Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon - [2009] WASC 116

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE APPLICATION FOR A WRIT OF CERTIORARI AGAINST THE STATE ADMINISTRATIVE TRIBUNAL; EX PARTE SOLOMON [2009] WASC 116

CORAM: SIMMONDS J

HEARD: 23 JANUARY 2009

DELIVERED : 6 MAY 2009

FILE NO/S: CIV 2679 of 2008

MATTER :An application for a writ of certiorari against the STATE ADMINISTRATIVE TRIBUNAL

EX PARTE
GREGORY HOWARD SOLOMON
DOUGLAS HOWARD SOLOMON
STEPHEN GEOFFREY BEYER
LEE HELEN SOLOMON
NOREEN NYUNT
Applicants

Catchwords:

Administrative law - review for jurisdictional error of decision of State Administrative Tribunal setting aside decision of Western Australian Planning Commission and approving plan of subdivision by survey-strata - Whether Tribunal misapprehended or disregarded nature of power of approval - Whether Tribunal failed to have due regard to relevant planning considerations

Legislation:

Planning and Development Act 2005 (WA), s 4, s 29, s 135, s 138, s 146, s 241, s 251
Planning Act 1982 (SA), s 47
Retirement Villages Act 1992 (WA)
State Administrative Tribunal Act 2004 (WA), s 27, s 29
Strata Titles Act 1985 (WA), s 3, s 4, s 5, s 5A, s 25, s 25A, s 25B, s 27
Strata Titles Amendment Act 1995 (WA)

Result:

Order nisi made absolute

Category: B

Representation:

Counsel:

Applicants: Mr D H Solomon
Interested Person
Commercial Properties Pty Ltd : Mr B R M Hayes QC & Mr G R Dean

Solicitors:

Applicants: Solomon Brothers
Interested Person
Commercial Properties Pty Ltd : Dean & Rowick

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

Commercial Properties Pty Ltd and Western Australian Planning Commission [2008] WASAT 278
Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Dorrestijn v South Australian Planning Commission (1984) 56 ALR 295
Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152
South Australian Planning Commission v Dorrestijn (1984) 36 SASR 355
Teller Properties Pty Ltd v Randwick City Council [1994] NSWLEC 97

SIMMONDS J:

Introduction

This is the return of an order nisi for a writ of certiorari. The order nisi is that the State Administrative Tribunal (the Tribunal) show cause why such a writ should not be issued quashing the decision of the Tribunal made on 21 November 2008. That decision, Commercial Properties Pty Ltd and Western Australian Planning Commission [2008] WASAT 278 (the Tribunal decision), was on an application by an interested person in the present proceedings, Commercial Properties Pty Ltd (Commercial Properties), to the Tribunal for review of a decision of the Western Australian Planning Commission (the Commission). The decision of the Commission was made on 18 March 2008 (the Commission decision). The Commission decision was to refuse an application by Commercial Properties for approval of a subdivision of a lot (the property) into 34 survey‑strata lots and common property (the Commercial Properties application). The Tribunal decision was to allow the application for review and to grant its approval of the Commercial Properties application, on certain conditions.
The order nisi assigns two grounds. Both describe what is said to be jurisdictional error in the Tribunal decision. One ground, numbered '1.1', refers to jurisdictional error by the Tribunal in its approval of the Commercial Properties application without first determining the 'jurisdictional fact' that the subdivision of the property into 34 lots and common property was appropriate. The other ground, numbered '1.2', refers to jurisdictional error by the Tribunal in its failure to have regard to the State planning policies which affected the subject-matter of the Commercial Properties application.
I reproduce the two grounds in full after reviewing the nature of the jurisdiction of the court in this case. I then consider each ground separately. The final section of these reasons is my conclusions and call for orders.

The jurisdiction of the Court

A writ of certiorari lies against the Tribunal in at least the circumstances referred to in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501, 536 ‑ 537 [181] (McLure JA). Her Honour's statement was referred to as a convenient summary of those circumstances in Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342, 349 [15], [16] (Steytler P, Wheeler and McLure JJA), where reference was also made to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 among other authorities, as follows:
In … Carey … Martin CJ (with whom Wheeler JA and, relevantly, McLure JA agreed (at [143] and [158]), respectively), having considered the relevant provisions of the SAT Act [State Administrative Tribunal Act 2004 (WA)], concluded (at [110]) that the Administrative Tribunal 'was … given jurisdiction to determine questions of law wrongly, and that error of law would not, of itself, take … [it] outside jurisdiction'. There is no challenge to the correctness of that decision. It is common cause that, in determining the scope of jurisdictional error, the test to be applied in this case is the same as that which is ordinarily applied in the case of an inferior court.
There will consequently be a jurisdictional error only if the Administrative Tribunal makes a decision outside the limits of the functions and powers conferred on it, or if it does something which it lacks power to do: Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at [163] per Hayne J. There will be no jurisdictional error if all that the Tribunal has done is to decide something, which it is authorised to decide, incorrectly. In Craig (at 177 ‑ 178), the High Court identified five categories of jurisdictional error in this narrower sense. These are not exhaustive: … Yusuf … at [82] per McHugh, Gummow and Hayne JJ. They are conveniently summarised by McLure JA in Carey (at [181]) as follows:
'First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied (which I understand to be a reference to a jurisdictional "fact") there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.'
In this case the applicant contends that there has been jurisdictional error in the second and fifth categories.
The applicants submit that the first ground, 1.1, refers to jurisdictional error in the second category from Carey, while the second ground, 1.2, refers to jurisdictional error in the second or the fourth category.
However, the language of ground 1.1 which I have previously used is that of the absence of a 'jurisdictional fact'. Such an absence would be a jurisdictional error in the third category. The 'jurisdictional fact' the applicants relied upon emerged most clearly in oral argument. That 'jurisdictional fact' was an opinion that the subdivision of the property into 34 survey‑strata lots and common property in accordance with the survey-strata plan by which the subdivision was to be made was appropriate. It would appear that a 'jurisdictional fact' may indeed be an opinion of the decision-maker: see Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4th ed, 2009) [4.285]. However, in my view nothing turns on this alternative classification.

The grounds

By order nisi granted on 17 December 2008 by Newnes J, the Tribunal was ordered to show cause why a writ of certiorari should not be issued quashing the Tribunal decision on the following grounds:
1.1SAT committed jurisdictional error by approving the Application (to which s 135 of the Planning and Development Act 2003 applied by s 25B(1) of the Strata Titles Act 1985) without first determining the jurisdictional fact that subdivision of the Property into 34 lots and common property was appropriate: SAT decided at [46] that the issue for determination was which of 2 types of subdivision (built strata or survey‑strata) was appropriate despite SAT being obliged, in determining the matter de novo pursuant to ss 27 and 29 of the State Administrative Tribunal Act 2004, to determine the jurisdictional fact that subdivision of the Property into 34 lots and common property was appropriate before determining which of 2 possible types of such subdivision was appropriate.
1.2Further or alternatively, SAT committed jurisdictional error by failing to have regard to State planning policies which affected the subject matter of the Application (an application to subdivide by a survey‑strata plan to which s 135 of the Planning and Development Act 2005 applied by s 25B(1) of the Strata Titles Act 1985) despite s 241(1) of the enabling Act (the Planning and Development Act 2005) requiring that SAT have due regard thereto.
To understand the case the applicants sought to make on these grounds, it is necessary to describe, in the relevant respects, the regime under Strata Titles Act 1985 (WA) (ST Act) for what the ST Act describes as a 'strata scheme' and a 'survey‑strata scheme'. It is common ground that those schemes respectively correspond to what are referred to in ground 1.1 as schemes for '2 types of subdivision (built strata or survey‑strata)'.

The legislative context

ST Act s 3(1) provides that '[i]n this Act unless the contrary intention appears' the following meanings for 'strata scheme' and 'survey‑strata scheme' apply:
strata scheme means ‑
(a)the manner of division, from time to time, of a parcel into lots or into lots and common property under a strata plan and the manner of the allocation, from time to time, of unit entitlements among the lots; and
(b)the rights and obligations, between themselves, of proprietors, other persons having proprietary interests in or occupying the lots and the strata company, as conferred or imposed by this Act or by anything done under the authority of this Act and as in force from time to time;
…
survey strata scheme means ‑
(a)the manner of division, from time to time, of a parcel into lots or into lots and common property under a survey-strata plan and the manner of the allocation, from time to time, of unit entitlements among the lots; and
(b)the rights and obligations, between themselves, of proprietors, other persons having proprietary interests in or occupying the lots and the strata company, as conferred or imposed by this Act or by anything done under the authority of this Act;
These definitions need to be read with the definitions in s 3(1) of 'strata/survey-strata plan', 'strata plan' and 'survey-strata plan', as follows:
strata/survey-strata plan means a strata plan or a survey-strata plan; …
…
strata plan has the meaning given by section 4(1a); …
…
survey-strata plan has the meaning given by section 4(1b); …
ST Act s 4 provides for the meanings of 'strata plan' and 'survey-strata plan', and for subdivision by such plans, in s 4(1) ‑ (4) as follows:
(1)Land may be subdivided into lots, or lots and common property, by the registration of a strata plan or a survey-strata plan.
(1a)A strata plan is a plan that ‑
(a)is described as such in its title or heading;
(b)shows the whole or any part of the land comprised in the plan as being divided into 2 or more lots; and
(c)complies with section 5,
and includes any amendment duly made to that plan.
(1b)A survey-strata plan is a plan that -
(a)is described as such in its title or heading;
(b)shows the whole or any part of the land comprised in the plan as being divided into 2 or more lots; and
(c)complies with section 5A,
and includes any amendment duly made to that plan.
(1c)Except as otherwise allowed by the regulations, a lot can only be created in a survey‑strata scheme as a cubic space lot (limited in height and depth) if the balance of the land above and below the lot is common property.
(2)Where a strata/survey-strata plan is registered under this Act, the lots comprised in the plan, or any one or more of them, may devolve or be transferred, leased, mortgaged or otherwise dealt with in the same manner and form as land held under the provisions of the Transfer of Land Act 1893.
(3)A strata/survey-strata plan shall, for the purposes of the Transfer of Land Act 1893, be deemed upon registration under this Act to be embodied in the Register; and notwithstanding the provisions of that Act, a proprietor shall hold his lot and share in the common property subject to -
(a)any interests for the time being notified on the registered strata/survey-strata plan; and
(b)any amendments to lots or common property shown on that plan.
(4)Where a strata/survey-strata plan is registered under this Act, a memorial shall be entered on the certificate of title relating to the parcel and thereupon the Registrar of Titles may create and register a separate certificate of title for each lot together with the share of common property appurtenant to that lot.
It will be seen that the distinction between a 'strata scheme' and a 'survey‑strata scheme' includes that the former has a 'strata plan' that must comply with inter alia ST Act s 5, while the latter has a 'survey-strata plan' that must comply with inter alia s 5A.
Comparison of s 5 with s 5A indicates that a strata plan must inter alia 'consist of a location plan and a floor plan in respect of the parcel' (s 5(1)(a)), while a survey-strata plan must 'contain a survey plan in respect of the parcel' (s 5A(a)).
By ST Act s 3(1) 'floor plan' and 'location plan' are given the following meanings 'unless the contrary intention appears':
floor plan means a plan, consisting of one or more sheets, which -
(a)defines by lines (in paragraph (c) referred to as base lines) the base of each vertical boundary of every cubic space forming the whole of a proposed lot, or the whole of any part of a proposed lot, to which the plan relates;
(b)shows ‑
(i)the floor area of any such cubic space; and
(ii)where any such cubic space forms part only of a proposed lot, the aggregate of the floor areas of every cubic space that forms part of the proposed lot;
and
(c)where proposed lots or parts thereof to which the plan relates are superimposed on other proposed lots or parts thereof to which the plan relates -
(i)shows the base lines in respect of the proposed lots or parts thereof that are so superimposed separately from those in respect of the other proposed lots or parts thereof upon which they are superimposed; and
(ii)specifies, by reference to floors or levels, the order in which that superimposition occurs;
…
location plan, in relation to a strata plan, means a plan, consisting of one or more sheets, which relates to land and delineates the perimeter of that land and, in relation to that perimeter, the location of any building erected on that land and of any proposed lots or part of proposed lots not within any such building;
Those definitions need to be read with ST Act s 3(2) and (2a) and s 3AB, which indicate that a 'floor plan' must relate to a 'building', except in the case to which s 3(2a)(b) applies.
By s 5A(a) the meaning of 'survey plan' for the purposes of a survey‑strata plan is given as follows:
A survey-strata plan shall -
(a)contain a survey plan in respect of the parcel, that is a plan that defines, in the prescribed manner, the boundaries of lots and common property by dimensions and survey information obtained from a survey of the parcel;
It would appear from the provisions of the ST Act considered thus far that a 'strata scheme' appertains to a plan for a subdivision by reference to a 'building', unless s 3(2a)(b) applies, while a 'survey-strata scheme' appertains to a plan for a subdivision that is not of that sort. I note also for this purpose the definitions in s 3(1) of 'lot' in relation to a strata scheme and 'lot' in relation to a survey‑strata scheme.
It appears the intention underlying the introduction, by the Strata Titles Amendment Act 1995 (WA), of the survey-strata scheme provisions into the ST Act was, from the Second Reading Speech, as follows (Western Australia, Parliamentary Debates, Legislative Assembly, 14 June 1995, 4957 (Mr G Cash, Minister for Lands)):
Although the Strata Titles Act was designed for blocks of home units and town houses, it has been utilised to develop vacant home sites and common property. To recognise this practice and to provide more flexibility for those designing land developments, the Bill will permit the registration of two types of strata plan: strata and survey‑strata. The current type of strata plan, which the consultative committee calls building strata, will continue. This type of strata plan was specifically designed for existing buildings where lots are primarily defined by means of the walls, floors and ceilings of a building.
The Act will be amended to permit land to be developed by the registration of a survey‑strata plan where lots are defined by survey dimensions. In that type of scheme, there will be no need to construct a building prior to approval and registration of a survey‑strata plan.
However, it appears that there is no requirement for there to be an existing building for a strata plan to be registered under the ST Act. This may be seen in the provisions for the approval by the Commission of a strata plan. I set out those provisions in full with the counterpart provisions for a survey-strata plan. As will be seen these provisions are at the heart of the applicants' submissions with respect to ground 1.1.
With respect to the approval by the Commission of a strata plan, the relevant ST Act provisions are s 25 and s 25A, as follows:
25. Certificate of Commission
(1)Subject to this section, every strata plan and every plan of re‑subdivision or consolidation for a strata scheme lodged for registration under this Act shall be accompanied by a certificate of approval given by the Commission unless the proposed subdivision, re‑subdivision or consolidation is exempt from the requirement of such a certificate by reason of regulations made under this section.
(2)The Governor may make regulations providing for the exemption of a proposed subdivision, re‑subdivision or consolidation, or subdivisions, re‑subdivisions or consolidations of any class or description or in any geographical area, from the requirement of a certificate of approval given by the Commission for the purposes of section 5B, 8A or 9.
(3)An application for a certificate under this section shall be made to the Commission in the prescribed form and manner and, where a building is to be constructed or modified for the purposes of the strata scheme or a proposed strata scheme, the application shall be made prior to the construction or modification of the building unless the Commission otherwise agrees in a particular case.
(4)A certificate granted by the Commission under this section shall certify the approval of the Commission to the subdivision, re‑subdivision or consolidation, as the case may be, and shall be in the prescribed form and in the case of an application made prior to construction or modification of a building proposed to be divided into lots under the scheme, the Commission may grant a certificate unconditionally or subject to such conditions as are specified in the certificate.
(5)Without limiting section 25A, sections 135, 136, 146 and 147 of the Planning and Development Act 2005 do not apply to ‑
(a)a subdivision effected by the registration of a strata plan;
(b)a re‑subdivision effected by a plan of re‑subdivision for a strata scheme;
(c)a consolidation effected by the registration of a plan of consolidation for a strata scheme; or
(d)a transfer converting a lot within a strata scheme to common property.
[(6)repealed]
(7)This section and the giving of a certificate of approval by the Commission for the purposes of this section shall be subject to the requirements of section 78 of the Heritage of Western Australia Act 1990.
(8)No exemption from the requirements of this section shall take effect where the land or any part of the land to which the strata scheme relates is land to which section 78 of the Heritage of Western Australia Act 1990 applies.
25A. Commission to refer plan to other bodies in certain cases
(1)If a strata plan or a plan of re‑subdivision or consolidation for a strata scheme submitted to the Commission for approval under section 25 contains any vacant lot, the Commission shall comply with sections 142, 143 and 144 of the Planning and Development Act 2005, and section 151 of that Act applies, as if the plan were a plan of subdivision which required the approval of the Commission under that Act.
(2)For the purposes of subsection (1) a vacant lot is one that is wholly unimproved apart from having merged improvements within the meaning of that expression in the Valuation of Land Act 1978.
(3)Where subsection (1) applies, a prescribed period shall apply for the purposes of section 27(4) instead of the period of 40 days mentioned in that subsection.

With respect to a strata plan not involving an existing building, I note ST Act s 25(3) and (4) above.
The counterpart provision for a survey-strata plan is s 25B, as follows:
25B. Subdivision in survey‑strata scheme requires approval by Commission
(1)The provisions of Divisions 1, 2 (other than section 141) and 3 of Part 10 of the Planning and Development Act 2005, and section 166 of that Act, apply to -
(a)the subdivision or re‑subdivision of land by a survey‑strata plan or a plan of re‑subdivision for a survey‑strata scheme; and
(b)the consolidation of lots by a plan of consolidation for a survey‑strata scheme.
(2)Every survey‑strata plan and every plan of re‑subdivision or consolidation for a survey‑strata scheme lodged for registration under this Act shall have endorsed on it a statement that the approval of the Commission, required by the provisions referred to in subsection (1), has been granted.
[(3)repealed]
(4)The Registrar of Titles may accept for registration a plan referred to in subsection (1) notwithstanding that it does not comply with subsection (2) if the plan -
(a)is accompanied by a certificate of the executive officer of the State Administrative Tribunal to the effect that a successful application has been made to the State Administrative Tribunal for a review of the Commission's refusal or failure to give an approval referred to in subsection (2); and
(b)otherwise complies with this Act.
It will be noted that the 'approval' of the Commission referred to in s 25 is of 'the subdivision' (s 25(4)). By contrast the 'approval' of the Commission referred to in s 25B, the provision under which, it is common ground, the Commercial Properties application was made, is approval 'required by the provisions [of the Planning and Development Act 2005 (WA) (PD Act)] referred to' in s 25B(1). I will discuss the relevant provisions of the PD Act shortly.
It may also be noted that an applicant applying for the Commission's approval under ST Act s 25 has a right by s 27(3)(a) to seek review by the Tribunal of the Commission's decision to refuse to approve the application. There is no corresponding provision in the ST Act for review of the Commission's refusal to give an approval under s 25B. However, it is common ground that such a right is provided under PD Act s 251(1), which reads as follows:
(1)An applicant may apply to the State Administrative Tribunal for a review, in accordance with this Part, of a decision of the Commission to refuse to approve any plan, application for title, transfer, conveyance, lease, licence to use and occupy, or mortgage, in respect of which an application for approval was made to the Commission.
It is common ground that the reference to 'a decision of the Commission to refuse to approve any plan' in s 251(1) is wide enough to cover a refusal to approve an application for approval[rls1] under s 135. PD Act s 135, in div 2 pt 10, is one of the provisions that ST Act s 25B(1) expressly makes applicable to 'the subdivision … of land by a survey-strata plan'. It may be noted that PD Act s 135 is also one of the provisions that ST Act s 25(5), subject to s 25A, expressly makes inapplicable to 'a subdivision effected by the registration of a strata plan'.
PD Act s 135 is the well known prohibition on, inter alia, the subdivision of any 'lot' (see PD Act s 4(1) 'lot') without the 'approval' of the Commission. When s 135 is read with PD Act s 138, s 142, s 143, s 144 and s 145, all in div 2 pt 10, it is evident that the PD Act provides for approval of a 'plan of subdivision' before approval of a 'diagram or plan of survey of the subdivision' (see particularly s 145(1); see also s 251(1) read with (4)). Endorsement of the latter approval on the diagram or plan of survey is required before the Registrar of Titles may create or register a certificate of title under the Transfer of Land Act 1893 (WA) for land 'the subject of a plan of subdivision' (see PD Act s 146). The Commission may approve a plan of subdivision subject to conditions (s 138(1)); however, there is no corresponding provision with respect to a diagram or plan of survey of the subdivision.
All the provisions in div 2 pt 10 of PD Act (with an exception not material here) are, by ST Act s 25B(1), expressly made applicable to the subdivision of land by a survey-strata plan, as has been seen. It would seem then that a plan of subdivision in respect of a survey‑strata scheme may be submitted for approval to the Commission, and the Commission may approve it conditionally or unconditionally. However, the Commission's approval of the survey-strata plan must be endorsed on the survey‑strata plan for the plan to be registered under the ST Act (see s 25B(2)). That registration means the Registrar of Titles may 'create and register a separate certificate of title for each lot together with the share of common property appurtenant to that lot' (ST Act s 4(4); see also PD Act s 146).
Finally, it should be noted that on a review of a decision of the Commission to refuse an approval under ST Act s 25B, the Tribunal is to determine the matter 'de novo' (State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27(1)) and that, when dealing with the matter in the exercise of its review jurisdiction, the Tribunal has the 'functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable decision' (SAT Act s 29(1); see also ST Act s 25B(4)).
Finally, of central relevance to ground 1.2, it may be noted that PD Act s 241(1) provides as follows in relation to a review by the Tribunal:
(1)In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations …
I turn now to the background of the Tribunal decision, before reviewing the terms of that decision that are central to an understanding of the applicant's contentions.

The background to the Tribunal decision

These matters are drawn from the Tribunal decision, and are common ground. The background appears most conveniently for my purposes at [12] ‑ [45] where there is reference to related litigation culminating in the decision Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132. The references in the following paragraphs to the 'applicant' are to Commercial Properties, and to the 'respondent' are to the Commission, while the property is referred to as 'the site':
The subdivision application to the respondent had sought approval to create 34 surveystrata lots and one common property lot. The common property lot was proposed to contain the driveway, visitor parking bays, the community centre and open space.
For the reasons that follow, we have concluded that the respondent ought not to have refused survey-strata subdivision.
Site and locality
The site [being the property which is Lot 77 Jacoby Street, Mundaring] has a rectangular shape with a street frontage of approximately 98 metres, a depth of approximately 300 metres, and an area of 2.9180 hectares.
The land is located in a rural environment between the localities of Mahogany Creek and Mundaring and currently accommodates a vacant building that formed part of the Mundaring Rest Home, established in 1973.
The locality is generally typical of a rural residential lifestyle. The relevant exceptions to this observation are the subject site itself and the adjoining site to the east (Lot 78). The adjoining lot, Lot 78, is a meditation centre and has been the source of objections to the proposed development. These are considered further below.
Planning framework
The site is zoned 'Rural' under the Metropolitan Region Scheme (MRS) and the surrounding locality is zoned 'Rural Landscape Living' under the Shire of Mundaring Town Planning Scheme No 3 (TPS 3). The site and the adjoining meditation centre are the exceptions to the zoning in the locality, for they each have special purposes zoning.
The site is zoned 'Special Purpose - Rest Home'. Schedule 1 of TPS 3 describes the permissible uses for the site as 'AA'; that is, 'a use that is not permitted unless special permission is granted by the Council'. The 'AA' uses permitted in Schedule 1 are 'Aged and Dependent Persons' Home, Rest home, Retirement Centre, Caretaker's residence, Manager's residence, Incidental and admin[istrative] uses'.
The adjoining Lot 78 is zoned 'Special Purpose - Meditation'. Schedule 1 of TPS 3 describes the permissible uses for the site as 'AA' with the uses being described as 'Meditation Centre, Meditation room building, Kitchen/dining/store building, Laundry/workshop building'.
Clause 3.1 of TPS 3 describes the objectives for the various zones, including that for rural landscape living (in cl 3.1.8 of TPS 3) and that for special purpose zones (see cl 3.1.10 of TPS 3).
Relevant to this review are the objectives of the respondent's 1995 Metropolitan Rural Policy (MRP). In cl 2, a relevant objective is to 'safeguard the operations of existing and future special uses.' Also relevant are the respondent's development control policies: Development Control 1.1: Subdivision of Land - General Principles (DC 1.1) and Development Control 1.3: Strata Titles (DC 1.3). See also, Development Control 3.4: Subdivision of Rural Land (DC 3.4).
We will return to elements of the planning framework later in these reasons.
History of development on the site
The background to this review is somewhat lengthy and complex. It commences in 1973 when the 'Mundaring Rest Home' (Rest Home) was approved and subsequently built on the site which was then zoned 'Rural' in the Shire of Mundaring Town Planning Scheme No 1 (TPS 1). The Rest Home provided accommodation for approximately 15 frail aged persons.
In 1979, an application was made to the Shire to add 30 retirement units to the site. The Shire resolved to support the application subject to an amendment to TPS 1 amendment changing the zoning form 'Rural' to 'Special Purpose - Aged Persons Homes'. The amendment took effect on 18 January 1980.
However, the approval for the 30 retirement units eventually lapsed. Thereafter, numerous other development applications were approved by the Shire for the site over the years but these also all eventually lapsed.
In the early to mid-1990s the then existing rest home ceased operations.
TPS 3 commenced in March 1994 and modified the form but essentially not the substance of the zoning of the land. In 1998, a planning appeal successfully removed a planning condition imposed by the Shire that the units were not to be strata titled: see the history recited in Re Shire of Mundaring ... at [18] ‑ [22].
On 6 October 2000, the respondent approved a built strata application for subdivision in respect of 36 built strata units of 187 square metres and common property. This approval was consistent with a development approval issued by the Shire at around the same time. Again, these approvals were not acted upon.
In January 2005, the applicant lodged an application with the respondent for 34 survey‑strata lots and common property. This application was deferred at the request of the Shire.
In March 2005, the Shire received an application for 34 aged and dependent persons units, together with community facilities and services, and a five‑bed respite care facility. In July 2005, the application was deferred until such time as:
a)the applicant provided information describing the manner in which the development will be operated and managed (including proposed tenure arrangements) to demonstrate to Council's satisfaction that use of the land will occur for the bona fide use of a 'Rest Home'; and
b)legal advice has been obtained from Council's Solicitors in respect of the current application for 34 aged and dependent persons units and amenities building on the subject lot, including the additional information received pursuant to a) above.
The additional information sought was subsequently received and Council resolved on 27 September 2005 to approve the application. The conditions attached to the approval contained detailed requirements with reference to the management of the site.
At its meeting on 13 December 2005, the Shire dealt with a parallel application to the respondent for the proposed survey‑strata subdivision into 34 lots with common property. The Council resolved to advise the respondent that it recommended that the application be refused for the following reason:
'The survey-strata titling of the proposed 34 unit aged [and] dependent grouped dwelling development approved by Council on 27 September 2005 would result in individually owned dwellings within the lot. It is considered by Council that this would be contrary to the intent of the Special Purpose zoning of the subject lot, envisaging a single entire facility under central management and control providing services to persons as occupants of the home.'
Just after the Shire's September 2005 approval, the owners of the adjoining Lot 78 contested in the Supreme Court of Western Australia the validity of the Shire's development approval for 34 units.
On 28 June 2007, the Supreme Court, in Re Shire of Mundaring, declined to invalidate the Shire's decision.
Following the Supreme Court's decision, on 29 June 2007, the applicant wrote to the respondent and requested that the deferred decision on the survey‑strata application be processed. The matter was again referred to the Shire and on 25 September 2007, the Council resolved to recommend to the respondent that it support the survey‑strata application subject to various conditions including:
(i)the preparation of a management statement in accordance with s 5C of the Strata Titles Act 1985 (WA); and
(ii)that the applicant submit 'a revised plan to the Shire of Mundaring which reflect[s] the most recent application for planning approval dated October 2006, illustrating 32 aged persons units and a 15 bed rest home facility'.
A draft management statement has been submitted to the respondent.
At the time that this application for review was lodged there were, it appears, two current planning approvals each purporting to be valid in respect of the site: one for 34 units expiring in October 2008 and one for 32 units expiring in September 2009.
In February 2008, the Shire issued a building licence for an upgrade and extension to the existing building. The facilities proposed were consistent with the conditions of the 34 unit development approval and included a five‑bed respite facility, community facilities, a doctor's room, a gymnasium, craft room, dining room and lounge.
In May 2008, the Shire granted approval for site works associated with the overall development of the site.
It is unnecessary in these proceedings to resolve any questions that may arise out of these apparently 'competing' approvals. For present purposes, it is sufficient to observe that no party suggests that any development approval (particularly, say, for the 34 lots reflected in the building licence) or support for a corresponding surveystrata, is somehow invalid administrative action on the part of the Shire.
Finally, we note that Mr AA Stewart, an expert planner appearing as a witness for the applicant, stated that he had visited the site and that he had observed these works under construction.
The proposed subdivision
The proposed subdivision is to create 34 survey‑strata lots varying in size from 310 square metres to 479 square metres. This is in addition to the common property which will contain the facilities such as the access road and the central building.
The significant difference between this application and the earlier approval by the respondent in 2005, in respect of a built strata application, is that the survey‑strata titles will enable the lots to be sold as vacant lots; that is, without any buildings on the individual lots.
The respondent's decision
The respondent received the application on 7 January 2005 but, as has been mentioned, deferred a decision until after the result of the Supreme Court action referred to above. On 18 March 2008, the respondent refused the application for the following three reasons:
'(1)The proposed survey-strata subdivision does not comply with the Commission's Policy DC 1.1, a provision of State Planning Policy No 1 (State Planning Framework) by reason of the proposal being inconsistent with orderly and proper planning. The development of the site in accordance with the Shire of Mundaring Town Planning Scheme No 3 is reliant on the coordinated development of the site as approved by the Shire of Mundaring.
(2)The creation of 34 vacant survey-strata lots could impact on the provision of the communal services required by the Shire of Mundaring's approval to commence development on site and have an adverse impact on the amenity of the [residents] of the proposed survey-strata scheme …
(3)Approval to the strata title application would set an undesirable precedent for the further subdivision of surrounding lots.'
The notice of refusal contained the following advice note explaining the respondent's position:
'The applicant is advised that the Commission does not consider the creation of vacant survey-strata lots as being suitable for the form of development approved on site. Support of the proposal is dependent on the development of the site in accordance with the Town Planning Scheme provisions and the approval issued by the Shire of Mundaring. That applicant is advised that the Commission considers the appropriate form of tenure to be a built strata application.'

The Tribunal decision

In the paragraph immediately following the paragraph last quoted, the Tribunal said this, under the heading 'The central issue' [46]:
Thus, the following issue arises for determination in this review: Is it a proper exercise of discretion in the circumstances of the case to obligate the applicant to build the proposed facility before the issue of strata titles in respect of subdivision?
The Tribunal reviewed the Commission's case, in respect of which it identified the Commission's position that:
questions of amenity are a particular concern in this case because the occupants of the site will be old and frail, and because there is a noise‑sensitive premises on the adjoining lot (that is, the meditation centre) [47].
The Tribunal referred to the '[r]elevant objectives of the MRP [the Metropolitan Rural Policy (December 1995)]' [48]; to the 'objectives of DC 1.1 [Development Control Policy 1.1 subdivision of land ‑ general principles]' [49]; to expert opinion evidence of a Mr M S Logan, 'a senior town planner and team leader of the respondent's planning appeals unit' [50]; to the 'draft management statement' for the proposed development [59] and to the Commission's 'internal report leading to a decision on the application' [60].
The Tribunal also referred to the written submissions of 'the trustees of the owner of the neighbouring Lot 78' [62] (the applicants in the present proceedings), describing those submissions as, 'on questions of both the law and the practicalities of the proposed development, mainly centred on the enforceability of certain conditions of the subdivision' [63]. The contentions as to enforceability were discussed in the Tribunal decision [66] and [67], by reference to Teller Properties Pty Ltd v Randwick City Council [1994] NSWLEC 97 as well as Re Shire of Mundaring [34] ‑ [36] (McLure JA). Those contentions were ultimately rejected.
The Tribunal also referred to Commercial Properties' case, in terms of the evidence of a Mr C R Hartz, 'its Director and Principal', to the effect that 'staged developments were not an unusual arrangement, and that there were advantages for both the developer and for buyers in a survey-strata proposal', evidence the Tribunal said was 'backed up' by evidence of a Mr A I Pagett, 'a legal practitioner involved extensively "in providing legal advice to proponents and operators of retirement villages"' (the Tribunal decision [70]). The Tribunal also referred to further expert evidence for Commercial Properties from a Mr A A Stewart, a 'senior town planner' [71]. I will return later to this expert evidence as summarised in the Tribunal decision.

The analysis in the Tribunal decision relevant to me is as follows ([4] ‑ [9] and [72] ‑ [77]):
The Western Australian Planning Commission refused to grant its consent for subdivision, as Commercial Properties had sought a survey‑strata. However, the Western Australian Planning Commission would have approved a built strata subdivision.
The Tribunal noted that 'survey strata titles [would] enable the lots to be sold as vacant lots; that is, without any buildings on the individual lots'.
The Western Australian Planning Commission was concerned that without buildings being in place prior to subdivision there might be an amenity impact arising from the existence of separate titles (and vacant lots), leading to uncoordinated construction occurring over time, and endangering the funding and maintenance of communal facilities.
The Commission did not have in place any written policy governing such a case.
The Tribunal decided that on the facts of the case there was insufficient justification in terms of underlying planning values or principles 'to warrant the imposition of a significant restraint upon the owner/developer's otherwise lawful and approved use of its land'.
Therefore, the Tribunal set aside the decision under review and surveystrata subdivision approval was given by the Tribunal upon extensive conditions.
...
The unique nature of the proposed development and the site's drawn out (and, perhaps, peculiar) context and history makes the application of the respondent's broad land use policies' objectives in this area problematic. The respondent's specific policy on strata titles (DC 1.3) does not address this particular situation. Accordingly, Mr Logan properly concedes that either strata path is legally and administratively available for the land. He also thought, however, that this context meant that it might be difficult to regulate such cases by a written policy; in any event, notions of proper and orderly planning were a sufficient basis to underwrite the respondent's concerns.
On the formulation of a written policy, we are not so sure. It can be reasonably imagined that the Commission might wish to formulate guidelines (for itself and local government) wherever questions arise about staged development and amenity and infrastructure concerns, especially perhaps given the growth market of facilities for aged and frail persons. The notion of orderly and proper planning is an overarching principle that might be the basis for such a policy exercise, but it does not offer much direct assistance in addressing the specific issues in this case.
Accordingly, absent such considered work, the matter boils down to an exercise of discretion as to whether in this case sufficient justification in terms of underlying planning values or principles has been advanced to warrant the imposition of a significant restraint upon the owner/developer's otherwise lawful and approved use of its land.
In Woodlands v Sutherland Shire Council [1994] NSWLEC 28, Bannon J said (emphasis added):
'The [Hebron Retirement] Village [there under consideration] is so built and arranged that it is suitable for strata subdivision. To approve a strata plan does not appear to me to be inconsistent with the status of Hebron as a retirement village, nor with the terms of the [governing] Corella Trust. There is nothing in the objectives of the Corella Trust to prevent it applying equally to land the subject of a strata plan, or land which is not so subject. Mr Malcolm's fears of profit making are not for this Court to decide. Building units, selling them and utilisation of the moneys obtained, to build more units, does not appear to me to be inconsistent with the objectives of the Corella Trust nor with the housing needs of the Local Government area, for elderly persons.'
Although these observations were made in the context of a public charity and under a different regulatory regime (a deemed refusal in respect of development approval, under the Strata Titles Act 1973 (NSW)) they suggest that there is no reason why strata arrangements leading to the '[b]uilding [of] units, [the subsequent] selling [of] them and [the] utilisation of the moneys obtained, to build more units' offends any basic planning principle or value.
We are of the view that the respondent's position cannot be maintained. There is of course merit in Mr Logan's various concerns summarised above. However, these regulatory concerns are, in our respectful opinion, insufficient to warrant refusal of a survey‑strata. This is so because we think that:
a)no essential planning principle is breached;
b)there is no directly applicable, or sufficiently specific, written policy in place demonstrating why a survey-strata subdivision might be inappropriate;
c)the respondent's expert properly and fairly concedes that a built strata is a desirable (but not necessarily a critical) outcome;
d)conditional development approval has been given by the local government (consistent with a long history of similar approved uses for the land);
e)there are significant land use controls in place at the Shire level; and
f)at least some of the respondent's concerns can be sufficiently regulated directly or indirectly through the application of proper conditions.
I turn now to consider the grounds for the orders the applicants seek.

Ground 1.1

The applicants contended that in the Tribunal's exercise of its review jurisdiction the Tribunal treated the nature of its functions or powers in terms of what appears in the Tribunal decision under 'The central issue' in [46] above. This treatment, the applicants said, was reflected throughout the Tribunal's review of the evidence and in its analysis.
On that contention the Tribunal failed to exercise the functions and discretions under PD Act s 135, namely, to determine whether or not to approve the survey-strata plan of subdivision. Rather, the Tribunal approached the matter before it as if the functions and discretions to be exercised were whether or not a survey-strata plan of subdivision was appropriate to the proposed development, rather than a strata (or built) plan of subdivision. In doing so the Tribunal failed to determine a jurisdictional fact, namely, whether or not it was appropriate to approve the plan of subdivision by the survey-strata plan under PD Act s 135.
In my view the Tribunal did not misapprehend or disregard the nature of its functions and powers in the way relied upon by the applicants. Nor did the Tribunal act in circumstances where a requirement, the satisfaction of which was an essential condition of its jurisdiction, was not satisfied. The following are my reasons for these conclusions.
It is indeed the case as counsel for the applicants contended that the requirement under ST Act s 25, for the Commission's approval of a subdivision by strata plan, is different from that under s 25B, for the Commission's approval of a subdivision by survey‑strata plan. The difference lies not only in the provisions under which the approval is given - ST Act s 25 itself in the first case, and the provisions in the PD Act made applicable by ST Act s 25B(1), most notably PD Act s 135, in the second case. The difference also lies in what appears to be an approval with a single component in the first case and an approval with two components in the second, as I have indicated. The two components are the approval of the plan of subdivision and the approval of the diagram or plan of survey.
Although I do not consider the contrary was put to me, I should note that it is clear to me the Tribunal understood it was addressing an application for approval under ST Act s 25B. This is most clearly seen in its consideration of certain submissions about the difficulties, relating to the management of the proposed development, its facilities and 'related amenity issues' (the Tribunal decision [63]), arising from individual ownership of units in a survey-strata title development. In the Tribunal decision [67], the Tribunal quotes a passage from Re Shire of Mundaring that includes a specific reference to approval under ST Act s 25B:
More specifically, and relating directly to the present case, in Re Shire of Mundaring McLure JA (Steytler P, Pullin JA agreeing) observed, at [34] ‑ [36] (emphasis added):
'The applicants [the third party here] did not rely on any evidence or clearly identify the basis for their assertion that a survey-strata title development is inconsistent with the permissible primary uses or their related claim that a strata title development was incapable of satisfying condition 18 ["To preserve the character of the development as a rest home …"] of the approval. As I understand the submission, the substance of the objection is to individual ownership of the units (and any associated limitations on management and control) not the means for achieving ownership.
I am not satisfied that owner occupation of the proposed units is inconsistent with an aged and dependent persons' home, rest home or retirement centre. The conditions of [development] approval of the proposed development, in particular conditions 18 and 20 ["All occupants of each grouped dwelling unit shall be aged over 55 years"], give the development the requisite status. Further, there is no necessary inconsistency between ownership of the units and ongoing compliance with conditions 18 and 20 upon which the continuing occupation of the development will depend. Regardless of who owns the units, all the occupants will no doubt be called upon, directly or indirectly, to bear the cost of the facilities the subject of condition 18 whether or not the occupants choose to avail themselves of their entitlement to use them.
I accept that the mechanism for securing continued compliance with condition 18 will in due course require close consideration. That mechanism will be the detailed management statement in which issues of ongoing use and management will be addressed (see s 5C, s 6, s 6A and s 42 of the Strata Titles Act). Whether the proposed survey-strata scheme (including the detailed management statement) is adequate to ensure continuing compliance with the conditions of planning approval is a relevant consideration in determining whether to approve any proposed survey-strata scheme. However, the application considered by the Council of the Shire was an application for planning approval. It was not an application to approve a survey-strata scheme. The Council does not have the power to approve such an application. Further, the planning approval does not endorse or approve the development on the basis that it is to be strata titled. The subdivision of land by a survey-strata scheme requires approval by the Western Australian Planning Commission ('Commission'): s 25B of the Strata Titles Act. The Shire's role is to provide comment to the Commission on the scheme which would include the scheme's ability to secure continuing compliance with the conditions of planning approval.'
True it is there is no reference in the Tribunal decision to PD Act s 135. However, in view of the quotation just provided I am not convinced the Tribunal did not appreciate the approval applied for was by reference to the PD Act provisions referred to in ST Act s 25B(1), including PD Act s 135.
Indeed, I note that the references to planning policies in the section of the Tribunal decision headed 'Planning framework' ([17] ‑ [22]), to which the Tribunal returned at [48] ‑ [51], [71] a) ‑ d) and [72] ‑ [74], included references to the Commission's Development Control Policy 1.3 Strata Titles (Policy DC 1.3) (see [21], [71] c)). While the Tribunal does not quote from Policy DC 1.3 in the Tribunal decision, I note [3.2.4] of Policy DC 1.3, which reads:
The creation of survey-strata lots will be dealt with under Part III of the Town Planning and Development Act [now PD Act Part 10], which means the full involvement and responsibility of the Commission, to the same extent as with the creation of conventional lots. Accordingly, the Commission is able to impose conditions, including the setting aside and vesting of reserves where appropriate.
In view of that paragraph, and the quotation from Re Shire of Mundaring above, I consider that the Tribunal understood its approval was what I have described as the first component of the approval under PD Act s 135, the approval of the plan of subdivision.
However, the gravamen of the submissions of counsel for the applicants with respect to ground 1.1 was that the Tribunal misapprehended or disregarded an essential element of the nature of its power of approval by failing to recognise the need to approach its task by reference to a subdivision of 'conventional lots'. This recognition, counsel for the applicants submitted, is what ST Act s 25B(1) required by making the provisions of the PD Act referred to, including s 135, applicable to a subdivision by survey-strata plan. By comparison ST Act s 25, subject to s 25A, made PD Act s 135 inapplicable to a subdivision by strata plan. This difference required the construction contended for. This construction was what Policy DC 1.3 [3.2.4] correctly reflected.
The submission of counsel for the applicants was that the requirement referred to made it an essential element of the nature of the decision‑making power for the decision-maker to determine the appropriateness of the subdivision under the proposal before it.
Counsel for the applicants submitted that the Tribunal's failure to make that determination was to be seen in its identification of 'The central issue' in [46] and its statement that the 'matter boils down to' the issue identified in [74]. This failure was, counsel for the applicants said, reflected throughout the Tribunal decision.
I accept that neither [46] nor [74] refers to the need to consider the appropriateness, with or without conditions, of the subdivision under the proposal before the decision-maker, that is, the subdivision under the survey‑strata plan before the Tribunal. I further accept that such a consideration is logically separate from and prior to the matter referred to in those paragraphs, that is, the matter of whether or not subdivision by strata plan (or built strata) was preferable to subdivision by survey-strata.
Counsel for the applicants submitted that had the Tribunal in fact not failed to make the determination of appropriateness referred to, it would at least have engaged with the consideration described in Policy DC 1.3 [3.5], a consideration reflected in other policies relevant to the application before the Tribunal, as I will indicate below under ground 1.2.
Policy DC 1.3 [3.5] reads:
3.5 Strata Titles in Rural Areas
The Commission's Policy No. 3.4. Subdivision of Rural Land provides a framework for planning in rural areas. Emphasis is placed on rural strategies as a mechanism for rational decision-making for the future zoning, subdivision, strata titling and development of rural land. The general principles of the policy apply equally to strata schemes and conventional subdivisions. In considering proposals for survey-strata subdivision, in combination with management statements and restrictions under Section 6 of the Strata Titles Act, the appropriateness of subdivision of rural land in any particular area will remain a fundamental consideration for the Commission. The nexus between land area (proposed lot sizes) and the agricultural activity applicable to the land, subject to an application to subdivide, is an important aspect of this consideration. (emphasis of counsel for the applicants added).
There was in the present submission of counsel for the applicants a clear overlap between the present ground and ground 1.2 below. However, in relation to the present ground, counsel for the applicants said the failure to have due regard to the application of Policy DC 1.3 [3.5], among other policies to a similar effect, was because the Tribunal had approached the task before it as indicated in Tribunal decision [46], with the consequence in [74].
I consider this submission more closely below, and conclude that the submission is well founded. However, in my view the submission does not establish that the Tribunal failed to consider the appropriateness of the subdivision of the property under the survey-strata plan proposed. At most the submission establishes that the Tribunal made an error in how it undertook that consideration.
I accept that PD Act s 135 required the Tribunal to consider the appropriateness of subdivision under the survey-strata plan before it. I further accept that that requirement was, as a matter of construction of s 135, an essential or fundamental element of the power of approval that s 135 recognised. The requirement was essential or fundamental in the sense that the power could not be validly exercised without satisfaction of that element: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [93] (McHugh, Gummow, Kirby and Hayne JJ) and the discussion in Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695 [136] ‑ [160] (Tobias JA), [21] (Spigelman CJ) and [49] (Ipp JA). Therefore it would be jurisdictional error for the Tribunal to exercise the power to grant approval as it did without satisfaction of that element.
However, I am not convinced the Tribunal committed a jurisdictional error in that respect. I am unable to see how the contrary submission can stand with the following from the Tribunal decision [50], [72] and [77], one of which paragraphs I have previously cited but for convenience I repeat here:
Mr MS Logan, a senior town planner and team leader of the respondent's planning appeals unit, submitted expert opinion evidence on behalf of the respondent. He told the Tribunal that the respondent accepted that the proposal was capable of subdivision as had been proposed, but he nevertheless argued in favour of a built strata rather than a surveystrata.
…
The unique nature of the proposed development and the site's drawn out (and, perhaps, peculiar) context and history makes the application of the respondent's broad land use policies' objectives in this area problematic. The respondent's specific policy on strata titles (DC 1.3) does not address this particular situation. Accordingly, Mr Logan properly concedes that either strata path is legally and administratively available for the land. He also thought, however, that this context meant that it might be difficult to regulate such cases by a written policy; in any event, notions of proper and orderly planning were a sufficient basis to underwrite the respondent's concerns.
…
We are of the view that the respondent's position cannot be maintained. There is of course merit in Mr Logan's various concerns summarised above. However, these regulatory concerns are, in our respectful opinion, insufficient to warrant refusal of a survey‑strata. This is so because we think that:
a)no essential planning principle is breached;
b)there is no directly applicable, or sufficiently specific, written policy in place demonstrating why a survey-strata subdivision might be inappropriate;
c)the respondent's expert properly and fairly concedes that a built strata is a desirable (but not necessarily a critical) outcome;
d)conditional development approval has been given by the local government (consistent with a long history of similar approved uses for the land);
e)there are significant land use controls in place at the Shire level; and
f)at least some of the respondent's concerns can be sufficiently regulated directly or indirectly through the application of proper conditions. (emphasis added)
As I read [77] c) in the context of [50] and [72], the Tribunal determined that it was appropriate to subdivide the property by the survey-strata plan before it, at least if 'proper conditions' were imposed.

Of course, there is a question whether or not the Tribunal arrived at that conclusion as a result of failing to have the 'due regard' to relevant planning considerations required by PD Act s 241, including Policy DC 1.3. However, that question is not directly involved in the present ground. Rather, it is directly involved in ground 1.2 below.
However, I should note that I understood the counsel for the applicants to have submitted that, had the Tribunal properly understood the nature of its power as recognised in PD Act s 135, it would have concluded that subdivision under the survey-strata plan before it was inappropriate, and thus approval of the subdivision had to be withheld. Counsel for the applicants addressed argument to me to show that the proposed development raised concerns both under the rural land use policies such as the Metropolitan Rural Policy and under the special purposes zoning of the property. Such concerns could best be effectively managed[rls2] by arrangements under the Retirement Villages Act 1992 (WA) rather than arrangements of a strata title kind; but in any event those concerns could not be effectively managed under a survey-strata scheme.
I am not convinced, however, that the Tribunal could not have arrived at a different conclusion as to the appropriateness of subdivision than that which I consider it reached. My reasons for that view appear in relation to the next ground, 1.2.
It follows that I would not uphold ground 1.1.

Ground 1.2

It was not in contest before me that the failure to 'have due regard to relevant planning considerations' (PD Act s 241(1)) would constitute a jurisdictional error within McCourt [16]. Counsel for the applicants submitted, as I have previously indicated, that the jurisdictional error contended for should be placed in the second or the fourth category[rls3] referred to in [16]. There is support for the former classification in Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 [28] (Parker J), [1] (Malcolm CJ) and [2] (Anderson J). Nothing seems to turn on which classification is correct or better. What is in important contest is whether there was the failure referred to.
I should note at the outset that counsel for the applicants appeared from time to time to refer to the policies that I will shortly reach as 'State planning policies', while senior counsel for Commercial Properties referred to 'planning policies'. The former is a defined phrase in PD Act s 29, and the latter may or may not have been meant as an equivalent. It is not clear to me, however, that the parties intended those phrases to have the meaning given in PD Act s 29, which is relevant for the purposes of s 241(1)(a). However, I consider that the parties did mean the phrases to refer to 'relevant planning considerations' within s 241(1), and that is how I have treated those references.
Senior counsel for Commercial Properties submitted that it could not be asserted that the Tribunal failed to have 'due regard' to 'relevant planning considerations' for the purposes of PD Act s 241(1) when account was taken of the Tribunal decision [47] ‑ [51], [63], [71]‑ [72] and [77]. I have previously reproduced some of these paragraphs, but set them all out here for convenience:
The respondent alleges that questions of amenity are a particular concern in this case because the occupants of the site will be old and frail, and because there is a noise‑sensitive premises on the adjoining lot (that is, the meditation centre).
The respondent's concerns ultimately may be found, albeit at a most general level, in parts of its existing policy framework, mentioned above. Relevant objectives of the MRP thus include the following aims:
•'[to] remove or reduce existing and potential conflicts between incompatible land uses;
•[to] safeguard the operations of existing and future special uses.'
Similarly, objectives of DC 1.1 include the following aims:
•'to ensure that subdivision is consistent with orderly and proper planning;
•to facilitate development which achieves appropriate standards of health, safety and amenity.'
Mr MS Logan, a senior town planner and team leader of the respondent's planning appeals unit, submitted expert opinion evidence on behalf of the respondent. He told the Tribunal that the respondent accepted that the proposal was capable of subdivision as had been proposed, but he nevertheless argued in favour of a built strata rather than a survey‑strata.
Mr Logan acknowledged during the hearing that the respondent did not have a written policy that dealt specifically with this issue, namely when it was appropriate to favour the use of a built strata over a surveystrata. However, Mr Logan argued that the lack of a written policy was not so significant because, in this particular case, the land use was unusual because of both its special zoning (that is, special purpose - rest home) and because it adjoined another lot with land use that was also unusually zoned (that is, special purpose - meditation). Consequently, the situation was created where amenity had itself become a very significant issue. The lack of a written policy was less important because the unusualness of the situation would have been unlikely to have ever been contemplated by such a policy.
…
One of the trustees, Mr DH Solomon, provided extensive written submissions on questions of both the law and the practicalities of the proposed development, mainly centred on the enforceability of certain conditions of the subdivision. In this context, there were concerns with the management of the operation, its facilities and related amenity issues. The concerns advanced by the trustees are not, speaking generally, inconsistent with the respondent's arguments, although the trustees were critical of the respondent's presentation or view of certain of the issues. The third party also sought to have certain conditions made in its favour, if the subdivision were approved.
…
Mr AA Stewart, a senior town planner employed by Greg Rowe and Associates, gave expert evidence for the applicant. In summary, he told the Tribunal that:
a)There was, in his opinion, no impediment in either TPS 3 or any associated planning instrument to the approval of a surveystrata.
b)To the extent that any of the following instruments had any relevance, the proposal was not inconsistent with either SPP 2.5, the MRP, DC 1.1, DC 3.4.
c)The proposal was consistent with any regulatory factor identified in DC 1.3 (dealing with strata titles). Thus, there was compliance with TPS 3 and matters such as water and sewerage, lot layout, access and the like.
d)Notions of 'orderly and proper planning' were essentially met by compliance with TPS 3.
e)The survey-strata application 'present[ed] the [r]espondent with an opportunity to impose an extra level of control to ensure [that] the site is developed in accordance with the Shire's approval'.
f)The Shire's approval 'will require the community facilities to be constructed and maintained whilst any of the dwellings are occupied, regardless of the ownership or the timing of construction of [the] dwellings on the remaining vacant lots'.
g)Any loss of amenity would be 'temporary'.
h)He agreed with the observation recorded in an internal email from one of the respondent's senior officers (Ms L Baxter) that 'this type of development lends itself to surveystrata …'
The unique nature of the proposed development and the site's drawn out (and, perhaps, peculiar) context and history makes the application of the respondent's broad land use policies' objectives in this area problematic. The respondent's specific policy on strata titles (DC 1.3) does not address this particular situation. Accordingly, Mr Logan properly concedes that either strata path is legally and administratively available for the land. He also thought, however, that this context meant that it might be difficult to regulate such cases by a written policy; in any event, notions of proper and orderly planning were a sufficient basis to underwrite the respondent's concerns.
…
We are of the view that the respondent's position cannot be maintained. There is of course merit in Mr Logan's various concerns summarised above. However, these regulatory concerns are, in our respectful opinion, insufficient to warrant refusal of a surveystrata. This is so because we think that:
a)no essential planning principle is breached;
b)there is no directly applicable, or sufficiently specific, written policy in place demonstrating why a survey-strata subdivision might be inappropriate;
c)the respondent's expert properly and fairly concedes that a built strata is a desirable (but not necessarily a critical) outcome;
d)conditional development approval has been given by the local government (consistent with a long history of similar approved uses for the land);
e)there are significant land use controls in place at the Shire level; and
f)at least some of the respondent's concerns can be sufficiently regulated directly or indirectly through the application of proper conditions.
When account of those paragraphs is taken, senior counsel for Commercial Properties said, the Tribunal may be seen to have identified the planning policies and the basis on which those policies were put in support of the parties' positions. Further, senior counsel for Commercial Properties submitted, the Tribunal had considered the policies and concluded that the application of some of them was 'problematic' and some did not apply, concluding also that 'no essential planning principle' was 'breached'.
Senior counsel for Commercial Properties rightly stressed that it was not for this Court to consider whether or not the Tribunal correctly decided the matter before it, including whether or not the Tribunal correctly weighed against each other the various considerations relevant to its decision: see Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 ‑ 41 (Mason J).
However, I consider that it is a different matter whether or not the requirement in PD Act s 241(1) was met here, as the authorities I shortly reach indicate. Further, I have concluded that that requirement was not met here. My reasons for this conclusion follow.
There appeared to be no contest between the parties that the following authorities sufficiently describe how I should approach the construction of PD Act s 241(1). The parties differ as to how to apply them to the present case.
In Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 the Court was concerned with recommendation[rls4] s by an advisory committee to the Minister for Community Services and Health for fees for pathology services. Gummow J said this at 623, referring to Peko‑Wallsend among other authorities:
Part 6 of the Schedule is headed 'Fees for pathology services' and is as follows:
'6.1 Where the Committee proposes to review fees for pathology services in any circumstances, or is required to consider a fee for a pathology service which the Committee recommends should be included in the table, the Committee shall maintain consistency, as far as is practicable, with fees for pathology services in the table which have similar utilisation rates and cost components, but shall have regard to -
(a) the direct labour cost of each service, being the proportion of wages and salaries of a laboratory which can be identified with and charged to that service;
(b) the direct materials cost of each service, being the cost of materials which are able to be identified with the rendering of that service and which are necessarily consumed in the rendering of that service; and
(c) other costs incurred in the provision of the service, including reasonable depreciation of equipment, reasonable return on capital expended on facilities and collection, storage and distribution costs.
6.2 Where the Committee proposes to act pursuant to sub-clause 6.1, it shall also have regard to generally accepted accounting practices, ensuring where possible that costings are based on efficient throughput and an appropriate sharing of costs and overheads between all relevant services and activities.'
Before the court, AAPP strongly contended the committee had not complied with Pt 6. The expression "shall have regard to" in Pt 6 requires the committee to take the matters so identified into account and give weight to them as fundamental elements in the conduct of its activities under Pt 6: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497; 53 ALJR 552 at 554 per Mason J, with whom Gibbs J agreed. The mere assertion by the committee that it has so acted will not be conclusive, if it is demonstrated that regard has not been had to these matters in any real sense: Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 per Toohey J. But, of course, in proceedings of this kind the limited role of the court must be borne in mind (… Peko‑Wallsend … at 40‑1 per Mason J).
In Epic Energy the authority of Queensland Medical Laboratory was referred to with approval; at the same time the importance of the statutory language and the nature of the matter to which regard is to be had was stressed. I set out Epic Energy [28] and [52] ‑ [56] (Parker J), referring to among other authorities Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152, as follows:
Epic contends that in the draft decision the Regulator, in particular, fell into jurisdictional error by misconstruing the Act and the Code with the result that he misconceived the nature of the function he was performing and was led to identify wrong issues and ask wrong questions which affected the Regulator's decision: Craig … at 179; … Yusuf … at [82]. With particular regard to s 2.24 of the Code, it is submitted that where the Regulator is required in exercising a statutory power to take into account or to give effect to a specified matter, he is required to give weight to that matter as a fundamental element in making the determination; R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, Queensland Medical Laboratory … A failure to do so, it is submitted, arising from a misconstruction of the statute, constitutes jurisdictional error. While there is a live issue as to the true effect of s 2.24, I do not understand there to be serious dispute between the parties as to these principles.
…
The submissions of the parties in this regard proceeded by analogy with legislative requirements such as 'must have regard to' or 'shall have regard to'. The researches of counsel had not identified any decision in which the precise phrase used in s 2.24 had been the subject of judicial consideration. In R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 the question arose in the context of a statutory requirement that a departmental head 'have regard to costs necessarily incurred' when determining the scale of fees. At 329 Mason J (Gibbs J concurring), said:
'When sub‑s(7) directs the Permanent Head to "have regard to" the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. There are two reasons for saying that the costs are a fundamental element in the making of the determination. First, they are the only matter explicitly mentioned as a matter to be taken into account. Secondly, the scheme of the provisions is that, once the premises of the proprietor are approved as a nursing home, he is bound by the conditions of approval not to exceed the scale of fees fixed by the Permanent Head … In the very nature of things, the costs necessarily incurred by the proprietor in providing nursing home care in the nursing home are a fundamental matter for consideration.'
In the R v Toohey & Anor; Ex parte Meneling Station Proprietary Limited & Ors (supra) the issue arose in the context of s 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which, in subsection (3), required that the Commissioner in making a report in connection with a traditional land claim 'shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on" each of a number of matters. At 333 Gibbs CJ observed:
' … the section draws a clear distinction between those matters to which the Commissioner "shall have regard" and those upon which he "shall comment". When the section directs the Commissioner to "have regard to" the strength or otherwise of the traditional attachment by the claimants to the land claimed … it requires him to take those matters into account and to give weight to them as a fundamental element in making his recommendation. (His Honour referred to R v Hunt). When the section directs him to comment on the matters mentioned in pars (a) to (d) of sub-s(3), it requires him to remark upon those matters and to express his views upon them. The change in language is so significant that notwithstanding the difficulties of the section I find it impossible to reach any conclusion other than that a significant change of meaning is intended, and that the matters which form the subject of the comment are not matters to which the Commissioner is bound to have regard in making his recommendation.'
However, as Sackville J observed in Singh … at [54] the expression 'have regard to' is capable of different meanings, depending on its context, and
' … can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.'
In that case, the learned Judge was persuaded that the requirement in s 54(1) of the Migration Act 1958 (Cth) that the Minister, in determining a visa application, must have regard to all the information in the application, did not require the Minister to take into account the information in the application as a fundamental element in the decision-making process because at [57]:
'It could hardly have been contemplated by the drafters that every piece of information selected for mention by an applicant, no matter how marginal its relevance to the issues to be determined, must be treated by the decision-maker as a "fundamental element" in making the determination.'
In this context, Alinta relied on Rathborne v Abel (1964) 38 ALJR 293 where the issue was whether, in the determination of the fair rent of prescribed premises under the Landlord and Tenant (Amendment) Act 1948-1961 (NSW), the current capital value of the premises might properly be taken into account even though this was not among a list of matters that by s 21(1) the Board was 'to have regard to', and even though it was regarded by the members of the Court as 'truly material to the fairness of a determination', per Kitto J at 301. As is apparent from the reasons of Barwick CJ at 295 there was a marked contrast between earlier legislation which for this purpose prescribed what his Honour described as almost a mechanical process of calculation, and the scheme of the 1948 Act which was to give a wide discretion 'doing no more than to require the Tribunal, the Board, "to have regard to" a number of matters, which include "the justice and merits of the case" and "the circumstances and conduct of the parties"'. The generality of such matters and the breadth of discretion which they contemplated, together with the contrast with the previous legislation, were clearly factors which persuaded the Court that the specified matters were not intended implicitly to exclude a factor which was truly material or necessarily central to the legislative task in question. The decision in Rathborne v Able is strongly influenced by the particular statutory scheme which had a 'rather different scope and purpose' from the present Code, to borrow the words and view expressed by Gummow J of Rathborne v Able in Australian Capital Television Pty Ltd v Minister for Transport and Communications & Ors (1989) 86 ALR 119 at 145. In that case, in the context of s 94M(1) of the Broadcasting Act 1942 (Cth), in respect of the matters which the Minister was required 'to have regard to' when considering whether or not to approve a television license, Gummow J was persuaded that the matters specified were required to be taken into account by the Minister and to be given weight as fundamental elements in his decision. His Honour reached a similar view of the requirement in the Schedule to the Health Insurance Act 1973 (Cth) that the Minister's Advisory Committee 'shall have regard to' certain matters when undertaking a general or fee review in Queensland Medical Laboratory & Ors v Blewett & Ors (supra) at 623.
It is clear that an expression such as 'have regard to' is capable of conveying different meanings depending on its statutory context. In s 2.24 the phrase 'must take the following into account' is apt to convey as an ordinary matter of language that the Regulator must not fail to take into account each of the six matters stipulated in (a) to (f), and by (g) any other matter the Regulator considers relevant. If anything, 'take into account appears, as a matter of language, little different from 'have regard to'. Indeed, in R v Hunt the expression 'have regard to' was understood as requiring that the specified matters be taken into account. The matters specified in (a) to (f) appear, by their nature, to be highly material to the task of assessing a proposed Access Arrangement, given the legislative purpose and objects of the Act and the Code in this regard. It is difficult to conceive that it could have been intended that the Regulator might decide to give no weight at all to one or more of the factors stipulated in s 2.24(a) to (f). In my view, in the context of the Act and the Code, the Regulator is required by s 2.24 to take the stipulated factors into account and to give them weight as fundamental elements in assessing a proposed Access Arrangement with a view to reaching a decision whether or not to approve it.
A similar issue arises with respect to s 8.10 which requires that factors (a) to (k) 'should be considered in establishing the initial Capital Base' for a pipeline. Given the scheme of s 8 with respect to the Total Revenue and the relevance to that of the Capital Base, and the nature of the factors identified in s 8.10, including (k) which enables the Regulator to also consider any other factor the Regulator considers relevant, I am persuaded that the Regulator is required by s 8.10 to take into account factors (a) to (k) and to give weight to them as fundamental elements in his decision in establishing the initial Capital Base.

Senior counsel for Commercial Properties put to me that 'due regard' meant giving the matter (that is, the relevant planning considerations) such weight as the decision‑maker considered appropriate in relation to the essential nature of the element that the matter identifies. It was in this sense that the planning considerations were required to be given weight as a 'fundamental element' in making the decision.
However, in my view on Queensland Medical Laboratory and Epic Energy, 'due regard' is not, as it appeared senior counsel for Commercial Properties would have had me conclude, to be construed as leaving the question of the assignment of weight to the decision-maker. Rather the weight to be assigned depends on the nature of the matter in question (the planning consideration). If the planning consideration is 'highly material' to the decision then it must be given weight as a 'fundamental element': Epic [55]; and see Queensland Medical Laboratory 623. If the planning consideration is of 'marginal … relevance' to the decision, then the weight to be assigned would not be that of a 'fundamental element': Epic [54]. In both cases 'due regard' is being had to the planning consideration, but in the second case, 'due regard' requires the decision-maker 'merely to consider' the matter: Singh [54] as quoted in Epic [54].
The authorities relied upon by senior counsel for Commercial Properties do not in my view lead to a different view of the application of those principles. Those authorities were South Australian Planning Commission v Dorrestijn (1984) 36 SASR 355 (FC), which was reversed sub nomDorrestijn v South Australian Planning Commission (1984) 56 ALR 295 but not, I accept, on the points material to me; and Corporation of the Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161.
It is convenient to refer only to Corporation of the Town of Walkerville which, like Dorrestijn, was concerned with Planning Act 1982 (SA) s 47(9), reproduced in the judgment of King CJ (185) as follows:
(9)In deciding whether to consent to a proposed development under this section, a planning authority shall have regard to the provisions of the Development Plan so far as they are relevant to that decision.
Of relevance to me, King CJ said (187 - 188; see 193, per O'Loughlin J):
The Development Plan is the focal point of the planning regime instituted by the 1982 Act. Its central importance is emphasized by the disappearance of regulations from the scheme. The Plan provides the objectives and principles upon which development planning is to be based. It is the charter by whose guiding principles future development is to be planned. The mandate 'to have regard to' the provisions of the Plan requires the authority to give to the plan the weight which is due to it as the focal point of the planning regime. I indorse what was said about the status purpose and importance of the Plan by Wells J in Hassen v District Council of Murray Bridge and Onsoy [(1984) 35 SASR 448] and by Jacobs J in the present case. As was pointed out by Wells J in Hassen's case, however, the Plan is in the nature of a planning document and is couched in the language of planning objectives and principles rather than that of legal obligation. Jacobs J in the judgment appealed from in this case described the language of the principles in the Plan as 'advisory'. Perhaps that word read out of context does not attach sufficient force to the language of the principles, but it is nevertheless language appropriate to the expression of goals and guiding principles rather than to the expression of legal mandates. If the provisions of the Plan were understood as binding norms to which all planning decisions must conform, it would indeed 'find action in the front line a responsibility for the discharge of which neither its language nor its structure is appropriate' (Hassen's case, at p 459). That, however, is not its function, as the Full Court has indicated in Dorrestijn's case [(1984) 36 SASR 355]. For all the importance of the Plan, there is a discretion, ultimately unfettered, in the Planning Authority to take other considerations into account and to make decisions which are not in conformity with the Plan.
The discretion of the Planning Authority, although unfettered, must, like all discretions, be exercised for the purpose for which it is given. It must therefore be exercised for the purpose of attaining the planning objectives of the Act. Although the authority, having given proper consideration and due weight to the provisions of the Development Plan, may depart from it in the exercise of its discretion, it may do so only upon grounds which are properly related to the planning objectives of the Act. If the discretion were exercised arbitrarily or upon grounds not properly related to planning objectives, the exercise would miscarry.
This appeal to the Supreme Court is from a decision of the Planning Appeals Tribunal. If in reaching its decision the Tribunal failed 'to have regard to' the provisions of the Plan, it would have erred in principle and its decision would be vitiated. The Tribunal purported to consider the Plan. In the course of the reasons for its decision it said:
'Set out in the Principles of Development control relevant to this Zone are a list of the kinds of development which are prohibited. An hospital, of any kind, is not a development specifically prohibited; nor are consulting rooms or suites. It follows, therefore, that the proposed development is one to which the Council may give consent. Messrs. Main and Turner dealt seriatim with the relevant Objectives and Proposals of the Development Plan which apply to both Metropolitan Adelaide and Walkerville. Each concluded, for the reasons each gave and on which each was very closely cross‑examined by both Mr McElhinney and Mr Whittington, that while the proposal is not in accord with the specific Objective of the Residential 3C Zone (and so contrary to the specific Principle of Development Control within that Zone with regard to the nature of development control), the proposal is consistent with other Principles of Development Control of general applicability. Both of those expert witnesses concluded the proposed development is desirable and warrants consent.
As we have said, we have examined closely their evidence where it is in conflict with the evidence given by Mr Wallman. For the reasons we have already given, we accept and prefer their evidence. We agree with their conclusions.'
There may, of course, be cases in which a decision is, to adopt the words of Wells J in The Queen v District Council of Berri [(1982) 31 SASR 342 at 359], 'so plainly obnoxious to an authorized development plan … and justification for such a signal departure from that plan is so clearly absent, that a Court will be persuaded to conclude' that the statutory mandate 'to have regard to' the Plan has not been complied with. This is not such a case. The Tribunal has given its reasons, whether one agrees with them or not, for its view that its decision conforms to the Plan. The correctness of its decision may be debated but I think that it is clear beyond controversy that it gave proper consideration to the Plan. (footnotes omitted) (emphasis added)
On that authority, having regard to the matters just emphasised, it seems to me that having 'due regard' to planning considerations that are highly material requires they be weighed accordingly. That weight does not prevent departure from those considerations. But that weight is fundamental weight.
As counsel for the applicants reminded me, Policy DC 1.3 [3.5] deals with the appropriateness of subdivision of rural land by survey‑strata. I have already quoted that paragraph in full. It refers to that appropriateness as a 'fundamental consideration'.
There is also the following in other policy statements of the Commission and the Ministry for Planning in relation to the subdivision of rural land to which counsel for the applicants directed my attention.
In the Commission's Development Control Policy 3.4 Subdivision of rural land dated March 2002 (Policy DC 3.4) [3.1.1], under the heading to section 3.1 'General Presumption Against Subdivision', the following appears:
There is a general presumption against subdivision of rural land unless it is specifically provided for in a town planning scheme, an endorsed local planning strategy or an endorsed local rural strategy.
It is not contended that any of the exceptions there referred to applies in this case.
In the MRP in [6.4] under the heading 'Subdivision Management' the following appears:
Strata schemes will not normally be permitted in rural areas except in the special circumstances set out in the Rural Land Use Planning Policy. This provides for strata subdivision of agricultural holdings, intensive rural development, multiple rural occupancy, tourist development and other special instances where strata subdivisions can be justified over conventional subdivision and appropriate management arrangements are in place.
It would seem that the reference to the 'Rural Land Use Planning Policy' should be taken to be a reference to Policy DC 3.4. It was not put to me that the Tribunal had invoked any of the exceptions referred to in its decision, nor is it apparent to me that the Tribunal had done so.
It cannot in my view be contested that the property is rural land for the purposes of those policies. The MRP applies by its terms (see 'Summary') to all land zoned rural in the Metropolitan Region Scheme, including land so zoned within the municipality of Mundaring. The property was of course so zoned, as well as having special purposes zoning for the purposes of the Shire of Mundaring Town Planning Scheme No 3, as the Tribunal decision [17] acknowledges.
It appears to me the same meaning is to be given to the expression 'rural land', or similar expression, in Policy DC 1.3 and Policy DC 3.4.
Accordingly Policy DC 1.3, Policy DC 3.4 and the MRP were sources of 'relevant planning considerations' within PD Act s 241(1).
In my view those policies, in the respects quoted, were by their terms 'highly material' to the decision in this case, rather than of 'marginal … relevance'.
In my view the Tribunal did not give those policies fundamental weight. Rather the Tribunal concluded that, because of the 'unique nature of the proposed development' and the property's 'drawn out (and, perhaps, peculiar) context and history', the application of the Commission's 'broad land use policies' objectives in this area' was 'problematic', while Policy DC 1.3 did 'not address this particular situation': the Tribunal decision [72].
The basis for those conclusions is in my view to be understood from the Tribunal decision [51], which I consider explains what is meant in [72] by 'this particular situation'. The explanation is in terms of the lack of 'a written policy that dealt specifically with this issue, namely when it was appropriate to favour the use of a built strata over a survey-strata'. The basis for the Tribunal's conclusions is relevance. In my view, that last consideration does not go to relevance.
The Tribunal's conclusion in my view indicated it had not weighed those policies as fundamental elements but rather had assigned them no or little weight because it had finally concluded that the policies were irrelevant or of marginal relevance. The Tribunal did this despite what was said in [21] where it described inter alia the MRP, Policy DC 1.3 and Policy DC 3.4 as 'relevant'. The Tribunal's final conclusion that the policies were irrelevant or of marginal relevance is most clearly seen in the Tribunal decision [74], when viewing that paragraph in the context of Policy DC 3.4 [3.1.1]. So viewed, the Tribunal decision [74] is the inverse of Policy DC 3.4 [3.1.1]. That inversion can only be explained, in my view, as the result of the Tribunal determining that Policy DC 3.4 [3.1.1] was irrelevant or of marginal relevance. In my view, for the reasons previously given, that determination was not open to the Tribunal.
This is not to say that, had Policy DC 1.3 and Policy DC 3.4, in the respects quoted, received 'due regard' as PD Act s 241(1) called for, the Tribunal would necessarily have refused to review the Commission decision. As I have indicated counsel for the applicants contended that such a result would have followed from that 'due regard'. However, I am not convinced that those policies, in the respects quoted, could not be met by reference to matters of the kind referred to by the senior town planner Mr Stewart and appearing in Tribunal decision [71] e) and g), when considered with the objectives for the proposed development described in the draft management statement as reproduced in Tribunal decision [59]:
1. To establish on the parcel an enclave of privately owned homes for the occupancy by persons aged 55 years and over only[,] and a communal social centre ('Community Centre') located on common property, all of which are linked together by a footpath network, are secure, are sympathetic to the local environment and more generally to the Mundaring 'hills' environment and which facilitate a socially interactive and rewarding lifestyle for senior citizens.
2. To provide a residential environment with facilities that allow, facilitate and enhance a Resident's independent living and supports the concept of ageing in place …
However, in my view the Tribunal did not weigh those matters against Policy DC 1.3 and Policy DC 3.4 in the respects that I quoted. This was because the Tribunal failed to give 'due regard' to those respects as required by PD Act s 241(1).
It follows that I would uphold ground 1.2.

Conclusions and orders

I have concluded the order nisi should be made absolute on ground 1.2.
I will hear from the parties as to the orders to be made to give effect to these conclusions.

[rls1]
This rubric used, because there are two refusals referred to in s 251: the refusal of approval of a plan in s 251(1) and the refusal endorse its approval on a diagram or plan of survey under s 145. See below. Seems a matter of taste whether two approvals or a composite approval, ultimately endorsed on a diagram or plan of survey.

[rls2]
TS 14

[rls3]
Applicants' WS [9]

[rls4]
NB applicants disagree about SA authorities; need to account for that disagreement below.