Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc

[2002] WASCA 150

RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE LEEUWIN CONSERVATION GROUP INC [2002] WASCA 150

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 150
Court:	THE FULL COURT (WA)
Case No:	CIV:2639/2001	Heard:	18 & 19 MARCH 2002
Coram:	ANDERSON J STEYTLER J WHEELER J	Delivered:	10/06/02
No of pages:	24	Judgment Part:	1 of 1
Result:	Orders nisi discharged
Category:	A
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Parties:	LEEUWIN CONSERVATION GROUP INC WESTERN AUSTRALIAN PLANNING COMMISSION GNARABUP BEACH PTY LTD
Catchwords:	Administrative law Prerogative writs and orders Certiorari Locus standi Special interest Non material interests Discretion Turns on own facts Administrative law Prerogative writs and orders Certiorari Western Australian Planning Commission Statutory power to approve subdivision of land Objections and recommendations Conditions Approval subject to conditions Alteration of subdivision plan Administrative law Delegated authority Validity of instrument of delegation Compliance with statutory procedure Finality
Legislation:	Town Planning and Development Act 1928, s 5AA, s 6, s 20, s 20AA, s 22, s 24, s 26 Western Australian Planning Commission Act 1985, s 20
Case References:	Attorney-General for Western Australia v Cockram (1990) 2 WAR 477 Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102 Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299 R v Thames Magistrates' Court; Ex parte Greenbaum (1957) 55 LGR 129 Re Reference under s 11 of Ombudsman Act 1976 for an advisory opinion; Ex parte Director General of Social Services (1939) 2 ALD 86 Re Smith; Ex parte Rundle (1991) 5 WAR 295 Waterside Workers Federation of Australia v Gilchrist (1924) 34 CLR 482 Adelaide v City of Salisbury (1998) 100 LGERA 160 Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1988) 194 CLR 247 Ex parte Helena Valley; Boya Association v State Planning Commission & Anor (1990) 2 WAR 422 Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584 Hill v State Planning Commission (1994) 10 SR (WA) 354 Lloyd v Robinson (1962) 107 CLR 142 Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 McBain v Clifton Shire Council [1996] 2 Qd R 493 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Lawrence; Ex parte Goldbar Holdings (1994) 11 WAR 549 Scurr v Brisbane City Council (1973) 133 CLR 242 SJ Quinlivan Pty Ltd v Town Planning Board (1984) TPAT 31/1984 South-West Forest Defence Foundation (Inc) v Lands and Forest Commission (1995) 86 LGERA 380 The Queen v City of Salisbury; ex parte Burns Philp Trustee Co Ltd (1986) 42 SASR 557 West Australian Field and Game Association v Pearce (1992) 8 WAR 64

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE LEEUWIN CONSERVATION GROUP INC [2002] WASCA 150 CORAM : ANDERSON J

STEYTLER J
WHEELER J

HEARD : 18 & 19 MARCH 2002 DELIVERED : 10 JUNE 2002 FILE NO/S : CIV 2639 of 2001 MATTER : Application for a Writ of Certiorari and a Writ of Prohibition against the WESTERN AUSTRALIAN PLANNING COMMISSION constituted under the Western Australian Planning Commission Act 1985 EX PARTE

LEEUWIN CONSERVATION GROUP INC
Applicant

AND

WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent


AND

GNARABUP BEACH PTY LTD
Intervener

(Page 2)

Catchwords:

Administrative law - Prerogative writs and orders - Certiorari - Locus standi - Special interest - Non material interests - Discretion - Turns on own facts

Administrative law - Prerogative writs and orders - Certiorari - Western Australian Planning Commission - Statutory power to approve subdivision of land - Objections and recommendations - Conditions - Approval subject to conditions - Alteration of subdivision plan

Administrative law - Delegated authority - Validity of instrument of delegation - Compliance with statutory procedure - Finality

Legislation:

Town Planning and Development Act 1928, s 5AA, s 6, s 20, s 20AA, s 22, s 24, s 26

Western Australian Planning Commission Act 1985, s 20

Result:

Orders nisi discharged

Category: A

Representation:

Counsel:

Applicant : Mr M L Barker QC & Dr J J Hockley
Respondent : Mr R M Mitchell
Intervener : Mr C L Zelestis QC & Mr L A Stein

Solicitors:

Applicant : Environmental Defender's Office of Western Australia (Inc)
Respondent : State Crown Solicitor
Intervener : Phillips Fox

(Page 3)
Case(s) referred to in judgment(s):

Attorney-General for Western Australia v Cockram (1990) 2 WAR 477
Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299
R v Thames Magistrates' Court; Ex parte Greenbaum (1957) 55 LGR 129
Re Reference under s 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director General of Social Services (1939) 2 ALD 86
Re Smith; Ex parte Rundle (1991) 5 WAR 295
Waterside Workers Federation of Australia v Gilchrist (1924) 34 CLR 482


Case(s) also cited:

Adelaide v City of Salisbury (1998) 100 LGERA 160
Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493
Batemans Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1988) 194 CLR 247
Ex parte Helena Valley; Boya Association v State Planning Commission & Anor (1990) 2 WAR 422
Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584
Hill v State Planning Commission (1994) 10 SR (WA) 354
Lloyd v Robinson (1962) 107 CLR 142
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
McBain v Clifton Shire Council [1996] 2 Qd R 493
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Pacesetter Homes v State Planning Commission (1993) 84 LGERA 71
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Lawrence; Ex parte Goldbar Holdings (1994) 11 WAR 549
Scurr v Brisbane City Council (1973) 133 CLR 242
SJ Quinlivan Pty Ltd v Town Planning Board (1984) TPAT 31/1984
South-West Forest Defence Foundation (Inc) v Lands and Forest Commission (1995) 86 LGERA 380
The Queen v City of Salisbury; ex parte Burns Philp Trustee Co Ltd (1986) 42 SASR 557
West Australian Field and Game Association v Pearce (1992) 8 WAR 64

(Page 4)

1 ANDERSON J: I have had the advantage of reading in draft the judgment of Wheeler J. I agree with it and there is nothing I can usefully add to it. I would refuse the relief sought and discharge the orders nisi.

2 STEYTLER J: I have had the advantage of reading the reasons for decision of Wheeler J. Save that I would, on the issue of standing and discretion, prefer to leave open the question of the applicant's interest and proceed upon the assumption that it has a special interest in the decision in question, I agree with all that Wheeler J has said. As to the issue of the existence of a special interest, any such interest which the applicant might have is, in the circumstances of this case, a weak one and, when regard is had to the other discretionary factors to which Wheeler J has referred, it seems to me that relief should be refused.

3 There is otherwise nothing that I wish to add to what Wheeler J has already said.

4 I would consequently discharge the order nisi.

WHEELER J:

History

5 In October 1992 a company which appears to have been the predecessor of, or associated with, the present intervener made an application for development approval on Sussex Location 815, which area includes the present land, pursuant to the Shire of Augusta-Margaret River's Interim Development Order. The application was for a substantial number of residential lots, some special rural lots, a tourist lodge, a chalet park site, a caravan park site and a commercial/community purpose site. The land at that time was not zoned. The application was advertised for public submissions by the Shire of Augusta-Margaret River ("the Shire").

6 In April 1993 the company submitted a modified Structure Plan to the Shire, which adopted it and referred it to the State Planning Commission (the predecessor of the respondent; both the respondent and its predecessor are here called "the Commission") for approval. In September 1993 that Structure Plan was approved by the Commission. In the Structure Plan, the land in question here has been designated for use for tourist development. Some development by the company has taken place on land near the land in question. It has been carried out in accordance with the Structure Plan.

(Page 5)

7 In August 1993 the Draft Shire Town Planning Scheme No 18 was approved by the Minister for Planning and it was gazetted in June 1995.

8 In about September 1998 the Commission published the Leeuwin Naturaliste Ridge Statement of Planning Policy. I will refer to the terms of this later.

9 In August 2000 a further Draft Structure Plan, the 2000 Structure Plan, was prepared and submitted to the Shire on behalf of the intervener. The Shire initially resolved to refuse the intervener's request to advertise it, but that initial decision was quashed by a decision of this Court in December 2000 and the Shire commenced the advertising and public submission period of the 2000 Structure Plan in December 2001.

10 In August 2000 a subdivision application for the land in question was lodged with the Commission by the intervener. The Commission wrote to a number of departments and authorities seeking their comments and recommendations in relation to that application. In December 2000 the Commission's planning officer prepared a report on the subdivision application. Purportedly acting under a delegated power, to which I will return, in December 2000 the Southwest Region Committee of the respondent ("the Committee") resolved to approve an amended plan (that is, amended from the proposal put to it by the intervener) for the creation of four lots on the land. Purportedly acting under a different delegated power, to which I will also return, Mr Schramm, the "Co-ordinator Southwest" employed by the Ministry for Planning, approved conditions of approval for the subdivision of the land.

11 The intervener was apparently notified in February 2001 that the respondent was prepared to approve the subdivision in accordance with the amended plan once the conditions set by Mr Schramm had been fulfilled. Also in February 2001, the applicant's solicitor engaged in the first of a number of actions designed to convince the respondent and/or the intervener that the subdivision had not been lawfully approved, by writing to the Chairman of the respondent outlining certain concerns. The applicant sought a variety of documents from the Ministry for Planning, and made an application under the Freedom of Information Act with respect to certain of them. There were a variety of meetings and there was a quantity of correspondence which I do not think it is necessary to consider in detail. It was not until 22 October 2001 that these proceedings were commenced.

(Page 6)

The application, statutory and regulatory framework

12 The regime relating to statutory approval of subdivision of land is to be found in Pt III of the Town Planning and Development Act 1928. Section 20 of that Act, which bears the heading "Plans of Subdivision to be Approved" prohibits a person from undertaking a variety of acts without the approval of the "Commission" (defined as the Western Australian Planning Commission), including the laying out, granting or conveyance of streets, and the lease of any land for a term exceeding 10 years. So far as subdivision is concerned, it relevantly provides:

"20(1)(a) ... a person shall not, without the approval of the Commission ... subdivide any lot, or amalgamate any lot with any other lot whether within the same district or otherwise; and the Commission may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective."

Section 20(2) provides that the Registrar of Titles shall not create or register a certificate of title for land the subject of a plan of subdivision, unless the subdivision of the land has been approved by the Commission. Section 21 forbids the creation and registration of certificates of title for portions of land not being the whole of one or more lots, unless the application has been approved by the Commission. Section 20AA, s 22 and s 24 relevantly provide as follows:

"20AA. Endorsement of approval upon diagram or plan of survey

(1) A person to whom approval of a plan of subdivision has been given may, within 3 years of the date on which the Commission approved the plan of subdivision –

(a) submit to the Commission in the prescribed manner and form a diagram or plan of survey of the subdivision, accompanied by the prescribed fee; and

(b) request the Commission to approve the diagram or plan of survey of the subdivision.


(2) If the Commission is satisfied that –

(Page 7)

(a) the diagram or plan of survey is in accordance with the plan of subdivision approved under section 20(1)(a); and

(b) if that approval given was subject to conditions, the conditions have been complied with,

the Commission shall endorse its approval on the diagram or plan of survey.

(3) If, at the expiration of 3 years from the date on which the Commission approved a plan of subdivision under section 20(1)(a), a diagram or plan of survey of the subdivision has not been submitted to the Commission, the approval of the plan of subdivision ceases to have effect.

...

22. Conditions


(1) Every plan or amended plan of subdivision submitted to the Commission for approval, shall be accompanied by 2 copies traced on cloth or such other copy or copies or such duplicate or duplicates as it may determine.

(2) The Commission shall retain one of such copies or duplicates for reference purposes, and shall forward another to the local government for the district in which the land comprised therein is situated.

...


24. Objections and recommendations

(1) When, in the opinion of the Commission, the plan of subdivision may affect the powers or functions of any local government or public body other than the Commission, or any Government department, the Commission shall forward the plan or a copy thereof to such local government, public body, or Government department, as the case may be, for objections or recommendations.

(Page 8)

(2) Any such local government, public body, or Government department receiving such plan or copy thereof shall, within 42 days, forward it to the Commission with –

(a) a memorandum in writing containing any objections to, or recommendations in respect of, the whole or part of that plan; and

(b) in the case of a local government receiving a plan or copy relating to land within the area to which an assessed scheme applies, advice of any relevant environmental condition to which the assessed scheme is subject.


(3) After receiving a plan or copy and accompanying memorandum and any advice of a relevant environmental condition forwarded to it under subsection (2) and considering any objections or recommendations contained in the memorandum and any such advice the Commission shall approve or refuse to approve the plan or require the applicant for approval to comply with such conditions as the Commission thinks fit to impose before approving the plan.

(4) ...

(5) If the Commission under subsection (3) refuses to approve a plan or impose conditions and the applicant for approval concerned is dissatisfied with any such refusal or condition, that applicant for approval may within 28 days of being notified of that refusal or condition request in writing the Commission to reconsider that refusal or condition.

(6) On receiving a request made under subsection (5), the Commission may by notice in writing served on the person who made that request –


(a) approve the plan; or

(Page 9)

(b) alter or revoke the condition,

to which that request relates or refuse that request."

Section 26, which deals with appeals, relevantly provides:

"26. Appeals

(1) (a) Any person may appeal to the Minister from the refusal of the Commission to approve any plan, application for title, transfer, conveyance, lease, licence to use and occupy, or mortgage, or from the conditions affixed to the granting of such approval, or from a decision of the Commission made under section 24(6).

... "

13 The Western Australian Planning Commission is established under the Western Australian Planning Commission Act 1985 ("the Planning Commission Act"). It has a power to delegate its functions, which is provided for by s 20 of the Planning Commission Act as follows:

"20 Delegation

(1) the Commission may, by resolution of which notice is published in the Gazette, either generally or as otherwise provided by the resolution, delegate to an eligible person or body any of its functions under this Act or any other written law;

(2) the Commission shall not under subsection (1) empower a delegate to sub-delegate any function;

(3) the performance of a function by a delegate under subsection (1) shall be deemed to be the performance of the function by the Commission."

It is not in dispute in this case that the Committee and the Co-ordinator Southwest (Mr Schramm) are both eligible persons or bodies within the meaning of s 20.

14 In the Government Gazette of 15 February 2000, was published a delegation of, inter alia, "all powers and functions of the Commission as set out in section 20 of the Town Planning and Development Act". The delegation was to the Southwest Region Planning Committee, but was

(Page 10)

limited by the words in the text of that delegation "but only in respect of the matters within the South West Region of the State as defined in Schedule 1 to the [Planning Commission Act] and subject to the exercise of the powers and functions under this clause having due regard in each case to published Commission policy". In the same Gazette, there was a delegation to the Co-ordinator Southwest of "Powers to determine all applications to the Commission under Section 20 of the Town Planning and Development Act 1928 where such determination is in accordance with pre-determined policies (if any) of the Commission". There was a separate delegation to the same office of a "power pursuant to subsection (6) of section 24 of the Town Planning and Development Act 1928 to determine the requests for reconsideration made pursuant to subsection (5) of that section". It is curious that the delegation of this latter power, which includes a power to approve a plan of subdivision, apparently is not conditioned by a requirement that the determination be in accordance with pre-determined policies, if any; but nothing turns on the omission in this case.

15 In August 2000 the intervener applied for approval of subdivision of the land into eight lots, in accordance with a plan which it provided to the respondent. Officers of the Minister for Planning, including Mr Schramm, provided a report to the Committee recommending that the proposed subdivision be supported "in a modified form" of three rather than eight lots, and that Ministry for Planning officers "finalise the subdivision conditions". The Committee's resolution dealing with this application reads, in its entirety, as follows:

"The Commission resolved to:

(1) approve an amended plan for the creation of four lots;

(2) note that the Ministry for Planning officers will finalise subdivision conditions acting under delegated authority;

(3) advise the Shire of Augusta/Margaret River of the reasons why the amended subdivision was approved and to expedite structural planning to establish suitable guidelines for development."

Although a plan of subdivision was not formally incorporated in the resolution, it seems clear from the papers before us that at the meeting of the Committee, the plan submitted by the respondent was physically altered by some person so as to show the layout of the four lots which the Committee was prepared to approve.

(Page 11)

16 In an affidavit made 15 November 2001, Mr Schramm deposes that on 5 February 2001 he "approved the conditions of the subdivision by signing the conditions and stamping the final page with the Delegation Stamp, dated 5 February 2001". The precise nature and significance of this act is the subject of some dispute. What happened in fact, it appears from the papers before us, was that Mr Schramm initially drafted some conditions for the subdivision and sent them both to the Shire and to the intervener for discussion. Some comments were received and a person, who appears to have been Mr Schramm, then altered them. The text of the conditions is in evidence. Condition 1 reads as follows:

"Proposed Lots 1, 2 and 3 are amalgamated to form one (1) Lot, proposed Lots 5 and 6 are amalgamated to form one (1) Lot and proposed Lots 7 and 8 are amalgamated to form one (1) Lot resulting in a total of four (4) Lots (excluding public open space) to the satisfaction of the Western Australian Planning Commission."

This condition accurately describes the modified plan of subdivision as apparently physically altered at the Committee's meeting. The remainder of the conditions are detailed conditions dealing generally with such matters as construction of roads and cycleways, drainage or easements, grading and stabilising, the ceding of public open space, and so on.

Approval of only four lots

17 The first basis upon which the applicant challenges the Committee's resolution is that it approved a subdivision which was not a subdivision shown on the plan which was submitted to it by the intervener. It is argued that pursuant to s 20 of the Town Planning and Development Act, the Commission (and therefore the Committee) has power only to approve the plan of subdivision which is lodged with it, and not some "other application". Some reliance was placed upon authorities concerned with the situation in which an appellate tribunal has made to it an application to amend a proposal for subdivision or development which is the subject of an appeal. Those cases do not appear to me to be relevant since they deal with the necessarily limited jurisdiction of an appellate tribunal.

18 In its terms, the power in s 20(1) of the Town Planning and Development Act relating to the approval of subdivision, is not qualified by reference to any plan of subdivision or by reference to a requirement for any particular type of application. There is a clear assumption in some other sections of the Act to which I have referred, that there will

(Page 12)

ultimately result from the approval process a plan which is an approved plan of subdivision. The practical need for such a document can be seen in the prohibition directed to the Registrar of Titles; the evident purpose of s 20AA is to ensure that there is an approved plan which is a document upon which the Registrar can rely as demonstrating the existence of an "effective" approval. However, this assumption does not assist in understanding the way in which such an approved plan comes into existence.

19 Further, there is an assumption in s 22 that there will be a plan or amended plan which is submitted for approval, and the requirement that the Commission circulate "the plan" for comment in certain circumstances, contained in s 24, is based upon that assumption. However, this statutory assumption does not, of itself, constrain or limit the power of the Commission. Section 24(3) may be of some assistance to the applicant, in that it requires the Commission, after circulation of the plan (where appropriate) to "approve or refuse to approve the plan". This might be read as suggesting that it is only open to the Commission to approve or refuse the plan which has been circulated and no other. However, the same subsection also permits the Commission to require the applicant for approval to comply with such conditions as the Commission thinks fit before the Commission approves the plan. It may be, then, that the conditions which the Commission might think fit to impose could include an alteration of the plan, so as to show a different number of lots or a different layout of lots.

20 At its highest, I think that the applicant's argument relied primarily upon the requirement for consultation to be found in s 24 of the Act. It was suggested that, in order to ensure that that process was effective, it was necessary for those consulted to comment upon the plan which the Commission actually proposed to approve, and that a power in the Commission to approve an altered plan after that consultation process would greatly diminish the effectiveness of the process. However, there are a number of contrary indications, both in s 24 itself and arising from its evident purpose. First, in its form, s 24 is cast as a direction to the Commission, rather than as a condition precedent to the exercise of its power. It is not to be complied with in all cases, but only where the Commission forms a particular subjective opinion as to the possible effect upon certain bodies. It does not provide for a regime of public consultation broadly understood, but merely for consultation between different government bodies; it is likely that the Commission will be broadly aware of the views and policies of those bodies in many situations in any event. Finally, it may be seen as consistent with the purpose of

(Page 13)

s 24, which allows for consideration not only of objections but also of "recommendations", that there should be a power in the Commission to require or approve an alteration of the plan submitted to it in a manner which gives effect to recommendations which may be made.

21 It is my view that as a matter of statutory construction, and having regard to the apparent purpose of the relevant Part of the Town Planning and Development Act, there is no reason to regard the Commission's powers as limited only to the approval or rejection of the precise plan which is placed before it. I would doubt whether there is anything which should be seen as preventing the Commission from requiring or approving alterations to a plan submitted to it even if the result is approval of a plan which is radically and substantially different from that originally submitted (subject to a possible requirement to engage in further consultations pursuant to s 24 if the plan is in substance and reality a different one). However, it is not necessary finally to determine this question, since it appears to me that the plan in fact approved by the Commission was, when regard is had to the plan submitted and to the plan approved, not in any event substantially different. The layout of the subdivision is the same; all that has occurred between submission of the plan and approval by the Commission is that the Commission has amalgamated some of the proposed lots so as to increase the size and reduce the number.

22 It is not in my view necessary to consider in any detail the intervener's submissions, which I understand to be to the effect that what has been done by the Commission in this case is not in any event "the (final) statutory approval of a subdivision", but is rather an indication that the Commission is prepared to approve a plan of subdivision in the form referred to in its resolution. In support of this submission, the intervener cites Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188 at 191 per Jackson CJ. A question which arose in that case was whether there had been an approval or not. Although it appears to me to be unnecessary to determine it in these proceedings, I would respectfully indicate my agreement with the observations of Hale J at 196 – 197: In particular, I would endorse his Honour's observations that the relevant part of the Act is "so full of muddled thinking and inexact expression that any opinion thereon must be advanced with hesitation"; but I would also respectfully endorse his Honour's tentative observations that at any given time the Board has either approved or not approved a plan and that there is no halfway house.

(Page 14)

23 There is probably, I think, a statutory distinction between three different sorts of approval. There is the approval which is given pursuant to s 20(1), which may be subject to conditions; before those conditions have been fulfilled it seems to me that there is an effective approval in force, in the sense that it cannot be retracted or altered, but no title can issue until compliance with the conditions. Once the conditions, if any, have been fulfilled there is an approval which is "effective" in the sense that the person wishing to subdivide is able to obtain separate titles for those lots. There is also, as a practical matter, the approval which has not only been given but which has been endorsed on a diagram or plan of survey pursuant to s 20AA; although the Act does not in terms say so, it appears the intention of that last section is to put the existence of an effective approval beyond any controversy.

Finality

24 The applicant submits that condition 1 of the conditions imposed by Mr Schramm lacks finality in that it requires the amalgamation of lots "to the satisfaction of the Western Australian Planning Commission". It is difficult to see how there is any imprecision in this condition or, indeed, what scope there is under it for the Commission to be either satisfied or not satisfied. The condition precisely identifies, by reference to the numbers of the lots contained on the plan originally submitted, how the amalgamation is to take place. It appears to me that the only sensible way of reading it is as a condition that the lots be amalgamated in that way and that the Commission is the body to verify whether or not the plan eventually produced for its endorsement complies with the condition which has been imposed. It is my view that this ground cannot succeed.

The "Ombudsman case" principle

25 This argument turns upon a letter dated 6 February 2001 written to Koltasz Smith & Partners, agents for the intervener, advising it of the Commission's decision. It is on Western Australian Planning Commission letterhead, has a reference "Enquiries: Mike Schramm" and is signed "Rob Vogel for Secretary Western Australian Planning Commission". It commences:

"Dear Sir/Madam,

The Commission has considered the application relating to the above described land and is prepared to approve a diagram or

(Page 15)

plan of survey in accordance with the plan submitted once the conditions set out below have been fulfilled. ... "

It goes on to give some further practical advice as to the procedures to be followed, and then sets out the conditions drafted by Mr Schramm.

26 The applicant contends that where a person has power to exercise delegated authority to make a decision, as Mr Schramm had, there is a general principle that the delegate should make the decision in his or her capacity as a delegate, and not purport to make the decision on behalf of the person or body in whom the primary power is reposed. The applicant relies upon Re Reference under s 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director General of Social Services (1939) 2 ALD 86 ("the Ombudsman case"). The argument put forward is that the purported exercise of the powers of Mr Schramm, as notified in the letter to which I have referred, contravenes that principle, whether the purported decision of Mr Schramm was to approve the application for subdivision approval or merely to impose conditions in respect of an approval previously granted.

27 There are two answers to this proposition, each of them, in my view, fatal. The first, statutory, answer is that performance of a function by a delegate is deemed to be performance by the Commission pursuant to s 20(3) of the Planning Commission Act. There was no provision of this kind in the Ombudsman case. In any event, as a matter of fact, the applicant's argument appears to proceed on the assumption that Mr Schramm wrote, or signed, the letter of 6 February 2001. It is clear that Mr Schramm did not sign the letter; there is nothing in the letter itself suggesting that Mr Schramm is the author; and Mr Schramm deposes in an affidavit of 11 March 2001 that he was not the author. The letter of 6 February 2001 was merely a letter advising of the decision already made by Mr Schramm rather than, as in the Ombudsman case, being itself the document by which the decision was made.

Leeuwin-Naturaliste Ridge Statement of Planning Policy

28 Assuming that Mr Schramm did have delegated authority to impose the conditions which he imposed, the applicant says he exceeded the limitation contained within the delegation to him, by making a decision which was not an approval in accordance with predetermined policies of the Commission. It seems to be accepted on all sides that at all relevant times the Leeuwin-Naturaliste Ridge Statement of Planning Policy of September 1998 ("the Policy") was a relevant policy of the Commission.

(Page 16)

The applicant relies upon two items within the Policy, being LUS 1.18 and/or LUS 1.23.

29 The first of these can be briefly dealt with. LUS 1.18 reads, in its entirety:

"Further development at Prevelly and Gnarabup will be in accordance with the designated areas in the gazetted Town Planning Schemes and approved Structure Plans."

Having regard to the definition of "development" contained within the Policy as "Any change to land use, including housing, any demolition, excavation, construction, alteration of or addition to any building or structure on the land and any excavation or other works", it is my view that this condition is inapplicable to the case of subdivision. Even if it were applicable, when one looks to the question of use of land, the land in question is designated as "development" under the Shire's Town Planning Scheme, and "tourist development site" under the 1993 Structure Plan. To permit subdivision to facilitate a tourist development, which appears to be the purpose of the application in question here, appears to me to be in accordance with the designation both in the Town Planning Scheme and in the Structure Plan.

30 Policy LUS 1.23 reads:

"Proposals for rezoning, subdivision and development within the Development Investigation Area [which apparently includes the land in question] will be considered only after comprehensive planning has been undertaken and a resultant outline development plan or structure plan has been approved by local government and the Western Australian Planning Commission."

The Commission had approved the 1993 Structure Plan in September 1993, as I have noted. The Shire apparently approved the 1993 Structure Plan; this much is now conceded by the applicant. It is not entirely clear therefore what issue is said to arise from Policy LUS 1.23. The point is made that the 1993 Structure Plan apparently contemplated only one lot on the land in question, rather than either four lots or eight lots. However, while the Policy requires that there has been comprehensive planning undertaken and a structure plan approved, it does not apparently go so far as to require that subdivision or other development will only be approved if it conforms in every detail with the relevant structure plan. The 1993 Structure Plan did show the land as an area designated for use as tourist

(Page 17)

development, and as I have mentioned, the proposed subdivision was apparently for giving effect to tourism related purposes.

31 I understood it to be faintly suggested that the 1993 Structure Plan was not really the type of "Structure Plan" contemplated by the Policy at all. Rather, as I understood it, it was suggested that what was contemplated by that Policy was a plan prepared in accordance with the Shire's Town Planning Scheme No 18. That Scheme contains cl 3.3.2 through to cl 3.3.3.2, which deal with structure plans. Those clauses are generally to the effect that subdivision or development within a designated zone will not be supported by Council until a structure plan has been prepared "which accords with the parameters listed in cl 3.3.3 hereunder" and which contains detailed indications to do with roads, likely clearing, buffers and relevant residential planning codes. The "parameters" are a mixture of the extremely general ("shall provide for a variety of residential, tourist and ancillary development") and the very specific ("up to a maximum 243 lots ... "), and require detailed supporting information including an environmental analysis, geotechnical analysis and so on.

32 There is no definition of "structure plan" within the Policy. The only internal indications as to what it might mean appear to me to be somewhat contradictory. On the one hand, it is a document apparently prepared after "comprehensive planning" has been undertaken, but on the other hand an acceptable alternative to it is apparently an "outline development plan" (also not a defined term, but the word "outline" does not suggest any great detail is required). Nor can one draw anything, I think, from the date of preparation of the Policy. It was prepared subsequent to both the gazettal of Town Planning Scheme No 18 and the approval of the 1993 Structure Plan by the Commission.

33 The only conclusion that I can draw from the factors to which I have referred, is that there is nothing in the Policy itself or in the circumstances surrounding its creation which would suggest that the 1993 Structure Plan is not the type of Structure Plan contemplated by the Policy. It is therefore my view that Mr Schramm cannot be said to have acted other than in accordance with the Policy.

Sub-delegation

34 The applicant's argument in relation to this point was put in the alternative. First, it was suggested that the Committee's resolution (2) should be understood as a purported delegation to Mr Schramm to

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"finalise subdivision conditions". It is then said that Mr Schramm as a matter of fact had no delegated authority to perform that task, as distinct from determining subdivision applications himself. The Committee lacked the power to delegate any such authority by reason of s 20(2) of the Planning Commission Act. Secondly, and in the alternative, it is submitted that the approval of the Committee in that form in any event lacked "finality", since it left Mr Schramm to make the decision as to conditions and did not confine his discretion.

35 It seems to me there is a third aspect of this argument. The view which I prefer is that the Committee did not purport to delegate to Mr Schramm, since the text of the resolution, which carefully "notes" (rather than requires or requests) the subsequent imposition of conditions, suggests that it saw Mr Schramm as having an independent power. However, apart from there being a clear assumption that conditions would be imposed, there is nothing in the text of the resolution or, indeed, of the minutes, which suggests that the Committee addressed its mind at all to what conditions should be imposed.

36 The power of the Commission pursuant to s 20(1)(a) of the Town Planning and Development Act is, it seems to me, a power either to approve or to refuse approval or to give approval subject to conditions, as it sees fit. Where there are no conditions, it appears that the approval is "effective" immediately, and where conditions are imposed they must be carried out before the approval is effective. A conditional approval and an approval not subject to any conditions are two different types of decision.

37 It also seems to me that the intention expressed in s 20 is that the Commission itself determines what conditions are to be imposed. That is not to deny the possibility that the Commission may adopt the recommendations of others as to what conditions should be imposed or perhaps, if there were, (as there seem to be) standard conditions available, determine that the conditions should be the conditions usually applicable to a subdivision of that kind. However, it does seem necessary for the Commission to address its mind to that question. A decision which simply grants approval subject to "conditions" the content of which is entirely at large is, it seems to me, a failure to make a decision at all in terms of the section; alternatively, it is the making of a decision which is so uncertain in its content and so lacking in finality as to be invalid.

38 It may well be, as Mr Zelestis QC submitted, that the Committee in this case was aware of the type of standard conditions which were likely to be imposed and that it really contemplated that, as was indeed the case,

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the only conditions which would be imposed were those which could be broadly described as standard servicing conditions (leaving aside condition 1). That may be the case in fact, but there is nothing in the text of the resolution which confines the nature of the conditions to be imposed. If it had done so, then, depending upon the precise content of the resolution, it would have been easy to see it as either a determination of conditions which was subject only to formulation of matters of detail by others, or alternatively as a purported, impermissible, sub-delegation of the Committee's power to fix conditions.

39 So far as Mr Schramm was concerned, he had power to determine the application in its entirety, subject only to the constraint with respect to pre-determined policies contained in the instrument of delegation. It is argued that the greater must necessarily include the lesser, so that Mr Schramm was acting within the terms of that delegation when setting the relevant conditions. The difficulty with this submission is, it seems to me, that there is a difference between on the one hand, the exercise of a power to approve a subdivision and at the same time to impose conditions on that approval, and on the other hand the exercise of a power only to fix the conditions which are to apply to an approval already given by others. It seems clear from the materials in this case that Mr Schramm did not regard himself as having the power to decide whether or not the subdivision was to be approved; that power was assumed to have been already exercised by the Committee.

40 The reason that the greater does not necessarily include the lesser is because of the interplay which, it seems to me, must exist in at least some cases between the decision to approve and the decision to impose conditions. In very many cases, it is likely that there will be concerns of some kind or another raised by subdivision application; matters such as the possible effect on neighbouring land, environmental considerations, increased traffic, and so on may all arise. In at least some of those cases, the concerns would be such that if it were not possible to impose appropriate conditions so as to avoid potential undesirable consequences, development would not be approved. It is possible to envisage a case in which, for example, significant environmental concerns arise but the decision-maker wishes to grant approval provided only that conditions can be imposed which avoid undesirable environmental consequences. During the process of formulation of the conditions it may or may not prove possible to fashion conditions which will avoid all, or the greater part, of the undesirable consequences which may be foreseen. So it is, that a decision-maker who is initially reluctant to grant approval may be persuaded to do so once he or she has considered possible conditions and

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formulated some which avoid undesirable consequences, or a decision-maker initially in favour of granting approval might in the end consider that because no conditions can be formulated which would avoid certain consequences, approval must be withheld. The fragmentation of the power to grant approval subject to conditions, may mean that neither decision-maker properly assesses the question of whether approval ought to be granted in the light of the conditions which can practically be imposed.

41 It is not to the point, in my view, that the question of the appropriateness of conditions may be considered separately at various points during the approval process (for example, at a reconsideration pursuant to s 24(5) or on an appeal pursuant to s 26(1)(a)), or that the membership of the Committee or the identity of the person holding Mr Schramm's office might change during the course of the decision-making process. In the case of further consideration being given at other points to appropriate conditions, that consideration will take place in the context of an initial decision made pursuant to s 20(1)(a) in which approval and conditions go together, and no doubt appropriate weight will be given to that fact. In the case of the change of an identity of an individual, at any time prior to the grant of approval it would be open to that individual to reassess what had already been done and to arrive at his or her own independent decision as to whether or not any approval should be granted and what, if any, conditions should be attached.

42 Although this argument was put on the basis of there being either an impermissible sub-delegation or a lack of finality, it appears to me that the error which has occurred is of another kind. That is, I think that what the statute contemplates as being one decision to which one mind (that is the mind of one officer or of one body) should be addressed, has been seen as two separate decisions to which wholly independent consideration can be given. In the result, it seems to me that the Committee has not strictly made a decision under its delegated power, since it has not purported to address its mind to the question of what conditions, if any, should be imposed, while Mr Schramm, rather than acting under his own independent delegated power, has seen his task merely as the affixing of conditions to a decision already made by others.

43 It is my view therefore that the power of approval pursuant to s 20 has not been validly exercised in this case.

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Standing and discretion

44 There is a longstanding difficulty in defining with any precision what, if any, standing requirements may exist in relation to prerogative writs such as certiorari, and in defining the relationship, if any, between the particular interest of the applicant for the remedy and the discretion of the court to grant it. In this Court, in Re Smith; Ex parte Rundle (1991) 5 WAR 295, Malcolm CJ reviewed a number of authorities dealing with the question of standing in relation to certiorari, at 305 – 307. It is not easy to reconcile all of the observations in the cases collected by his Honour. For example, in R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299 at 308 – 309 Lord Denning MR said that certiorari lay on behalf of any person who was "a person aggrieved" but that that did not include a "mere busybody", while in R v Thames Magistrates' Court; Ex parte Greenbaum (1957) 55 LGR 129 Parker LJ said that "anybody" could apply for certiorari but that if the application were made by a stranger the remedy was purely discretionary while, where it was made by a person who had a particular grievance, it lay ex debito justitiae.

45 Fortunately, I do not think it is necessary to determine these questions. The approach which I adopt in the present case is that the grant of certiorari is, in all cases, discretionary. The discretionary nature of the remedy, and the relationship between the discretion and the interest of the applicant, is canvassed in some detail in the judgment of Isaacs and Rich JJ in Waterside Workers Federation of Australia v Gilchrist (1924) 34 CLR 482 at 516 – 519. Their Honours note a significant body of authority in support of the proposition that there is a discretion in the court to grant or refuse certiorari notwithstanding that the applicant is a "party aggrieved" and they conclude that that view is to be preferred. In Attorney-General for Western Australia v Cockram (1990) 2 WAR 477, the Full Court of this State concluded that the court had a discretion as to whether or not to grant certiorari even where want of jurisdiction had been established; as that was a case of an application made by the Attorney-General, no question of the interest of the applicant arose, but the remedy was nevertheless refused.

46 It is, however, I think clear from the authorities, including the judgment of Isaacs and Rich JJ to which I have referred, that the question of the interest of the applicant is a relevant consideration in the exercise of that discretion. I turn therefore to consider briefly the matters relied upon by the applicant to demonstrate its interest in these proceedings.

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47 Two affidavits of Mr Whittle, dated 20 October 2001 and 5 March 2002, are relevant to this issue. They establish the applicant was "inaugurated" in 1970, and was incorporated in September 1979 under the Associations Incorporation Act 1895 (now the Associations Incorporation Act 1987). At the date of one of those affidavits it had 64 financial members. At the time of commencement of proceedings, five members lived in the Development Zone at Gnarabup and 35 in the Gnarabup/Margaret River postcode area. The object of the applicant is "to promote the cause of environmental protection and to promote, encourage and foster the conservation of the natural flora and fauna and the geological and other related features throughout the State of Western Australia but in particular in the area contained within the boundaries of the Shire of Augusta Margaret River ... ". Mr Whittle is of the view that clearing and development of the land in question will expose it to various risks, leading to what might broadly be described as degradation of that landscape. As part of its conservation objectives, the applicant has sought to prevent any further development at Gnarabup. The applicant has made public submissions to the Shire on the 2000 Structure Plan and has made a number of proposals and submissions and has participated in consultative groups about development in the Gnarabup area. It has received funding grants for revegetation and restoration works near Gnarabup; although it is not expressly stated, it has presumably carried out such revegetation and restoration works.

48 In an earlier decision of mine (Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102) I attempted to set out, at 110 – 115, the sorts of matters to which regard should be had in determining whether a body of the present kind had a special interest or was likely to suffer special damage from a decision which was challenged. I do not propose to canvass those matters again, but merely to apply the views which I there expressed.

49 Turning first to the statutory context, s 5AA and s 6 of the Town Planning and Development Act set out in broad terms the sorts of considerations to which Statements of Planning Policy and Town Planning Schemes must have regard. They encompass a very broad range of matters, but it could generally be said that the Act is concerned to ensure the orderly development of land, where appropriate, so as to provide for the economic and social well-being of land owners and of the community generally; it plainly recognises the importance of the rights of private land owners, but seeks also to protect the interests of all members of the community in the amenity of the areas in which they live or to

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which they resort for other purposes. One can see that there could potentially be a diverse range of interests which might suffice to give a person a special interest in a decision made under that Act. In particular, one can see that the interest need not be a pecuniary interest.

50 However, even having regard to the apparent breadth of the statutory purpose, it does not appear to me that the applicant has established any real interest in the particular land in question here. Neither it nor its members use the land directly, it being privately owned land. Only a very small minority of members live in proximity to it (in the Development Zone), and it is not asserted that any of those members live in such proximity to it that they are likely to be affected by, for example, erosion or drainage problems arising from clearing consequent upon subdivision, or that the visual amenity of their own properties or surroundings will be affected by subdivision on the site. Nor is it suggested that the amenity of any particular area of land to which any members habitually resort or which they habitually use is likely to be affected by subdivision of this land. Indeed, it is my view that the affidavits reveal no actual connection with the particular land in question here and no proximity to it which suggests that land owned or used by the applicants will be affected by this decision.

51 The mere making of submissions and the like does not, in my view, suffice to demonstrate a relevant interest. A history of conduct of this kind may demonstrate that a concern is genuine, but that is not in issue here. What is in issue is whether the concern is more than a simple emotional or intellectual concern, and the making of submissions does not assist in that respect. Nor, for reasons which I expressed in the Bridgetown Friends case, do I consider that participation in consultative groups or even the receipt of funding suffices to demonstrate an interest, particularly where, as here, the funding received does not relate directly to the particular land in question.

52 It is true that the Association was apparently formed in order to protect the environment within the Shire of Augusta Margaret River; that is, I think, a relevant factor but on its own it does not seem to me to be sufficient to give the applicant a special interest in a particular parcel of private land within that Shire.

53 The conclusion which I would reach is that the applicant has not demonstrated an interest over and above that of the public at large in the particular decision in question. That is one of the factors which would lead me to refuse to grant the orders sought in this case. Even if I were

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not of that view, but were prepared to assume such a special interest, nevertheless the interest appears to me to be a very weak one.

54 In combination with my conclusions about the nature of the applicant's interest, there are a number of factors which would lead me to refuse to make the orders sought in this case. It seems to me that the want of compliance with the statutory procedure in this case was of a very technical nature. It is true, as was pointed out both by the respondent and the intervener, that either the Committee or Mr Schramm could have made the entire decision which is challenged. Although I formed the view that it was not open to split the two components of the decision, it is also accurate to say that in this case the conditions were of a sort which could be characterised as standard conditions, and that their imposition did not in any way affect the character of the subdivision which was approved. It should also be noted that it is apparently the applicant's objective to ensure that there is no subdivision or development on the land in question, but that there is nothing in the materials put before the court by the applicant which would suggest that it is not open to the respondent to approve a subdivision of the land.

55 The relief sought would have a direct effect on the intervener, affecting valuable private rights. The making of the application was considerably delayed. The delay appears to have been in part attributable to matters outside the control of the applicant, such as the unavailability to it of certain documents until its freedom of information request had been dealt with, and to have been caused also in part by the desire of some of those interested to engage in negotiations. However, in the meantime the intervener has acted upon the approval in a variety of ways. They include requesting reconsideration of some conditions, liasing with the various authorities referred to in the conditions, and commissioning studies and surveys of various kinds in order to deal with other conditions. Those actions took place over a number of months. In September 2001 surveyors commenced work on the land, but the clearing of some vegetation for access purposes along the survey alignments was physically obstructed by some persons known only to the intervener's agent as "local conservationists". The expenditure on these activities may not have been great, considered in relation to the probable value of the land, but neither could one characterise it as likely to have been a nominal expense.

56 For the reasons outlined above, I would refuse the relief sought, and would discharge the orders nisi in this case.