Re City of Subiaco;
[2003] WASC 208
RE CITY OF SUBIACO; EX PARTE GARDINER [2003] WASC 208
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 208 | |
| Case No: | CIV:1859/2003 | 24 OCTOBER 2003 | |
| Coram: | PULLIN J | 24/10/03 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | FREDERICA GARDINER CITY OF SUBIACO |
Catchwords: | Administrative law Certiorari Whether decision of council unreasonable Whether failure to take into account relevant consideration Turns on own facts |
Legislation: | Nil |
Case References: | Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Aznavour Pty Ltd v City of Mandurah [2002] WASCA 320 Buck v Bavone (1976) 135 CLR 110 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 24 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Talbot v Lane (1994) 14 WAR 120 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Bromley London Borough City Council v Greater London Council [1983] 1 AC 768 Bruce v Cole (1998) 45 NSWLR 163 Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 Re Capobianco, Ex parte Castelli; unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998 Re Matthews; Ex parte McKenzie [2000] WASC 147 Secretary of State for Education & Science v Tameside Metropolitan Borough Council [1977] AC 1014 Short v Poole Corporation [1926] Ch 66 Stampalia v The Stewards of the Western Australia Trotting Association [1999] WASC 7 State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121 Sydney Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
MATTER : An Application for a Writ of Certiorari against the CITY OF SUBIACO EX PARTE
FREDERICA GARDINER
Applicant
AND
CITY OF SUBIACO
Respondent
Catchwords:
Administrative law - Certiorari - Whether decision of council unreasonable - Whether failure to take into account relevant consideration - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr M L Bennett
Respondent : Mr R L Le Miere QC
Solicitors:
Applicant : Bennett & Co
Respondent : Watts & Woodhouse
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Aznavour Pty Ltd v City of Mandurah [2002] WASCA 320
Buck v Bavone (1976) 135 CLR 110
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 24
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Talbot v Lane (1994) 14 WAR 120
Case(s) also cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Bromley London Borough City Council v Greater London Council [1983] 1 AC 768
Bruce v Cole (1998) 45 NSWLR 163
Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374
(Page 3)
Re Capobianco, Ex parte Castelli; unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998
Re Matthews; Ex parte McKenzie [2000] WASC 147
Secretary of State for Education & Science v Tameside Metropolitan Borough Council [1977] AC 1014
Short v Poole Corporation [1926] Ch 66
Stampalia v The Stewards of the Western Australia Trotting Association [1999] WASC 7
State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121
Sydney Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464
(Page 4)
1 PULLIN J: The applicant, Mrs Frederica Gardiner, seeks an order nisi for a writ of certiorari against the City of Subiaco ("the City"), quashing the resolution passed by the council of the City dated 1 July 2003, whereby the council resolved, in effect, that the City would remove some rose bushes from the verge in front of Mrs Gardiner's house if Mrs Gardiner, having been requested to do so, refused to move them herself.
2 The grounds which Mrs Gardiner puts forward in support of the application are that, first, the resolution was unreasonable and, secondly, that the council failed to have regard to relevant considerations, namely the independent footpath assessment report prepared by Sinclair Knight Merz Pty Ltd, dated 18 June 2003, which report stated that the course of conduct ultimately resolved by the City would create a situation that was hazardous and dangerous to the public.
3 The background to this application is as follows. Mrs Gardiner lives at 33 Lansdowne Street in Jolimont, which is a property abutting the south boundary of the Mabel Talbot Reserve. Lansdowne Street runs north-south, and Mrs Gardiner's house is on the west side of the street. There are pine posts and rails erected by council across the verge on the southern boundary of the reserve to keep vehicles from driving onto it.
4 Mrs Gardiner has planted four Iceberg rose bushes running across the verge in an east-west line in memory of her late husband, who died in about the year 2000. The verge is Crown land under the care, control and management of the City. The City wants to remove the rose bushes and to remove the pine posts and rails at the end of Lansdowne Street, so that it can extend the footpath which presently stops to the south of Mrs Gardiner's block. The footpath, if extended, will then allow direct public access from the footpath to the south, up into the Mabel Talbot Reserve along the western side of Lansdowne Street.
5 The City has asked Mrs Gardiner to remove the rose bushes. Mrs Gardiner refuses, and there the battle lines are drawn. This has become a minor public controversy.
6 Many people have been drawn into the dispute. Mrs Gardiner has consulted the local Member of Parliament, who has made representations to the City and to the Minister for Local Government. The Minister has written to Mrs Gardiner; the Ombudsman has received a complaint; and a petition has been raised by landowners and ratepayers who want the roses removed. Mrs Gardiner says it would be
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- dangerous to put in a footpath where council proposes. She says that reversing vehicles from her property may strike people walking on this footpath. The City denies this.
7 Mrs Gardiner says that the footpath could be constructed on the other part of the verge nearer the road. Other residents say this would not be safe, because it would mean people using the footpath would be too close to the traffic on the road. Officers of the City have inspected the site and discussed the subject with Mrs Gardiner. More senior officers from the City have reviewed the growing file. Attempts at compromises have been made and have failed. Mrs Gardiner has retained lawyers and engineers, and the City has retained solicitors, and senior counsel has been briefed.
8 The City, in 2002, adopted a residential verge policy setting criteria for property owners who wish to develop and maintain verges which are under the care, control and management of the City. On 1 July 2003, the council of the City met to consider a motion, which led to the passing of the resolution that I have already referred to and which is under attack.
9 On that day, before the meeting, Mrs Gardiner's solicitors wrote to the City by letter dated 1 July 2003. It set out a number of factors which were submitted as being relevant, and the letter continued:
"All of the individual reasons advanced for the removal of the rose bushes by the City are without foundation, and in fact would create a situation that is dangerous and potentially hazardous to pedestrians and in particular, child pedestrians."
10 The letter went on to refer to some High Court authority and referred to a report which had been obtained and which was enclosed with the letter. The report was in the form of a letter from Sinclair Knight Merz, dated 18 June 2003. It contained the following:
"Under the Road Traffic Code 2000, Regulation 216(1) allows riders under the age of 12 to ride bicycles along footpaths. If the proposed footpath is constructed across the crossover to 33 Lansdowne Street, it is conceivable that young children could ride their bicycles down the sloping footpath, across the crossover and into the park. Also, the current wall on the boundary of 33 Lansdowne Street does not afford any visibility splays for vehicles exiting the garage and reversing onto the roadway and it would thus be
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- impossible for a driver to observe pedestrians and cyclists riding north along the proposed footpath and into the park. The combination of a young cyclist riding along the footpath and a vehicle reversing across the footpath, which would be unable to see these cyclists approaching on the footpath is thus very hazardous.
It is my understanding that the wall on the boundary of 33 Lansdowne Street was approved by the City or [sic] Subiaco and this approval was most likely given as there was no footpath adjacent to the property at the time requiring any special treatment to the wall.
In general footpaths should be separated from the street pavement and usually located against the property boundary unless vehicle volumes on the road are low and there are constraints which would require the footpath to abut the kerb. In this instance, the provision of the footpath against the boundary wall of number 33 Lansdowne Street would be very hazardous to children and would thus the boundary wall would be a constraint.
As an alternative to the placement of the footpath across the verge adjacent to the boundary wall of 33 Lansdowne Street the following is suggested. Near the lamp post on the north east corner of the crossover to number 33 Lansdowne Street a connection to the park could be made. The desire line of travel for pedestrians and children on bicycles, between the park and the termination of the footpath at the boundary of numbers 31 and 33 Lansdowne Street, would be away from the boundary wall of number 33 Lansdowne Street thus affording ample visibility splays for reversing vehicles and would be a far safer option.
Should the City of Subiaco pursue the construction of the footpath against the property boundary and hence boundary wall of number 33 Lansdowne Street then I believe that there could be a liability issue if there is ever an incident involving a reversing vehicle exiting the garage of 33 Lansdowne Street and colliding with a pedestrian or child on a bicycle traversing the footpath. What would be in question is whose fault it would be, the council knowingly constructing a footpath in an unsafe location or the owner taking all due care
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- reversing out of the driveway and colliding with the pedestrian or cyclist?"
11 The council agenda for the 1 July 2003 meeting contained a five-page report from council staff, setting out the history of the matter and a discussion about safety issues, along with some 18 attachments – the whole bundle being several centimetres thick. The Bennett & Co letter of 1 July 2003 and the Sinclair Knight Merz letter of 18 June 2003 were placed before the councillors and were the subject of discussion during the debate before the resolution was passed: see the affidavit of Mr Saunders, pars 8, 9, 10, 12 and 20.
12 I complete the factual history by noting that on 12 August 2003, council met again. It had before it the Sinclair Knight Merz letter and the Bennett & Co letter to which I have referred, along with advice from a council officer concerning these letters. The report also covered a compromise proposal which had been put up for consideration, but the material which is put before the Court has been edited to delete any reference to this proposed compromise and discussion about it, as a result of objections which have been put forward by Mrs Gardiner's solicitors. The council passed a resolution affirming its earlier decision of 1 July 2003.
13 That brings me to the task that I face. My role today is twofold. My first task is to determine whether the applicant has shown an arguable case. If not, then I must dismiss the application.
14 If an arguable case is shown, then the parties have agreed that I should deal with the return of the order nisi which would be made following a conclusion that there was an arguable case.
15 Now, as to the first step, I do not have to decide whether the ground is made out, and I do not have to make a forecast about the prospects of success, but simply determine whether the grounds are capable of being argued: Talbot v Lane (1994) 14 WAR 120 at 152.
16 I turn to the first ground of unreasonableness. The council will have acted unreasonably if no sensible council, acting with due appreciation of its responsibilities, would have come to the decision it did: Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223 and Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
17 This ground is confined and is usually hard to establish where the matter to be decided involves opinion or policy considerations: Buck v
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- Bavone (1976) 135 CLR 110 at 118. A decision will be unreasonable if the decision-maker has acted arbitrarily or capriciously, irrationally or illogically. Further, as is said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40], just because someone disagrees with a decision of the decision-maker on the merits and calls it unreasonable, does not necessarily give the assertion any legal consequence.
18 It is submitted that the decision of the council on 1 July 2003 was unreasonable because the roses were in position before the verge policy had been adopted by the council. As to that, I note that the policy relates not only to the establishment of vegetation on kerbs but also to verges already planted with vegetation. Secondly, it is said that the installation of the footpath which will follow the removal of the roses, being the reason for the removal of the roses, will expose pedestrians to the risk of injury from vehicles exiting Mrs Gardiner's property.
19 As to that, the question as to whether there was a hazard was a matter to be considered by council. There was another issue about safety, and that is whether or not, if the footpath were relocated closer to the road, that would expose persons to risk from vehicles on the road. So council had before it issues of safety in relation to the alternative locations which had been proposed during the course of the history of this matter.
20 Now the decision of council on 1 July 2003 was made after receiving the engineer's report which I have mentioned, setting out the history and all of the safety issues involved. The council verge policy was before the council, and council also had before it the Bennett & Co letter to which I have referred. The report from the council staff discussed safety issues of the type which are referred to in the Sinclair Knight Merz letter, although it is fair to say that the Sinclair Knight Merz letter introduced a new aspect.
21 The solicitors for Mrs Gardiner submitted to council that access to the reserve was already ample, and that submission was made to me today by counsel for the applicant. That, however, is an argument on the merits and, of course, there are many cases indicating that a Court dealing with this kind of application is not to become involved in a consideration of the merits.
22 In my opinion, it is not arguable that this was an unreasonable decision in the sense that that word is understood at law.
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23 If I am wrong and the matter has passed the threshold and is arguable, then I do not uphold the argument. In my opinion, the decision was not so unreasonable that no reasonable council could have made such a decision. council had to weigh up the safety issues identified. Doubtless there is a risk to pedestrians wherever the footpath is located, but it was the job of the council to consider those issues and to make a decision, and that is what it did.
24 As to the second ground, the council is said not to have had regard to a relevant consideration, namely the issue of safety which was identified in the Sinclair Knight Merz letter. My role is to decide, at the first stage, whether or not it is arguable that this was a relevant consideration and, if so, whether the matter was taken into account by the council. How a relevant consideration is identified is determined in accordance with the principles set out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 24.
25 As to whether or not council was bound to take this issue of safety into account, it is not necessary to decide because, in my opinion, even if the correct conclusion is that the issue of safety was a relevant consideration, council did have the Sinclair Knight Merz letter before it at the time of the meeting of 1 July 2003, and I am satisfied from the material before me that it was taken into account.
26 As to the safety issue, I repeat again that it is not necessary for me to decide whether persons or children on the proposed footpath will be more at risk from vehicles exiting from Mrs Gardiner's property, or from vehicles on the road if the footpath were set closer to the road. As I have said, that was a matter for the council to decide.
27 The task of the Court is to see that the council did consider the issue, assuming it to be a relevant consideration. If the subject was considered, that is the end of the Court's role.
28 In my opinion, the evidence is clear that the issues were considered. It was submitted that account was not taken of Sinclair Knight Merz's letter in a "real" way, because the letters were only placed on the table in front of the councillors on the evening of the 1 July 2003 meeting, but I disagree with that submission. The point in the Sinclair Knight Merz letter, and in the Bennett & Co letter, was a short point easily understood, and it was the subject of debate.
29 Therefore, I am satisfied that the council did take into account the two letters, and in particular the letter of Sinclair Knight Merz. In my
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- opinion, this second ground is unarguable. If I am wrong in that conclusion and I should have reached the conclusion that it was arguable, then I do not uphold the argument which is advanced and which constitutes ground 2 in the originating process.
30 Even if I am wrong in relation to the second ground, the council considered the Sinclair Knight Merz letter of 18 June 2003 and the Bennett & Co letter of 1 July 2003 at the meeting held on 12 August 2003. It affirmed its resolution of 1 July 2003, and, as a result, the striking down of the July decision would be futile in the face of the 12 August 2003 resolution.
31 This was not a case where there were any jurisdictional points to be established before reconsidering the matter. The council was simply reconsidering the issue on the merits, and it did that and took into account the Sinclair Knight Merz letter and the Bennett & Co letter and then reaffirmed the 1 July 2003 decision.
32 The result is, as I say, that it would be futile to strike down the 1 July 2003 decision: Aznavour Pty Ltd v City of Mandurah [2002] WASCA 320 at [26].
33 As a result of these reasons, the application should be dismissed.
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