Re Strive Pty Ltd
[2003] WASC 188
RE STRIVE PTY LTD [2003] WASC 188
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 188 | |
| Case No: | CIV:2117/2003 | 19 SEPTEMBER 2003 | |
| Coram: | BARKER J | 7/10/03 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Application for orders nisi for writs of certiorari and mandamus granted | ||
| B | |||
| PDF Version |
| Parties: | STRIVE PTY LTD (ACN 008 689 012) |
Catchwords: | Prerogative writs Certiorari and mandamus Application for orders nisi Whether Minister's direction to transfer the place from interim to permanent Register of Heritage Places ultra vires Administrative law Judicial review Substantive fairness Procedural irregularity Consideration of irrelevant criteria Failure to consider relevant criteria "Wednesbury" unreasonableness Statutes Statutory construction Heritage of Western Australia Act 1990 s 49(1) "Except pursuant to an interim registration" |
Legislation: | Heritage of Western Australia Act 1990 (WA), s 49(1)(a), s 49(1)(b)(ii) |
Case References: | Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 Re Matthews; Ex parte MacKenzie [2000] WASC 147 Re the Honourable D G Kierath, Minister for Heritage; Ex parte City of Fremantle [2000] WASCA 156 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
MATTER : Order 56 of the Rules of the Supreme Court and O 58 r 11 of the Rules of the Supreme Court
and
Heritage of Western Australia Act 1990
and
Application for a Writ of Certiorari against the Hon Tom Stephens, Minister for Local Government and Regional Development; Heritage; The Kimberley, Pilbara and Gascoyne; Goldfields - Esperance and a Writ of Mandamus against the Heritage Council of Western Australia
STRIVE PTY LTD (ACN 008 689 012)
Applicant
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Catchwords:
Prerogative writs - Certiorari and mandamus - Application for orders nisi - Whether Minister's direction to transfer the place from interim to permanent Register of Heritage Places ultra vires
Administrative law - Judicial review - Substantive fairness - Procedural irregularity - Consideration of irrelevant criteria - Failure to consider relevant criteria - "Wednesbury" unreasonableness
Statutes - Statutory construction - Heritage of Western Australia Act 1990 s 49(1) - "Except pursuant to an interim registration"
Legislation:
Heritage of Western Australia Act 1990 (WA), s 49(1)(a), s 49(1)(b)(ii)
Result:
Application for orders nisi for writs of certiorari and mandamus granted
Category: B
Representation:
Counsel:
Applicant : Mr P S Bates
Solicitors:
Applicant : CBA Legal
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24
Re Matthews; Ex parte MacKenzie [2000] WASC 147
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Re the Honourable D G Kierath, Minister for Heritage; Ex parte City of Fremantle [2000] WASCA 156
Case(s) also cited:
Nil
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- BARKER J:
Introduction
1 By application made ex parte and dated 16 September 2003, the applicant seeks orders nisi for writ of certiorari against the Honourable Tom Stephens, Minister for Heritage, and writ of mandamus against the Heritage Council of Western Australia.
2 So far as the application for an order nisi for certiorari against the Minister is concerned, the applicant relies on grounds that raise questions of procedural irregularity, consideration of irrelevant criteria and failure to consider relevant criteria.
3 So far as the application for an order nisi for mandamus against the Heritage Council is concerned, the applicant relies on the grounds for certiorari against the Minister being made good.
4 I consider that the test for determining whether an order nisi should be granted is relatively low. If an applicant demonstrates an arguable case, then an order nisi should be granted. In effect, proceedings of the type before me provide an opportunity for a Judge to filter the application to ensure that "misguided or trivial complaints about administrative behaviour" do not go forward: see Re Matthews; Ex parte MacKenzie [2000] WASC 147 at [8] - [11] per Templeman J and the authorities there referred to.
Background
5 For the purposes of the application before me, the circumstances in which the application is made may shortly be stated as follows.
6 The applicant is the registered proprietor of the building and place known as the "Midland Inn" situated at 408 Great Eastern Highway, Midland, Western Australia. In October 1997, the Heritage Council declined the request of the applicant to recommend the Midland Inn for entry onto the Register of Heritage Places under the Heritage of Western Australia Act 1990 (WA).
7 However, the Midland Inn was entered on the Register on an interim basis, with effect from 27 August 1999. On that date, notice was given in the Government Gazette in the following terms:
"Pursuant to directions from the Minister for Heritage, notice is hereby given in accordance with Section 49(1) of the Heritage
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- of Western Australia Act 1990 that it is proposed that the places described in Schedule 2 be entered in the Register of Heritage Places. The Heritage Council invites submissions on the proposal; submissions must be in writing and should be forwarded to the following address not later than 8 October 1999.
The Director, Office of the Heritage Council
108 Adelaide Terrace, East Perth WA 6004
The places will be entered in the Register on an interim basis with effect from today."
- Schedule 2 included a place described as "Midland Inn" with the location "408 Great Eastern Highway, Midland", and which was there more particularly described.
8 It appears from this notice in the Gazette that the Minister gave the Heritage Council either a direction to publish the advertisement in question pursuant to s 49(1)(a) of the Heritage Act or a direction under s 47(1) to effect the interim registration of the Midland Inn.
9 In any event, the publication of the s 49(1)(a) advertisement triggered the interim registration of the Midland Inn under s 50(1)(a) of the Act.
10 By virtue of s 53 of the Heritage Act interim registration is only good for a period of 12 months from the date of publication in the Gazette of the advertisement required under s 49(1). The Heritage Council must, when that period elapses, publish a notice that the proposed entry has not been made and thereafter cause the entry made at the time of interim registration to be removed. However, this requirement is subject to subs (2) which provides, in effect, that where, amongst other persons, the owner of a place has given written notice to the Heritage Council consenting to the continuance of the interim registration and that consent has not been withdrawn, an entry in the Register made at the time of interim registration continues to have effect until the Minister, by notice in writing to the persons then required pursuant to s 46(4) to be consulted or to give consent to an amendment, gives notice that the entry will be removed on the expiry of a period of not less than 12 months after the giving of that notice and that period has elapsed.
11 By letter dated 20 August 2000 to the Director of the Heritage Council, the applicant consented to the "indefinite extension of the interim
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- registration" of the Midland Inn under the Heritage Act and indicated that it would not withdraw the consent without prior written notice being given to the Heritage Council of at least 21 days. The applicant also indicated in the letter that this consent was given on the basis:
" … that the Heritage Council of Western Australia also commits it will not represent or reinitiate any modification to the Interim Registration, including any representations for Permanent Listing of the Midland Inn to the Hon Minister for Heritage … without providing Strive Pty Ltd at least 21 days notice of intention in this regard and without receiving further representations from Strive Pty Ltd in regard to such measures for Permanent Listing."
13 By letter from Peter Spensley Bates, barrister at law, on behalf of the applicant to the Director of the Heritage Council dated 19 August 2003, the applicant gave notice that it withdrew its consent to the Midland Inn remaining on the interim Register and that it required the Council to implement the procedure in s 53(1) of the Act to "deregister" the Midland Inn on the expiry of 21 days from the date of the letter.
14 By letter dated 28 August 2003, the Director of the Heritage Council advised Mr Bates that the withdrawal of the applicant's consent would mean that, on 9 September 2003, the place "will effectively cease to be registered on an interim basis unless before that time the Heritage Council or the Minister for Heritage takes further steps in relation to the place". The director went on to propose that a heritage agreement be concluded for the place and that there be an extension to interim registration of three months to permit negotiation of a heritage agreement.
15 By letter dated 1 September 2003, CBA Legal, solicitors for the applicant, responded to the letter of the Director of the Heritage Council dated 28 August 2003 and advised that the applicant was not prepared to consent to a further extension of interim registration for three months, although it remained willing to negotiate a reasonable heritage agreement with the Heritage Council.
16 By letter dated 2 September 2003, the Minister wrote to CBA Legal directly, referring to the firm's letter to the Heritage Council dated 1 September 2003, noting that he had been provided with a copy of the
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- letter by the Heritage Council. The Minister advised that the withdrawal of the applicant's consent meant that, on 9 September 2003, the place would cease to be registered, "unless I make a determination on permanent registration before then". The Minister further advised as follows:
"Based on the information before me, and your client's refusal to agree to an extension of three months, as requested by the Heritage Council, I will have little alternative to registering as a way of protecting the building while a final consideration is made.
In my view, the Heritage Council has reasonably requested a period of time to obtain a copy of a new report on the structural integrity of the place, and to consider your client's request for a Heritage Agreement.
The purpose of this letter is to request that you ask your client to reconsider their position and to seek their agreement to a further limited extension to interim registration."
The Minister suggested that the extension period should be until 9 October 2003.
17 By letter dated 4 September 2003, CBA Legal, on behalf of the applicant, advised the Minister that the applicant was prepared to agree to a further limited extension of interim registration to 9 October 2003, subject to the revision of certain indemnities concerning the public liability risk posed by the place.
18 By letter dated 9 September 2003, the Director of the Heritage Council relevantly advised the applicant that:
" … having considered your written comments, the Minister for Heritage has determined that the place known as Midland Inn which is located at 408 Great Eastern Highway Midland should be entered into the Register of Heritage Places on a permanent basis, pursuant to Section 51 of the Heritage of Western Australia Act 1990."
19 The letter further advised that the entry was published in the Government Gazette on 9 September 2003 and a copy of the Gazette notice was attached to the letter, as was a copy of the Register citation, which included "assessment documentation" explaining the cultural
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- heritage significance of the place. The assessment documentation is also dated 9 September 2003.
20 The applicant asserts that at no time prior to the registration of the Midland Inn on the Register on a permanent basis were the representations of the applicant sought by the Heritage Council under and for the purposes of s 49(1)(b) of the Act.
Certiorari - Procedural irregularity ground
21 The grounds advanced by the applicant in support of the application for an order nisi for certiorari against the Minister first raise the question of procedural irregularity. It is said that the Minister in directing that the place be entered on the Register on a permanent basis failed to comply with a consultative procedure provided for by s 49(1)(a) and (b) of the Act; in particular, by failing to seek "representations" from the applicant, as owner of the place.
22 In contending that this ground is arguable and sufficient to support the making of an order nisi for a writ of certiorari against the Minister, counsel for the applicant places considerable reliance on the decision of the Full Court of this Court in Re the Honourable D G Kierath, Minister for Heritage; Ex parte City of Fremantle [2000] WASCA 156. In that case, the Court (Wheeler J, with whom Wallwork J agreed; Pidgeon J dissenting) granted certiorari to quash a decision of the Minister dated 21 February 2000 made under the Heritage Act, whereby the Minister decided not to direct entry of a place on the Register.
23 Section 47(1) of the Heritage Act provides that:
"Subject to this Part, where the Minister is of the opinion, having regard to any advice given by the Council in relation to that place and to any report of the Council as to submissions made to the Council under subsection (3) -
(a) that a place -
(i) is of cultural heritage significance; or
(ii) possesses special interest related to or associated with the cultural heritage,
and is of value for the present community and future generations; and
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- (b) that the protection afforded by this Act is appropriate notwithstanding that the place may be afforded protection by the operation of any other written law or law of the Commonwealth,
- the Minister may direct the Council to enter that place in the Register, either as an interim registration or on a permanent basis, and effect shall be given to the direction in accordance with section 50 or 51 as may be specified."
24 Section 47(3) provides that in advising the Minister as to the significance of any place, the Heritage Council shall consider any submissions which may be made as to such places generally by certain named heritage organisations, as well as by local governments and community organisations concerned with cultural heritage generally; and in relation to any particular place inter alia by the owner of the place as to its relevance to the cultural heritage of the State.
25 Section 50 deals with interim registration and provides for three circumstances in which the Council shall "forthwith cause an entry relating to the place to be made in the Register as an interim registration". It is clear, in light of the terms of s 47(1), that if the Minister directs that a place be entered on the Register as an interim registration, his direction can only take effect if one of the circumstances set out in s 50(1)(a), (b) or (c) is satisfied.
26 It is equally clear, from the terms of s 47(1), that if the Minister directs that a place be entered on the Register on a permanent basis, his direction can only be given effect if the requirements of s 49 have been satisfied.
27 Section 49 sets out a procedure by which the Heritage Council ultimately provides a written report to the Minister. The terms of s 49(1)(b) are such that the Act intends that the Minister will have regard to that report before exercising his power to direct registration of a place on a permanent basis. However, the need to undertake the procedure is qualified by the following prefatory words of s 49:
"A place shall not be entered in the Register under section 51, except pursuant to an interim registration under section 50 or where subsection (2) applies, unless - "
28 The procedure is then set out. It provides: (a) for the Council "pursuant to a direction given by the Minister" by public advertisement in
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- the Gazette to give notice of the proposal to enter a place in the Register and to invite submissions; (b) for the Council to consider any such submissions and, in particular, by par (b)(ii) to seek:
" … from the local government for the district in which the place is situate and from the owner and any person who appears to the Council likely to be affected or interested, their representations on any aspect of those submissions or as to any other matter relevant to any proposal relating to that place on which the Council desires their view";
and by par (b)(iii), to consider and advise the Minister on those representations and submissions and as to the recommendation of the Council.
29 Wheeler J, in Ex parte City of Fremantle, has provided a detailed analysis of the operation of the Heritage Act, particularly in relation to Div 2 of Pt 5 of the Act dealing with the Register. In so doing, her Honour has noted the "many ambiguities" which made a "wholly coherent textual analysis" of s 47 and s 49 of the Heritage Act impossible: see at [58]. With this observation, I respectfully agree.
30 Her Honour has also noted the apparent ease by which a place may be entered on the interim Register pursuant to s 47 and s 50 of the Act. By reference to the second reading speech and the Parliamentary debates as a whole concerning the passage of the Bill that led to the Act, her Honour noted at [60]:
"In relation to the ability of any property owner to make representations or take steps directed to ensuring that his or her property was not registered, the Minister responsible for the passage of the Bill through the Legislative Assembly observed that it was at the s 49 (previously cl 45) stage - that is, after the s 47 ministerial direction and therefore once the property was, by virtue of s 49(1) and s 50(1) given interim registration - that everyone would be able to 'have their say' (Hansard, Legislative Assembly page 4264 28/08/90). (Emphasis in original)
31 Wheeler J has also noted, at [69], that s 50 appears to prescribe exhaustively the circumstances in which interim registration is permissible. With that observation, I also agree.
32 Of s 49, her Honour noted that:
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- "Section 49 expressly provides that a place shall not be entered in the Register under s 51 (ie, permanently) unless certain steps have been taken. Those steps are, broadly, of a consultative nature."
33 At [70], her Honour concluded that:
"It appears to follow from the consultative process prescribed by s 49, concluding with advice being given to the Minister on representations made, that the 'direction' to enter a place referred by s 47 cannot be the same direction to which the concluding words of s 49(1) refer. Rather, what seems to be intended is that the Minister will give a 'direction' pursuant to s 47, that there will then be advertising, consultation and advice and that the Minister will either then make a further direction pursuant to s 49(1) or, he may instead make a direction pursuant to s 52. It appears that, despite the impression conveyed by the words of s 47, the 'direction' to enter a place pursuant to s 47 is in truth to be understood as a direction to do all that is necessary in order to enable registration, in due course, to take place."
34 At [71] Wheeler J added:
"Although it is not necessary finally to determine the matter, it appears that it may be that the direction given pursuant to s 47 is the 'direction' referred to in s 49(1)(a). There is no express power given to the Minister to direct the Heritage Council to place public advertisements. The power to direct pursuant to s 6 would appear not to encompass a direction to advertise. All of the other directions in this Part appear to be related to either entry on the Register or non-entry, as the case may be. It may be that s 49(1)(a) carries with it an implied power to direct the Heritage Council to place advertisements, but it appears to me that a better view may be, if the s 47 direction is understood as I have suggested, that it is the direction to which s 49(1)(a) refers."
35 Counsel for the applicant contends that, by reference to the reasoning of Wheeler J in Ex parte City of Fremantle, the Minister in directing the Heritage Council to enter the place of the applicant in the Register on a permanent basis, has failed to comply with the consultative procedure referred to in s 49(1)(b).
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36 However, as noted, on its face, s 49(1) does not create such an unqualified obligation. Rather, the procedure must be followed "except pursuant to an interim registration under section 50 or where subsection (2) applies."
37 When Wheeler J stated in Ex parte City of Fremantle, at [69], that "Section 49 expressly provides that a place shall not be entered in the Register under s 51 (ie, permanently) unless certain steps have been taken", her Honour did not make express reference to these apparent exceptions to the s 49 requirement. In this case, a question arises as to the proper interpretation or construction of the exception: "except pursuant to an interim registration".
38 However, s 49(2), the other exceptional circumstance, first bears brief consideration. It provides that where the advice referred to in subs (1)(b)(iii), that is to say, the Heritage Council's advice to the Minister, is not received by the Minister within a period of nine months following the date specified in subs (1)(a)(iv) in the advertisement published in the Gazette, the Minister may direct that the place be entered in the Register forthwith. Subsection (2) therefore provides a clear exception to the otherwise express requirement of s 49(1) that the Minister may not direct entry in the Register on a permanent basis under s 51 without having received advice from the Heritage Council.
39 The other exception to the s 49(1) requirement is in the terms, "except pursuant to an interim registration under s 50". The Act thereby seems to contemplate that, in those cases where a place is already the subject of an interim registration under s 50, the Minister may direct the entry of the place in the Register on a permanent basis under s 51 and that the entry will be made without the need to undertake the consultative procedure set out in s 49(1)(a) and (b). It is not clear that any other meaning can, at first glance, be attributed to these words.
40 However, it would be an odd result if, in a case where interim registration of a place has been effected under s 50(1)(a) and the consultation procedure in s 49(1)(b) has never been carried out, permanent registration could be effected without that public consultation procedure referred to in s 49(1)(b) being completed. For this outcome to be permitted would mean not only that the Minister would never have the benefit of the Heritage Council's advice that is contemplated by s 49(1)(b), but also that an owner of a place would never be afforded the opportunity to make representations on submissions made following publication of the notice in the Gazette under s 49(1)(a).
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41 In all the circumstances, there must be an argument that the words, "except pursuant to an interim registration under section 50" should be construed to mean, "except pursuant to an interim registration under s 50 and, where interim registration has been effected pursuant to s 50(1)(a), the procedures required by s 49(1) have been satisfied".
42 This construction of the exception would appear to be arguable for these reasons. The general intent of the Act is that the Minister should have the advice of the Heritage Council before directing registration of a place on a permanent basis. Where interim registration occurs under s 50(1)(b), the Minister has that advice. Where interim registration is effected under s 50(1)(c), the Council is obliged, by s 50(2), forthwith to take such steps "in accordance with the procedures required by section 49 as may be necessary to determine whether or not that entry should remain in the Register on a permanent basis", and so the whole of the s 49(1) procedure must, in that case, be adopted. It would be strange, in the light of those requirements, that the mere publication of the s 49(1)(a) advertisement would be considered a sufficient precondition to a permanent registration, without the need to satisfy the procedure provided for in s 49(1)(b).
43 In those circumstances, if there is evidence to show that, following public advertisement in respect of the Midland Inn, the Heritage Council received submissions in relation to the proposed entry in the Register, then, in my view, it would be arguable that the power of the Minister to direct entry of the place on the Register on a permanent basis would be subject to compliance with the procedure set out in s 49(1)(b).
44 In that regard, the precise terms of s 49(1)(b) must be noticed. The required procedure, designed to achieve a degree of consultation, does not include an obligation on either the Minister or the Heritage Council, or any other person, to serve notice on an owner or occupier of a place that it is proposed that the place be entered in the Register. Rather, by s 49(1)(b)(ii), the place cannot be entered on the Register under s 51 (ie, permanently) unless the Council has relevantly "sought from … the owner and any person who appears to the Council likely to be affected or interested, their representations on any aspect of those submissions or as to any other matter relevant to any proposal relating to that place on which the Council desires their view". This particular procedure is entirely dependent upon the Heritage Council having received "submissions" as a result of the publication of the advertisement in the Gazette under s 49(1)(a). If there are no such submissions received, then there is nothing in respect of which the "representations" of an owner of a place must be
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- sought and the procedure has no application. While that outcome may appear deficient as a matter of policy, it is the clear procedure laid down in s 49(1)(b). In other words, as I have said, there is no overriding obligation for the representations of an owner to be sought by the Minister or the Heritage Council before a place is entered in the Register on a permanent basis under s 51 at the direction of the Minister.
45 In this case, the factual basis upon which this ground of the application before me is pressed appears to be deficient. There is nothing to show that the required procedure set out in s 49(1)(b)(ii) applied to the permanent registration of the Midland Inn. Nothing in the affidavit materials filed by the applicant discloses that the s 49(1)(a) advertisement published in the Gazette, to which reference has been made, resulted in any submissions in respect of which the representations of the owner should have been invited by the Heritage Council.
46 In these circumstances, I am not satisfied on the material before me that it is arguable that the s 49(1)(b) procedure needed to be complied with before the Minister directed that the Midland Inn be entered on the Register on a permanent basis.
Irrelevant criteria
47 The applicant wishes to advance a further ground, namely, that, because the Minister, in his letter dated 2 September 2003, made a decision to enter the Midland Inn on the Register on a permanent basis in circumstances where the owner maintained a refusal to a further three-month extension of the interim registration and "as a way of protecting the building while a final consideration is made", that the power to direct permanent registration was exercised by reference to an irrelevant criterion. That is to say, the Minister gave the Midland Inn permanent registration in order to decide later whether or not he should direct that the place be entered on the Register on a permanent basis.
48 This ground depends largely on the terms of the Minister's letter prior to effecting permanent registration, dated 2 September 2003, to the solicitors for the applicant. As noted above, the Heritage Council having dealt with the applicant and his representatives concerning the possible extension of the interim registration, the Minister wrote to the solicitors for the applicant referring to the extension proposal and then stated:
"Based on the information before me, and your client's refusal to agree to an extension of three months, as requested by the Heritage Council, I will have little alternative to registering as a
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- way of protecting the building while a final consideration is made."
49 On 9 September 2003, the Midland Inn was entered on the Register on a permanent basis. The publication on the Register as a permanent entry was accompanied by a statement of significance of the place. Nothing therein suggests that the permanent entry was made in order to obtain, in effect, an extension of the interim registration for a limited period of time.
50 Nonetheless, the Minister's letter dated 2 September 2003, suggests that the Minister may, in the future, be prepared to remove the permanent registration in respect of the place when further consideration is given to the place. I note in passing that s 54 of the Heritage Act permits the Minister to remove an entry from the Register, subject to the procedure therein set out being met.
51 In my view, while the full context in which the Minister made the statement I have quoted must be taken into account, it is arguable that the Minister's decision to direct permanent registration was affected by the applicant's refusal "to agree to an extension of three months" of the interim registration and was made to create the time in which to consider further whether a permanent listing was appropriate. In that sense, it may be argued that the Minister did not in fact make any decision that the place is worthy of registration on a permanent basis. As s 53 of the Act expressly provides for the extension of interim registration to determine whether permanent registration is appropriate, it appears to me such a consideration, if made out, is arguably irrelevant or extraneous to the exercise of the power of the Minister.
Relevant criteria
52 The applicant advances another ground, namely, that there is a mandatory duty on the Minister when he exercises his discretion to direct that a place be entered on the Register on a permanent basis, "to exercise his discretion with due regard for owners' rights". It is said this duty requires him to consider representations from the owner as to the effects of registration on the owner even though after such consideration it is open to the Minister to disregard those considerations.
53 It is said that if no representations have been sought from the owner regarding the effects on it of permanent registration, it must follow that the Minister cannot have had regard to matters which are "a precondition to the objects of the Act".
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54 In this case, it is submitted that, because representations were not sought from the applicant as owner pursuant to s 49(1)(b), the Minister failed to have regard to relevant criteria, that is, the social and economic effects of permanent registration on the applicant as owner.
55 As I have noted above, there is no evidence to show that the procedure referred to in s 49(1)(b)(ii) was activated in that there is no evidence to show there were any submissions upon which the Heritage Council needed to seek the representations of the applicant as owner.
56 That deficiency aside, I am not sure that the decision in Ex parte City of Fremantle (supra) supports the more general ground advanced. It held that, on the facts of that case, in determining whether a direction for interim registration should be given, and prior to the giving of a further direction under s 49(1)(b) that permanent registration be effected following the procedure there specified, the Minister must take into consideration only those matters identified in s 47 going to the cultural heritage significance of the place. However, following the procedure provided for in s 49(1)(b), and prior to directing registration on a permanent basis, the Minister may take into account broader, non-heritage factors.
57 Accepting, as I must for present purposes, that the distinction made in Ex parte City of Fremantle between a direction under s 47 or a direction under s 49(1)(a) requiring the publication of an advertisement in the Gazette on the one hand, and a direction under s 49(1)(b) requiring the permanent listing of a place on the other, the observations of Wheeler J, at [72], concerning the exercise of the latter power are of particular relevance:
"So far as the criteria to be applied by the Minister in arriving at a decision pursuant to s 49 are concerned, it is my view that he may have regard not only to heritage considerations but to all of the 'political' matters to which I have earlier referred, including such matters as public sentiment, the effect on the State's economy or a portion of it, and the particular effects which such a decision may have upon individual land owners or occupiers or others. The absence of any express reference to any criteria in s 49, and the consequences of the decision to enter a place permanently on the Register, together with the identity of the decision-maker, in my view inevitably would point to that conclusion. The fact that a discretion of this kind arises at the s 49 stage is another consideration suggesting that no such
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- discretion is to be exercised at an anterior stage. It would be odd, in a statutory scheme which provides for a direction to be given only following consultation and advice, if the entire process could be circumvented by the exercise of an identical discretion, at an immediately anterior stage, upon a consideration of what may be much more limited material."
58 In coming to this conclusion, Wheeler J, at [38], earlier noted that the Heritage Act has the object, amongst others, in s 4(3):
" … with due regard to the rights of property ownership, …
(a) to identify, conserve and where appropriate enhance those places within Western Australia which are of significance to the cultural heritage."
59 However, the finding of the Full Court that the Minister may have regard, at the s 49(1)(b) stage, not only to heritage considerations, but also to "political" matters such as public sentiment, the effect on the State's economy or a portion of it and the particular effects which such a decision may have upon an individual land owner, does not mean that the Minister is obliged to regard, assess and determine each proposal for registration of a place on the Register on a permanent basis by reference to all such matters. The burden of the decision in Ex parte City of Fremantle is that the Minister is able lawfully to regard such matters and that, if regarded, they will not be considered factors irrelevant to the exercise of his direction power. The corollary is that the Minister's decision not to regard such "political" matters, if it be such, does not invalidate his decision.
60 It is trite to observe that it is only those factors that a decision-maker is bound to consider and does not consider that will render a decision unlawful and invalid: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 at 39 per Mason J. The question is whether it is open to contend that the Heritage Act, by a process of construction, requires the Minister to consider the particular effect, including financial effect, his decision may have on the owner of the place in question. If he may do so, but is not bound to do so, the applicant's case must fail. That the Minister is not bound to consider this financial effect, is perhaps suggested by the consultative procedure concerning an owner set out in s 49(1)(b)(ii), which only arises where submissions have been received by the Heritage Council as a result of a public advertisement lodged under s 49(1)(a). However, it may be argued that this question has not been
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- answered conclusively by Ex parte City of Fremantle. Thus, I consider this ground is arguable.
Cultural significance
61 The applicant advances a further ground to support the application that certiorari should go to quash the Minister's decision directing permanent entry of the Midland Inn, namely, that the decision was attended by Wednesbury unreasonableness, that is, because it was a decision no reasonable decision-maker could have made on the evidence before him: Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
62 The applicant contends that it was not open to the Minister on the material before him, in effect, to form the view that the place was of cultural heritage significance, as required by s 47(1)(a) of the Heritage Act, or that permanent registration was appropriate under s 47(1)(b).
63 An application for certiorari cannot be used as the substitute for an appeal on the merits of the case against the decision of the Minister to direct the permanent registration of a place. However, a decision which is unreasonable in the Wednesbury sense is impeachable on judicial review.
64 In Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, the High Court of Australia held that a decision of the Commission to record a place in the Register established by the Australian Heritage Commission Act 1975 (Cth) was not open to judicial review under s 5(1)(c), (d) or (f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) for want of jurisdictional fact. Mount Isa Mines sought to demonstrate that the Australian Heritage Commission did not have jurisdiction to make its decision, that the decision was not authorised by the Act or that the decision involved an error of law. However, it did not contend that there was no evidence or other material to justify the making of the decision or that the making of the decision was an improper exercise of power, being so unreasonable that no reasonable person could have so exercised the power. The main argument was whether or not the question whether the status of a particular place as one having significance or other special value for future generations as well as the present community was "an objective fact" which a Court could assess on a judicial review application.
65 The relevant provision under the Commonwealth Act at the time, s 25(2), provided that:
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- "Where, after considering an environment report in relation to a place that is not in the Register, the Minister is satisfied that the place should be recorded as part of the national estate, the Minister may direct the Commission to enter that place in the Register, and the Commission shall comply with that direction and shall not remove that place from the Register without the consent of the Minister."
- The Court said, at 308, that:
"In circumstances where the Minister attains the requisite satisfaction referred to in section 25(2) and gives the appropriate direction to the Commission, then, upon compliance with that direction, the place is recorded as part of the national estate. …
Section 22(1) relates in corresponding fashion to places entered in the Register in accordance with section 23. Section 23(1) requires (i) a place; (ii) that is not in the Register; and (iii) which the Commission considers should be recorded as part of the national estate. As indicated earlier in these reasons, there is no dispute before this Court as to the satisfaction of (i) and (ii). The remaining requirement, the consideration of any matter by the Commission, turns upon the satisfaction that the place should be recorded as answering the complex description of national estate in s 4."
"The decision reached by the Commission is not entirely immune from judicial review. The various grounds under s 5(1) of the AD(JR) Act which may be presented in a particular case are considered earlier in these reasons. However, those grounds do not include re-opening of the merits of the decision reached by the Commission on a ground which in substance expresses a contention that there was an absence of jurisdictional fact."
67 The applicant says that, in this case, the Minister failed to have regard to the fact that the Heritage Council, after commissioning its own report from an historian and architect, twice rejected the Midland Inn as being of sufficient cultural significance to be registered before giving the Midland Inn interim registration in 1997. Further, and more significantly, the applicant says the integrity of the Midland Inn, at the time of the Minister's decision to direct that it be entered on the Register on a
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- permanent basis, had been significantly affected by fire. The applicant also says there is substantial evidence that the building is unsafe and a danger to the public. It points to the resolution of the City of Swan, the relevant local government, on 18 April 2001, to the effect that there is "no prudent or feasible alternative" to demolition of the building that stands on the place, in its present condition.
68 In all of these circumstances, the applicant says there is no evidence that the Minister has considered whether the building in its current condition can be of any "value for the present community and future generations", as required by s 47(1)(a). This contention is, I think, different from the primary ground put forward, that no reasonable decision-maker could have made the decision on the evidence before him. However, I understand the contention to mean that, given the effect that fire has had on the integrity of the building at the place, there is no basis upon which a reasonable person properly instructed could determine that the Midland Inn in its current condition has any "value for the present community and future generations" and so is worthy of inclusion on the Register.
69 I would note in passing that the effect the fire has had on the place is not something that appears to have been totally ignored in the permanent listing of the place. The "assessment documentation" of 9 September 2003, pertaining to the permanent listing expressly refers to the fire.
70 Nonetheless, where a place which was once considered of sufficient significance for interim registration has in the period between interim registration and consideration for permanent registration been significantly altered in a detrimental way, for example, by fire, the question whether it is capable any longer of having the requisite significance to justify permanent listing, is an important question. No doubt, the answer to it will depend on the facts of the case. Whether or not a reasonable decision-maker could have formed the view that it should be the subject of direction for permanent registration, is finally a question of law.
71 In this case, having regard to the material annexed to the applicant's affidavit in support of the application concerning the effect of the fire on the integrity of the place, it seems to me that the ground of Wednesbury unreasonableness is at least arguable. However, I doubt that the fact that the Heritage Council initially declined to recommend the place for registration in 1997 is of relevance to the ground.
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Conclusion as whether order nisi for certiorari and mandamus should be granted
72 In these circumstances, I would make an order nisi for writ of certiorari against the Minister on all grounds, save for grounds A - G which raise the "procedural irregularity" ground.
73 It follows that I would also grant an order nisi for mandamus against the Heritage Council on the grounds set out in grounds AI - AK of the application before me.
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