Re City of Perth; Ex parte Lord - [2002] WASCA 254

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE CITY OF PERTH; EX PARTE LORD & ORS [2002] WASCA 254

CORAM: PARKER J
TEMPLEMAN J
HASLUCK J

HEARD: 9 AUGUST 2002

DELIVERED : 12 SEPTEMBER 2002

FILE NO/S: FUL 91 of 2002
FUL 92 of 2002

MATTER :Application for a Writ of Certiorari against the City of Perth

EX PARTE
KELVIN ERNEST LORD
KAMINA HOLDINGS PTY LTD (ACN 009 178 474)
KELDEN SECRETARIAL SERVICES PTY LTD (ACN 009 089 454)
ROBERT JEFFREY BAKER
VERONICA ANN BAKER
Appellants (Applicants)
AND
CITY OF PERTH
First Respondent (First Respondent)
KERRYN BOHN
ANTHONY BURTON
LYNNE SYLVESTER BURTON
CHRISTOPHER JAMES UPSTONE
PAULA NEILAN
MICHAEL PETER LOTYCZUCK
PAUL MATTHEW WILSON
DARON NOMINEES PTY LTD (ACN 009 199 526)
REAGENT PTY LTD
CHAD BENJAMIN HENVILLE
DON COLASANTE
ROBERT COLASANTE
AMANDA LEE
SUNIL VARMA
PAUL JAMES BROWN
CARRI SOREL BROWN
Second Respondents (Second Respondents)

Catchwords:

Practice and procedure - Appeal from refusal of orders nisi

Administrative law - Prerogative writs of certiorari - Town planning - Local council approval - Whether Council approval was beyond its power - Whether there is jurisdictional error - Whether there are errors on the face of the record - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Orders nisi for writs of certiorari made absolute

Category: B

Representation:

Counsel:

Appellants (Applicants)  :        Mr C B Edmonds SC
First Respondent (First Respondent)                 :        Mr A Roberts
Second Respondents (Second Respondents)     :        Mr R L Le Miere QC

Solicitors:

Appellants (Applicants)  :        Kott Gunning
First Respondent (First Respondent)                 :        Minter Ellison
Second Respondents (Second Respondents)     :        Phillips Fox

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

Craig v The State of South Australia (1995) 184 CLR 163
Ex parte Helena Valley/Boya Association Inc & Ors; State Planning Commission and Beggs (1989) 2 WAR 422
Re Smith and the West Australian Development Corporation; Ex parte Rundle & Ors (1992) 5 WAR 295
Savage v Teck Explorations Ltd, unreported; SCt of WA; Library No 7285; 16 September 1988
Settlers Holdings Pty Ltd v Coles Myer Property Developments Pty Ltd & Anor [2000] WASCA 147

Case(s) also cited:

Ackroyd v Whitehouse (Director of National Parks and Wildlife Service) (1985) 2 NSWLR 239
ACI Operations Pty Ltd v Port Stephens Council & Ors [1998] NSWSC 784
Attorney-General for Western Australia v Cockram & Anor (1990) 2 WAR 477
Australian Electoral Electronics Foundry & Engineering Union Western Australia Branch & Ors v Hamersley Iron Pty Ltd (1997) 19 WAR 145
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Buck v Bavone (1976) 135 CLR 110
Burns v Grigg [1967] VR 871
Caswell & Anor v Dairy Produce Quota Tribunal for England and Wales (1990) 2 AC 738
Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135
Excell v Harris & Ors (1983) 51 ALR 137
Gales Holdings Pty Ltd v Tweed Shire Council (1999) 110 LGERA 235
Gavranich & Anor v Shire of Wanneroo & Anor, unreported; SCt of WA; Library No 980473; 25 August 1998
GB&G Consolidated Pty Ltd v Melbourne and Metropolitan Board of Works [1972] VR 641
Hussey v Horne-Payne (1878) 8 CH D 670
Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1982] AC 617
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kioa & Ors v West & Anor (1985) 159 CLR 550
La Roche v Cormack & Ors (1991) 33 FCR 414
Maloney v Commissioner for Railways (1978) 52 ALJR 292
Masterbuilt Pty Ltd v Hornsby Council (1995) 87 LGERA 169
Metwally v University of Wollongong (1985) 60 ALR 68
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2000) 180 ALR 1
Minister for Immigration v Eshetu (1999) 197 CLR 611
Mulholland & Anor v Mitchell [1971] AC 666
O'Brien & Ors v Komesaroff (1982) 150 CLR 310
Ocean View Plaza Pty Ltd v Western Australian Planning Commission [1999] WATPAT 5
Pacesetter Homes Pty Ltd & Anor v State Planning Commission (1994) 84 LGERA 71
R v Busselton Shire Council; ex parte Busselton Home Entertainment Pty Ltd (1993) 83 LGERA 188
R v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
R v Dixon; ex parte Ridler (1993) 2 Tas R 42
Re Refugee Tribunal; ex parte AALA (2000) 204 CLR 82
Re Western Australian Planning Commission; Ex Parte Leeuwin Conservation Group Inc [2002] WASCA 150
Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1
Salemi v MacKellar [No 2] (1977) 137 CLR 396
Smith v East Elloe Rural District Council & Ors [1956] AC 736
Talbot v Lane (1994) 14 WAR 120
Thomas v Appleton (1994) 35 ALD 481
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Tymor Pty Ltd v Executor Holdings Pty Ltd, unreported; FCt SCt of WA; Library No 930018; 14 January 1993
University of Wollongong & Ors v Metwally (No 2) (1985) 59 ALJR 481

PARKER J: I agree with the reasons for judgment of Templeman J and with the orders proposed by his Honour.
TEMPLEMAN J:

Introduction

A number of West Perth residents who are ratepayers of the City of Perth contend that the City Council ought not to have approved a multi‑storey residential development at 990-994 Wellington Street, West Perth, as it did on 13 February 2001 and again, on 1 December 2001. The second approval was thought to be necessary when the point was taken that the first approval might be invalid. This was because of the application for the first approval had not been signed by the registered proprietor of the land, which was then the City itself.
The residents sought orders nisi for writs of certiorari against the City, to quash both approvals on the grounds that they had been denied procedural fairness and that each decision was attended by jurisdictional error or that there were errors of law on the face of each record.
The first approval was attacked also on the ground that the application had not been signed by the owner of the land.
By order of Pullin J, the members of the joint venture who now own the land and propose to develop it in accordance with the approvals, were joined as parties to the order nisi applications.
The applications were heard together by E M Heenan J on 7 May 2002 and were dismissed on that day. His Honour held that no arguable case had been made out in respect of the second approval and that it was therefore unnecessary to consider the propriety of the first approval. However, it has emerged that two crucial assumptions upon which his Honour based his judgment were in fact, false.
The residents now appeal against the dismissal of their applications. The City and the joint venturers are respectively the first and second respondents. Both respondents appeared by counsel on the hearing of the appeals. However, counsel for the City informed the Court that he did not wish to be heard as the City adopted a neutral position. The contest is therefore between the appellants and the members of the joint venture, to whom I shall now refer as "the respondents".

In order to avoid any delay in resolving the outstanding issues, the parties invited the Court to deal with the substantive applications if persuaded that the appeals should be allowed.
Until a few days before these appeals were due to be heard, the appellants proposed to rely on the grounds which had been rejected by E M Heenan J. In essence, those grounds were that the Council had not exercised properly its discretionary power to approve the proposed development. However, leading counsel who was instructed by the appellants at a late stage, identified a further ground of appeal: that, as a matter of law, the approval was beyond the Council's power. The appellants sought to incorporate this ground by way of amendment to their Notices of Appeal. Their solicitors informed the respondents' solicitors a few days before the appeals were due to be heard of their intention to do so.
In moving the amendment, leading counsel for the appellants made comprehensive submissions about the new ground. The Court then invited leading counsel for the respondents to reply, so that the Court might assess the merits of the new ground.
Having considered the competing submissions, I am of the view that while the new ground was arguable, and would have warranted the grant of an order nisi in the ordinary course, in the end, it must fail. I would not, therefore, grant leave to amend the grounds of appeal. I now set out my matters for reaching that conclusion.

Did the Council have power to approve the proposed development?

The application for approval proceeded on the basis that under the City Planning Scheme ("the Scheme") a multiple dwelling, such as the proposed development, is a permitted use in Office/Residential Zone OR2. That is the zoning of the development site.
In order to determine whether a proposed use is permitted, it is necessary to refer to Table No. 1 in Part 3 of the Scheme. In that table, symbols are used to indicate whether a use is, or is not permitted, with or without conditions. The symbols are defined in cl 25 of the Scheme. Relevantly, for present purposes:
•'P' means that the land may be used for the purpose indicated in accordance with the Town Planning approval of the Council;
•'X' means that the land shall not be used for the purpose indicated.
In the present case, the proposed use is designated "P/X⁵", apparently suggesting that the use is both permitted and not permitted. The key to the resolution of this sublime paradox is contained in the suffix 5, which directs attention to cl 99G of the Scheme.
So far as presently relevant, cl 99G provides as follows:
"Where Town Planning approval is given for the use of land solely for residential purposes, development for those purposes shall conform:
…
(b)in the Office/Residential Zone OR2 except for plot ratio, open space and set backs, with the standards and requirements applicable to land in the Residential Zone having an R Code Density of R160."
Applying this provision to the "P/X⁵" symbol in Table 1, I conclude that a multiple dwelling in Office/Residential Zone OR2 is a permitted use if it complies with the requirements applicable to R Code Density R160, although the dwelling need not comply with the plot ratio, open space and set back requirements of that density. The term "plot ratio" is defined in cl 10 of the Scheme.
The density of housing in an R160 zone is 160 dwellings per hectare. The area of one hectare is 10,000 square metres. Thus, the minimum lot size is 62.5 square metres. As the site has an area of 940 square metres, the maximum permitted number of dwellings is 15. However, the proposed development embodies 32 units. The density of the dwellings in the proposed development is, therefore, more than twice that permitted in the Zone R160 zone.
The appellants submit that because the proposed development does not satisfy the requirements of cl 99G(b) of the Scheme it is not a permitted use and cannot be approved by the City.
This result is supported, the appellants submit, by cl 26(2) of the Scheme which provides as follows:
"(2)Notwithstanding that the use of land within the Scheme Area is indicated by the symbol 'X' in Table No. 1 or Table No. 2, the Council may, with the prior written authority of the Minister and subject to the requirements of Clause 37 of the Scheme having been first complied with, approve of the use of the land for that purpose if the Council is satisfied by an absolute majority that:
(a)the proposed development will be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
(b)the use of the land for that purpose will not have any adverse effect upon the occupiers or users of the development or upon property in or the inhabitants of the locality or the likely future development of the locality."
In other words, where a use is not permitted under the Scheme (as indicated by the "X" symbol), it can only be approved with the authority of the Minister, subject to the other requirements of the clause. It is common ground that in the present case, the Minister's approval has not been sought.
Against those submissions, the respondents contend that cl 26(2) has no application in the present case because the use of the land within the relevant area is not indicated by the symbol "X", but by "P/X⁵". That being so, the respondents submit, Council has the power to approve the development in the exercise of its discretion under cl 48 of the Scheme. Clause 48 provides:
"(1)If a development the subject of a town planning application or the subject of an application for a building licence under the Local Government Act 1960 as amended or re-enacted does not comply with a standard or requirement prescribed by the Scheme with respect to that development, subject to sub-clause (4) of this Clause the Council may, notwithstanding that non-compliance, approve the application unconditionally or subject to such conditions as the Council deems fit, if the Council is satisfied by an absolute majority, that:
(a)if approval were granted, the development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
(b)the non-compliance will not have any adverse effect upon the occupiers or users of the development or the property in or on the inhabitants of the locality or the likely future development of the locality.
(2)Before exercising the power conferred by sub-clause (1) of this Clause the Council may consult the owners of the land in the vicinity of the land which is the subject of the application.
(3)Nothing in the Scheme which:
(a)requires or enables the Council to consider or take into account any particular matter or thing in relation to any non-compliance with a standard or requirement prescribed by the Scheme;
(b)empowers the Council to grant an application for town planning approval notwithstanding any such non-compliance
shall in any way affect, prejudice or restrict the generality of the provisions of sub-clause (1) of this Clause or relieve the Council from compliance with that sub-clause.
(4)Nothing in this Clause empowers the Council to grant town planning approval or a building licence for:
(a)any building in the Joel Terrace Precinct which would exceed the maximum height prescribed by Clause 63(2)(a);
(b)any building in the Office/Residential Zone OR2 which would exceed the maximum height prescribed by Clause 99D(2)(a), (b) or (c)(ii) with respect to that building."
The respondents place particular reliance on cl 48(4). They submit that if it had been intended to remove the cl 48 discretion from cl 99G, a provision to that effect would have been included in cl 48(4).
I accept that submission. In my view, the application of cl 26(2) of the Scheme is limited to prohibited uses: not uses which may be permitted if certain conditions are satisfied. I therefore accept that cl 48 is excluded only in relation to the buildings defined by cl 48(4).
This conclusion is consistent with the decision of the Full Court in Settlers Holdings Pty Ltd v Coles Myer Property Developments Pty Ltd & Anor [2000] WASCA 147. There, Pidgeon and Ipp JJ (Kennedy J dissenting) held that a provision in similar terms to cl 48 was intended to refer to any standard or requirement of the scheme to which it applied, no matter where it appeared, provided there was no intention in a particular circumstance to exclude it.
Given the conclusion that the Council did have a discretion to approve the proposed development, I would decline to grant leave to the appellants to amend their grounds of appeal to incorporate the new ground.
I therefore turn to the principal question raised by the grounds of appeal.

Did the Council exercise its cl 48 discretion properly?

I have stated this question compendiously although it embraces several discrete issues and arises in relation to both the first and the second approvals. It will be convenient to deal first with the second approval.

The approval of 11 December 2001

I have set out cl 48 of the Scheme above. In summary, it permits the Council to approve a development which does not comply with the Scheme if the Council is satisfied by an absolute majority that certain criteria have been met. They are:
•if approval was granted, the development would be consistent with the orderly and proper planning of the locality and the preservation of the amenities of the locality; and
•non-compliance would not have any adverse effect upon
-the occupiers of the development
-the users of the development
-the property in the locality
-the inhabitants of the locality
-the likely future development of the locality.
In the present case, the appellants contend that few, if any, of the above criteria would be met by the proposed development. In essence, the appellants regard the proposed development as inconsistent with the orderly and proper planning of that area of West Perth. And they believe the development would certainly have an adverse effect on them. That being so, the appellants submit, Council could not have approved the proposed development under cl 48, and therefore acted unlawfully in purporting to do so.
In my view that is not the correct approach to this issue. None of the criteria set out above can be measured with scientific precision. They are all matters about which it is possible for opinions to differ. Furthermore, in an application for certiorari the Court is not concerned with the merits of the decision. Thus, the jurisdictional fact which must be established before Council may exercise its discretion under cl 48 is not that the criteria have been met in fact, but that the Council is satisfied by an absolute majority that the criteria have been met.
It is significant, in my view, that cl 48 requires an absolute majority rather than unanimity. Thus, an approval might be given by an absolute majority, despite the fact that within the minority, there were members of Council who were vehemently opposed to a proposed development on the grounds that none of the criteria had been met.
In Craig v The State of South Australia (1995) 184 CLR 163 at 176, the High Court held:
"Where the writ (of certiorari) is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it."
In the present case, material relevant to the second approval includes the minutes of the Council Meeting of 11 December 2001 and a transcript of a tape recording of that meeting. The Minutes consist of a report by two of the City's planning officers and a record of the unanimous approval of the proposed development, subject to various conditions which are not presently relevant.
The planning officers' report contains the following passage, under the heading "Compliance with Planning Scheme".
"Multiple dwellings are a permitted ('P') use in the Office/Residential OR2 zone. The proposal has been assessed against the Scheme and applicable R Code requirements. The development will comply with the plot ratio and height requirements of the zone. The proposal does not comply in regard to setbacks, car parking, landscaping and dwelling density."
This passage contains two significant errors. The first, to which I have referred already, is that the proposed development is not a "P" use in the relevant zone: it is an "X/P⁵" use. The second error is that the proposed development does not comply with the plot ratio requirements of the zone. These are the matters which were not drawn to the attention of E M Heenan J.

The residential planning codes applicable to the City show, that the maximum plot ratio for multiple dwellings under R Code R160, is 1.5 or 1.2 (it is not clear which applies here). However, the planning officers stated in their report that the required plot ratio was 2.0:1. Thus, the proposed development, which has a plot ratio of 1.93:1, appears to fall within the plot ratio requirements of the Scheme, whereas in fact, it falls well outside the permitted maximum.
The report referred to cl 48 of the Scheme in the following terms:
"Variations to the setback, density, landscaping and car parking provisions for the Office/Residential OR2 zone can be granted by an absolute majority decision of the Council, in accordance with Clause 48 of the City Planning Scheme, provided the Council is satisfied that the development would be consistent with the orderly and proper planning of the locality, the preservation of the amenities of the locality and the non-compliance will not have any adverse effect upon the site or on the inhabitants of the locality or the likely future development of the locality."
As leading counsel for the appellants pointed out, that summary is not entirely accurate. That is because the summary refers to the requirement that non-compliance should not have any adverse effect upon "the site", whereas cl 48 refers to the adverse effect upon the occupiers or users of the development. Furthermore, the summary omits a reference to the requirement that non-compliance is not to have any adverse effect upon the property in the locality.
Having summarised the provisions of cl 48, the authors of the report went on to consider various elements of non-compliance by reference to those provisions.
In relation to setbacks, the authors referred to the fact that objections had been received in relation to the nil side setbacks proposed for the basement and ground level floor, which included a gymnasium. After referring to some matters of detail, the authors concluded:
"Therefore, the nil setback to this portion of the development will have a minor impact on the adjoining properties and can be supported."
The appellants submit that if the effect of the nil setback constitutes "a minor impact", it cannot be said that relaxation of the setback requirements will have no relevant adverse effect.
I do not accept that submission. In my view, it is open to a Council to accept or reject the opinion of its planning officers, as it thinks fit. Thus, even if the planning officers were of the view that the non-compliant setbacks would have an adverse effect within cl 48(1)(b) of the Scheme, it would be open to the Council to reach an opposite conclusion. For that reason, I do not think it necessary to determine whether "a minor impact" is equivalent to, or is more or less than an adverse effect.
Of more concern, I think, is the opinion of the planning officers that the proposed variation to the setback requirements could be supported because a building could be designed which complied fully with the setback requirements but which nevertheless had a more significant impact upon the adjoining buildings than the proposed development, which would sit skewed on the site. In my view, that is an irrelevant consideration which was out of place in the planning officers' report.
Equally out of place, in my view, was the statement in the report to the effect that the Council had consistently relaxed the dwelling density requirement for developments in mixed use areas, by exercising its powers under cl 48 where the proposed development complied with the overall permitted plot ratio. On that basis, the planning officers said, the 32 units were supported.
Insofar as that statement invited the Council to have regard to some policy of encouraging inner city living, it was irrelevant. That is because any application to Council to relax the requirements of the Scheme must be considered on its own merits, having regard to the criteria set out in cl 48.
In any event, if there was some policy of relaxing the dwelling density requirement, it would not apply in the present case, because the proposed development did not comply with the permitted plot ratio.
In relation to the shortfall in car parking spaces, the authors referred to a Traffic Impact Assessment which had been undertaken by BSD Consultants. The planning officers quoted from the Assessment. They set out a passage in which BSD Consultants advised that there were "no undue impediments that may distract the Council proceeding with the parking variations as proposed". Various reasons were set out which supported that conclusion.
I do not think it necessary or appropriate to consider the question whether "no undue impediment" equates to some adverse effect within the meaning of cl 48(1)(b). Again, that is because it is open to Council to form its own view as to the likely impact of the shortfall in parking bays on the relevant persons and properties.
It appears from the formal Minutes of the Council Meeting of 11 December 2001 the meeting was chaired by the Lord Mayor and that Councillors McEvoy, Davidson, MacGill, Scaffidi, Sutherland, Stroud, Tan and Tudori were present.
The Minutes do not disclose the approach taken by Council in considering the application for approval. This is, however, apparent from the transcript of the tape recording of the proceedings, to which I now turn.
This part of the meeting opened with the rejection of a motion to permit Mr Kelvin Lord, one of the present applicants, and a Mr Clarke, to address the Council. The meeting then moved on to deal with the substantive item. The Lord Mayor invited councillors to speak for the motion that the development be approved. Councillor McEvoy spoke first. She referred to the "tremendous amount of lobbying" which had been directed to the proposal. Her view appears to have been that the shortfall in parking bays was not of great significance because the residents whose properties abutted the site had only one parking bay themselves. Furthermore, Councillor McEvoy said she thought that the previous approval "fell over on a technicality".
Councillor Sutherland, who spoke next, said he had looked at the matter carefully. He said that the proposal was encapsulated in the conclusion:
"… that states that this particular development, this is our official (indistinct), will enhance the existing range of inner city accommodation, will add interest to the immediate locality. The variations proposed to density and car parking are consistent with the other residential developments in West Perth. The development would generally comply with the required setbacks for the first two storeys and the upper aberrations can be supported as to (sic) the skewed position of the building will significantly reduce the impact of the bulk of the development on the adjoining sites."
This is clearly a reference to the conclusion of the planning officers' report. However, Councillor Sutherland also referred to the fact that approval had been given previously by the Council and had come back "on a technicality". Councillor Sutherland said he had discussed matters "regarding parking and access to the building" with the planning officer who was a co-author of the report. Councillor Sutherland said it was for those reasons he thought Council should support the application.
Councillor Tan then spoke. He said he had taken the trouble to talk to the nearby residents and to the architect of the proposed development. He said he had also asked the question why another eight parking bays could not be provided but had been told (apparently by the architect) that there was "literally no room to put in another eight parking bays". Councillor Tan said he had satisfied himself that many of the residents of the proposed development would be at work during the day and would not require street parking. Councillor Tan went on to say that another matter which he thought important was that the development had been approved previously:
"… so that legally whatever we say tonight, whichever way we vote tonight, even if we voted to reject this, as I understand it, legally the architects or the developers can still go back to what had previously been approved which is that this can go ahead, so I think we are really in a no win situation."
Councillor Scaffidi spoke next. She said she had visited the site on the previous afternoon and had looked closely at the concerns expressed to her by an inordinate number of callers. Councillor Scaffidi said she felt "we have taken the time to listen amply to both sides". Councillor Scaffidi referred to the parking concerns but said she did not feel such concerns "can really be put on to the developer of this particular property". However, Councillor Scaffidi also said that the underlying factor for her was that there had been a development approval granted previously. She referred also to the fact that some of the owners who had been lobbying Council might have purchased their properties after the previous Council approval had been given. Councillor Scaffidi said "So I just feel that sort of nullified it for me …".
Councillor MacGill said she had voted against the proposed development previously because the building was in a commercial area and because of the various problems associated with it. She continued:
"But I must admit that through … a problem that in fact was our fault basically, this application has had to come back. I cannot find it within my heart to go against this tonight because I feel that it's our problem, not the present developers and it's already been approved and I really don't feel that we can go back on that approval now because of a mistake that we made."
Councillor Stroud said she had also been lobbied heavily by both parties and by adjoining residents. She said she had looked "very hard and long and very carefully at this item". Councillor Stroud said parking was an issue she had "agonised about quite a lot". However, on enquiry, she had discovered that neighbouring buildings also had only one parking bay each. She took into account the proximity of bus and train services and a public car park.
A little later in her remarks, Councillor Stroud said:
"We cannot hold up progress of this are(a) … and we have a policy of encouraging inner city living. … We have approved this application before last February. There have been no changes made and we would be hypocritical to refuse it now."
There was no further debate on the motion. However, Councillor Tudori asked the planning officer about the minimum number of car bays which would be allowed. The planning officer replied that the minimum number of car bays required under the existing residential planning codes was 40 and that the development had 32 bays.
The information about parking bays is set out clearly in the planning officers' report, both in the table to which I have referred above, and in at least two places in the text. The report is concise, occupying only a little over eight pages. The fact that Councillor Tudori asked a question about a matter of considerable importance suggests to me that he had not read the report or had not given it the consideration it required.
I am driven to the same conclusion in relation to the Lord Mayor. I say that because immediately after the planning officer answered Councillor Tudori's question about the numbers of car bays, the Lord Mayor commented "Is that right". The comment suggests to me that the Lord Mayor was equally unfamiliar with the detail of the planning officers' report.
Some further questions were then asked of the planning officer. Councillor MacGill asked about the number of residential properties adjacent to the development site. The planning officer said that the properties immediately surrounding the site were predominantly commercial although there was one residential unit on the top floor of 5 Douro Place, an adjoining property.
Councillor Tan then asked the planning officer to confirm that "with the best will in the world" the respondents could not provide any more than 32 car bays. The planning officer said:
"I couldn't say that. … they are certainly maximising the amount of car parking on the basement level. They have maximised that opportunity, but if you throw enough money at something, you build a second basement level to provide the extra (a)mount of car parking. I understand that has been looked at as part of the feasibility exercise to see whether it was possible to get an extra eight bays and as I said, on my understanding in fact it costs in excess of half a million dollars to get the extra eight bays in the basement."
The Lord Mayor invited further debate, but there was none. The Lord Mayor then put the recommendation for approval to the vote. It was passed unanimously. The Lord Mayor then said:
"We just wasted 10 minutes."
There are, no doubt, several inferences which might be drawn from that comment. One inference is that the decision was a foregone conclusion. In my view that inference is open, given that the City invited the respondents to make a second application for approval after it emerged that the first approval might have been flawed.
Even if that was not the case, with all respect, I am unable to draw any inference compatible with the careful and considered assessment which the Council was required to give to the application.
Summarising to this point; the evidence satisfies me that when the Council considered the development application on 11 December 2001, and exercised its discretion under cl 48 of the Scheme, it proceeded on the basis of a planning officers' report which contained serious and significant errors.
As a result of those errors, the application was presented to the Council on the basis that approval would require the relaxation of certain requirements, excluding the plot ratio requirement, in respect of a permitted use.
Council's attention was not drawn to the fact that the use would be permitted only if those requirements were relaxed: a significantly different position, in my view.
Furthermore, Council was unaware that if the proposed development was to be approved, that would involve a relaxation of the plot ratio requirement. And yet this was a most relevant consideration, which it was necessary for the Council to take into account if it was to exercise its discretion properly.
The fact that two members of Council appeared to be unfamiliar with the planning officers' report, although a matter for concern, is not crucial, given the requirement for an absolute majority in the decision‑making process. Of more concern is the fact that six members of Council placed considerable weight on the fact that the development had been approved previously. One member was apparently prepared to waive compliance with car parking requirements on the basis that it would be too expensive for the developer to comply with the car parking requirements of the Scheme or residential planning codes. Another felt that the proposed development would enhance the existing inner city accommodation; another that the Council could not hold up progress, having regard to its policy of encouraging inner city living.
All these considerations were irrelevant to a consideration of cl 48 of the Scheme.
Furthermore, the planning officers' report recommended that the development be approved for reasons which were also irrelevant to cl 48: and the effect of that provision was not stated entirely accurately in the report.
In Ex parte Helena Valley/Boya Association Inc & Ors; State Planning Commission and Beggs (1989) 2 WAR 422, at 443, Ipp J approved the proposition stated in HWR Wade, "Administrative Law":
"The valid exercise of a discretion requires a genuine application of the mind and a conscious choice by the correct authority."
His Honour continued:
"Furthermore, if, in purporting to form an opinion, the Council failed to take into account matters which the Scheme Act, upon its proper construction, were matters which it ought to have considered, that opinion will not be regarded as a valid opinion formed under the Scheme Act: Paramatta City Council v Pestell (1972) 128 CLR 305 at 315, 326, 327 and 332."
In my view, for the reasons set out above, that is the case here. I am satisfied, on the balance of probabilities, that:
(1)the decision of Council did not result from a genuine application of its corporate mind to the issues raised by cl 48 of the Scheme;
(2)Council failed to take account of the significance of the "X/P⁵" designation and the plot ratio of the proposed development; and
(3)Council based its decision on irrelevant considerations, particularly the fact that it had approved the development previously.
I therefore conclude that Council fell into a jurisdictional error, with the result that it is open to the Court to grant a writ of certiorari to quash the decision.
In reaching this conclusion, I have taken into account the fact that the Court is considering the decision of a lay Council, rather than a tribunal or a lower court. In my view, however, it is important not to understate the extent of the obligation imposed upon a Council when it is asked to exercise a discretion under cl 48 of the Scheme. That provision is technical and complex, as is the Scheme itself: but it has the force of law. It is therefore essential that a Council should have a clear understanding of cl 48, and of the need to apply it in a careful and consistent manner, particularly when dealing with an application to approve a use which cannot be permitted unless cl 48 is invoked.
The conclusion that it would be open to the Court to quash the decision of 11 December 2001 is not the end of the matter; the respondents are entitled to rely on the first approval. I therefore turn to the appellants' submissions in relation to that matter.

The approval of 13 February 2001

The appellants submit that the decision to approve the development should be quashed because the application for town planning approval did not comply with cl 35 of the Scheme. That clause provides that the application is to be signed by the owner of the land or an agent authorised in writing for the purpose by the owner.
The application for approval to commence development was submitted to the City on 31 January 2001, under cover of a letter from Montague Grant Architects Pty Ltd. At the time, the City was itself the registered proprietor of the land. The City had, however, entered into a contract to sell the land to Crestland Investments Pty Ltd. The application for approval to commence development was made in the name of that company and was signed by a sole director as "the owner of the land".
According to the history of the matter as summarised in the Council Minutes of 11 December 2001, the City's solicitors advised the City that the validity of the earlier application might be open to legal challenge on the basis that the application had not been signed by the City, although the City had clearly given its consent to the applications being made.
Clause 35 of the Scheme does not require an application to be signed by a registered proprietor, but by an "owner". That term is defined in cl 10 of the Scheme to include:
"… every person who … whether at law or in equity: (a) is entitled to the land for any estate of fee simple in possession …"
It is well settled that a purchaser under a specifically enforceable contract for the sale of land is regarded, in equity, as the owner. That is because the purchaser is entitled to possession, subject to payment of the purchase price.
In my view, that was the position here. The contract for the sale of the land was in the standard form for sale of land by offer and acceptance, as approved by the Real Estate Institute of WA for use by its members. The contract was unconditional. It was not subject to finance, nor was it subject to any conditions relating to planning approvals. There is no evidence to suggest that a decree of specific performance would have been denied to the purchaser had the City declined to proceed.

In those circumstances, I am satisfied that when Crestland Investments Pty Ltd made its application for planning approval to commence development on 31 January 2001, it was an equitable owner of the land and was therefore an owner for the purposes of cl 35 of the Scheme.
The approval to commence development was signed by the City's Manager of Approval Services on 15 February 2001. The approval document recorded that approval for the development in accordance with the application dated 31 January 2001 had been granted by an absolute majority of the Council at its meeting on 6 February 2001, subject to certain conditions there set out.
The application for approval and the accompanying plans of the proposed development, were in precisely the same form as those considered by the Council in December 2001. It follows that Council could not have granted the first approval except in the exercise of its discretion under cl 48 of the Scheme.
In their Notice of Appeal, the appellants contend that the decision was made in breach of the principles of procedural fairness, in that the City did not inform the appellants that the application had been made, and thereby deprived them of the opportunity to make submissions about the validity of the application and matters relevant to the exercise by the Council of the cl 48 discretion.
I accept for present purposes that because of the adverse effect which the proposed development might have on the neighbouring properties and their owners, it was necessary for the City to inform those owners in general, and the appellants in particular, that consideration was to be given to a planning application. That proposition does not appear to be in dispute. For example, I note that on 23 October 2001, the Lord Mayor wrote to Mr and Mrs Baker, the fourth and fifth appellants, in response to a letter they had written to him in which they complained that they had not been informed or consulted before the first approval was given. The Lord Mayor wrote:
"The Council is seeking legal opinion on the validity of the application and I agree with you that it is most regretful (and I might add most unusual for a neighbour) that you were not given the opportunity to comment on the proposal."
Mr Lord and companies associated with him, who are the first, second and third appellants were, however, given such an opportunity. As appears from Mr Lord's affidavit, he received a letter from the City in early August 2000, in which he was invited to make a submission about an application to develop 32 apartments on the subject land.
On 18 August 2000, Mr Lord responded by letter addressed to the City's senior planning officer. Mr Lord objected to the proposal. He said:
"In my view, the proposed development is far too high for this area, would impinge unduly on my property at 4 Douro Place, would give rise to traffic management problems in Wellington Street and would appear to have insufficient parking facilities.
Even with the existing situation the parking situation in this immediate area is far from adequate and the proposed development would only make the situation far worse.
If necessary I would be prepared to attend any meeting required to discuss this matter further."
Mr Lord heard nothing further from the City. He assumed that the proposed development was not proceeding. He was therefore surprised to learn, as he did early in March 2001, that approval had been granted.
Mr Lord instructed his solicitor to look into the matter. On 8 March 2001, the solicitor wrote to the City's senior planning officer and requested a copy of the Council Minutes containing the officer's report, assessment and recommendation and the Council Resolution in relation to the planning consent of February 2001.
A copy of the relevant Minutes was duly provided. The Minutes included a planning officer's report which contained much of the information set out in the report which was before Council in relation to the second approval.
The report referred to four objections received during August 2000 which were considered valid in relation to the application then before Council. The report listed 13 points of objection which, in my view, fairly summarised the points taken by the appellants.
I accept that the City was under an obligation to afford procedural fairness to the appellants. However, I consider that requirement was satisfied in relation to Mr Lord and his associated companies. They were given an opportunity to be heard. They submitted their objections and those objections were taken into account by Council.
Although Mr and Mrs Baker appear not have been afforded procedural fairness, I would not regard that as a basis for quashing the decision because I do not understand them to have any objections beyond those which the Council has already taken into account.
The Planning Officer's report which preceded the February meeting contained the same factual errors as the later report. That is, it referred to multiple dwellings being a permitted "P" use in the Office/Residential OR2 zone. The report stated also that the proposed development would comply with the plot ratio requirement for the zone.
The report also referred to the same irrelevant considerations as contained in the later report. It concluded:
"The proposed development will enhance the existing range of inner city accommodation in the area and add activity and interest to the immediate locality, occupying a vacant site which has detracted from the streetscape. The variations proposed to density and car parking are consistent with other recent residential developments in West Perth. The development will generally comply with the required setbacks for the first three storeys, and the non-compliance of the upper levels can be supported as the skewed positioning of the building will significantly reduce the impact of the bulk of the development on the adjoining sites. It is recommended that this application be supported subject to relevant conditions."
As I have noted above, the Council could only have approved the proposal by exercising its discretion under cl 48 of the Scheme. However, cl 48 received only an oblique reference in the planning officer's report. This was under the heading of "Public Consultation", where it was said that a previous application for planning approval had been advertised in August 2000. That was the proposal to which Mr Lord responded, but in respect of which, Mr and Mrs Baker apparently received no notification. The report continued:
"As only five months has elapsed since the proposal was advertised for public comment, the current application was not advertised. It is noted that when considering variations to the Scheme standards under clause 48, it is at the Council's discretion as to whether the application is advertised rather than being a mandatory requirement."
That is not an entirely accurate statement. Clause 48(2) provides that before exercising the power to approve a non-compliant development, the Council "may consult the owners of the land in the vicinity of the land which is the subject of the application".
The more important point, in my view, is that the report did not draw attention to the requirements of cl 48 in the way that was done in the report prepared for the meeting of 11 December 2001.
The fact that the planning officers who prepared the later report felt it necessary to refer in considerable detail to cl 48, leads me to draw the inference that, on the balance of probabilities, Council was insufficiently familiar with its provisions in February 2001 to apply its corporate mind properly and make the conscious decision which the law required.
I draw that inference with greater confidence, in the absence of any evidence from Council about the way the decision was reached. The City provided the appellants only with the Minutes of the meeting. These do not record any discussion about the business in hand. In this context, I adopt the approach of Ipp J in Ex parte Helena Valley (supra) at 444 ‑ 445, where his Honour said:
"… I also regard it as significant that the minutes do not mention any discussion concerning the factors referred to in the applicants' evidence mentioned above. The significance I attach to these matters, I stress, relates not to the merits of the decision, but to the inference that is, in consequence, open as to whether the question of substantial alteration was considered at all."
If, contrary to my view, Council did give proper consideration to the detailed requirements of cl 48, I cannot think that the discretion was exercised properly, given that the report contained the significant inaccuracies to which I have referred, and recommended approval on the basis of a number of irrelevant considerations. I conclude that the decision was flawed because it was made on the erroneous basis that the proposed use was permitted, when it was not, and that the plot ratio of the proposed development was below the maximum permitted in the zone, when it was substantially above.
For these reasons, I consider that it would be open to the Court to grant a writ of certiorari, quashing the Council's decision of 13 February 2001.

Discretionary considerations

The respondents submit that even if the appellants have made out a case for the grant of writs of certiorari, the Court should not make such orders. The respondents rely on two related grounds: delay by the appellants in prosecuting the proceedings and consequential prejudice to the respondents.
This is a somewhat bold submission because we are not here concerned only with private rights. The conclusion that Council did not exercise its discretion properly in relation to either approval, means that there were breaches of the substantive law. That being so, the respondents would need to make out a compelling case against the grant of writs of certiorari.
I accept that even in these circumstances, the Court has a discretion whether to grant writs of certiorari. However, as the Full Court held in Re Smith and the West Australian Development Corporation; Ex parte Rundle & Ors (1992) 5 WAR 295 great weight should be given to strict compliance with the requirements of the law. Malcolm CJ (at 320) cited with approval a passage from Wade (op cit), in relation to the Court's discretion:
"Such a discretionary power may make inroads upon the rule of law and must therefore be exercised with the greatest care. In any normal case the remedy accompanies the right. But the fact that a person aggrieved is entitled to certiorari ex debito justitiae does not alter the fact that the court has power to exercise its discretion against him …
Nevertheless distinctions may have to be drawn according to the nature of the remedy sought, and according to the differences between public and private law remedies. Certiorari and prohibition have as their primary purpose the preservation of order in the legal system by preventing excess and abuse of power, rather than the final determination of private rights …"
In the present case, I am not persuaded that the delay on the part of the appellants, or that any prejudice suffered by the respondents would justify the Court denying relief to the appellants.
The delay point arises only in relation to the attack on the first approval, given on 13 February 2001. The proceedings for an order nisi were commenced on 23 April 2002. The delay is explicable on the basis that the City itself considered the first approval to be invalid. On 31 October 2001, the Lord Mayor wrote to Mr Lord saying:
"… the Development Application is in fact invalid and the applicant will be advised accordingly."
I therefore agree with E M Heenan J, where he said:
"At this stage of the proceedings I consider it sufficient to say that the course of correspondence between the solicitors for the applicants and the City of Perth from February 2001 to November 2001 appears to have proceeded on the footing that the question as to the efficacy of the first approval remained an open subject, and I consider that there are grounds upon which the applicants could reasonably expect that their protests against the validity of that first decision were receiving serious attention.
Consequently, I do not consider that the delay which has occurred is indicative of any abandonment of rights by the applicants, nor of any disregard of the need to pursue proper compliance with the town planning scheme, nor any signification that the decision would pass without challenge. Accordingly, if it were necessary to extend time, I would be disposed to grant an extension of time. Similarly, if no extension of time were necessary I would be disposed to accept that the delay which has occurred has been satisfactorily explained."
I consider that the conclusion reached by E M Heenan J is equally valid in relation to the substantive application. I am of the view also that the six‑month period prescribed by O 56 r 11 applies only to applications for writs of certiorari which are brought against inferior courts and tribunals in the categories to which the rule refers. The time limit is not applicable in this case. It is not necessary, therefore, for the appellants to seek an extension of time.
As to prejudice: I note the evidence filed on behalf of the respondents by Mr Lloyd Richard Clark, who is, in effect, the respondents' project manager, that the respondents have spent $248,116.02 in relation to the proposed development, and have incurred further costs of $233,884.81 which have not yet been paid.
The appellants, who have analysed the evidence produced by Mr Clark, contend that expenditure of only $1,273.62 out of the $233,884.81 was incurred before 19 October 2001, the date on which the City informed the respondents that there was an objection to the proposed development.
In answer to that, the respondents contend that they were informed that the objection was based only on the ground that the application for approval had not been signed by the registered proprietor. This was a problem which the respondents thought could be cured easily, by a further application in proper form: an application which, as I have noted above, the City invited them to make.
Furthermore, the respondents contend, the majority of these expenses were incurred in reliance on the validity of the first or second approvals.
In my view, it is not necessary to embark on a detailed analysis of the respondents' expenditure in order to determine whether the respondents will suffer sufficient prejudice to justify the Court in refusing to grant writs of certiorari.
I accept that if the proposed development does not proceed, some of the expenditure incurred by the developers will inevitably have been wasted.
It does not follow, of course, that if the approvals are set aside, the development will not proceed. It would be open to Council to grant approval on a fresh application.
If the present proposal was abandoned, the respondents would be left with a vacant site which is obviously ripe for development. There is no evidence to suggest that in such circumstances, all of their expenditure to date would be wasted. Nor is there evidence that the site could not be developed in accordance with the Scheme (with such relaxation as Council might think appropriate) so as to provide the respondents with a satisfactory return on their investment.
On the evidence as it stands, I think the only prejudice the respondents can establish if the development does not proceed, is that they might make less profit than they had expected. Even that is speculative: there is no evidence of the likely return to the respondents. And such evidence would need to take account of their respective personal circumstances, such as the cost of borrowing.
Although the respondents plead prejudice, I am by no means satisfied, in this context, that prejudice is enough. In Re Smith; Ex parte Rundle (supra) Malcolm CJ quoted from his decision in Savage v Teck Explorations Ltd, unreported; SCt of WA; Library No 7285; 16 September 1988:
"Where there has been inordinate delay it would clearly be appropriate to refuse an order nisi as occurred in this case. Relief should be refused when the court is satisfied that to grant the relief would cause substantial hardship to others or prejudice their rights."
In the present case, the respondents cannot complain that their rights have been prejudiced: and there is no evidence of hardship. Leading counsel for the respondents sought leave to adduce such evidence, but the Court declined to grant leave on the basis that the application was made too late.
I say that the respondents' rights have not been prejudiced because they had no right except to an approval granted in accordance with the law: and their development proposal was speculative from the outset. It was not a permitted use in the relevant zone and it required the relaxation of almost every major planning criterion in the Scheme.
The present situation has arisen, at least in part, because the City and its planners were mistaken about the use classification and the fact that the required plot ratio was exceeded. The respondents have not suggested in these proceedings that they were mistaken about these matters, nor that they were led into error by the City. I therefore draw the inference that

the respondents were always aware of the true position but did not enlighten the City's planners. That being so, I think the respondents must accept at least some of the responsibility for the situation in which they now find themselves.

In all the circumstances I would allow the appeals, and make orders absolute, granting writs of certiorari to quash the approvals granted by the Council of the City of Perth on 13 February and 11 December 2001.
I do not consider it necessary to consider the appellants' contention that there was an error of law on the face of the relevant record.
HASLUCK J: I agree with the reasons for judgment of Templeman J and with the orders proposed by his Honour. There is nothing I wish to add.