Commission endorse and adopt it. Mr Richardson was asked in evidence about the letter referring the plan to the Planning Commission, and the fact that it did not request any level of endorsement. He said that ODP 106 was a very unusual outline development plan, because there was no subdivision application either live or about to be lodged. He suggested that the plan may have been sent to the Planning Commission in response to some other request. While that answer may have been speculative, the letter to the Planning Commission is more consistent with his explanation than with the purpose of complying with cl 6.2.1.5.
There is no evidence that the Planning Commission ever adopted ODP 106.

The development of the land after ODP 106 was approved

Mr Neilson called Mr Steven Tan, currently the Executive Manager Planning and Development, of the City. His evidence was that, at the time of trial, none of the conditions imposed on ODP 106 by the Council had been met. The City has not approved (or purported to approve) any development in accordance with ODP 106. There has, however, been some development. The current owner has carried out some work on the land, including the building of two smaller dams, extensive roads, and security fencing. At least one of these developments (a dam) was only approved on appeal to the Minister for Planning, following refusal by the City.
Since 2003, the need for an outline development plan has been modified. An amendment to TPS 9, gazetted on 29 April 2003, exempted certain developments from the need to obtain planning approval. Some of the developments which have occurred (such as the building of gazebos around the lake) were held by the City not to require approval by reason of that amendment.
As there has been no application to develop the land in accordance with ODP 106, although some development has occurred, the circumstances requiring the owner to satisfy the conditions imposed by Council have not yet arisen.

The challenges to the approval of ODP 106

Both parties pleaded their case on the basis that the Council had approved ODP 106, despite the fact that the minutes of the meeting of 10 February 1999 and the document communicating the decision to the applicant both record that Council resolved to adopt the plan.
Mr Neilson puts his case, at least in part, as if Council had approved a development that could not be approved under TPS 9. The primary difficulty of this complaint is that approval of the plan was not approval of a development. Even if ODP 106 had been endorsed and adopted by the Planning Commission, it would still only have effect as an instrument that Council would consider when determining an application to develop or subdivide the land dealt with in it. It cannot override the scheme.
That conclusion is not, however, sufficient to dispose of this case. Mr Neilson also alleges that Council failed to comply with matters that apply to the approval of an outline development plan. His challenge to the approval of ODP 106 can be divided into three areas: failure to comply with TPS 9; breach of the natural justice hearing rule; and bias. Some of Mr Neilson's specific grounds relate to the procedures that were followed, some relate to the approval, and others challenge aspects of the report to Council. There is little point in trying to characterise the claim so as to enable some global consideration of it. Each separate complaint must be examined.

Breach of TPS 9 cl 2.3.6.4

Mr Nelson contends (statement of claim, par 7(a)) that the City incorrectly approved particular uses which were prohibited uses in the rural landscape zone. The specific complaints are: the nature trails, foreshore park, boardwalk, tennis court and observation towers should have been classified as either 'recreation private' or 'recreation public' or 'public amusement'; the short stay accommodation in the fishing village should have been classified as a hotel or hotel/motel; the craft shop should have been classified as a store; the fishing village included a clubhouse and club premises which are not a permitted use; and the restaurant is not a permitted use in that, although restaurant is separately listed as a discretionary use, it also comes under the general definition of a shop which is not a permissible use.
There was some argument at trial whether the Council's power to approve the plan depended on whether the uses were permitted uses, or whether (as the City submitted) the power depended on the Council reasonably forming the opinion that they were. In my opinion, that question does not arise at this stage of the process.
On an application for development approval, Council's power may depend upon the correct identification of the class of use into which the development falls. It is a question of construction of the relevant statutory scheme. Under TPS 9, the zoning tables indicated the permissibility of uses. Uses were defined objectively. Council was required to determine an application for approval to commence development 'in accordance with the provisions of the scheme and the Metropolitan Region Scheme': cl 2.3.3.2. Further, Council was required to refuse approval for development which involves a use which was not permitted: cl 2.3.6.4. And see Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707.
In my opinion, however, whether a use included in an outline development plan is permissible under the scheme is not a jurisdictional fact, or a condition of the power to approve the plan. The inclusion of particular uses in a plan has no legal effect on whether those uses are permissible, and whether a development may be approved under the scheme. Under pt VIII of the scheme, an outline development plan does not deal with whether particular uses of land are permissible. It provides that development or subdivision shall 'generally' be in accordance with the adopted plan for the locality. And an outline development plan may be implemented in various ways, including by making or amending a town planning scheme.
One matter which influences me in this opinion is how little information Council has, when it is considering a plan, about the way in which the land will be used. For example, Mr Neilson claims that the short stay accommodation in ODP 106 should have been classified as a hotel, hotel/motel or motel. The definitions of hotel/motel and motel in TPS 9, sch 1, have several components. Common to both is that the accommodation is in a manner 'similar to a hotel or boarding house'. On an application to develop the short term accommodation, the use being discretionary, the applicant must provide information including a full and complete description of the purpose or each purpose for which it desires to use the land, and the nature of all existing improvements to the land and other improvements the applicant desires to make: cl 2.3.8. Questions of proper characterisation could be determined. That is not possible on the information provided in the plan.
It is also well recognised that although a use might not be permissible standing on its own, it might be permissible if it is properly regarded as simply incidental to a permissible use: see, for example, Lizzio v Ryde Municipal Council (1983) 155 CLR 211, 216 ‑ 217.
Accordingly, while it is at least arguable that ODP 106 set out some uses that would not be permissible under TPS 9, I am not satisfied that can be properly determined at this stage, and I do not consider that issue affects whether the plan was lawfully approved.
In a separate complaint, pleaded as breach of cl 2.3.8.1, Mr Neilson says that Council failed to recall public submissions on the proposal for ODP 106 when it had been advertised as a composite use, including uses which could not be approved (par 7(1)(b)(ii)). I can identify nothing in TPS 9 which would require the Council to recall submissions, or which makes advertising of the proposal in some way invalid or ineffective, even if it included uses that could not ultimately result in development approval without amendment of the scheme. Even on a development application, the applicant may apply for multiple uses of the same land, and Council may consider the application as it relates to each of the different uses. Approval may be given to a development, but excluding particular uses: see Re Minister for Planning; ex parteCity of Canning [1998] WASCA 339; (1998) 101 LGERA 284, 295 (Anderson J).
Mr Neilson also pleads (par 7(b)(iii)) that ODP 106 included, as its first stage, a fishing village similar to the pay fishing proposal rejected by Council on 12 August 1998. His complaint is that the report did not disclose that the Council had rejected the earlier proposal as not consistent with the intent of the landscape zone.
The report dealt with the requirements of the landscape zone. It included, in an initial summary of key issues and recommendations, a statement that the land was within the Landscape 3 precinct, and the intent of that precinct. It identified as an issue for Council, 'whether or not the proposal is appropriate in the Landscape zone'. The failure to refer to the purpose and intent of the zone as a reason for Council's earlier rejection of the pay fishing proposal does not enable me to infer that Council failed to have regard to that purpose and intent, or acted unlawfully in making its decision on this occasion.
Finally, it cannot be assumed that the members of Council were unaware of the reasons why the earlier pay fishing proposal had been rejected. This is particularly so, when it had been so recently considered.
I am not satisfied that the matters alleged in par 7(b)(iii) disclose error.

Failure to have regard to matters required by cl 2.3.8.1

Clause 2.3.8.1 required Council, on an application for development approval or when exercising its discretion with respect to consideration of planning matters, to have due regard to:
a)any principle of law applicable to the circumstances;
b)any relevant statute or subordinate legislation;
c)the provisions of this Scheme and any other relevant town planning scheme operating within the district and including the Metropolitan Region Scheme;
d)any statement of approved planning policy by the Town Planning Board (hereinafter called "the Board") or the Authority;
e)any planning study approved by the Council and published by means additional to its inclusion in the Council's Minutes prior to the receipt by the Council of the application under consideration;
f)any planning policy adopted by the Council pursuant to clause 2.4A (Clause 2.4A Policy);
g)interests of orderly and proper planning and the preservation of the amenity of the relevant locality;
h)any other relevant planning principles;
i)any relevant submissions by the applicant; and
j)the recommendations of any relevant advisory committee established by the Council pursuant to subclause 2.6.11.

In par 7 of the statement of claim, Mr Neilson asserts that Council breached that clause. I have already dealt with par 7(1)(b)(ii) and (iii). There are thirteen other complaints.
In general terms, if Council is required by TPS 9 to have due regard to a particular matter, then that matter is a relevant consideration. Council must take that matter into account to lawfully exercise its function under the legislation. Various expressions have been used to describe whether a matter has been properly taken into account, including that it be given consideration that is real or genuine or effective: Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453, 468; NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 [155]; Khan v Minister for Immigration and Ethic Affairs [1987] FCA 457; (1987) 14 ALD 291; Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472, 483. But it remains for the decision‑maker to determine what weight is to be given to a factor, either absolutely or in a relative sense: Deloitte Touche Tohmatsu v Australian Securities Commission (468). And, as Basten JA said in Swift v SAS Trustee Corporation [2010] NSWCA 182:
Where a decision‑maker does address the claim, by reference to the correct power, asking whether he or she did so 'properly', or 'genuinely', or 'realistically' may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process [45].
Mr Neilson's claim needs to overcome some significant obstacles.
First, the factors set out in cl 2.3.8.1 are very generally expressed.
Second, at the time of this decision, a council was not required to give reasons for its decision. Regulation 11(da) of the Local Government (Administration) Regulations 1996 (WA) now requires the minutes to include written reasons for each decision that is significantly different from the relevant written recommendation of an employee. But this provision was only gazetted in April 1999. In the absence of written reasons, it is difficult to determine what matters Council had regard to.
Third, under cl 2.3.9.3, if Council in exercising any discretion is required by the scheme to have due regard to any matter or thing, it shall be deemed to have had due regard to it unless the contrary is expressly stated in the minutes of the relevant Council meeting, or the document communicating the determination or decision to the applicant, or is otherwise proved. As part of the scheme, cl 2.3.9.3 has effect as if enacted: Town Planning and Development Act 1928 (WA) s 7. Neither the minutes of the Council meeting of 10 February 1999 nor the document communicating the decision to Toscana and Glenmorris expressly stated that particular matters were not given due regard. I must accept Council had due regard to them unless the contrary is proved.
Clause 2.3.9.3 does not preclude review. It may still be possible to prove that Council failed to have regard to a particular matter. In some circumstances it may be possible to infer that Council adopted the whole of a report placed before it, and, to the extent the report contained errors or omissions, Council, by adopting, it has itself erred. Or it may be possible to infer that Council did not have regard to particular matters if, for example, it can be concluded that no reasonable decision‑maker, giving those matters due regard, could have approved the plan. Where, however, the question before Council is one of opinion or policy, on which reasonable minds could differ, it will be very difficult to show that its decision could not reasonably have been reached after having due regard to all relevant matters: see Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118 ‑ 119 (Gibbs J); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [137] (Gummow J).
Mr Neilson's complaints are largely directed to the way in which ODP 106 and the objections to it were presented in the report to Council. These complaints include the claim of bias, which I will deal with separately, but are not limited to bias.
The first of Mr Neilson's complaints in this group is found in par 7(1)(b)(i). He says that the City 'approved an anomalously large development that detracts from the amenity of the Cookes Brook Valley'. The difficulty for that case is that there is no evidence of the likely effect of such a development on the amenity of the locality. I accept that a development that was carried out in accordance with ODP 106 would affect both Lot 504 and Mr Neilson's property. But the relevant locality may be a greater area. Whether the effect of the proposal on the locality is such that it would be beyond the power of Council, having regard to all relevant matters, to approve it is, on the evidence before me, a matter of assertion only.
Further, this is a matter of opinion or policy on which minds may differ. It is necessary to maintain the distinction between merit review and whether the decision is lawful. The court's jurisdiction does not go beyond declaring and enforcing the law; it has no jurisdiction simply to cure administrative injustice or error: Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35 ‑ 36. The court has no jurisdiction to consider whether Council was right or wrong in regarding a development on this scale as consistent with planning principles, unless it has exceeded or misconstrued its powers.
In par 7(1)(b)(iv) Mr Neilson says the City failed to rebut the developer's argument that the estimated vehicle movements were in keeping with the rural setting of the locality. Again the complaint is largely a matter of assertion. There is no evidence about the effect of that level of vehicle movement on the locality, or what traffic movement is generally regarded as consistent with a rural setting.
Mr Neilson also claims that the City failed to protect the visual and rural amenity of his land despite acknowledging that it overlooked the valley, that the proposed development was large and significant in scale, and that lakeside development would not have the opportunity of screening vegetation (par 7(1)(b)(v). On the photographic evidence led at trial, I accept that Mr Neilson's view is affected, and that his enjoyment of his land may be affected by the presence of an adjacent resort if development approval were later given. I am not satisfied, however, that he has shown that, having regard to the requirements of the scheme, Council could not lawfully approve ODP 106. The amenity of the locality, and not just his land, must be considered. The conclusion that Council did not have due regard to the effect on the amenity of the locality does not follow from the effect of the proposed development on his land.
In par 7(1)(b)(vi), Mr Neilson says the City had a preconceived bias towards approving recreational uses and the entire tourism resort, evidenced by the recommendation that a report be prepared on the desirability of initiating a scheme amendment. The recommendation, in itself, does not demonstrate preconceived bias in favour of the successful party or argument. Mr Neilson presented no other evidence of preconceived bias on the part of the Council. While it is true that Council staff recommended acceptance of the earlier pay fishing proposal, Council rejected that recommendation then, and again rejected the pay fishing proposal when it was considering ODP 106.
Next, Mr Neilson says that the City failed to properly consider the views of the community as a whole (par 7(1)(b)(vii)). Assuming that Council was required to have regard to them under cl 2.3.8.1, there is no evidence that it did not.
There were few responses to the advertising of the proposal (13 responses received) some of which supported ODP 106.
Mr Neilson relied on work undertaken by Hames Sharley in 1998 and 1999 (some of it after the approval of ODP 106). Hames Sharley surveyed community views on the rural advantages of the area generally. Those views were expressed by reference to the effect of a proposal such as that in ODP 106. The fact that ODP 106 was approved does not, in itself, show that community views must have been disregarded.
Mr Neilson says the City considered economic impacts that were not part of the objectives of the landscape zone and not part of the development criteria for the Landscape 3 precinct stated in the Gidgegannup Rural Strategy (par 7(b)viii). Assuming Council had regard to the economic impact, to establish this ground Mr Neilson needs to show that economic impact was an irrelevant consideration. That is, either expressly or by implication from the subject matter, scope or purpose of TPS 9, Council was required to ignore economic impacts in deciding whether to approve an outline development plan: see, for example, Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40. While economic impact is not one of the things that must be included in an outline development plan under cl 8.2.6.4, that clause is expressly not limited to the listed matters. In my opinion, the consideration of the economic effect of a proposal is not excluded by the legislation. It would be surprising if economic impact were to be entirely irrelevant to planning considerations, even in a landscape zone.
In par 7(1)(b)(ix) Mr Neilson says the City failed to consider the advice in a letter from the Department of Environmental Protection dated 9 February 1999. The City agrees that the letter was not provided to Council at the meeting of 10 February when it approved ODP 106.
The critical question is whether the letter from the Department arrived in time for the meeting. A date stamp on the letter shows it was received by the City, to the attention of Ms Ingrid Haverkamp, on the day of the meeting. A faxed copy is shown as transmitted at '16.47' on that day. I accept, on the evidence of Mr Richardson, that the papers for the meeting, including the report to Council, had been finalised well before 10 February. I also accept his evidence that he was probably not aware of the letter until the following day. That is consistent with the receipt of the letter, addressed to the attention of another officer, on the day of the meeting.
In the circumstances, the fact that Council did not consider the letter from the Department of Environmental Protection does not affect the lawfulness of its decision.
The next ground (par 7(1)(b)(x)) asserts that the City wrongly accepted the argument that ODP 106 was an environmental improvement when the argument was based on a false comparison between the tourism use and a hypothetical land use of broad acre grazing.
Whether Council wrongly accepted an argument is a matter going to the merits, and not the lawfulness of the decision. But there is something more to this complaint. The purpose and intent of the landscape zone is to ensure that development is compatible with and will enhance the landscape and environmental qualities of the locality. Because of the presence of Cookes Brook running through Lot 504, water quality was an important issue. The proponent addressed water quality in the environmental assessment supporting the proposed plan. Part of that assessment included a comparison of nutrient input into the brook from the proposed use and the use of the land for broad acre grazing, even though Lot 504 was not used for grazing. The use of a false comparator may be evidence that the report misconstrued the requirements of the scheme.
Mr Richardson's evidence on this issue was not satisfactory. He first justified the comparison by saying that there was nothing to stop people grazing cattle on the land without approval, and it was appropriate to compare the proposed use with one that could occur without approval. When Mr Neilson pointed out that grazing was a discretionary use, requiring advertising and public comment before approval, Mr Richardson suggested that there may be an existing non‑conforming use right. There is no evidence that there was. He then said the comparison was not central to the assessment of the ODP because the environmental assessment would follow when a development application was lodged. This was despite cl 8.2.6.4(g), under which environmental impact assessment is one of the matters required to be included in an ODP. Mr Richardson sought to defend the report, but was ill‑prepared to do so. It may be because he is no longer working at the City.
The Council gives no reasons for its decision, so there is no direct evidence about whether it adopted the analysis in the report, or in the supporting material provided by the proponent and summarised in the report. But in its resolution, and in particular the new condition 4, Council had regard to the effect of the proposed development on water quality. The amended resolution included a strict condition designed to protect water quality, and required nutrient levels in the dam and Cookes Brook to remain at 1998 values. Council did not simply accept the report. On the basis of condition 4, I am not satisfied that Council adopted the flawed reasoning in the report.
Paragraph 7(1)(b)(xi) asserts that the City wrongly rejected Mr Neilson's contention that a cabin should reasonably be considered equivalent to a house. Mr Neilson can demonstrate no error by Council when TPS 9, both in the definitions and in the zoning table, treats cabins and dwelling houses separately and differently. It is not necessary in this judgment, which is dealing only with the approval of the outline development plan, to consider whether the chalets/cabins could continue to be so classified were subdivision to take place so that they were individually owned.
Next, Mr Neilson says that the City approved an unreasonable number of chalets for Lot 504 (par 7(1)(b)(xii)). He relies in part on the reference to 'cluster development' in the report to Council. The comment in the report that ODP 106 'takes advantage of cluster development promoted by the [Gidgegannup Rural] Strategy' is potentially misleading. The 147 chalets do not come within that concept of cluster development. It would permit, at most, six or seven dwellings in a cluster on the 143 ha of Lot 504.
But those arguments do not show that Council misconstrued or failed to properly apply TPS 9. First, the decision under challenge does not approve the chalets. Second, Council was not considering a residential cluster development, but a tourist development with cabins or chalets, which was a quite distinct use of the land. There was no evidence to support the contention that 147 chalets in such a development was an unreasonable number.
In par 7(1)(b)(xiii), Mr Neilson says that the City approved recreational facilities and land uses without seeking its own legal advice on whether these were lawful; acted inconsistently with a precedent decision without seeking legal advice; failed to obtain legal advice on whether lots that may be produced by strata titling were in accordance with TPS 9; and failed to obtain legal advice on whether the proposed development would be an environmental improvement over the current use of Lot 504. The legislation imposes no obligation on the City or its council to obtain legal advice, and the lawfulness of the decision is not affected by whether it did. Mr Neilson further refers to his submission to Council, requesting it to investigate whether any lots produced by strata titling would comply with the scheme. If the City was not obliged to investigate, a request that it do so creates no obligation.
In par 7(1)(b)(xiv), Mr Neilson says the City approved ODP 106, when it acknowledged that the proposal was for a regionally significant tourism facility. He further asserts that it approved the proposal on the basis that the development was an environmental improvement. In part, he relies on the fact that the report to Council did not refer to the statement in a Department of Environmental Protection report in 1998 that, in many cases, the impact of tourism developments is directly linked to the scale of the development and the volume of tourist numbers. Mr Neilson had included this in his submission on ODP 106.
Council was required by cl 6.2.1.3(e) to consider any submissions received. The failure to refer to a particular matter does not show it was not considered. In this instance, Council was advised of the number of chalets and other facilities proposed, the possible number people staying at any one time based on 70% occupancy, and the estimated vehicle movements. The failure to refer to the statement in the Department of Environmental Protection report does not satisfy me that Council failed to have regard to the scale or possible impact of the proposal, or that it failed to consider the submissions it had received.
There is no evidence before me about the effect of the proposed development on the environment of the locality. The very general statement in the 1998 report does not remedy that lack of evidence.
Finally, in par 7(1)(b)(xv), Mr Neilson says the City failed to recommend imposition of a time frame within which construction should start. The complaint is misconceived: first, because TPS 9 does not require the imposition of a time frame; second, because the approval of ODP 106 was not approval of any construction or other development of the land. It is a planning document for the purpose of future decision‑making.

Failure to comply with cl 2.3.8.2 (f)

In par 7(1)(c) Mr Neilson pleads that the City failed to have regard to a precedent decision in which the Council regarded chalets as being like houses. Clause 2.3.8.2 applies when Council is considering an application for development approval. It was not a matter to which Council was required to have regard on this application. Also, cl 2.3.8.2 lists matters to which Council may have regard. It does not prescribe matters which must be considered in order to lawfully decide the application.

Failure to have due regard to the Gidgegannup rural strategy

The Gidgegannup Rural Strategy is a statement of planning policy adopted by Council and the State Planning Commission in 1993 for an area of about 34,690 ha. It is a policy within the meaning of cl 204A of TPS 9. The strategy states that it is intended to:
•Provide a guide for future land use, zoning, subdivision and development.
•Take account of the land management and servicing needs of the different land uses.
•Provide a mechanism for governmental agencies and the community to have an input into rural planning, and
•Provide the opportunity for Local Authorities to be responsible for all the planning in all their rural areas.
The strategy is primarily, although not exclusively, directed to the effects of subdivision in rural areas. Of particular relevance to this matter, the strategy addresses land capability. It states that the onus will be on a developer to provide site specific data if variations to land uses are proposed. Specifically in relation to the Landscape Precinct, the strategy states:
While the main objective of this Precinct is to conserve the environment, there is some potential for development in selected areas. The onus will be on the developer to achieve a standard of site sensitive development compatible with the land capability analysis, the environment, and the development criteria identified in Section 4 of this Report.
The report to Council referred to the Gidgegannup Rural Strategy, setting out the principal objective of the Landscape 3 Precinct, and the first of the main development criteria. The proposal presented by Toscana and Glenmorris provided, as one of the supporting appendices, a landscape assessment and land use capability analysis for each of the component uses in the plan, setting out the 'attributes and constraints' of the site for each use.

In par 7(1)(d), Mr Neilson asserts that the City was required to have due regard to the strategy under cl 2.3.8.1 (e) and it did not pay sufficient regard to the main development criteria, and paid no regard to the appropriate land uses set out in the strategy for the Landscape 3 Precinct.
The allegation that the City failed to pay sufficient regard to the main development criteria questions the weight given to that factor. It does not go to the lawfulness of the decision.
The claim that no regard was paid to appropriate land uses must overcome the deeming provision in cl 2.3.9.3. Mr Neilson needs to demonstrate that Council could not have determined that the proponents had met the onus of showing the land was capable of sustaining this development, and that the proposal could meet the environmental and development criteria in the strategy. Having regard to the nature of the strategy, and the material that was presented to Council by the proponents, I am not satisfied that he has done so. I cannot infer from the decision that was made that no regard was had to the policy, or that Council misunderstood the criteria it was to apply.
Paragraph 7(1)(e) pleads that under TPS 9, Council could not support any variation of the minimum lot sizes in the rural zones, and the outline development plan contained references to strata titling of the property. Paragraph 7(1)(g) is to similar effect, referring to the requirement in cl 8.1.3 that the Council shall not recommend or support subdivision of land within a rural zone except in accordance with a relevant cl 2.4A policy. It is difficult to ascertain just what the complaints are in these paragraphs. There was no decision to vary minimum lot sizes for residential development. Council did not recommend or support a subdivision.
In par 7(1)(f) Mr Neilson pleads that Council failed to have regard to the requirement of cl 3.1.9(e). Clause 3.1.9 provides that Council may refuse to approve the commencement or carrying out of any development involving any building or other work if, in its opinion, the proposed building or other work would have an adverse effect on the amenity of the locality. The occasion for the application of this clause has not yet arisen, there being no application to commence or carry out any work.
More generally, cl 3.1.9 is consistent with the requirement that the effect of development on nearby properties must be considered. The report to Council referred to the effect of the proposed development on Mr Neilson's land. It also contained a summary of his objection to the proposal and the objections of other nearby landowners. In summarising his objections, the report included the visual effect of building materials, the intrusion into the privacy of local residents and landowners, and his belief that the development and its individual components would not enhance the visual and environmental amenity of the area. I am not satisfied that Council failed to have regard to these matters. Nor can I be satisfied that Council would fail to have regard to the effect on nearby properties should the occasion arise to approve building or other work.
In par 7(1)(h) Mr Neilson pleads that Council breached cl 8.2.6.1 which states that the purpose and intent of a landscape zone is to ensure that development is compatible with and will enhance the landscape and environmental qualities of the locality. Mr Nielsen asserts that it cannot reasonably be held that ODP 106 would enhance the environmental qualities of the locality, as it involved the construction of 6 km of roads, 147 chalets, and other intensive development of land that was unsuitable for intensive development.
The construction of cl 8.2.6.1 is problematic. I do not see how it can be read literally. Enhance is an unfortunate choice of word. Read literally, it requires any development to not merely preserve landscape and environmental qualities but to raise them to a higher degree. How can any development, including the most modest and sensitive single dwelling, enhance the landscape and environmental qualities of the locality? Clause 8.2.6.1 can be read only as a statement of purpose and intent. It did not present a standard, but was a statement of values to which counsel was required to have regard.
Mr Neilson then turns to the criteria set out in cl 8.2.6.2, which Council was required to apply when exercising its discretion on applications for development approval 'and other related matters in respect of land within the zone'. In par 7(1)(i)(j) and (k) he pleads that Council failed to apply the criteria that development must be compatible with the land capability, remnant vegetation should be retained and linked where possible by corridors of sustainable width, and water quality and watercourses within existing and proposed water catchment areas shall be protected. I am not satisfied that he has proved Council did fail in the way alleged.
The proponents provided the Council a report addressing land capability and suitability. Mr Neilson has presented no contrary evidence. He relies upon assertion.
The requirement that remnant vegetation be retained and linked where possible is not breached simply because the proposal involves some clearing. The question is whether the remnant vegetation is retained and linked by corridors of sustainable width. Again this is a matter of evidence, and there is no evidence before me that this would not be the case.
Finally, there is no evidence to support Mr Neilson's claim that there is a modification to the creek feeding into the dam that will in some way harm water quality and watercourses. I also have regard to the conditions which Council would impose on any development, as set out in its resolution approving ODP 106. These demonstrate that Council sought to apply the criterion of protecting water quality and watercourses by imposing a stringent condition.
In summary, there is no evidence that Council failed to apply the criteria in cl 8.2.6.2 as alleged. Mr Neilson was obviously hampered by lack of resources in preparing and presenting his claim. But the court can only act on evidence.
Clause 8.2.6.4 sets out matters which an outline development plan shall include. These include an estimate of the proposed population numbers of the site and the locality, and their socio‑economic characteristics. Mr Neilson says, in par 7(1)(l), that the City breached this clause by misrepresenting the population numbers of the proposed resort, as it excluded allowance for staff of the resort and day visitors, and did not consider the socio‑economic characteristics of the proposed population. This claim requires cl 8.2.6.4 to be construed as requiring a plan to include all of the matters listed, including an estimate of population, regardless of whether the plan is for a development to which those matters are relevant. That cannot be the proper way to read the clause. It sets out the information required for future decision‑making, when that information is relevant to the way in which the site will be developed. It would be absurd, for example, to require population numbers to be included in a plan, if the proposed development were for extractive industry or rural pursuit ‑ both permissible uses in the landscape zone.
In any event, the concept of 'population' refers to inhabitants, not visitors. In providing likely occupancy rates, the proponents were providing relevant information for council's consideration. I am not satisfied that the plan failed to comply with cl 8.2.6.4, to the extent that clause applied.
In par 7(1)(m) Mr Neilson pleads breach of cl 8.2.6.4(d) which requires an outline development plan to include a subdivisional guide plan showing the proposed subdivision pattern, staging of subdivisional development, lot sizes, lot numbers, and building envelopes, proposed roads and proposals for alternative access where lots abut major roads. There was no subdivisional guide plan, but there was no proposed subdivision.
The evident intention of the proponents was to obtain approval of a plan that did not include subdivision, and to perhaps, at some later time, prepare a survey strata plan for the subdivision of Lot 504. Paragraph 5.8 of ODP 106 stated:
Should further survey strata sites be required to accommodate independent ownership of the lodge and convention centre a comprehensive survey strata strategy will be prepared and lodged with Council and the relevant approval authorities. This mechanism will permit individual sites to be created while at the same time allowing for the preparation of central management agreements which will relate to proposed survey strata lots. Mr Rod Warren from Deacons Graham and James ‑ Lawyers, has been engaged by the proponent and will facilitate the preparation of the survey strata scheme which will address the landowners objectives and embody any Council requirements.
The letter from Mr Warren, referred to in that extract, is consistent with more extensive strata title, including separate title for individual chalets. If the land had potential for that subdivision, Council may have required a plan showing the subdivision potential of the land, and sent that plan to the Planning Commission to be endorsed and adopted. I am not satisfied that failure to do that makes unlawful the approval of ODP 106, when there was no extant proposal for subdivision. The plan approved would not assist, and may not be effective, should Council or the Planning Commission later have to consider an application for subdivision of the land. But whether the plan would be effective is a different question from whether its approval was lawful. Because there was no proposal for subdivision, there could be no breach of cl 8.2.6.4(d).
Finally, Mr Neilson pleads that the City breached cl 2.3.7.2 in unlawfully approving the waiver of advertising for uses approved in ODP 106, which included uses which were required to be advertised. The particular power, on which the recommendation to waive further advertising relied, applied only to requirements or standards specified in or arising out of cl 3.1 'or any succeeding clause of this Text', and then when the requirement was unreasonable or undesirable. The advertising requirement that the Council purported to waive was prescribed by cl 2.3.7.2, and was not subject to the power in cl 3.1.2. No other source of power to waive advertising requirements has been suggested. It is not necessary to consider whether the conditions for the exercise of the power to waive were otherwise met. The resolution of the council, to this extent, fell outside its powers.
This conclusion requires that I consider whether the decision to waive advertising requirements makes the approval of ODP 106 wholly invalid, or whether that waiver is discrete and severable. The court's role is not to produce a decision which would operate differently from the approval given by Council. The invalid part of the resolution may only be severed if to do so effects no change to the substantial purpose and effect of the resolution to approve ODP 106: see Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311, 328; Peters v Attorney General (NSW) (1988) 16 NSWLR 24, 41. The test is an objective one.
In my opinion, the invalid waiver of advertising is severable. The approval of ODP 106 has the same legal and practical effect whether or not a development application is advertised. The decision to waive advertising is directed to a quite separate decision, to be made at a future time, if and when the owner of the land applies to develop it.

The allegations of breach of natural justice

In par 7(2) of the statement of claim, Mr Neilson challenges the decision of the City to approve ODP 106 on two grounds alleging breach of natural justice. He pleads breach of the obligations commonly described as the hearing rule, and also alleges bias.

The opportunity to be heard

There are two aspects to Mr Neilson's claim that he was not afforded a fair hearing.
First, on 14 January 1999, Mr Richardson by letter advised Mr Neilson that ODP 106 could not be approved in the form that was advertised for public comment, and that Mr Nielson would be kept advised of progress. Mr Neilson says he was only told by telephone on 9 February 1999 that ODP 106 would be considered at the Council meeting the next day.
The letter of 14 January was the culmination of correspondence regarding legal advice on whether the proposal could be considered as a composite use and thereby treated as a 'use not listed'. Mr Richardson told Mr Neilson that the City had received legal advice and that he had informed the proponents that Council could not approve ODP 106 in its present form. He continued:
The Council has the option of refusing the Outline Development Plan or approving it subject to such modifications that might be necessary to bring it into conformity with Town Planning Scheme No 9. At this stage I do not intend to place the matter on the Council agenda until the applicants advise whether they are prepared to modify the proposal in any way.
In any event, I will keep you informed of progress with the matter and, should the applicant seek to modify the proposal, I will notify you of those modifications.
The proponent did not seek to modify the proposal. The matter that went before Council was based on ODP 106 as originally presented. Mr Neilson was given short notice of the Council meeting, but he had been given the opportunity to consider and comment on the plan in the form in which council considered it. He attended the meeting and asked questions. He says that he was only able to formulate eight 'hasty questions' and seven of those were not answered.
Natural justice requires that a person be given a fair opportunity to be heard before a decision is made affecting him in his rights or interests. There is no universally valid test by which to ascertain what may constitute a fair opportunity, because of the infinite variety of circumstances that may exist, and the need to give full effect in every case to the particular statutory framework within which the decision is being made: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 504. The right to an oral hearing is not necessarily a requirement of natural justice: Local Government Board v Arlidge [1915] AC 120, 132 ‑ 133, 137 ‑ 138; Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551, 566 ‑ 567, 568 ‑ 569; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 628.
Council was making a discretionary decision, but was not sitting as an adjudicative body. Its function was, in very broad terms, legislative: see Gnarabup Beach. Its procedures were directed by the nature of the function it was carrying out under the scheme, and also by the Local Government Act 1995 (WA) under which it is constituted.
The procedure for asking questions at a meeting of the Council is dealt with in pt 5 of that Act and, in particular, in the Local Government (Administration) Regulations 1996 (WA) reg 6 and 7. It enables members of the public to ask questions relating to matters affecting the local government. It is not a procedure for an oral hearing at the Council meeting, with the opportunity to make submissions on a matter before the Council.
Mr Neilson had the opportunity to comment in writing on the Toscana and Glenmorris proposal for Lot 504. In my opinion, the common law rules of natural justice required nothing more. He was also able to attend the council meeting and ask questions, but it was the ability to make a submission that satisfied the requirements of natural justice. Mr Richardson's letter of 14 January 1999, and the short notice that ODP 106 would be considered at the 10 February meeting of Council, did not diminish that opportunity to be heard.
The other basis for the breach of the 'hearing rule' is a letter sent on 18 August 1998 by Mr Lumsden, threatening possible defamation action against Mr Neilson and Dr Loggie.
Mr Lumsden's letter was addressed to both Mr Neilson and Dr Loggie. It was a response to a letter by them dated 13 August 1998, addressed to Mr Richardson, in which they set out 10 questions and asked for a written reply. The questions were about the first pay fishing proposal which Council had considered and rejected at the meeting of 12 August 1998. Eight of the questions were directed to the conduct of Council officers.
Mr Neilson had attended the Council meeting on 12 August and asked a series of questions. There is no official record of what he said. Mr Richardson says that a memo he sent to Mr Lumsden on 14 August 1998 accurately reflects the effect of Mr Neilson's comments. In that memo, Mr Richardson said that Mr Neilson had repeatedly accused both Mr Richardson and other planning staff of displaying bias in favour of the application, deliberately providing incorrect or incomplete information to the Council in order to pursue a hidden agenda, and conspiring to subvert the planning process.
The letter from Mr Lumsden of 18 August 1998 referred to the letter from Mr Neilson and Dr Loggie of 13 August, and said:
The questions contained in your letter do not so much refer to the Council decision as to the motivations of Shire staff and the propriety of their actions and advice. Many of the statements made by Mr Neilson in the deputation to last Wednesday's Council meeting included direct allegations on the same subject, which I regard as a serious and unsubstantiated attack on the professional integrity of staff.
The allegations made by Mr Neilson at the meeting may be considered to be defamatory and could result in legal action. As the questions raised in your letter appear to follow the same line of argument, I do not believe it is appropriate to provide a detailed response, other than to strongly refute the implication that my staff have acted improperly in any respect.
If you require any explanation or clarification of Council's decision, I will provide answers to any questions of that nature …
You will be advised of any developments in regard to potential legal action as a consequence of the allegations made at the Council meeting. Meanwhile, I would encourage you to avoid any further public comment that could be seen as attacking the integrity of Shire staff.
Dr Loggie responded to this letter by complaining to the Department of Local Government. The result of her complaint was that, on 1 February 1999, Mr Lumsden wrote to Dr Loggie advising that he withdrew the letter dated 18 August 1998 and he confirmed that the City would not be undertaking legal action against either Dr Loggie or Mr Neilson. He apologised for the earlier letter, and confirmed that 'any future representations made by you affecting the Shire of Swan will be considered on merit'.
Mr Lumsden's initial letter could be seen as discouraging public comment expressed in the way in which Mr Neilson had previously expressed himself. It said nothing about his ability to comment on the substance of ODP 106, nor did it have that effect. On 10 December 1998, Mr Neilson and Dr Loggie provided detailed comment on the advertised plan.
I am not satisfied in these circumstances that the letter denied Mr Neilson an opportunity to be heard. It may have constrained him in the way in which he expressed himself, but that is not inconsistent with a proper opportunity to be heard about the outline development plan.

The bias allegations

Mr Neilson asserts in par 7(2)(b) of the statement of claim that the City breached its obligations to allow him an unbiased decision‑maker. He does not allege bias on the part of any member of the Council, but relies on the bias of employees of the City. The allegations are consistent with a claim of actual bias. In his opening submissions, Mr Neilson relied upon both actual and apprehended bias, so I will consider both.
The City denies the allegations. It denies that the relevant employees were the decision‑makers. It also denies that any of its employees were biased.

The City's primary argument is correct, but requires some qualification. The decision‑maker was the council. Under s 5.20 of the Local Government Act the decision of the Council was to be made by a simple majority of the members present at the meeting. Members present at a meeting and who have not disclosed an interest in the matter to be considered are required to vote: s 5.21. The Act deals in some detail with the participation of a councillor who may have a direct or indirect financial interest or a proximity interest (as defined in s 5.60B) in a matter before the Council: see pt 5, div 6. It does not, however, deal with the consequences of participation by a disqualified councillor.
The Act also recognises the role that an employee may have in a decision of Council. It requires an employee who has an interest in any matter in respect of which the employee is providing advice or a report directly to the Council to disclose the nature of that interest when giving the advice or report: s 5.70B.
In the context of these provisions, it is arguable that a disqualifying interest held by an employee may affect the validity of a decision. In my opinion, however, Mr Neilson's claim fails on the facts.
Bias may arise in different ways. In Webb and Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74 Deane J identified four distinct, though sometimes overlapping categories: disqualification by interest, where the decision‑maker has some direct or indirect interest in the matter that gives rise to a reasonable apprehension of prejudice, partiality or prejudgment; disqualification by conduct, either in the course of or outside the proceedings, which gives rise to an apprehension of bias; disqualification by association with another person who is interested in, or otherwise involved in, the proceedings; and disqualification due to the receipt of extraneous information.
It appears to be accepted that, notwithstanding that the nature and constitution of Council, the test for whether its decision is tainted by apprehended bias is the same as for an individual decision‑maker: see McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504. The question is whether, in all the circumstances, a fair‑minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that Council might not bring an impartial and unprejudiced mind to the resolution of the question in issue. But in applying that test, regard must be had to the fact that it is a multi-member body, with elected members, and to the nature of a function which it is performing on the relevant occasion. In particular, regard must be had to the nature of the decision to approve an outline development plan, and the extent to which that decision involves the application of policy or has legislative content. It is a decision of a different kind from an adjudication on the merits of a development application.
The relevant bias must be that of Council, not of an individual member or an individual employee. If it can be shown that an individual employee had an interest, or in the circumstances an independent observer might reasonably believe that the relevant employee might not have brought an impartial and unprejudiced mind to the task of advising Council, it is still necessary to show how that might affect the final decision-making process. In Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 [50], the decision‑maker was a Minister. The decision was challenged on the basis of an interest held by an officer who may have been, in some way, involved in the decision-making process. Gaudron, Gummow and Hayne JJ said:
Those who place information before decision‑makers will often have an interest in the outcome and it will not always be the case that the nature or extent of that interest will be fully revealed to the decision-maker. It would be wrong to say, as a general rule, that in every such case the decision must be considered to be legally infirm.
It is necessary to turn to the specific allegations made by Mr Neilson and consider them in the light of these principles.
Paragraph 7(2) of the statement of claim contains a mix of claims, some of which might be characterised as pre-judgement of the application to approve ODP 106, others as pre‑judgement of Mr Neilson and his views, and others as a conflict arising from personal animosity towards Mr Neilson and Dr Loggie. In the course of the hearing, Mr Neilson said that his claim was 'largely a pre‑formed opinion that the developments on Lot 504, the pay fishing proposal and ODP 106 should proceed'. But I did not understand him to abandon any other basis for claiming bias which might arise on his pleading.
First, Mr Neilson says that neither Mr Richardson nor Mr Lumsden brought the letter of 9 February 1999 from the Department of Environmental Protection to the attention of councillors at the meeting on 10 February 1999. Mr Neilson called Mr Lumsden as a witness but did not ask him about the letter. The effect of Mr Richardson's evidence is set out above. I am satisfied that Mr Richardson was not aware of the letter from the Department until the day following the meeting. The alleged failure does not evidence bias.
Next, Mr Neilson says that his 'deputation' on 12 August 1998 (the subject of Mr Richardson's complaint to Mr Lumsden on 13 August) 'resulted in Midland business groups accusing the City of Swan and the City of Swan's planning staff of negligence and bias', and that, as a result, Mr Richardson and Mr Lumsden took 'an even more pronounced bias' against Mr Neilson. The factual foundation for these allegations is not proved. They are not supported by any evidence.
Mr Neilson also asserts that planning staff responsible for advising or informing Council had a biased view of the plaintiff and his views. This is supported, primarily, by reference to the contents of the report presented to Council on 10 February 1999. The particular complaints are detailed in par 7(2)(b)(vii), and I will consider them in that context. It is also supported by the claim that the City of Swan spread false and inflammatory comments about the plaintiff and Dr Loggie to the Department of Local Government and the Ombudsman's office 'as part of a concerted strategy to undermine the plaintiff and Dr Lisa Loggie, which it regarded as its opponents'. The particulars of this allegation are that Mr Richardson told an officer of the Ombudsman and an officer of the Department of Local Government that Mr Neilson had defamed him in his comments at the Council meeting on 12 August 1998. Within this particular are two further allegations against Mr Richardson:
(a)that he bore malice against Mr Neilson for showing up the many planning errors made by Mr Richardson and his staff in considering the trout fishing proposal in 1998; and
(b)that he was seeking to divert the attention of the Ombudsman from properly investigating a site visit to Lot 504 by Mr Stirk (an employee of the City) on 8 July 1998.
The second of these can be dealt with immediately. There is evidence that there was a site visit by Mr Stirk, on 8 July 1998. The relevance of this visit is not apparent. I will not speculate about matters which may have been the subject of correspondence with the office of the Ombudsman. Such correspondence is privileged by reason of s 23A of the Parliamentary Commissioner Act 1971 (WA). The evidence that is available shows no connection between this visit and the allegation that Mr Richardson was seeking to divert attention and thus was biased against Mr Neilson.
The evidence also does not establish that Mr Richardson told an officer of the Department of Local Government that Mr Neilson had defamed him in comments at the meeting on 12 August 1998. Whether he did is probably of little moment. The Department were aware of Mr Richardson's complaint, as it was involved in resolving Dr Loggie's complaint that Mr Lumsden had threatened defamation proceedings against her. And Mr Richardson certainly believed he had been defamed.
Mr Neilson was seen as a squeaky wheel. He required a lot of attention. He asked a lot of questions. He questioned the competence of those advising Council. Mr Richardson thought that he had crossed the line in his comment at the Council meeting. That falls far short of proof that Mr Richardson bore actual malice against Mr Neilson, engaged in a strategy to undermine him, or regarded him as an opponent in relation to ODP 106. There is no evidence of any conduct or statement by Mr Richardson or any of his colleagues that could support those serious claims.
I separately consider, below, the claim that the report to Council itself evidences bias.
Next, Mr Neilson says that the City has refused to answer a number of questions he asked regarding ODP 106 at Council meetings in 2001, and has refused to answer the questions he asked in his letter dated 13 August 1998.
I will deal first with the letter. It contained 10 questions regarding the planning advice provided to Council on the trout fishing (pay fishing) proposal which had been considered and refused on 12 August 1998. Mr Neilson requested a written reply. Mr Lumsden replied on 18 August 1998 and I have set out the substance of his letter at [####] (see page 42 above).
Council staff, including Mr Richardson, continued to correspond with Mr Neilson in relation to Lot 504 with no sign of rancour. When Mr Neilson advised Mr Richardson of his legal advice regarding aggregation of use, Mr Richardson requested a copy, obtained advice from the City's own lawyers, and informed Mr Neilson of that advice.
In February 2001, the Minister of Planning approved a development application on Lot 504 for a second dam of 2.7 ha. The following month, on 28 March 2001, Mr Neilson provided a list of 23 questions that he said he intended to ask at the next Council meeting on 4 April 2001. While there were 23 numbered paragraphs, each paragraph was not necessarily confined to one issue. Within his letter, Mr Neilson identified 17 of the questions as 'more significant'. On 30 March, Mr Neilson wrote again, asking to replace question number 20 in his earlier letter. On 4 April 2001, Mr Neilson asked to modify the first sentence of question 6.
On 9 April 2001, Mr Richardson sought legal advice regarding the reply which had been drafted, and that advice was received on 12 April. At the ordinary meeting of Council on 18 April 2001, each of the questions was answered.
On 3 June 2001, Mr Neilson forwarded a further seven questions which he asked Mr Lumsden to take on notice for the next Council meeting. On 10 June 2001 he sent three further questions.
On 15 June 2001, Mr Lumsden responded in writing with answers to questions asked by Mr Neilson at Council meetings on 13 May and 16 May 2001, and also to questions submitted in writing for the meeting held on 13 June 2001.
On 2 July 2001, Mr Hunt, the Executive Manager, Council Support, provided answers in writing to further questions which Mr Neilson had submitted for the Council meeting held on 27 June 2001.
On 4 July 2001, Mr Neilson again wrote with a list of six questions for the meeting of 11 July 2001. Mr Hunt replied with written answers on 16 July 2001. He concluded the letter by referring to the more than 70 questions asked by Mr Neilson, all of which had been answered in writing. He continued:
Most of these questions have concerned the content of reports to the Council. You have questioned the professional opinion and advice given by City staff in their reports. Your questions go far beyond the intention of 'Public Question Time' at Council meetings which is to provide a forum and opportunity for members of the public to seek and be provided with information. Many of your questions have been rhetorical in nature and argumentative. A dialogue has been established which in reality has been in the nature of a continuing debate.
Considerable time and valuable City resources have been spent on researching and preparing answers to your questions.
The City readily acknowledges that it is your prerogative to disagree with the contents of reports to the Council, and that you may have a different opinion on the interpretation of legal or technical matters. However, we believe that nothing will be achieved in our continuing to address and respond to further questions on the general subject.
It is therefore proposed not to answer your current questions in detail nor to respond to future questions which you may ask about these matters.
Further questions were asked at public question time at the Council meeting on 15 August 2001. Another series of questions was asked at the meeting on 29 August 2001, and Mr Hunt, as Acting Chief Executive Officer of the Council, responded to these on 14 September 2001.
There were another six questions asked at the meeting on 26 September 2001. Mr Hunt answered them on 29 October 2001.
On 30 November 2001, Mr Hunt wrote to Mr Neilson referring to the extent to which he had used formal processes for obtaining information, through question time at Council meetings and through freedom of information procedures. He suggested that Mr Neilson might consider a more informal approach through direct contact with City staff.
In all of this process, there may have been some questions left unanswered. It is not necessary to decide if there were. These facts are incapable of showing bias leading up to and at the meeting of 10 February 1999 when ODP 106 was approved. No reasonable observer, aware of these facts, might apprehend that Council or the relevant officers might not have considered the approval of the outline development plan fairly.
The next allegation is that councillors made no comment about the evidently biased assessment of Mr Neilson's submission on ODP 106 at the meeting on 10 February 1999. Nothing can be drawn from whether they did or did not comment.
Next, Mr Neilson says that senior staff members were biased in favour of the proposed development because Mr Tomlinson (a former senior planning officer of the City of Swan) advised him that he had intended to approve the pay fishing proposal under delegated authority in early 1998. Later, the staff report on 12 August 1998 (on the pay fishing proposal) 'was biased in favour of the first stage of the proposal'. Assuming these facts to be true, they cannot support the allegation. First, there is no evidence that Mr Tomlinson was involved in matters leading to the Council decision on 10 February 1999, which was on a different proposal. Second, Council voted to not approve the development application on 12 August 1998. Third, the pay fishing proposal was described as central to ODP 106, but the staff who prepared the report, recommended that it not be allowed and Council deleted it from the plan as approved.
Finally, Mr Neilson asserts that the report to Council on ODP 106 assessed his submission in a 'biased and/or defamatory manner'. There are 13 particular complaints about the report. Many of them specify a failure to analyse or properly evaluate concerns raised by Mr Neilson and Dr Loggie in their submission.
It is necessary to put the submissions in their statutory context. Council was required by cl 6.2.1.3 to advertise the proposed ODP 106, and advise how the public might lodge submissions. It was required to consider any submission received as part of the consideration of the outline development plan. Mr Neilson was entitled to make a submission on the plan. His submission (made with Dr Loggie) was one of 13 submissions received. These were summarised in an appendix to the report to Council. The summary sets out, in point form, 22 matters raised in his submission. It may have missed one or two points, Mr Neilson complains that it failed to acknowledge one of them, but it is a comprehensive summary. It also included a comment on each of the points.
The substance of the complaint appears to be that the submission was approached with closed mind, evidenced by comments which were dismissive of the concerns Mr Neilson had expressed without properly analysing or evaluating them. It is true that the comments made on the submissions opposing approval were generally expressed as refutations of the arguments against approving the plan. The comment in each case was brief, generally two or three short sentences. There was no detailed analysis of any of Mr Neilson's arguments. There was little analysis of any of the submissions. In very general terms, the treatment of the submissions was consistent with the overall report: it recommended that Council adopt the plan, subject to deleting uses that were not permitted, and described the objections to it as 'localised objections to the development from some adjacent landowners'.
That does not necessarily show bias. A fair and unprejudiced mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, 552; McGovern v Ku-ring-gai Council [22]. Natural justice requires that the decision‑maker's mind is not so committed to a conclusion so as to be incapable of alteration. It does not require the absence of any predisposition or inclination towards that conclusion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [72].
Mr Richardson was in favour of the application. His original view was that the whole of the plan could be presented to Council as a composite use that would permit the inclusion of particular elements which, regarded individually, were not permitted uses. He obtained legal advice. Consistently with that advice, he recommended that certain uses were not permitted under the scheme and should be deleted. The effect of deleting those uses was to remove the component which the proponents had described as central to the commercial concept of the plan.
Even were I to accept that Mr Richardson, or other council staff, had arrived at unshakeable views on the merits of the plan at some stage before all relevant submissions and information had been received, the question is whether the decision of Council was, or might reasonably be apprehended to be affected by bias as a result. Pre‑judgment by an officer would not, on the facts in this matter, lead to a conclusion that the process was or might be tainted.
The decision of Council was unanimous. More importantly, I am satisfied that it was an independent decision and not merely a rubber stamp on the officer's recommendations. Council had earlier shown its independent judgment when it rejected the development application containing the pay fishing proposal, not following the staff recommendation on that occasion. When considering ODP 106, it resolved to modify recommendations regarding preservation of water quality, effluent disposal, and the privacy of adjoining landowners.
I am satisfied that Council was not actually biased. I am also satisfied that there is no basis for a reasonable apprehension of bias by reason of any perceived pre‑judgment or interest on that part of Council staff.

The claim for misfeasance in public office

Misfeasance in public office is a tort concerned with conscious maladministration: Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 [124]. It imposes liability for the malicious injuring of members of the public by abuse of the power or authority of public office or by disregard of official duty. In 2006, Buss JA said that the tort is still evolving and its precise limits remain undefined: Neilson v City of Swan [2006] WASCA 94 [31]. That comment remains true six years later: see also Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 [99].

It is not necessary in this matter, however, to delve into some of the unresolved issues. A sufficient statement of the elements of the tort is found in the judgment of Deane J in Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 370:
Its elements are: (i) an invalid or unauthorized act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or harm to the plaintiff. That summary statement of the elements of the tort inevitably fails to disclose some latent ambiguities and qualifications of which account must be taken in determining whether a particular element is present in the circumstances of a particular case. The critical element for present purposes is malice.
The malice requirement of the tort has been divided into targeted malice, where the public officer in question has acted with an actual intent to cause injury to a person; and untargeted malice where the officer has actual knowledge that his or her action was beyond power and would cause or be likely to cause injury, or else that the officer has acted with reckless indifference to the possibility that his or her action was beyond power and to the possibility that it would cause or be likely to cause injury: Rush v Commissioner of Police [2006] FCA 12; (2006) 150 FCR 165 [121] (Finn J); Aronson, 'Misfeasance in Public Office: A Very Peculiar Tort' (2011) 35 Melbourne University Law Review 1, 12, 18 ‑ 25.
Mr Neilson alleges three unlawful acts by Mr Richardson:
(1)In breach of his duty to bring the advice of the Department of Environmental Protection to the attention of councillors, Mr Richardson decided not to bring that advice to the attention of councillors.
(2)In breach of his duty to bring an unbiased assessment of Mr Neilson's written submission to the Council, Mr Richardson decided not to bring an unbiased assessment to the attention of councillors and provided 'a biased and deficient assessment' as set out in par 7(2)(b)(vii).
(3)In breach of his duty to bring an unbiased report to the Council, Mr Richardson decided not to bring an unbiased report to the attention of councillors and provided a report in relation to ODP 106 that was not in accordance with the requirements of TPS 9. In this allegation he seeks to rely on all of the matters pleaded in par 7(1), although none of those matters alleges bias.
Mr Neilson asserts that in each case Mr Richardson made a conscious decision not to comply with his duty, or was recklessly indifferent to his duty. Mr Neilson alleges that Mr Richardson acted with intent to injure him, or in the knowledge that such injury would be the natural and probable consequence of his act, or was recklessly indifferent to that consequence.
The evidence to support each of the allegations of fact is lacking.
As I have found above, the allegation regarding the letter from the Department of Environmental Protection has not been proved. I am not satisfied Mr Richardson was aware that the letter had been received by the City before he attended the Council meeting. The only evidence to support the allegation is the receipt of the letter by the City on the day of the meeting. Mr Richardson says he did not know it had arrived, and under the normal practices for the receipt of mail, it would have been the next day before it was brought to his attention. There is nothing to contradict his account, and, in any event, I believed he was telling the truth. There was no decision to not bring the letter to the attention of councillors.
I am not satisfied that the assessment of Mr Neilson's written submission was biased.
I agree that the report did not evaluate or analyse in any detail the matters which had been raised in Mr Neilson's submission. His was one of 13 submissions. The report accurately described the submissions as '[indicating] a concern from landowners about issues attributed to the scale and location of the development'. The appendix was, and was said to be, a summary of them. It did not purport to be an evaluation or analysis, either of Mr Neilson's submission or of any of the others. There is no evidence about whether Council expected that it should. While the comments on Mr Neilson's submission disagreed with the points that he had made, Mr Neilson has not shown that resulted from pre‑judgment or any other disqualifying matter. Allegations that statutory powers have been exercised corruptly or with deliberate disregard to the scope of those powers are not lightly to be made or upheld: Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146 [60]. The inference that Mr Richardson was actually biased, either for the development or against Mr Neilson, is not supported by the evidence. It is possible for two minds to differ without the opinion of one of them being tainted.
A similar comment can be made regarding the third allegation. Even if there were errors in the report to Council, the presence of errors does not show that the report was the result of a biased assessment.
Although it is not necessary to do so, I should make some comment on the claim to damages. Mr Neilson claims that as a result of misfeasance committed by Mr Richardson, he has suffered damage: decreased enjoyment of his land due to the adverse impact on the amenity of the land from the development works approved under ODP 106; and decrease in the value of Lot 341 through current and future adverse effects on its rural amenity.
First, to return to a point dealt with earlier in these reasons, the decision of Council was to approve an outline development plan. That may facilitate later development, but is not the approval of any development on the land. ODP 106, while approved by Council, has not been adopted by the Commission. None of the conditions imposed by Council has been complied with. There have been some developments carried out on Lot 504, but the evidence is that they were not pursuant to the outline development plan. In any event, I am not satisfied that it has been proved that they were carried out pursuant to ODP 106.
Second, the approval of ODP 106 was a unanimous decision of Council. There is no proof that any of the acts alleged against Mr Richardson caused Council to make the decision it did.
Third, Mr Neilson led no evidence regarding the value of his property as affected by ODP 106, and as not so affected. Mr Neilson claims that he has lost the use of some of his land to tree planting which he carried out to lessen the visual impact of some of the development. He seeks to prove his loss by some assessment of the value of that land, as a proportion of the value of the whole lot. That is not evidence of value. And there is no evidence that the tree planting has diminished the value of the land in any way. I accept that he has expended money on trees, although the amount has not been proved. But he has not proved any loss.
Finally, the claim for damages assumes that development will take place in accordance with ODP 106. It is now nearly 13 years since that approval. TPS 9 has been repealed and replaced. Local Planning Scheme 17, now in force, provides that tourism is a permissible use in the rural landscape zone. I am not satisfied that, should a development now occur which affects the rural amenity of Mr Neilson's land, it will be the result of ODP 106 being approved, rather than the change in the applicable scheme.

Conclusion

Mr Neilson has established that the resolution of the Council of the City of Swan that it exercise its discretion under cl 3.1.2 of TPS 9 to waive development advertising requirements for an application for approval to commence development for those uses approved by ODP 106 was contrary to TPS 9.
I am not satisfied that results in the conclusion that the Council unlawfully approved ODP 106. The approval of ODP 106 can stand independently of that resolution.
I am not satisfied that the approval of ODP 106 was unlawful. The application for a declaration is dismissed.
The claim for misfeasance in public office is dismissed.