Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated
[2004] WASC 264
RE MacTIERNAN; EX PARTE COOGEE COASTAL ACTION COALITION INCORPORATED [2004] WASC 264
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 264 | |
| Case No: | CIV:2331/2004 | 1 DECEMBER 2004 | |
| Coram: | MCLURE J | 10/12/04 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Order nisi granted Application for discovery and stay dismissed | ||
| B | |||
| PDF Version |
| Parties: | COOGEE COASTAL ACTION COALITION INCORPORATED THE HONOURABLE ALANNAH MacTIERNAN MLA, MINISTER FOR PLANNING & INFRASTRUCTURE, MINISTER FOR LANDS THE WESTERN AUSTRALIAN PLANNING COMMISSION CITY OF COCKBURN CONSOLIDATED MARINE DEVELOPMENTS (AUSTRALIA) PTY LTD (ACN 008 755 084) PORT CATHERINE DEVELOPMENTS PTY LTD (ACN 070 096 927) ANCHORAGE INDUSTRIES PTY LTD (ACN 008 860 428) REGISTRAR OF TITLES |
Catchwords: | Administrative law Application for order nisi for prerogative relief Improper purpose Relevant considerations Bias Ultra vires Amendment to Metropolitan Region Scheme and Town Planning Scheme Turns on own facts |
Legislation: | Bill of Rights 1689 (Imp) Constitution (Parliamentary Privileges) Amendment Act 2004 (WA) Constitution Act 1889 (WA) Environmental Protection Act 1986 (WA) Interpretation Act 1984 (WA), s 19 Land Administration Act 1997 (WA), s 3, s 74, s 75, s 86 Metropolitan Region Town Planning Scheme Act 1959 (WA), s 33, s 33E, s 33F, s 35A, s 37A Parliamentary Privileges Act 1891 (WA), s 1 Parliamentary Privileges Act 1987 (Cth), s 16 Town Planning and Development Act 1928 (WA), s 5AA, s 7, s 13 Town Planning Regulations 1967 (WA), r 19 Transfer of Land Act 1893 (WA) Western Australian Planning Commission Act 1985 (WA) |
Case References: | Amman Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 Blue Mountains City Council v Prospect County Council (1992) 74 LGRA 129 Blundell v Catterall (1821) 5 B & Ald 268; (1821) 106 ER 1190 Bridgetown-Greenbushes Friends of the Forest Inc v Department of Conservation & Land Management (1997) 18 WAR 126 Century Metals & Mining NL v Yeomans (1989) 100 ALR 383 Commonwealth v Yarmirr (2001) 208 CLR 1 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125 Harper v Minister for Sea Fisheries (1989) 168 CLR 314 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 Khan v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Fed Ct (Gummow J); December 1987 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Lower Hutt City Council v Bank [1974] 1 NZLR 545 Mees v Roads Corp (2003) 128 FCR 418 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Pepper v Hart [1993] AC 593 Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196 Prebble v Television New Zealand Ltd [1994] 3 WLR 970 Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609 R v Secretary of State for Trade; Ex parte Anderson Strathclyde PLC (1983) 2 All ER 233 R v Sevenoaks District Council; Ex parte Terry (1985) 3 All ER 226 R v Sevenoaks District Council; Ex parte Terry (1985) 3 All ER 266 Re Anastas; Ex parte Welsby [2001] WASC 178 Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 29 Re Real Estate and Business Agent Supervisory Board; Ex parte Cohen (1999) 21 WAR 158 Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 Re Smith; Ex parte Rundle (1991) 5 WAR 295 Steeples v Derbyshire County Council [1985] 1 WLR 256 Temwood Holdings Pty Ltd v Western Australian Planning Commission [2002] WASCA 10 Thompson v Randwick Municipal Council (1950) 81 CLR 87 Webb v The Queen (1994) 181 CLR 41 Attorney-General (NT) v Kearney and Northern Land Council (1985) 158 CLR 500 Bodney v Trustees of the Museum, unreported; SCt of WA (Franklyn J); Library No 7959; 23 November 1989 Bonton v City of South Perth [1982] WAR 213 Breskvar v Wall (1971) 126 CLR 376 Costa v Shire of Swan [1983] WAR 22 Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310 Gavranich v Shire of Wanneroo, unreported; SCt of WA (Miller J); Library No 980473; 25 August 1998 Ingram v Western Australian Planning Commission [2003] WASCA 77 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Mayor and Corporation of Carlisle v Graham (1869) LR 4 Exch 361 Murcia Holdings Pty Ltd v City of Nedlands [1999] WASC 241 Packham v Minister for the Environment (1993) 31 NSWLR 65 R v City of Marion; Ex parte Independent Grocers Co-op (No 1) (1984) 37 SASR 415 R v Home Department State Secretary; Ex parte Frie Brigades Union [1995] 2 AC 513 R v Secretary of State for Education and Science [1991] 1 QB 558 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 Re City of Perth; Ex parte Lord [2002] WASCA 254 Ross v State Rail Authority of NSW (1987) 70 LGRA 91 Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASCA 24 Uniting Subiaco (Inc) v Lewis (1996) 93 LGERA 92 Van Leeuwin v Dallhold Investments Pty Ltd (1990) 71 LGRA 348 Williams v Minister for the Environment and Heritage (2003) 199 ALR 352 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
COOGEE COASTAL ACTION COALITION INCORPORATED
Applicant
AND
THE HONOURABLE ALANNAH MacTIERNAN MLA, MINISTER FOR PLANNING & INFRASTRUCTURE, MINISTER FOR LANDS
First Respondent
THE WESTERN AUSTRALIAN PLANNING COMMISSION
Second Respondent
CITY OF COCKBURN
Third Respondent
(Page 2)
- CONSOLIDATED MARINE DEVELOPMENTS (AUSTRALIA) PTY LTD (ACN 008 755 084)
Fourth Respondent
PORT CATHERINE DEVELOPMENTS PTY LTD (ACN 070 096 927)
Fifth Respondent
ANCHORAGE INDUSTRIES PTY LTD (ACN 008 860 428)
Sixth Respondent
REGISTRAR OF TITLES
Seventh Respondent
Catchwords:
Administrative law - Application for order nisi for prerogative relief - Improper purpose - Relevant considerations - Bias - Ultra vires - Amendment to Metropolitan Region Scheme and Town Planning Scheme - Turns on own facts
Legislation:
Bill of Rights 1689 (Imp)
Constitution (Parliamentary Privileges) Amendment Act 2004 (WA)
Constitution Act 1889 (WA)
Environmental Protection Act 1986 (WA)
Interpretation Act 1984 (WA), s 19
Land Administration Act 1997 (WA), s 3, s 74, s 75, s 86
Metropolitan Region Town Planning Scheme Act 1959 (WA), s 33, s 33E, s 33F, s 35A, s 37A
Parliamentary Privileges Act 1891 (WA), s 1
Parliamentary Privileges Act 1987 (Cth), s 16
Town Planning and Development Act 1928 (WA), s 5AA, s 7, s 13
Town Planning Regulations 1967 (WA), r 19
Transfer of Land Act 1893 (WA)
Western Australian Planning Commission Act 1985 (WA)
(Page 3)
Result:
Order nisi granted
Application for discovery and stay dismissed
Category: B
Representation:
Counsel:
Applicant : Dr J T Schoombee & Ms L C Simpkin
First Respondent : Mr R M Mitchell
Second Respondent : Mr R M Mitchell
Third Respondent : Mr D W McLeod
Fourth Respondent : Mr J Garas
Fifth Respondent : Mr G R Donaldson
Sixth Respondent : Mr J Garas
Seventh Respondent : No appearance
Solicitors:
Applicant : Environmental Defender's Office (WA) Inc
First Respondent : State Solicitor
Second Respondent : State Solicitor
Third Respondent : McLeods
Fourth Respondent : Allens Arthur Robinson
Fifth Respondent : Hager & Partners
Sixth Respondent : Allens Arthur Robinson
Seventh Respondent : No appearance
Case(s) referred to in judgment(s):
Amman Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223
Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153
Blue Mountains City Council v Prospect County Council (1992) 74 LGRA 129
Blundell v Catterall (1821) 5 B & Ald 268; (1821) 106 ER 1190
Bridgetown-Greenbushes Friends of the Forest Inc v Department of Conservation & Land Management (1997) 18 WAR 126
(Page 4)
Century Metals & Mining NL v Yeomans (1989) 100 ALR 383
Commonwealth v Yarmirr (2001) 208 CLR 1
CREEDNZ Inc v Governor-General [1981] 1 NZLR 172
Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522
General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125
Harper v Minister for Sea Fisheries (1989) 168 CLR 314
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Khan v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Fed Ct (Gummow J); December 1987
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Lower Hutt City Council v Bank [1974] 1 NZLR 545
Mees v Roads Corp (2003) 128 FCR 418
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Pepper v Hart [1993] AC 593
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196
Prebble v Television New Zealand Ltd [1994] 3 WLR 970
Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609
R v Secretary of State for Trade; Ex parte Anderson Strathclyde PLC (1983) 2 All ER 233
R v Sevenoaks District Council; Ex parte Terry (1985) 3 All ER 226
Re Anastas; Ex parte Welsby [2001] WASC 178
Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 29
Re Real Estate and Business Agent Supervisory Board; Ex parte Cohen (1999) 21 WAR 158
Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286
Re Smith; Ex parte Rundle (1991) 5 WAR 295
Steeples v Derbyshire County Council [1985] 1 WLR 256
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2002] WASCA 10
Thompson v Randwick Municipal Council (1950) 81 CLR 87
Webb v The Queen (1994) 181 CLR 41
(Page 5)
Case(s) also cited:
Attorney-General (NT) v Kearney and Northern Land Council (1985) 158 CLR 500
Bodney v Trustees of the Museum, unreported; SCt of WA (Franklyn J); Library No 7959; 23 November 1989
Bonton v City of South Perth [1982] WAR 213
Breskvar v Wall (1971) 126 CLR 376
Costa v Shire of Swan [1983] WAR 22
Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310
Gavranich v Shire of Wanneroo, unreported; SCt of WA (Miller J); Library No 980473; 25 August 1998
Ingram v Western Australian Planning Commission [2003] WASCA 77
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Mayor and Corporation of Carlisle v Graham (1869) LR 4 Exch 361
Murcia Holdings Pty Ltd v City of Nedlands [1999] WASC 241
Packham v Minister for the Environment (1993) 31 NSWLR 65
R v City of Marion; Ex parte Independent Grocers Co-op (No 1) (1984) 37 SASR 415
R v Home Department State Secretary; Ex parte Frie Brigades Union [1995] 2 AC 513
R v Secretary of State for Education and Science [1991] 1 QB 558
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Re City of Perth; Ex parte Lord [2002] WASCA 254
Ross v State Rail Authority of NSW (1987) 70 LGRA 91
Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASCA 24
Uniting Subiaco (Inc) v Lewis (1996) 93 LGERA 92
Van Leeuwin v Dallhold Investments Pty Ltd (1990) 71 LGRA 348
Williams v Minister for the Environment and Heritage (2003) 199 ALR 352
(Page 6)
1 MCLURE J: The applicant applies for an order nisi for writs of certiorari and prohibition and related relief against the Minister for Planning and Infrastructure and for Lands (first respondent), the Western Australian Planning Commission (second respondent) and the City of Cockburn (third respondent) relating to decisions made, and to be made, concerning the development of land in South Coogee. The application primarily relates to Amendment No 1010/33 to the Metropolitan Region Scheme ("scheme amendment"), which amendment is made pursuant to s 33 of the Metropolitan Region Town Planning Scheme Act 1959 (WA) ("Scheme Act"). The effect of the scheme amendment is to change the zoning of the land in question.
2 The land the subject of the scheme amendment ("development area") is located at South Coogee and is known as Port Catherine, parts of which are contaminated. The majority of the development area is Crown land or owned by Crown agencies, including the Commission. The development area includes foreshore and seabed ("the Coogee beach and sea area"), which is unallocated Crown land under the control of the Minister under the Land Administration Act 1997 (WA) ("LAA"). The seabed has been rezoned from a waterways reservation to urban under the Metropolitan Region Scheme ("MRS"). It is the Coogee beach and sea area that is the focus of this application.
Background
3 The Coogee area (north and south) was a site for noxious industries. The desire of successive State and local governments has been to relocate the noxious industries from South Coogee and to redevelop that area, which has been the subject of numerous planning studies and reports in the last 20 years.
4 A residential development at Port Catherine was first proposed in the mid-1980's and the notion of creating a residential marina development gained official recognition in 1992 when the then State government accepted a proposal from Consolidated Marine Developments (Australia) Pty Ltd (the fourth respondent) contingent upon obtaining environmental and planning approval. The Port Catherine development was embodied in a Master Plan released in February 1993, the essential elements of which were covered in Improvement Plan No 26 gazetted in June 1994 pursuant to s 37A of the Scheme Act.
5 In March 1996 the Western Australian Planning Commission ("Commission") entered into a heads of agreement with the fourth respondent and the fifth respondent, Port Catherine Developments Pty Ltd
(Page 7)
- ("PCD"). The heads of agreement outlined the principles and commitments between the Commission, Consolidated Marine Developments and PCD.
6 Consolidated Marine Developments, PCD and the sixth respondent, Anchorage Industries Pty Ltd, entered into an agreement in writing with the Commission dated 7 May 1997 ("first agreement") which superseded the heads of agreement. The first agreement was superseded by the Port Catherine Project Agreement No 2 between the same parties dated 28 June 2000 ("Agreement").
7 In February 1999, the Perth Region Planning Committee, acting under delegated authority from the Commission, resolved to proceed with Amendment 1010/33 in accordance with s 33 of the Scheme Act. The amendment was referred to the Environmental Protection Authority ("EPA") for advice as to whether environmental assessment of the amendment was required. The EPA advised that formal assessment was required and an environmental review (which included a concept plan outlining proposed land uses) was prepared and advertised for public submission. In August 2002 the EPA advised that the implementation of the proposed amendment would not compromise environmental objectives provided specified environmental conditions were included. Environmental conditions were included, which conditions required the preparation and implementation of a series of management programmes and plans to be implemented at different stages of the planning process, including a waterways environmental management programme prior to the approval of the local town planning scheme amendment.
8 The scheme amendment was advertised (with the Environment Review) for public submissions from 22 November 2001 to 1 March 2002. Over 500 submissions were received, the majority of which supported the scheme amendment.
9 The Perth Region Planning Committee, acting under delegated authority from the Commission, and following preliminary consideration of the matters raised in the submissions, resolved to form a Hearings Committee which comprised three members, one of which was Dr Avril O'Brien. The Hearings Committee provided a report and made recommendations. The Commission accepted some but not all of the Hearings Committee's recommendations.
10 The Commission considered the submissions and submitted the amendment to which the submissions relate, with such modifications as it
(Page 8)
- thought fit to make, together with a copy of the submissions and a report by the Commission on those submissions, to the Minister in its "Report on Submissions" dated June 2004. In that report the Commission recommended that:
"The proposed Amendment No 1010/33 to the Metropolitan Region Scheme should proceed with Determinations as shown in Adopted Figure 1. The Determinations to the amendment are not considered to be of such a substantial nature as to warrant re-advertising.
That the Minister for Planning and Infrastructure consider Amendment No 1010/33 as shown on the Western Australian Planning Commission Plan No 3.1236/6 and reported in the Commission's report on submissions and forward the amendment to His Excellency the Governor for approval in accordance with section 33(1) of the Metropolitan Region Town Planning Scheme Act."
12 On 21 January 2003 the City of Cockburn initiated an amendment to its Town Planning Scheme No 3 to rezone the development area to a Development zone and to provide a detailed local structure plan for the development proposal. Advertising of the amendment and structure plan closed on 24 December 2003. On 16 March 2004 Council resolved to adopt the amendment, subject to modifications and adopt a modified structure plan to that advertised. The main modifications included the creation of a public beach within the marina, the reduction of residential marina lots and an increase in the number of public boat pens. At the time of the hearing of this application the Commission had not made a decision to approve the City's Town Planning Scheme Amendment ("TPS3 amendment") and Structure Plan.
13 The decisions the subject of challenge in this application include the Hearings Committee recommendations to the Commission, the Commission's recommendations to the Minister, the Minister's alleged
(Page 9)
- decision to seek approval of the Governor to the scheme amendment, the City of Cockburn's approval of the TPS3 Amendment and prohibition preventing the Minister approving the TPS3 Amendment and the Minister and the Commission from giving and acquiring, respectively, title to land the subject of the scheme amendment.
The Scheme Act
14 Under s 33E of the Scheme Act, when the Commission resolves to formulate an amendment to the MRS, it is required to forthwith refer that amendment to the EPA. When the EPA has acted under the Environmental Protection Act 1986 (WA) in relation to a proposed amendment, the Commission, if it wishes to proceed with the amendment, must undertake an environmental review of that amendment and is not permitted to submit the amendment to the Minister for her consent to public submissions being sought until certain conditions are satisfied (s 33F).
15 Section 33 of the Scheme Act provides the procedure for making substantial alterations to the MRS. Section 33(1) provides:
"The Scheme may be varied or amplified by an amendment to the Scheme … formulated by the Commission submitted and approved in accordance with this section."
16 Section 33(2) identifies the procedure the Commission is required to follow to amend the MRS. The amendment, when formulated by the Commission, shall (after ss 33E and 33F have been complied with) be submitted, together with such reports, surveys and other material as the Commission considers desirable, to the Minister for her consent to public submissions being sought (s 33(2)(a)).
17 If the Minister consents to public submissions being sought, the Commission is required to deposit copies of the amendment for public inspection at nominated places (s 33(2)(b)).
18 As soon as practicable after the deposit of copies of the amendment, the Commission is required to publish a notice of, inter alia, where the amendment may be inspected and notify all persons who desire to make submissions that they may be made to the Commission in writing (s 33(2)(c)).
19 Paragraphs (f), (g), (gaa), (k), (ka) and (l) of s 33(2) are of particular relevance and provide:
(Page 10)
- "(f) (i) The Commission shall consider all submissions that have been duly lodged and where a submission contains an objection to the amendment the Commission shall not dismiss the objection until the person making the submission or his agent has been given the opportunity of being heard on the objection by the Commission or by a committee of the Commission established under section 19 of the Western Australian Planning Commission Act 1985.
(ii) The Commission shall not uphold an objection to the amendment until it has given every person who has duly lodged a submission supporting the provision to which the objection relates, or his agent, the opportunity of being heard in support of that provision by the Commission or by a committee of the Commission established under section 19 of the Western Australian Planning Commission Act 1985.
(iii) Where a submission is made by a group of persons, the group shall appoint one person to represent the group and only he shall be heard under subparagraph (i) or (ii).
(g) Subject to section 33AB, after sections 33G(1) and 33H have been complied with in relation to the amendment and after considering all submissions that have been duly lodged, the Commission shall submit the amendment to which those submissions relate, with such modifications, if any, as it thinks fit to make, together with a copy of each of those submissions and a report by the Commission on those submissions, to the Minister.
(gaa) For the purposes of paragraph (g) the Commission may adopt a report by a committee referred to in paragraph (f) and submit it as, or include it in, the report of the Commission.
(k) A person who desires to make any submissions on any modifications so made by the Commission may notify the Minister in writing in the form prescribed by the Commission in any notice of the modification published pursuant to paragraph (i), and the Minister shall direct the
(Page 11)
- Commission to consider and report on the submission to the Minister in accordance with the procedure set out in paragraphs (f) and (g).
- (ka) If the report submitted with an amendment under paragraph (g) as read with paragraph (k) recommends that the amendment should not be proceeded with, the Minister may, instead of presenting the amendment to the Governor for his consideration, withdraw the amendment.
(l) The Minister shall then, if he has not withdrawn the amendment under paragraph (ka), present the amendment to the Governor who may approve the amendment with or without such modifications as he deems necessary to make and which he is hereby authorised to make."
20 When the Governor has approved the amendment (and has not revoked it), the amendment must be published in the Gazette and a copy of the amendment, together with a copy of the report of the Commission on the submissions made on the Scheme be laid before each House of Parliament (s 33(3)).
21 Either House may, by resolution of which notice has been given at any time within 12 sitting days of such House after a copy of the amendment has been laid before it, pass a resolution disallowing the amendment (s 33(4)).
22 As soon as the amendment is no longer subject to disallowance, the amendment "shall have effect as though its provisions were enacted by this Act" (s 33(5)).
23 Notice of a disallowance motion was given in relation to the scheme amendment. Debate on the motion took place in September 2004. The resolution was not passed.
24 The applicant does not contend that the Commission failed to comply with the statutory procedural requirements or that the Agreement is invalid as beyond the Commission's power. Rather, the applicant challenges the validity of the decisions and proposed decisions on grounds including improper purpose, failure to take into account relevant considerations, fettering of discretion and bias.
25 In order to properly consider the challenges, it is necessary to refer to the nature and terms of the Agreement.
(Page 12)
The Agreement
26 The development area is comprised of land variously owned by the fourth and sixth respondents, the State, the Commission and other Crown agencies. The recitals acknowledge that the Commission has been authorised to coordinate negotiations for the sale of the land owned by the State and its agencies (referred to in the Agreement collectively as the "WAPC Land") to PCD to enable PCD to carry out the Project, defined as the subdivision and development of the development area as outlined in the Development Plan annexed to the Agreement as amended from time to time in accordance with the Agreement. The Development Plan is in broad terms and provides for a residential development (including a canal development on reclaimed "fingers" of the seabed), a marina, commercial development (including office, hotel and retail facilities) and community facilities (including public access to the foreshore). The Agreement provides for the reclaimed seabed land to be sold to PCD.
27 It is a condition precedent to the Agreement that PCD obtain, at its cost, amendments to the MRS and to the town planning scheme of the City of Cockburn for the implementation of the Project ("initial approvals"); in the event the initial approvals are obtained, and subject to the terms of the Agreement, PCD covenants to complete the Project in accordance with the Development Plan (cl 6.2).
28 By cl 2.4 the parties acknowledge that the Project overall needs to be commercially viable and the Development Plan will take into account the need for commercial viability and will include the elements to which I earlier referred. Commercially viable and commercial viability are defined to mean:
"PCD being able subject to good and appropriate management and corporate practices to complete the Project in accordance with the Development Plan and the standards required by WAPC having regard to the planning objectives and responsibilities of WAPC and in accordance with good land development and management practices without prejudicing the ongoing solvency and reasonable profit expectations of PCD and without exposing WAPC to obligations, expenditure or risk in excess of the obligations of WAPC pursuant to this Agreement."
29 Clauses 2.12, 2.13, 2.14 and 3.2 are of particular relevance and materially provide:
(Page 13)
- "Amendment to the Metropolitan Region Scheme (MRS)
2.12 PCD has applied for an amendment to be made to the Metropolitan Region Scheme to allow for the implementation of the Project and WAPC shall assist PCD in pursuing such application.
Re-zoning
2.13 PCD and WAPC agree to use their respective best endeavours to pursue the amendment to the Metropolitan Region Scheme and the City of Cockburn's Town Planning Scheme necessary for the Project without in any way fettering the statutory discretion of either WAPC or the City of Cockburn.
WAPC to Act Reasonably
2.14 WAPC agrees that in circumstances where PCD is required to obtain WAPC's approval or consent for the purposes of clause 2.12, WAPC will not unreasonably withhold its approval or consent in circumstances where the granting of such approval or consent does not involve the exercise by WAPC of any of its statutory obligations relating to planning or discretions vested in WAPC.
…
3.2 The obligations, powers and discretions of WAPC as a statutory planning authority or any other Authority in considering any application by PCD for any approval or authorisation required from WAPC or any other Authority in relation to or incidental to the Project shall not be limited or restricted by this Agreement."
30 Best endeavours or reasonable endeavours is defined to mean:
"(a) in respect of WAPC all reasonable efforts within the Party's statutory or corporate powers to obtain or facilitate the required result including in the case of Crown land where WAPC is obliged under this Agreement to obtain LAA Approvals, the obtaining of the LAA approvals; and
(b) …
(Page 14)
- without in any way limiting or restricting the obligations, powers and discretions of any Party in accordance with any of the duties, responsibilities and objectives vested in such Party."
31 PCD can request variations to the Development Plan and in certain circumstances the Commission must give reasonable consideration to granting the request and in additional circumstances is obliged to approve the variation (cl 3.3). It will be obliged to approve the variation if, inter alia, there are changed circumstances that materially impact upon the commercial viability of the Project and it materially improves the quality of the Project (cl 3.3).
32 Under cl 5.2 the Commission authorises PCD to apply for the "Approvals" (defined to mean all rezoning, approvals, authorisations, etcetera, required to enable PCD to carry out the Project) in relation to the WAPC land as if it were the registered proprietor of the WAPC land. Clause 5.3 materially provides:
"WAPC agrees to provide such assistance to PCD in applying for and seeking the Approvals as PCD shall reasonably require. Nothing in this Agreement contained or implied shall limit the powers or discretions of WAPC or any Relevant Approving Authority (defined to include the first and third respondents) in considering and making its determination in respect of any application for an Approval. …"
33 If any application for an Approval relating to the WAPC land is refused or granted on unacceptable conditions to PCD, the Commission authorises PCD to pursue any appeal available (cl 5.4).
34 If PCD is unable to obtain any initial approval or obtains an initial approval on conditions unacceptable to it, PCD can, if certain conditions are met, terminate the Agreement (cl 5.8). Further, the Agreement will be terminated if PCD fails to give notice that it wishes to proceed with the Project within three months from the later of the dates on which the amendments to the MRS and TPS3 are published in the Government Gazette.
35 If PCD elects to proceed with the Project, the Agreement provides for call and put options for the purchase by PCD of the WAPC land. It also expressly provides for what is to occur in the event the Commission is unable to transfer an estate in fee simple to any of the WAPC land. The purchase price for the WAPC land is the subject of cl 8 which materially provides:
(Page 15)
- "PURCHASE PRICE FOR WAPC LAND
Determination of Purchase Price
8.1 The Purchase Price payable by PCD for each part of the WAPC Land other than Sea Bed Land the subject of an exercise of a Call Option or Put Option under clause 7 will be the Purchase Price determined by applying the rate of $293,424.00 per hectare to the area of land identified in the Development Plan as subject to the Call Option and the Put Option with compound interest at the rate of five point seven per centum (5.7%) per annum calculated from 7 May 1997 to the date of completion of the purchase by PCD.
Sea Bed Land
8.2 The parties acknowledge that the Purchase Price payable by PCD for each part of the WAPC Land is the total amount payable by PCD for all land to be purchased or other wise [sic] acquired or created under this agreement and no further consideration is payable by PCD to WAPC or the State (including without limiting the generality of the foregoing words, the Minister for Lands) or any other party in respect of the Sea Bed Land."
36 The understanding of the parties is that the Crown land will be transferred by the Minister to the Commission and the Commission will transfer it to PCD. I will assume that to be so.
37 Under the first agreement, a purchase price is allocated to the seabed land. However, I am unable to identify from the material the amount of the purchase price (in the event the option is exercised).
Preliminary Matters
38 The parties objected to the admissibility of parts of the affidavits filed in the application. As the time set aside for the hearing was limited, I proposed, and the parties agreed, that I only rule on objections to evidence in the event that evidence was material to my determination of the matters in issue. As it transpired, most of the submissions were made by reference to contemporaneous documents annexed to the affidavits to which no objection was taken. With one exception, I have not had to rule on any of the objections.
(Page 16)
39 The exception is the transcript of evidence of Mr Brian Curtis, the then Director, Rehabilitation Projects, of the Department for Planning and Infrastructure to the Public Accounts Committee of the Parliament of Western Australia. Mr Curtis gave limited evidence on how and why the Agreement differed from the first agreement.
40 The first and second respondents objected to the evidence on the basis of Parliamentary privilege. The Constitution(Parliamentary Privileges) Amendment Act 2004 (WA) amends the Constitution Act 1889 (WA) and the Parliamentary Privileges Act 1891 (WA). Section 1 of the Parliamentary Privileges Act now provides:
"The Legislative Council and Legislative Assembly of Western Australia, and their members and committees, have and may exercise -
(a) the privileges, immunities and powers set out in this Act; and
(b) to the extent that they are not inconsistent with this Act, the privileges, immunities and powers by custom, statute or otherwise of the Commons House of Parliament of the United Kingdom and its members and committees as at 1 January 1989."
41 It is accepted that Article 9 of the Bill of Rights 1689 (Imp) continues to apply (see Pepper v Hart [1993] AC 593 at 638). Article 9 provides:
"That freedom of speech in debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament."
42 The only statutory definition of "proceedings in Parliament" is in the Commonwealth Parliamentary Privileges Act 1987 which is said to be declaratory of the common law (see Prebble v Television New Zealand Ltd [1994] 3 WLR 970; Amman Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 231, 233. Section 16(2) of that Act defines the term to include the giving of evidence before a House or committee, and the evidence so given. That is wide enough to cover evidence given by all witnesses to a Parliamentary Committee.
43 The Commonwealth Parliament has adopted the position that relying on the truth of a statement to Parliament in court proceedings amounts to a breach of the privileges of Parliament (s 16(3)). The applicant in this case
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- relies on the truth of Mr Curtis's statements to the Public Accounts Committee and inferences which this Court is asked to draw from those statements. The evidence is not relied on as the equivalent to the Commission's reasons for decision, but rather goes to the issue of whether there is an evidentiary foundation to support a claim that the Commission's decision was made for an improper purpose.
44 The applicant relies on Pepper v Hart (supra). That was a case in which the House of Lords decided that the use of clear ministerial statements as an aid to construction of ambiguous legislation did not amount to questioning or impeaching proceedings in Parliament and did not contravene Article 9 of the Bill of Rights. In this jurisdiction the position is governed by the Interpretation Act 1984 (WA), s 19(2). Lord Browne-Wilkinson in Pepper expressed the view that R v Secretary of State for Trade; Ex parte Anderson Strathclyde PLC (1983) 2 All ER 233 was wrongly decided. In Anderson Strathclyde, a Divisional Court refused to allow a Hansard report of proceedings in Parliament to be tendered in support of a ground for judicial review of a decision made outside Parliament. In that case the Crown did not object to the Court looking at the materials, but the Court itself refused to do so. Lord Browne-Wilkinson relied in part on the Crown's concession to conclude that the case was wrongly decided on this point. However, Pepper v Hart is not authority for the general proposition that a proceeding in Parliament tendered to support a ground for judicial review cannot involve a breach of Article 9 of the Bill of Rights.
45 Gray J in Mees v Roads Corp (2003) 128 FCR 418 at 443 - 445 provides a detailed analysis of the principle and authorities, including the English authorities, on whether s 16(3) merely codified or effected a change in the law by enlarging the privileges of Parliament. I agree with Gray J that the proposition that a statement made to Parliament can be tendered to a court to prove the truth of its contents but the truth of its contents cannot be the subject of any contest in a Court, is fraught with difficulty. For example, inferences to be drawn from evidence in isolation may be rebutted or significantly modified in the context of the evidence as a whole. I am satisfied that the evidence of Mr Curtis is not admissible for the purpose for which it is tendered.
46 The other preliminary matter relates to the standing of the applicant. The applicant is a local community organisation that has had close involvement in the planning process relating to the development area. A number of members live in the locality and use the Coogee beach and sea area for fishing, bathing and other incidental recreational activities. On
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- the basis of that evidence I am satisfied that the applicant has standing to bring this application (see Bridgetown-Greenbushes Friends of the Forest Inc v Department of Conservation & Land Management (1997) 18 WAR 126 at 159 - 165; Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 29 at [16].
Order Nisi - The Threshold Test
47 The applicant must establish an arguable case. On any view that requirement will not be satisfied if the case is so clearly untenable that it cannot succeed (being the test in General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125 at 130). I do not propose to reconsider the different formulations of the test applied in this Court to which I referred in Re Anastas; Ex parte Welsby [2001] WASC 178. I will apply the General Steel test suitably adapted to reflect the fact that there must be evidence to support the factual findings for which the applicant contends.
48 I propose to address each of the grounds of review (which commence at number 3) in the consolidated notice of originating motion. A number of the grounds are in narrative form and do not clearly identify the alleged error contended for. In that event, I obtained clarification from the applicant's counsel. Grounds 3, 4, 6, 7 and 8 concern the Commission's recommendations in its Report on Submissions to the Minister. I deal, firstly, with those matters.
Commission Recommendations - Improper Purpose (Ground 3)
49 The applicant contends that the Commission made the recommendations in its Report on Submissions for the improper purpose of benefiting the private commercial interests of, and to provide a particular level of profit to, the developer.
50 As the Commission's Report on Submissions is in fulfilment of a statutory precondition under s 33(g) of the Scheme Act, that report can be the subject of a writ of certiorari: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149. Further, it is arguable that, given the fulfilment of a statutory precondition to rezoning is in issue, entitlement to relief is not materially affected by s 33(5) (which provides that the amendment have effect as though its provisions were enacted by the Scheme Act) or by the defeat of the disallowance motion: Re Smith; Ex parte Rundle (1991) 5 WAR 295 at 308 - 309.
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51 There is also no dispute as to the test of improper purpose. The applicant must establish that the improper purpose is a substantial purpose in the sense that the power would not have been exercised but for the desire to achieve the improper purpose: Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196; Thompson v Randwick Municipal Council (1950) 81 CLR 87 at 106. Thus, the improper purpose must be the operative subjective purpose of the decision-maker. However, an inference of purpose may be drawn from the surrounding circumstances, including, in appropriate cases, the nature and effect of any agreement.
52 The Commission must have the relevant purpose at or before the making of the decision the subject of challenge, in this instance, the issue of the Report on Submissions and its recommendations. Although it is the case that the recommendation relates to the scheme amendment which only (materially) changes the zoning, it is arguable that an improper purpose can invalidate a necessary step that is part of a larger exercise which, if concluded, will produce the intended effect. I adopt this approach to all relevant grounds of review.
53 Although the third respondent contended to the contrary, I propose to apply the law contained in Perpetual Trustees that the exercise of a statutory power under the Scheme Act for the substantial purpose of benefiting a private interest would be invalid as being for an improper purpose. These are the principles applied to all the improper purpose grounds of review.
54 This ground concerns the Commission's purpose, not the developers' purpose. Further, there is nothing in the Report on Submissions on which the applicant sought to, or could properly, rely to support an inference of improper purpose.
55 The applicant contends that in considering purpose the focus should be restricted to that part of the development area comprising the Coogee beach and sea area, in relation to which, it is said, no rehabilitation was required and the sea-bed land was to be transferred to PCD under the Agreement for no consideration.
56 I see no arguable justification for considering the Coogee beach and sea area in isolation from the balance of the development area. The applicant's case is that the negotiations and/or agreements relating to the sea-bed land establish, or is capable of establishing, that the Commission had the alleged improper purposes in recommending approval of the
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- scheme amendment. The applicant's submission that the sea-bed land is to be transferred without consideration to PCD under the Agreement is not technically correct. In addition to cl 8.2 which provides that the total purchase price is for all of the WAPC land, the consideration from PCD includes the obligation to carry out the Project (which under cl 6.3 requires expenditure of $12,000,000 in 90 months) and some responsibility for remediation of contaminated land. However, it is the case that the purchase price specifically allocated to the sea-bed land in the first agreement is deleted in the Agreement. Although there is no analysis of all the changes effected by the Agreement or any evidence as to whether, and if so by how much, the changes resulted in a net financial shift in favour of the developer, I will assume in the applicant's favour that the total consideration payable under the Agreement was reduced by the amount of the purchase price payable by PCD for the sea-bed land under the first agreement.
57 Having regard to the history and background which culminated in the Agreement and the provisions in both agreements concerning the need for commercial viability, I am not satisfied that the financial effect of the changes incorporated into the Agreement are capable of supporting an inference of improper purpose. The strong inference is that at all material times the Commission's operative purpose has been to transform this area of South Coogee from a contaminated industrial site to a residential area, which requires remediation of contaminated land. In order to achieve that purpose, the Commission negotiated with, and eventually entered into various agreements with the developers. Those negotiations clearly included the scope of the development area which eventually came to include the Coogee beach and sea area. There is no suggestion that the Commission controls the developers or can otherwise dictate or force them to proceed with the Project in a particular form, or at all, or that the Commission has not negotiated with the developers at arm's length. In short, there is no evidentiary foundation for attributing the developer's purpose to the Commission. In the circumstances of this case, the objective effect of the contractual arrangements and whether or not the private parties in fact negotiated a commercially advantageous deal (in particular in relation to the Coogee beach and sea are) does not advance the applicant's improper purpose case. I see no proper basis for an inference that the Commission entered into the Agreement for the substantial purpose of financially benefiting the developers or that that was the Commission's purpose in making its recommendations to approve the scheme amendment. The evidence is to the contrary.
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58 I am satisfied that it is not open on the evidence to find that the Commission acted for the alleged improper purpose. The applicant has not established an arguable case.
Commission Recommendations - Improper Purpose (Ground 4)
59 As orally formulated by counsel, this ground of review is that the Commission acted for the improper purpose of nullifying or materially curtailing the common law rights of the public to access and use the Coogee Beach and sea area, firstly, for fishing and navigation and, secondly, for personal and recreational purposes. As far as I am able to tell, the applicant relies solely on the effect of the Agreement and the implementation of the Project in support of its improper purpose claim. The history and background are inconsistent with the claimed improper purpose. In the circumstances of the case, the effect of the Agreement and the Project is incapable of establishing that the Commission acted for the alleged improper purpose. The applicant has not established an arguable case.
Commission Recommendations - Relevant Consideration (Ground 6)
60 As orally formulated by counsel, the applicant contends that the Commission failed to take into account a relevant consideration, being the State Coastal Planning Policy No 2.6 (the "Coastal Policy").
61 This ground of review only applies where the decision-maker is bound to take the factor into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. Although not entirely clear, I will assume that the Commission is bound to consider the Coastal Policy which it prepared under s 5AA of the Town Planning and Development Act 1928 (WA) ("Planning Act").
62 There are divergent authorities on the question of what is required to satisfy the duty to take into account relevant considerations. One view is that it requires proper, genuine and realistic consideration: Khan v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Fed Ct (Gummow J); December 1987. The alternative view is that this ground merely requires that the matter be given some consideration, not adequate consideration: Peko-Wallsend (supra) at 40 - 41. For the purposes of this application, I assume in the applicant's favour that the approach in Khan should be applied.
63 The Coastal Policy distinguishes between coastal foreshore reserves and development setbacks for physical (coastal) processes. Total setbacks
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- provide for the protection of development from physical processes, as well as other factors such as ecological values and public access to a coastal foreshore reserve. As a general guide, a total setback in the order of 100 metres from the "horizontal setback datum" is to be expected (cl 2.3). In relation to the coastal foreshore reserve, the decision-maker is to ensure the identification of land to be set aside for public ownership for conservation, management, public access and recreation is undertaken during the planning process and generally, land from the total setback line seaward should be given up free of cost at the time of development over and above the required provision of public open space (cl 5.1(vi)).
64 In relation to development, the decision-maker is to ensure that, when identifying areas suitable for development, consideration is given to strategic sites for coastal access and commercial development that is demonstrably dependent on a foreshore location, including ports, boat harbours and regional boat ramps (cl 5.1(xvi)).
65 The Coastal Policy expressly provides that, given the variation of coastal environments and the range of development and use contexts that can be presented, the Policy and setback guidelines are to be applied to each case on its merits using the best available information, commonsense and a precautionary approach (cl 6).
66 The Coastal Development Processes Setback Guidelines are contained in Schedule 1 and apply to all coastal development except, inter alia, to the following:
"G (c) Industrial and commercial development that is demonstrably dependent on a foreshore location. Such development may include, for example, marinas, cage based aquaculture operations, port facilities and associated infrastructure.
…
(e) The need for the provision of development nodes on the coast is recognised and should provide for a range of facilities to benefit the broader public. Such nodes may be developed within the setback but should only be located where necessary ancillary coastal protection structures would not result in erosion or destabilisation of adjacent coast. Nodes should be located on stable areas and should avoid areas of high natural landscape or resource value."
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- Development that falls within the above general possible exemption types will be assessed on a case-by-case basis against the policy measures in section 5 and in consultation with other relevant agencies and community as considered appropriate."
67 A "development node" is defined as a distinct and discrete built area that may be located within the total setback, it may vary in size from a grouping of recreational facilities to an urban area.
68 The Commission in its Report on Submissions expressly states that it "has had due regard for the Policy when making its final decision on the Amendment". The Report refers in detail to the terms and effect of the Policy and the Commission modified the very southern coastal section of the development area to comply with the Coastal Policy.
69 The Commission notes that the Coastal Policy does not exclude development without a setback and continues:
"Overall, the WAPC considers that the proposal represents a coastal development node in accordance with the State Coastal Planning Policy. …
The EPA has assessed the proposal and has determined that because of the stable coastline the proposal is unlikely to cause any significant unexpected erosion.
The public benefits of the project are numerous in that it represents an urban renewal project, rehabilitating significantly contaminated soils and the removal of dilapidated buildings of a former industrial zone and providing for multiple-use. The development makes available to the public a coastal foreshore that has been severely degraded and publicly inaccessible.
The future coastal foreshore of this area will offer a diverse range of coastal experiences from a marina and commercial node, boardwalks directly overlooking the ocean and beach, to open sandy beaches along with urban development."
70 The Commission is not bound to apply the Policy and would have been in error if it so regarded itself: Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] - [28]. It was open to the Commission to conclude that overall the scheme amendment was
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- consistent with the Coastal Policy or not to apply the Coastal Policy on strategic and public interest grounds. On any view, the Commission gave proper, genuine and realistic consideration to the Coastal Policy. I am satisfied that this ground does not raise an arguable case.
Commission Recommendations - Fettered Discretion (Ground 7)
71 The applicant contends that the Commission did not exercise its discretion under s 33 of the Scheme Act to make, or refuse to make, recommendations for rezoning properly or at all as it acted "at all material times with fettered discretion to promote the Port Catherine project and the relevant rezoning pursuant to its obligations under" the Agreement.
72 It is arguable the Commission has a discretion under s 33(g) to recommend that the amendment, with modifications, be proceeded with, and I will proceed on that basis. The applicant must establish the actual fettering of a relevant discretion. As emerges from the cases, this is in substance and effect a claim of actual bias (see R v Sevenoaks District Council; Ex parte Terry (1985) 3 All ER 226, per Glidewell J, at 229).
73 The applicant relies on the Agreement. There is nothing in the express or implied terms of the Agreement that requires or authorises such a fetter. To the contrary, the Agreement repeatedly states that any obligation of the Commission under the Agreement is subject to the due and proper performance of its statutory duties and powers. Further, the Agreement makes express provision for what is to occur in the event that relevant approvals are not obtained. The applicant does not identify any other evidence in support of this ground. The Commission's Report on Submissions provides no support. I am satisfied that this ground of review is not arguable.
Commission Recommendations - Bias (Ground 8)
74 The applicant contends that the Commission's recommendations are invalid because of a reasonable apprehension of bias by virtue of a conflict of interest and prejudgment. The applicant relies on corporate bias and not the bias of any individual involved in the decision.
75 The general test of bias is whether the relevant circumstances are such as would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the decision-maker: Webb v The Queen (1994) 181 CLR 41. This test is applicable to judicial proceedings.
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76 There is a question whether that test applies to decisions made by policy bodies such as planning authorities that exercise numerous statutory functions. There is authority that the test applicable to judicial proceedings is not usually appropriate for administrative decisions of the type in question in this case: Century Metals & Mining NL v Yeomans (1989) 100 ALR 383 at 417. It has been suggested that corporate disqualification only occurs where there is a probability or real likelihood of bias or where the authority so conducts itself that it gives the appearance to members of the public that it has such an interest in the outcome of its determination that its objectivity is skewed if not obliterated: Blue Mountains City Council v Prospect County Council (1992) 74 LGRA 129 per Cripps J at 133. In an English case the test applied was whether the discretion was actually fettered rather than whether there was a reasonable apprehension of fettering: R v Sevenoaks District Council; Ex parte Terry (supra). In other cases the test of reasonable apprehension of bias has been applied: Lower Hutt City Council v Bank [1974] 1 NZLR 545; Steeples v Derbyshire County Council [1985] 1 WLR 256.
77 In this jurisdiction, the test in relation to prejudgment is clear. Where Ministers and planning authorities are concerned, it must be shown that the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532, 564. This formulation is similar to a requirement of proof of an actual fetter rather than an apprehension of fettering. The statement in Jia Legeng that the nature of the decision-making process and the position of the person making the decision may be of critical importance in deciding whether the conduct of the decision-maker indicates bias is not in terms limited to bias on the ground of prejudgment. However, although there are strong policy considerations for having, or alternatively applying, a different test where Ministers and planning authorities are concerned, there is no clear authority on the test or how to apply it where an alleged conflict of interest is involved (whether alone or in combination with prejudgment).
78 The discussion thus far has concerned whether conduct is capable of amounting to bias. If the answer is in the affirmative, the next question is whether the necessity exception applies. The scope of the necessity exception is unclear. In particular, it is uncertain whether the exception applies to the exercise of a power that in terms enables a decision-maker to act in a number of ways, not all of which would bring bias considerations into play; that is, whether the statute must mandate
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- unavoidable bias: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337. In this case it is necessary to consider the relevant statutory scheme, which requires reference to the Scheme Act, the Planning Act and the Western Australian Planning Commission Act 1985 (WA) ("Commission Act"). The arguable issues on necessity are whether there is a conflict of duty and duty or power and duty and, if the latter, whether necessity applies.
79 The applicant does not rely solely on prejudgment. If it did, the claim must fail. The Agreement, which concerns the possible sale and development of land owned, alternatively, vested in or controlled by the Commission, some of which is contaminated, arguably gives rise to a conflict of interest that is relevant to, but goes beyond prejudgment. Further, although the Agreement does not actually fetter the statutory discretion, the Commission has a real and tangible practical interest in facilitating the Project. In light of the combination of factors and the divergent approaches in the authorities, I am satisfied this ground of appeal is arguable.
Hearings Committee - Relevant Consideration (Ground 5)
80 The applicant contends the Hearings Committee erred in failing to take into account the Coastal Policy and that the failure invalidates its report and the subsequent statutory steps for the finalisation of the scheme amendment.
81 The first and second respondents contend that unless the Commission adopted the report of the Hearings Committee as its own, as it is empowered to do under s 33(2)(gaa) of the Scheme Act, the report is not a statutory precondition to the exercise of the amendment power in s 33 and is not amenable to certiorari. In this case the Commission did not adopt the Hearings Committee report as the Commission's report under s 33(2)(g). However, the Commission did include it in its report to the Minister. Further, the Commission considered and supported the majority of the Hearings Committee's recommendations, although not the Hearings Committee's stated view (referred to below) that the Coastal Policy did not have retrospective effect. As s 33(2)(gaa) expressly empowers the Commission to include the report of the Hearing Committee, it is arguable that the principle in Hot Holdings Pty Ltd v Creasy (supra) applies. Accordingly, it is necessary to consider the substantive merits of this ground.
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82 The Hearings Committee report expressly deals with the Policy. Notwithstanding reference to a longstanding Commission practice of not applying newly gazetted policies retrospectively, the Hearings Committee considered the Coastal Policy and concluded that the development node exception applied to the residential and related development but that the Coastal Policy otherwise applied to the very southern coastal section of the development area and recommended consequential amendments. Even if the test for taking into account a relevant consideration is that the decision-maker must give proper, genuine and realistic consideration to the matter, that test is satisfied on the evidence. Accordingly, this ground is not arguable.
Hearings Committee - Bias (Ground 9)
83 The applicant contends that there is a reasonable apprehension that Ms Avril O'Brien, the Chairman of the Hearings Committee, was biased by reason of the publication of a paper co-written by her entitled "The Good, the Bad and the Ugly. Challenges to Western Australia for Coastal Management". The paper was delivered at a conference held on 4 - 8 November 2002 at which time the scheme amendment was being processed by the Commission.
84 Ms O'Brien referred to the gradual extension of the industrial zone to the South Coogee area which she said "in hindsight, stands out as a clear example of bad planning". She then referred to the government's plan for removing industry from the area laid down in the 1980's which is now approaching "a complete turnaround in the proposed Port Catherine marina and residential development. While the result is expected to be an example [of] GOOD coastal planning and management, it nonetheless first leads to an example of what is UGLY about our coast." She went on to say that the development of industry along the Cockburn Sound was an example of what is ugly. Reference also was made to the significant public opposition to the Hillary's boat harbour development and that none of the predicted disasters had come to pass. The paper continues:
"We now have the ironic situation where people living in the south metropolitan area are asking why they don't have a public facility like Hillarys. Port Catherine is being touted as the answer. It seems that, politically unpalatable as it may be, sometimes decisions do need to be made that appear out of step with community opinion."
85 The claim of a reasonable apprehension of bias is based on alleged prejudgment. In my view, the claim is not arguable. At the time
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- Ms O'Brien made the statement she was an officer of the Commission. As is clear from the background, the Commission (and its officers) must have had very lengthy involvement in the planning issues relating to the area in question. By 1999 the Commission had formulated the proposed scheme amendment (as required by s 33) on which it must have formed a preliminary view. This is a situation where administrators would have had a continuing relationship with a particular issue and would have, and be expected to have, views on the merits of the issues. The statements in question were of a general nature and were made in November 2002. The report of the Hearings Committee was handed down in June 2004. There is nothing in the evidence to sustain a finding that Ms O'Brien was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.
Prohibition Against the Commission - Acquisition of Sea-bed Land (Ground 9A)
86 The applicant contends that the Minister has no power to transfer the Coogee beach and sea area under the LAA and the Commission does not have the power to acquire or transfer to PCD any part of the Coogee beach and sea area, the transfer being contrary to Improvement Plan No 26. I deal with the Minister's power to transfer the land below. This section is confined to a consideration of the challenge to the Commission's power. This is a stand-alone challenge; it is not derivative on the validity of the scheme amendment or the TPS3 amendment.
87 The applicant's contention is that the Commission does not have the power to engage in property development which is how it characterises the acquisition of the Coogee beach and sea area and its transfer to PCD pursuant to the Agreement. The applicant submits that the Commission has limited property development powers which are to be found solely in s 37A of the Scheme Act which deals with the creation and implementation of improvement plans. The applicant contends that Improvement Plan 26 does not cover or extend to the Coogee beach and sea area. That plan was based on the Master Plan which provided for a marina and residential development, but did not include the seabed in the development area. However, the evidence is that in early December 2004 a delegated committee of the Commission will consider a proposal to amend Improvement Plan 26 to incorporate the seabed area the subject of the scheme amendment. Section 37A(2a) of the Scheme Act empowers amendment of an improvement plan.
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88 Under s 37A of the Scheme Act the Commission is authorised to certify and recommend to the Minister that an improvement plan be prepared for the purpose of advancing the planning, development and use of any land within the metropolitan region. If the Minister accepts the recommendation, he or she is required to forward it as soon as practicable to the Governor. If the Governor accepts the recommendation, the Commission may proceed with the implementation of the Improvement Plan and may purchase any land in the area by agreement or compulsorily. Having acquired the land, the Commission may sell or otherwise dispose of it to any person on such terms as the Commission, with the approval of the Governor, thinks fit. As an alternative to acquisition, in respect of land included in the Improvement Plan area but not acquired or held by the Commission, the Commission may enter into an agreement with the owner to implement the Improvement Plan.
89 The first and second respondents contend that there are a number of options for the Commission to acquire the Coogee beach and sea area, including s 13(1)(a) of the Planning Act; amendment of Improvement Plan 26 to extend the area the subject of the plan to include all of the development area; or it could accept all or part of the land under cl 40 of the MRS, which relates to land reserved under Pt II of the MRS. Section 13 of the Planning Act and cl 40 of the MRS confer power on the Commission to acquire land, by purchase or compulsorily.
90 Without intending to reflect on the strength of the applicant's case, I am satisfied that the nature and extent of the Commission's activities may be such as to depend for their validity on s 37A of the Scheme Act. However, the application is premature. The Commission is yet to resolve whether to amend Improvement Plan 26 in order to deal with the whole of the development area. On that basis, I would decline to make an order nisi on this ground of review.
Certiorari Against the Minister
91 The applicant seeks to quash the decision made on or about 23 June 2004 purportedly under s 33(2)(l) of the Scheme Act to present the scheme amendment for approval by the Governor in Council. Based on the alleged invalidity of that decision, the applicant also seeks to quash the approval of the scheme amendment by the Governor in Council and the resulting rezoning effected by the scheme amendment. The grounds of review largely mirror the grounds on which the Commission's recommendations are challenged. In particular, the applicant says the
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- Minister acted for improper purposes, failed to have regard to a relevant consideration, fettered her discretion and was biased.
92 The applicant also relies upon derivative invalidity on the ground that the Minister's decision was premised upon the decisions and recommendations of the Commission which are said to be invalid on the grounds already referred to below (Ground 11).
93 Firstly, it is necessary to identify the nature of the Minister's role under s 33(2) of the Scheme Act. The applicant's challenge is based on the premise that the Minister had a statutory discretion as to whether or not to submit the scheme amendment to the Governor. In my view, that construction is not open.
94 Section 33(2)(ga) and (ka) of the Scheme Act provide that, where the Commission recommends the amendment not be proceeded with, the Minister has a discretion to withdraw the amendment instead of presenting it to the Governor for his consideration. In this case nothing activated the power of the Minister to withdraw the amendment. In those circumstances, the Minister is obliged to present the amendment to the Governor and has no relevant discretion in the matter. However, it is accepted that the Governor acts in conformity with the advice given by the Executive Council. As stated by Mason J in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 (at 366):
"As the Governor ultimately acts in accordance with advice tendered to him, the final decision is not a decision for which he has to account. The effective decision is that of the Executive Council or the Minister. It is the Government and the Minister who are responsible for that decision to the Parliament and to the electorate."
95 Winneke establishes that a decision of the Governor in Council is amenable to challenge and that can be achieved by imputing to the Governor the conduct of the effective decision-maker. In this case Cabinet resolved to support the presentation of the scheme amendment to the Governor for his approval and endorsement. The Executive Council minute, signed by the Minister and the Premier, notes that the Council advised the Governor to approve the scheme amendment. Thus, although the Minister did not have a discretion to present the scheme amendment to the Governor, the Executive Council, in accordance with the Cabinet resolution, advised the Governor to approve it. Notwithstanding my
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- conclusion, I propose to consider the independent challenges on the assumption the Minister exercised a relevant statutory discretion.
Minister - Improper Purpose (Ground 12)
96 The applicant contends that the Minister made the decision for the improper purpose of benefiting the private commercial interests of, and to provide a particular level of profit to, the developer. The particulars are as follows:
"(1) On or about 16 February 2004 and as reported in The West Australian of that date, the Minister said that she supported the concept of a marina in the area but would weigh up whether the project could be viable with less residential development over the water.
(2) During 2004, the Minister suggested to the developer that residential lots to be created on peninsulas within the reclaimed seabed area should be reduced to create more open space. The developer raised the issue that such a reduction would render the project uneconomic. The Minister called for verification of this claim and the developer then produced a report by the accounting firm Ernst and Young ("the Ernst & Young report"). As reflected in comments made by the Minister on or about 18 March 2004 and reported in The West Australian of that date, the Minister then stated that she accepted that no reduction in the residential lot number was required because inclusion of such lots would produce an internal rate of return for the developer of 21.6%, compared to 16.1% with the reduction."
97 The newspaper reports are in evidence. The developer's reported response was that the economic feasibility of the Project required residential development over the sea-bed and it produced the Ernst and Young report which supported its claim. Further, the press reports are to the effect that at the time the City of Cockburn was considering the TPS3 amendment and the structure plan and the Minister brokered a compromise with the developer to reduce the density of housing on the marina and to provide for increased public access.
98 The applicant must point to evidence from which it is open to infer that, at the time the Minister made the decision to recommend approval of the scheme amendment, she acted for the substantial purpose of
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- financially benefiting the developer. In the context of the relevant history and factual background, the particulars are incapable of establishing that the Minister recommended approval of the scheme amendment for the substantial purpose of financially benefiting the developer. The Agreement is in place and binds the Commission. For the reasons already given, it is not open on the evidence to conclude that the Commission acted for the alleged improper purposes. The Agreement acknowledges that the Project overall needs to be commercially viable. In that contractual framework the Minister negotiates with the developers in relation to the detail of the development and the focus is on economic feasibility. The Minister's conduct is consistent with the Commission's purpose and the Agreement. The clear inference is that the Minister was acting in furtherance of the interests of the public, not in the developer's financial interests. Insofar as her comments relate to the TPS3 amendment and structure plan, it is undesirable for planning instruments to allow a development that is not economically feasible.
99 I am satisfied it is not open on the evidence to find that the Minister acted for the alleged improper purpose.
Minister - Irrelevant Considerations (Ground 13)
100 The applicant contends the Minister's decision is invalid because she took into account irrelevant considerations, being the economic consequences for the developers of the rezoning and the provision of a profit to the developers. I am not satisfied on the evidence that the Minister did in fact take these matters into account when making her decision to recommend the scheme amendment. Running parallel with the scheme amendment is the City of Cockburn's consideration of the TPS3 amendment and structure plan which addresses the detail of the proposed development. In any event, they are not, in context, irrelevant considerations. Commercial viability is a parameter affecting the extent of the proposed development. Commercial viability considerations may render the proposed development unacceptable and that may be relevant to whether to recommend approval of the change in zoning.
Minister - Improper Purpose (Ground 14)
101 The applicant contends the Minister also acted for the improper purpose of nullifying or materially curtailing the common law rights of the public to access and use the Coogee beach and sea area, firstly, for fishing and navigation and, secondly, for personal and recreational purposes. This is the same allegation made against the Commission. The applicant does not rely on any specific evidence other than the effect of
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- the Agreement. I am satisfied that it is not open on the evidence to find that the Minister acted for the alleged purpose.
Minister - Relevant Consideration (Ground 15)
102 The applicant contends the Minister failed to take into account the Coastal Policy. The Minister is reported as saying in 2004 that it was too late to apply the Coastal Policy. This statement is in conflict with the Commission's Report on Submissions which I infer the Minister read and acted on. If (which I doubt) the Minister is required to consider the Coastal Policy, it is clear she did so and concluded, as she is entitled to do, that she was not bound to apply it.
Minister - Fettered Discretion (Ground 16)
103 It is contended that the Minister's decision (and the consequential amendment approval and rezoning) did not constitute a genuine or proper exercise of discretion under s 33 of the Scheme Act as the Minister at all times acted with fettered discretion to promote the Project and the relevant rezoning pursuant to the Agreement. The Agreement does not expressly or impliedly require or contemplate that any relevant discretion be fettered. It is not open on the evidence to infer that the Minister acted on the basis that her discretion was fettered. I am satisfied that this ground of review is not arguable.
Minister - Bias (Ground 17)
104 The applicant contends the Minister's decision is vitiated by a reasonable apprehension "of bias and prejudgment". The applicant relies on the following matters:
(1) The first agreement and the Agreement cast obligations on the Commission and the government to ensure the implementation of the Project;
(2) The Minister propagated and advocated the development and its alleged merits on several occasions which are further particularised. They include a statement by the Minister to the effect that her government was bound by the Agreement; that the fundamentals of the Project "seemed okay"; she would bring some moral pressure to bear upon the developer to get more public facilities; she supported the concept of a marina but would weigh up whether the Project could be viable with less residential development over the water; she had asked the developer
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- to complete an independent economic feasibility analysis; the Minister stated she had reached a compromise with the developer and would like work on the Project to get going as quickly as possible; the Minister said there would be no more housing estates built over WA oceans and it was too late to apply the State Coastal Planning Policy as they had been in negotiations over Port Coogee for 17 years; the government was tied into the Agreement and had to press ahead.
105 There is no suggestion the Minister had a personal conflict of interest. The position of the Minister needs to be evaluated in the light of her political role, responsibility and accountability and that a Minister can and should be drawn into public or Parliamentary debate about a matter in respect of which she may have to consider exercising statutory powers or discretions. The Court said in Jia Legeng (at 539):
"The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. There is no reason to conclude that the legislature intended to impose such standards upon the Minister, and every reason to conclude otherwise."
106 Gleeson CJ and Gummow J in Jia Legeng (at 539 - 540) approved the decision of the New Zealand Court of Appeal in CREEDNZ Inc v Governor-General [1981] 1 NZLR 172. That case concerned an order in council relating to a development proposal, which the Court recognised as being of a type which was likely to be many months in evolution and attract considerable public interest. Cooke J rejected the allegation that statements made in relation to the proposal would give rise to a reasonable apprehension of bias by reason of prejudgment, noting that:
"It would be naïve to suppose that Parliament can have meant Ministers to refrain from forming and expressing, even strongly, views on the desirability of such projects until the stage of advising on an Order in Council."
107 For the reasons already given, there is no evidentiary foundation for the claim that the Agreement cast obligations upon the Commission (and thereby the government of the day) to ensure the implementation of the Project. That is to misstate the terms of the Agreement. For the Minister
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- to say that her government was bound by the Agreement goes no further than stating the obvious. However, it falls short of a statement that the Minister or the government was obliged to ensure the implementation of the Project. Insofar as the Minister's comments relate to the contractual arrangement for the sea-bed land, attempts to improve the State's contractual position or alternatively to negotiate with the developers on the detail of the development to be incorporated the structure plan does not indicate prejudgment in the relevant sense.
108 If the claim against the Minister was in prejudgment alone, the applicant would not have an arguable case of bias against the Minister. However, when considered in combination with the arguable conflict of interest of the Commission, for whom she is ministerially responsible, the claim would be arguable for the same reasons as the claim against the Commission. However, that conclusion is premised on the assumption the Minister has a discretion, which I have concluded she does not.
Derivative Invalidity (Ground 17A)
109 The applicant contends the Minister's decision, the amendment approval by the Governor and rezoning are invalid by reason of the invalidity of the Commission's recommendations.
Minister - Prohibition and the TPS3 Amendment (Grounds 19 to 21)
110 The applicant seeks an order nisi for a writ of prohibition preventing the Minister from approving, pursuant to s 35A of the Scheme Act or s 7 of the Planning Act, the TPS3 amendment. Two grounds are relied on.
111 The first (ground 19) is that the TPS3 amendment is invalid by virtue of the invalidity of the scheme amendment. As already noted, the scheme amendment changes the zoning of the development area.
112 The TPS3 amendment is to, inter alia, change the zoning of the land in the development area from industrial to development. The objectives of the development zone is to provide for future residential, industrial or commercial development in accordance with a comprehensive structure plan prepared under TPS3. If the scheme amendment is invalid, not all aspects of the development area would be inconsistent with the existing zoning of the land. However, the seabed would revert to a waterways reservation and would be inconsistent.
113 In pursuing the TPS3 amendment the City was acting in accordance with its obligations under s 35A of the Scheme Act. It is clear from s 35A(2)(a) that the obligation only arises in the event the scheme
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- amendment is valid. Further, it is arguable that cl 21 of the MRS only applies if the scheme amendment "has the force of law". In those circumstances, it is arguable that invalidity of the scheme amendment has a consequential effect on the validity of the TPS3 amendment.
114 The applicant also claims (in ground 20) that the TPS3 amendment is invalid in that it:
(1) seeks to zone the Coogee beach and sea area to a development zone for the ultra vires and ulterior purpose of benefiting the private commercial interests of the developers;
(2) has the ulterior purpose and effect of nullifying or curtailing the common law rights identified in ground 4;
(3) has been made in disregard and without consideration of the Coastal Policy.
115 The grounds of appeal are formulated in the passive voice. However, although they are relied on to establish the entitlement to prohibition against the Minister, the claim is derivative and the applicant must establish that the City of Cockburn acted for the alleged improper purposes. It appears the applicant again relies on the effect of the TPS3 amendments. Applying the legal principles previously identified, I am satisfied it is not open on the evidence to find that the City of Cockburn (or the Minister) was actuated by the alleged improper purposes.
116 The final aspect of this ground is that the City of Cockburn failed to take into account a relevant consideration, namely, the Coastal Policy. This claim is also not supported by the evidence. The minutes of the meeting of the Council of the City of Cockburn on 16 March 2004 expressly note that the adoption of the modified local structure plan is subject to the proposal being dealt with as a "development node" under Schedule 1 of the Coastal Policy. I am satisfied this ground is not arguable.
117 Finally, the applicant contends (in ground 21) that any approval to be given by the Minister to the TPS3 amendment would be ultra vires because the Minister had fettered her discretion and was biased (as alleged in grounds 16 and 17). I have concluded that there would have been an arguable claim of reasonable apprehension of bias against the Minister if she had a discretion under s 33 of the Scheme Act. The Minister does
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- have a discretion in relation to the TPS3 amendment. Accordingly, I am satisfied that ground 21 raises an arguable case.
City of Cockburn - Certiorari (Ground 22A)
118 The applicant also seeks a writ of certiorari against the City of Cockburn to quash the TPS3 amendment on grounds 19 and 20 (against the Minister). I have concluded that ground 19 is arguable and ground 20 is not.
Minister - Writ of Prohibition Relating to Issue of Titles
119 The applicant seeks a writ of prohibition against the Minister prohibiting her from:
(1) causing a deed or deeds of title to issue in respect of the Coogee beach and sea area;
(2) approving the transfer and transferring pursuant to s 75 of the LAA or otherwise, the Coogee beach and sea area to the Commission for transfer to the developers, whether by Crown grant or otherwise.
120 The first ground (ground 23) is derivative and depends upon the applicant succeeding in grounds of review 3 to 9 and 12 to 17. However, the power to deal with and dispose of land under the LAA is not conditioned on the zoning of the land under the scheme amendment or the TPS3 amendment. Accordingly, the invalidity of the scheme amendment or the TPS3 amendment can have no effect on the exercise of the Minister's power under the Act. The applicant's case is that the transfer to the developer is on the basis and premise that the relevant land has been rezoned from waterways to urban. However, even if the land is transferred, that cannot affect the validity or otherwise of the rezoning notwithstanding that the relevant parties contract on the basis that the land is zoned urban. The purchaser will have contractual remedies in the event of the invalidity of the zoning. In my view, this ground is not arguable.
121 The next ground (23A) is that the Minister proposes to transfer the Coogee beach and sea area to the Commission for subsequent transfer to the developers, but cannot lawfully do so:
.1 without receiving valuable consideration;
.2 in derogation of the common law rights referred to in ground 4; and/or
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- .3 in circumstances where the Commission does not have the power to acquire the land.
122 It is accepted that the power of the Minister to sell the Coogee beach and sea area is derived from ss 74 and 86 of the LAA which require the land to be transferred for consideration: s 3(6) of the LAA. There is no evidence as to the terms and conditions on which the Minister would sell the land to the Commission in the event the Agreement becomes unconditional.
123 Even if it is correct to characterise the sale as being, in effect, from the Minister to PCD (which I doubt), it is not correct to conclude that the transfer is for no consideration. Although no purchase price is specifically allocated to the sea-bed, cl 8.2 of the Agreement provides that the purchase price payable for each part of the WAPC land, which includes the seabed land, is the total price to be paid for all WAPC land purchased. In addition, PCD promises to develop the WAPC land in accordance with the development plan.
124 Secondly, it is said the Minister cannot lawfully transfer the seabed land in derogation of the common law rights referred to ground 4. It is arguable that there is a public right to fish and navigate in the sea and tidal waters which can only be abrogated by statute: Commonwealth v Yarmirr (2001) 208 CLR 1 at 55 - 56; Harper v Minister for Sea Fisheries (1989) 168 CLR 314 at 329 - 331; Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 168 - 170.
125 However, the applicant's claim of the public's common law right to use the beach for bathing and related recreational activities is not supported by any authority. A majority in Blundell v Catterall (1821) 5 B & Ald 268; (1821) 106 ER 1190 rejected the proposition. However, the applicant contends the minority judgment in Blundell should be followed as it is in tune with the physical and social conditions that prevail in Australia. If this claim stood alone, I would rule on whether it is arguable. However, as it is linked with the arguable public rights of fishing and navigation, I refrain from doing so.
126 For the purposes of this application I assume that the claimed rights are common law rights and that they cannot be abrogated by the exercise of the prerogative or executive power. It also appears to be accepted that the rights can be taken away by statute. However, the applicant relies on the principle of statutory construction traditionally formulated in terms of a presumption against interference with vested common law rights:
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- Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609 at 617; Temwood Holdings Pty Ltd v Western Australian Planning Commission [2002] WASCA 10. The applicant contends that, on a proper construction of the LAA and having regard to the presumption, the Minister is not empowered to sell Crown land free from the claimed common law rights.
127 It appears the presumption has not materially affected the construction of other State legislation which has had the effect of distinguishing native title, a right or interest in land of a similar nature also recognised by the common law. Further, the first and second respondents submit that if the applicant is correct, all that follows is that the common law rights continue. That assertion is made without submission or analysis as to the effect of registration of a transfer under the Transfer of Land Act 1893 (WA). I am satisfied that the applicant's position is arguable and that it may be prejudiced if the transfer proceeds.
128 The final matter the subject of ground 23A relates to the Commission's power of acquisition. I have already dealt with this matter. That challenge is premature.
129 The next ground (24) is to the effect that the transfer of the land is to be made for improper purposes, being the same purposes referred to in grounds 12 and 14. They do not raise an arguable case for the reasons I have already given.
130 Grounds 25 and 26 contend that the Minister has fettered her discretion to transfer the land under the LAA and is biased. These grounds are in the same terms as grounds 16 and 17. I have concluded that there is no arguable fetter. Further, it cannot be seriously contended that a conditional agreement to sell land under the LAA gives rise to a reasonable apprehension of bias. The nature and extent of the procedure and discretions under the Scheme Act are of an entirely different character to the LAA. These grounds do not raise an arguable case.
Proposed Orders
131 The government respondents rely on delay and the private respondents on prejudice as justifying a refusal to grant an order nisi. The Commission's recommendations were made in June 2004, the disallowance motion was rejected in September 2004 and the application filed in October 2004. There is no disqualifying delay. Further, the nature and extent of the prejudice (addressed below) is also insufficient to justify refusing interlocutory relief.
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132 For the reasons I have given, I would grant an order nisi for a writ of certiorari in relation to grounds of review numbered 8 and the consequential challenge in 17A (excluding the Minister's alleged decision), 21 and 22A (insofar as it relates to 19) and an order nisi for a writ of prohibition in relation to grounds of review 19 and 23A.2. Otherwise, I would dismiss the application.
Discovery
133 In the event an order nisi is made, the applicant seeks discovery of the Ernst and Young report and copies of documents passing between the respondents relating to the negotiations concerning what consideration, if any, was to be paid for the seabed land.
134 In appropriate circumstances, this Court has a discretion to order discovery and inspection of documents in an application of this nature (see Re Real Estate and Business Agent Supervisory Board; Ex parte Cohen (1999) 21 WAR 158, per Scott J.
135 These documents are not relevant to any arguable ground of review and the application is refused. Even if the documents were of some marginal relevance, I would not in the exercise of my discretion make the requested order because the documents are primarily relevant to a merits review of the decisions under challenge.
Stay
136 The applicant seeks a stay of the approval by the Minister of the TPS3 amendment and the issue of title deeds over the Coogee beach and sea area until the determination of the return of any order nisi. The stay is opposed by all respondents.
137 PCD says that if the scheme amendment and TPS3 amendment do not come into effect before 31 March 2005, PCD cannot acquire the Consolidated Marine and Anchorage land unless the latter companies extend the option period. There have been previous extensions of the option period and there is no evidence that it would not be extended. However, the s 33 procedure has been tortuous and time consuming, having taken over five and a half years, and PCD has outlaid significant expenditure under the Agreement. I accept that further delays will be prejudicial, particularly to PCD. Prejudice to third parties is a factor to be considered in the Court's discretion to refuse a stay or to grant relief subject to an undertaking as to damages. The applicant is prepared to
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- provide an undertaking as to damages, but admits it is not in a position to provide adequate security for any such undertaking.
138 In an affidavit sworn by an officer of the Commission, it is clear that a number of steps remain to be performed before the TPS3 amendment can be submitted to the Minister for approval under reg 19 of the Town Planning Regulations 1967 (WA). The initial approvals have yet to be granted under the Agreement, which remains conditional in the full sense. It appears highly unlikely that the TPS3 amendment will be ready for consideration by the Minister before the end of February 2005 at the earliest and titles would not issue before then. I am not persuaded that the applicant's challenge to the TPS3 amendment will be prejudiced even if the amendment is approved. Without deciding the question, there may be prejudice if the WAPC land is transferred to and registered in PCD's name. However, that is not imminent. In the circumstances, a stay at this time is inappropriate and unnecessary. However, I propose to order that the first respondent provide 14 days' written notice to the applicant of the intention (if she so determines) to issue titles under the LAA. I will hear the parties on the terms of the notice requirement and the orders.
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Standing
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Bias
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Fiduciary Duty
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Abuse of Process
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