Re Western Australian Planning Commission; Ex Parte Solomon
[2010] WASC 192
•11 JUNE 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE WESTERN AUSTRALIAN PLANNING COMMISSION; EX PARTE SOLOMON [2010] WASC 192
CORAM: SIMMONDS J
HEARD: 8 & 11 JUNE 2010
DELIVERED : 11 JUNE 2010
FILE NO/S: CIV 1574 of 2010
MATTER :Application for a Writ of Certiorari against the Western Australian Planning Commission
EX PARTE
GREGORY HOWARD SOLOMON
DOUGLAS HOWARD SOLOMON
STEPHEN GEOFFREY BEYER
LEE HELEN SOLOMON
NOREEN NYUNT
Applicants
Catchwords:
Administrative law - Application for order nisi for review for jurisdictional error of decision of Commission approving subdivision by survey strata plan - Whether arguable case Commission failed to give due regard to certain applicable planning policies of Commission - Whether discovery should be ordered - Whether stay should be ordered
Legislation:
Nil
Result:
Order nisi made
Discovery ordered
Stay ordered
Category: B
Representation:
Counsel:
Applicants: Mr D H Solomon
Western Australian Planning Commission : Mr E M Heenan
Commercial Properties Pty Ltd : Mr M J McCusker QC
Solicitors:
Applicants: Solomon Brothers
Western Australian Planning Commission : State Solicitor for Western Australia
Commercial Properties Pty Ltd : Hardy Bowen
Case(s) referred to in judgment(s):
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Cazaly Iron Pty Ltd v The Honourable John Bowler MLA, Minister for Resources [2006] WASCA 282
Commercial Properties Pty Ltd and Western Australian Planning Commission [2008] WASAT 278
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Carnarvon Shire; Ex parte Humphrey [2005] WASCA 182
Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264
Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Re Real Estate and Business Agent Supervisory Board; Ex Parte Cohen [1999] WASCA 47; (1999) 21 WAR 158
Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132
Savage v Teck Explorations Ltd (Unreported, WASCA, Library 7285, 16 September 1988)
Stampalia v The Stewards of the Western Australian Trotting Association [1999] WASC 7
Weal v Bathurst City Council [2000] NSWCA 88; 20111 LGERA 181
Yallingup Residents Association (Inc) v State Administrative Tribunal [2006] WASC 52
SIMMONDS J: (This judgment was delivered extemporaneously on 11 June 2010 and is edited from the transcript)
This is a notice of motion for an order nisi for a writ of certiorari to quash a decision of the Western Australian Planning Commission (the respondent) made, so far as it appears to me, on 3 November 2009, although it is occasionally referred to as a 4 November 2009 decision (the November 2009 decision). The November 2009 decision was to set aside an earlier decision of the respondent made on 18 March 2008 (the March 2008 decision) and to substitute a new decision. The March 2008 decision in its turn was to refuse a proposed survey strata application by Commercial Properties Ltd (the Commercial Properties application) in relation to lot 77 Jacoby Street, Mundaring.
The Commercial Properties application was for approval of a subdivision of that property (the property) into 34 survey strata lots and common property, by survey strata plan. The applicants in the present application for an order nisi for a writ of certiorari are the registered proprietors of an adjoining lot, lot 78 Jacoby Street, Mundaring.
The new decision of the respondent, forming part of the November 2009 decision, was to support the Commercial Properties application subject to certain conditions. These conditions, it was accepted, were for the most part conditions previously established for the approval of the Commercial Properties application by the State Administrative Tribunal (SAT), as I will in due course indicate.
The application for an order nisi in the present proceedings assigns a single ground, which is then particularised. The ground is that the respondent failed to have 'due regard to the requirements of and misapplied applicable policies of the respondent incorporated in and forming part of the relevant state planning policy (State Planning Policy Number 1) (SPP1))'. The application for an order nisi also calls for orders, amongst others, for 'informal discovery' of certain documents, and for a stay of the November 2009 decision.
There are complicated matters involved here, both in terms of the background to the November 2009 decision and also what it is that is sought.
I begin these reasons in greater detail by describing the procedural setting to the November 2009 decision. That will then enable me to deal with the balance of the matters before me more efficiently.
The procedural setting to the November 2009 application
The procedural setting to the November 2009 decision was proceedings for review of the March 2008 decision begun in the SAT.
The SAT in those proceedings, in due course, decided to allow the application for review and grant its approval of the March 2008 decision, on certain conditions, ones to which I have previously made reference. I call this the November 2008 SAT decision for the month and year in which it was handed down: see Commercial Properties Pty Ltd and Western Australian Planning Commission [2008] WASAT 278.
Subsequently, proceedings for the issue of an order nisi for a writ of certiorari were commenced in respect of the November 2008 SAT decision and an order nisi was issued, accompanied, I was told, by an order for the stay of the matter so far as the SAT is concerned.
Those proceedings for a writ of certiorari culminated in an order absolute quashing the November 2008 SAT decision. This was for the reasons in Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex parte Solomon [2009] WASC 116, a decision of mine (Re SAT).
Following that decision, the proceedings in the SAT continued. It matters not how that came about, as it is common ground that they were properly continued following Re SAT.
Following discussions between the Commercial Properties and the respondent and hearings in the SAT, the SAT exercised its power in s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), inviting the respondent to reconsider the March 2008 decision.
This was not the first time in the history of proceedings in this matter that the SAT had exercised this power, the SAT having previously done so prior to the November 2008 decision. On that occasion, as I understand it, an occasion which issued in a decision of the respondent in June 2008, the respondent did not change the March 2008 decision in any way material to me.
However, when the second invitation was issued the respondent did change its decision, to produce the November 2009 decision. Following the November 2009 decision, the proceedings before the SAT were withdrawn. This removed any obstacle to judicial review of the November 2009 decision, represented by SAT Act s 19(3)(b).
There were a number of events following the November 2009 decision of a little significance, to me at least, and I will reach them in due course, save to say, that these proceedings were subsequently commenced by originating motion. The originating motion, to which I have made a number of references already, was dated 27 April 2010.
It is necessary for me to proceed from this description of the procedural setting to the present application, and to begin by describing the law applicable to the grant of an order nisi for certiorari
The law applicable to the grant of an order nisi for certiorari
As to the law applicable to the grant of an order nisi for certiorari there are two issues I need to refer to.
The first has to do with the applicants' standing in this matter. This is addressed in the applicants' written submissions for the first day of the hearing of the present application. There was no objection taken to the standing of the applicants by the respondent, nor by the interested party, Commercial Properties.
I should add that I permitted the respondent to make submissions in the present proceedings notwithstanding statements in a number of authorities to which the submissions of the applicant, prepared for the first day of hearing, referred, and I note particularly Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511, 515 [8]. I considered that the respondent could properly make submissions on the basis that the applications were about the powers of the respondent and its procedures. As will shortly become apparent these proceedings have important implications for the respondent in those respects and call upon some fine grained understanding of the powers and procedures of the respondent.
To the extent that the respondent put matters to me going beyond, in a strict sense at least, powers and procedures, I understand the authorities to give me a discretion to receive such submissions and I consider the discretion was properly exercisable. I did not understand the applicants in the end to press strongly their objections to the submissions being made by the respondents as I will consider them in due course.
The second matter relating to whether or not to grant an order nisi has to do with the test applicable. That test is commonly described in terms of whether the applicant has shown an arguable case for the grant of the order nisi, that is to say, an arguable case that the order would ultimately be made absolute.
I consider that the correct approach to that test of arguable case is as described by Buss JA in Cazaly Iron Pty Ltd v The Honourable John Bowler MLA, Minister for Resources [2006] WASCA 282 [53] ‑ [55]:
In Inland Revenue Commissioners v National Federation of Self‑Employed & Small Businesses Ltd [1982] AC 617, Lord Diplock explained, at 642 ‑ 644, the purpose of the order nisi stage of an application for a prerogative writ:
'Its purpose is to prevent the time of the Court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.
…
The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the Court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the Court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the Court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.'
That passage from the speech of Lord Diplock was approved by the Full Court of the Supreme Court of Western Australia in Talbot v Lane (1994) 14 WAR 120, per Malcolm CJ at 152 ‑ 153 (with whom Kennedy and Ipp JJ agreed, at 157).
Subsequent authorities have accepted that an applicant for an order nisi must have an 'arguable case'. It appears that an applicant for an order nisi in respect of quasi-criminal proceedings bears a greater burden. In Re Capobianco; Ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998, Parker J said, at page 6:
'It will be apparent from this brief reference to settled authority that the threshold test which the applicant must satisfy is quite low. It is sufficient that the case is merely capable of being argued and it is not necessary for the applicant to show that the case have some reasonable or real prospect of success; in this respect contrast the test where prerogative relief is sought in respect of quasi-criminal proceedings, as to which see Re Lawrence; Ex parte Moltoni, unreported; SCt of WA (Murray J); Library No 980010; 16 January 1998 at 7, adopting and adapting Dempster v National Companies and Securities Commission (1993) 9 WAR 215, at 216.'
Some different formulations, in other cases, as to what constitutes an 'arguable case', are referred to by McLure J (as her Honour then was) in Re Anastas; Ex parte Welsby [2001] WASC 178 at [15] ‑ [17]. Also see Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264, where McLure J said, at [47]:
'The applicant must establish an arguable case. On any view that requirement will not be satisfied if the case is so clearly untenable that it cannot succeed (being the test in General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125 at 130). I do not propose to reconsider the different formulations of the test applied in this Court to which I referred in Re Anastas; Ex parte Welsby [2001] WASC 178. I will apply the General Steel test suitably adapted to reflect the fact that there must be evidence to support the factual findings for which the applicant contends.'
In my opinion, the test to be applied and the approach to be taken at the order nisi stage, where prerogative relief is not sought in respect of quasi-criminal proceedings, are, in general, those approved by the Full Court in Talbot. If, however, the application raises matters of factual and legal complexity, a 'quick perusal of the material then available' may not be sufficient to determine whether an applicant has a reasonably arguable case. Some greater scrutiny may be necessary. The observations of McLure J in Re MacTiernan are not inconsistent with Talbot. The test and approach at the order nisi stage also apply to an application for leave to amend the grounds of an order nisi, at least where the application is made before its return. If the proposed amended ground is so clearly untenable that it cannot succeed, leave to amend should not be granted. Also, there must be evidence to support any factual findings which the applicant asserts in the proposed amended grounds.
This test I consider must be applied to the grounds or ground, as formulated, from which it flows, as explained in Savage v Teck Explorations Ltd (Unreported, WASCA, Library 7285, 16 September 1988) (Malcolm CJ) (3 - 4), that this court has a responsibility in assessing the case for an order nisi to determine whether there are ways in which the ground can be refined so as to focus the subsequent proceedings appropriately. There is some application for that principle as I will soon explain.
I turn now to the ground advanced for the issue of the order nisi and that ground's particulars. In order to do so, I must begin by describing the legislative and factual background to the November 2009 decision by which the respondent, as I have explained, determined to approve the Commercial Properties application to approve the subdivision of the property by survey strata plan.
The legislative background to the March 2008 decision
So far as the legislative background to the March 2008 decision is concerned I am able to rely, as I do at a number of other points in this judgment, on a matter contained in Re SAT. In that decision I described the context to, including the intention underlying the introduction of, the provisions in the Strata Titles Act 1985 (WA) for the subdivision of land into lots by survey strata plan.
I set out in Re SAT at [9] ‑ [23] the relevant provisions. The provision from the SAT Act principally relevant for the purposes of the present application is Strata Titles Act s 25B:
25B. Subdivision in survey strata scheme requires approval by Commission
(1)The provisions of Divisions 1, 2 (other than section 141) and 3 of Part 10 of the Planning and Development Act 2005, and section 166 of that Act, apply to ‑
(a)the subdivision or re subdivision of land by a survey‑strata plan or a plan of re subdivision for a survey strata‑scheme; and
(b)the consolidation of lots by a plan of consolidation for a survey‑strata scheme.
(2)Every survey‑strata plan and every plan of re subdivision or consolidation for a survey‑strata scheme lodged for registration under this Act shall have endorsed on it a statement that the approval of the Commission, required by the provisions referred to in subsection (1), has been granted.
[(3)deleted]
(4)The Registrar of Titles may accept for registration a plan referred to in subsection (1) notwithstanding that it does not comply with subsection (2) if the plan ‑
(a)is accompanied by a certificate of the executive officer of the State Administrative Tribunal to the effect that a successful application has been made to the State Administrative Tribunal for a review of the Commission’s refusal or failure to give an approval referred to in subsection (2); and
(b)otherwise complies with this Act.
The provisions of the Planning and Development Act 2005 (WA), which Strata Titles Act s 25B(1) states 'apply,' include those in div 2 pt 10 of the Planning and Development Act, with an exception not material for my purposes, or indeed for the purposes of the decision in Re SAT. Division 2 of pt 10 concerns approval for subdivision by the respondent and includes Planning and Development Act s 135, which is one of the provisions Strata Titles Act s 25B(1) causes to apply. In Re SAT I commented on approval under that provision in [26] as follows:
PD Act s 135 is the well known prohibition on, inter alia, the subdivision of any 'lot' (see PD Act s 4(1) 'lot') without the 'approval' of the Commission. When s 135 is read with PD Act s 138, s 142, s 143, s 144 and s 145, all in div 2 pt 10, it is evident that the PD Act provides for approval of a 'plan of subdivision' before approval of a 'diagram or plan of survey of the subdivision' (see particularly s 145(1); see also s 251(1) read with (4)). Endorsement of the latter approval on the diagram or plan of survey is required before the Registrar of Titles may create or register a certificate of title under the Transfer of Land Act 1893 (WA) for land 'the subject of a plan of subdivision' (see PD Act s 146). The Commission may approve a plan of subdivision subject to conditions (s 138(1)); however, there is no corresponding provision with respect to a diagram or plan of survey of the subdivision.
I particularly note from the Planning and Development Act, and the provisions therein made applicable by Strata Titles Act s 25B(1), s 138 of the former Act. I note that provision, because along with s 134(5) (which has no application in the present proceedings, as is common ground) it is the only provision of the ones made applicable which uses the language appearing in s 241 of the Planning and Development Act which was a particular focus of Re SAT. That language is language requiring the respondent to have due regard to certain matters.
I also note as part of the legislative context to the November 2009 decision Planning and Development Regulations 2009 (WA) reg 21, which requires the respondent in making s 135 decisions to have regard (the word 'due' does not appear) to relevant matters in language different from Planning and Development Act s 138, in language different from s 241 for that matter, as follows:
21.Matters to be considered on application for subdivision
When considering a section 135 application, the Commission must have regard to all relevant matters including but not limited to these ‑
(a)the size, shape and dimensions of each lot;
(b)the services available to each lot;
(c)drainage of the land;
(d)access to each lot;
(e)the amount of public open space to be provided;
(f)any relevant planning scheme;
(g)any relevant regulations made by the Minister under the Act;
(h)any relevant local laws relating to town planning.
I turn now to the factual background to the Commercial Properties application and to the March 2008 decision which is substituted for by the November 2009 decision as I have indicated.
The factual background to the Commercial Properties application and the March 2008 decision
The factual background is lengthy and complex. It is sufficiently described for my present purposes, however, in Re SAT at [31]. That paragraph introduces and then sets out passages from the November 2008 SAT decision reasons [12] ‑ [45] and is as follows.
These matters are drawn from the Tribunal decision, and are common ground. The background appears most conveniently for my purposes at [12] ‑ [45] where there is reference to related litigation culminating in the decision Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132. The references in the following paragraphs to the 'applicant' are to Commercial Properties, and to the 'respondent' are to the Commission, while the property is referred to as 'the site':
'The subdivision application to the respondent had sought approval to create 34 survey‑strata lots and one common property lot. The common property lot was proposed to contain the driveway, visitor parking bays, the community centre and open space.
For the reasons that follow, we have concluded that the respondent ought not to have refused survey-strata subdivision.
Site and locality
The site [being the property which is Lot 77 Jacoby Street, Mundaring] has a rectangular shape with a street frontage of approximately 98 metres, a depth of approximately 300 metres, and an area of 2.9180 hectares.
The land is located in a rural environment between the localities of Mahogany Creek and Mundaring and currently accommodates a vacant building that formed part of the Mundaring Rest Home, established in 1973.
The locality is generally typical of a rural residential lifestyle. The relevant exceptions to this observation are the subject site itself and the adjoining site to the east (Lot 78). The adjoining lot, Lot 78, is a meditation centre and has been the source of objections to the proposed development. These are considered further below.
Planning framework
The site is zoned "Rural" under the Metropolitan Region Scheme (MRS) and the surrounding locality is zoned "Rural Landscape Living" under the Shire of Mundaring Town Planning Scheme No 3 (TPS 3). The site and the adjoining meditation centre are the exceptions to the zoning in the locality, for they each have special purposes zoning.
The site is zoned "Special Purpose - Rest Home". Schedule 1 of TPS 3 describes the permissible uses for the site as "AA"; that is, "a use that is not permitted unless special permission is granted by the Council". The "AA" uses permitted in Schedule 1 are "Aged and Dependent Persons' Home, Rest home, Retirement Centre, Caretaker's residence, Manager's residence, Incidental and admin[istrative] uses".
The adjoining Lot 78 is zoned "Special Purpose ‑ Meditation". Schedule 1 of TPS 3 describes the permissible uses for the site as "AA" with the uses being described as "Meditation Centre, Meditation room building, Kitchen/dining/store building, Laundry/workshop building".
Clause 3.1 of TPS 3 describes the objectives for the various zones, including that for rural landscape living (in cl 3.1.8 of TPS 3) and that for special purpose zones (see cl 3.1.10 of TPS 3).
Relevant to this review are the objectives of the respondent's 1995 Metropolitan Rural Policy (MRP). In cl 2, a relevant objective is to 'safeguard the operations of existing and future special uses.' Also relevant are the respondent's development control policies: Development Control 1.1: Subdivision of Land ‑ General Principles (DC 1.1) and Development Control 1.3: Strata Titles (DC 1.3). See also, Development Control 3.4: Subdivision of Rural Land (DC 3.4).
We will return to elements of the planning framework later in these reasons.
History of development on the site
The background to this review is somewhat lengthy and complex. It commences in 1973 when the "Mundaring Rest Home" (Rest Home) was approved and subsequently built on the site which was then zoned "Rural" in the Shire of Mundaring Town Planning Scheme No 1 (TPS 1). The Rest Home provided accommodation for approximately 15 frail aged persons.
In 1979, an application was made to the Shire to add 30 retirement units to the site. The Shire resolved to support the application subject to an amendment to TPS 1 amendment changing the zoning form "Rural" to "Special Purpose - Aged Persons Homes". The amendment took effect on 18 January 1980.
However, the approval for the 30 retirement units eventually lapsed. Thereafter, numerous other development applications were approved by the Shire for the site over the years but these also all eventually lapsed.
In the early to mid‑1990s the then existing rest home ceased operations.
TPS 3 commenced in March 1994 and modified the form but essentially not the substance of the zoning of the land. In 1998, a planning appeal successfully removed a planning condition imposed by the Shire that the units were not to be strata titled: see the history recited in Re Shire of Mundaring ... at [18] ‑ [22].
On 6 October 2000, the respondent approved a built strata application for subdivision in respect of 36 built strata units of 187 square metres and common property. This approval was consistent with a development approval issued by the Shire at around the same time. Again, these approvals were not acted upon.
In January 2005, the applicant lodged an application with the respondent for 34 survey‑strata lots and common property. This application was deferred at the request of the Shire.
In March 2005, the Shire received an application for 34 aged and dependent persons units, together with community facilities and services, and a five-bed respite care facility. In July 2005, the application was deferred until such time as:
a)the applicant provided information describing the manner in which the development will be operated and managed (including proposed tenure arrangements) to demonstrate to Council's satisfaction that use of the land will occur for the bona fide use of a "Rest Home"; and
b)legal advice has been obtained from Council's Solicitors in respect of the current application for 34 aged and dependent persons units and amenities building on the subject lot, including the additional information received pursuant to a) above.
The additional information sought was subsequently received and Council resolved on 27 September 2005 to approve the application. The conditions attached to the approval contained detailed requirements with reference to the management of the site.
At its meeting on 13 December 2005, the Shire dealt with a parallel application to the respondent for the proposed survey-strata subdivision into 34 lots with common property. The Council resolved to advise the respondent that it recommended that the application be refused for the following reason:
"The survey-strata titling of the proposed 34 unit aged [and] dependent grouped dwelling development approved by Council on 27 September 2005 would result in individually owned dwellings within the lot. It is considered by Council that this would be contrary to the intent of the Special Purpose zoning of the subject lot, envisaging a single entire facility under central management and control providing services to persons as occupants of the home."
Just after the Shire's September 2005 approval, the owners of the adjoining Lot 78 contested in the Supreme Court of Western Australia the validity of the Shire's development approval for 34 units.
On 28 June 2007, the Supreme Court, in Re Shire of Mundaring, declined to invalidate the Shire's decision.
Following the Supreme Court's decision, on 29 June 2007, the applicant wrote to the respondent and requested that the deferred decision on the survey-strata application be processed. The matter was again referred to the Shire and on 25 September 2007, the Council resolved to recommend to the respondent that it support the survey-strata application subject to various conditions including:
(i)the preparation of a management statement in accordance with s 5C of the Strata Titles Act 1985 (WA); and
(ii)that the applicant submit "a revised plan to the Shire of Mundaring which reflect[s] the most recent application for planning approval dated October 2006, illustrating 32 aged persons units and a 15 bed rest home facility".
A draft management statement has been submitted to the respondent.
At the time that this application for review was lodged there were, it appears, two current planning approvals each purporting to be valid in respect of the site: one for 34 units expiring in October 2008 and one for 32 units expiring in September 2009.
In February 2008, the Shire issued a building licence for an upgrade and extension to the existing building. The facilities proposed were consistent with the conditions of the 34 unit development approval and included a five-bed respite facility, community facilities, a doctor's room, a gymnasium, craft room, dining room and lounge.
In May 2008, the Shire granted approval for site works associated with the overall development of the site.
It is unnecessary in these proceedings to resolve any questions that may arise out of these apparently 'competing' approvals. For present purposes, it is sufficient to observe that no party suggests that any development approval (particularly, say, for the 34 lots reflected in the building licence) or support for a corresponding survey‑strata, is somehow invalid administrative action on the part of the Shire.
Finally, we note that Mr AA Stewart, an expert planner appearing as a witness for the applicant, stated that he had visited the site and that he had observed these works under construction.
The proposed subdivision
The proposed subdivision is to create 34 survey‑strata lots varying in size from 310 square metres to 479 square metres. This is in addition to the common property which will contain the facilities such as the access road and the central building.
The significant difference between this application and the earlier approval by the respondent in 2005, in respect of a built strata application, is that the survey-strata titles will enable the lots to be sold as vacant lots; that is, without any buildings on the individual lots.
The respondent's decision
The respondent received the application on 7 January 2005 but, as has been mentioned, deferred a decision until after the result of the Supreme Court action referred to above. On 18 March 2008, the respondent refused the application for the following three reasons:
"(1)The proposed survey-strata subdivision does not comply with the Commission's Policy DC 1.1, a provision of State Planning Policy No 1 (State Planning Framework) by reason of the proposal being inconsistent with orderly and proper planning. The development of the site in accordance with the Shire of Mundaring Town Planning Scheme No 3 is reliant on the coordinated development of the site as approved by the Shire of Mundaring.
(2)The creation of 34 vacant survey-strata lots could impact on the provision of the communal services required by the Shire of Mundaring's approval to commence development on site and have an adverse impact on the amenity of the [residents] of the proposed survey-strata scheme …
(3)Approval to the strata title application would set an undesirable precedent for the further subdivision of surrounding lots."
The notice of refusal contained the following advice note explaining the respondent's position:
"The applicant is advised that the Commission does not consider the creation of vacant survey-strata lots as being suitable for the form of development approved on site. Support of the proposal is dependent on the development of the site in accordance with the Town Planning Scheme provisions and the approval issued by the Shire of Mundaring. That applicant is advised that the Commission considers the appropriate form of tenure to be a built strata application".'
I would note from the introduction to the November 2008 tribunal decision, as there set out, the reference to a Court of Appeal decision involving these parties and this subdivision application, or matters closely related to this subdivision application, Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132. That, in my view, serves to further illustrate the complex history that is involved here and I will have occasion to return to that history in due course.
It will be noted from the factual background material that I set out in Re SAT and reproduced here that the property is zoned rural under the Metropolitan Region Scheme and has special purposes zoning under Town Planning Scheme 3 as 'special purpose-rest home.'
Although the matter is not as clear from the quotation from the November 2008 SAT decision, it appears that the adjoining lot 78 of which the applicants are registered proprietors is zoned similarly, being zoned rural under the Metropolitan Region Scheme and having special purposes zoning under Town Planning Scheme 3. However, that latter zoning in lot 78's case is different, being 'special purpose‑meditation.' I note in passing that the applicants' case for standing rests upon the apprehended effects, as I understand that case, on the enjoyment and use of lot 78 under that zoning, the result or the apprehended result of the subdivision of the property as a result of the November 2009 decision.
The ground for the order nisi
Having completed the factual background I now turn to the ground for the order nisi. The ground appears fairly clearly to be that the respondent committed a jurisdictional error in the sense of the second or the fourth categories of such error described in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 (536) and (537) [181] in the judgment of McLure J. Those matters are set out with certain related matters in Re SAT at [4] as follows:
A writ of certiorari lies against the Tribunal in at least the circumstances referred to in Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501, 536 ‑ 537 [181] (McLure JA). Her Honour's statement was referred to as a convenient summary of those circumstances in Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342, 349 [15], [16] (Steytler P, Wheeler and McLure JJA), where reference was also made to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 among other authorities, as follows:
'In … Carey … Martin CJ (with whom Wheeler JA and, relevantly, McLure JA agreed (at [143] and [158]), respectively), having considered the relevant provisions of the SAT Act [State Administrative Tribunal Act 2004 (WA)], concluded (at [110]) that the Administrative Tribunal "was … given jurisdiction to determine questions of law wrongly, and that error of law would not, of itself, take … [it] outside jurisdiction". There is no challenge to the correctness of that decision. It is common cause that, in determining the scope of jurisdictional error, the test to be applied in this case is the same as that which is ordinarily applied in the case of an inferior court.
There will consequently be a jurisdictional error only if the Administrative Tribunal makes a decision outside the limits of the functions and powers conferred on it, or if it does something which it lacks power to do: Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at [163] per Hayne J. There will be no jurisdictional error if all that the Tribunal has done is to decide something, which it is authorised to decide, incorrectly. In Craig (at 177 ‑ 178), the High Court identified five categories of jurisdictional error in this narrower sense. These are not exhaustive: … Yusuf … at [82] per McHugh, Gummow and Hayne JJ. They are conveniently summarised by McLure JA in Carey (at [181]) as follows:
"First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied (which I understand to be a reference to a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case."
In this case the applicant contends that there has been jurisdictional error in the second and fifth categories.'
At the first hearing before me the applicants clarified that the jurisdictional error they relied upon was the failure to give certain relevant factors weight as fundamental elements in the decision-making process of the respondent as required by the Planning and Development Act. I refer, for an analysis of a jurisdictional error of this kind, to Re SAT [69], [70] and [72] and the authorities there referred to. The relevant factors that were relied upon were certain applicable policies of the respondent incorporated into and forming part of SPP1, having force and effect under Planning and Development Act s 29(2) as follows:
(2)A State planning policy has no force or effect until it is approved by the Governor and published in the Gazette.
The requirement to give such consideration, it was submitted, was to be found in Planning and Development Regulations reg 21, which I have previously set out, and Planning and Development Act s 29 when read with s 241.
Under Planning and Development Act s 29, it was submitted, SPP1, which came into effect under predecessor legislation of the Planning and Development Act, was given force and effect as 'subsidiary legislation' within the meaning of the Interpretation Act 1934 (WA) s 5 read with s 41. See Planning and Development Act s 29 read with s 25.
The policies of the respondent incorporated into and forming SPP1 for the purpose of the ground were principally the Metropolitan Rural Policy (MRP), Policy DC3.4 (DC3.4), and State Planning Policy 2.5 (SPP2.5). SPP2.5 was in fact capable of application without such an incorporation in the same way that SPP1 was capable of application; but it seems to me nothing turns on that.
Each of those policies was referred to in, what it was common ground should be taken as, the reasons for the respondent for the November 2009 decision. See the Planners Report dated 3 November 2009 contained in the affidavit of Mr Douglas Howard Solomon affirmed 27 April 2010, annexure DHS10, with certain but not all of the Report's attachments.
I did not consider that it was in substantial contest that these policies were relevant factors which the respondent was required to take account of, as described in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (40 ‑ 41) in the often referred to judgment of Mason J.
In any event, it seems to me that it would be extremely difficult in view of the terms of those policies to approach the matter otherwise, and I should further add that has been fairly consistently the position of the respondent itself as indicated in the March 2008 decision and November 2009 decision.
However, as I understood the submission for the applicant, the respondent had not understood those policies and their significance in the respects described in the particulars. For this purpose I note Re Carnarvon Shire; Ex parte Humphrey [2005] WASCA 182 [160] (McLure J) and the authorities there referred to; and Weal v Bathurst City Council [2000] NSWCA 88; 20111 LGERA 181 [13] (Mason P) [80] (Giles J).
On the submission, whether or not the failure to understand the policies and their significance was a failure to take a relevant factor into consideration, it resulted in a failure to give those factors weight as fundamental elements in the decision making process.
It is clearly acknowledged in the authorities that this involves going beyond taking the relevant factors into consideration. See Peko‑Wallsend (40) (Mason J), Re SAT [67].
Heavy reliance was placed by the applicants, for the purpose of the submission that the policies referred to were required to be given weight as fundamental elements in this sense in the decision making that resulted in the November 2009 decision, on Re SAT [68] ‑ [76].
The applicants acknowledged that the requirement in Planning Development Act s 241, which was the origin of the conclusion in Re SAT that, among others, the MRP and DC3.4 contained such fundamental elements, applied to the SAT, and not to the respondent.
Further, it was acknowledged Re SAT did not consider SPP2.5.
However, it was submitted that the construction of the Planning and Development Act as a whole (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 ‑ 382), required a construction of Planning and Development Act s 29 or Planning and Development Regulations reg 21 in a way that would equate the obligations of the SAT and of the respondent in respect of the policies relied upon, notwithstanding the difference in the legislative language, to which I have previously referred, and the difference in the matters specified in the lists in s 241 and reg 21 respectively of particular matters included amongst those to which the relevant decision maker was to have 'due regard' (in the case of s 241) and 'have regard' (in the case of reg 21).
Further, as I understood the position, when the nature of SPP2.5 was understood it would be seen that it was a fundamental element in the same way that the other policies MRP and DC3.4 were seen in Re SAT. I refer here, as I understood the applicants to refer also, to Re SAT [72].
This could be considered to be the first of the two required elements of the case the applicants had to make out before me as an arguable one for the grant of the order nisi.
The second part of the case had to do with how the respondent had dealt with the policies. The respondent had, as I have previously indicated, referred to all of those policies, and I particularly note the following references: as to DC3.4 November 2009 decision [9]; as to SPP2.5 [16(g)] and [17]; and as to the MRP [20].
There are a number of other paragraphs in the November 2009 decision which flow out of or serve to introduce the paragraphs referred to. However, it seems to me, focussing upon those paragraphs and comparing them with the corresponding paragraphs in the November 2008 decision upon which Re SAT focussed (see Re SAT [87] ‑ [89]), that, allowing for the difficulty of drawing comparisons in this kind of matter, the case for showing that the respondent had failed to give consideration to the MRP, DC3.4 and SPP2.5 as fundamental elements is not as easily made out as the case for the corresponding submission in Re SAT.
There is a further matter, however, that I also need to take account of. It is that the reasoning in Re SAT which plays an important if not necessarily determinative role in relation to what I call the first aspect of the applicant's case has been addressed in argument before the Court of Appeal in a hearing on 3 February last in a matter Zampatti CACV 80 of 2009. The submission put to the Court of Appeal on that occasion, in a case which concerns the way in which the SAT should approach its decision making, was that the reasoning in Re SAT, including the reasoning between [68] and [76], and I would assume particularly the reasoning in [72], was incorrect and that the SAT was not required by Planning and Development Act s 241, or otherwise, to give policy considerations of the kind reviewed in Re SAT consideration as fundamental elements.
It is undoubtedly the case, it seems to me, that if the Court of Appeal agrees with the submission, the case for making any order nisi absolute would be considerably weakened. It is not, however, possible to say more than that without understanding more than these proceedings would allow me to understand, or indeed should properly leave room to understand, concerning the argument addressed to the Court of Appeal, let alone the way in which the Court of Appeal will respond to such an argument.
There was considerable argument addressed to me from Commercial Properties and the respondent as to both aspects of the applicant's case. The first aspect was whether the respondent was required by the Planning and Development Act to give the policies the applicants relied upon weight as fundamental factors in the November 2009 decision, and the second aspect was whether, if the respondent was so required, it failed to do so.
I consider that, as required by the authorities on the proper approach to applications for orders nisi, as described in Cazaly, I am only to consider whether or not I am satisfied an arguable case has been made out on limited opportunities for argument and on the material as it is provided to me currently. I do not have to go further than that, at least in the ordinary course, to assess how strong the case is, in particular whether it is a case with good prospects of success or with relatively weak prospects of success.
Approaching the matter as Cazaly indicates, in my view, an arguable case has been made out, that is to say an arguable case in respect of both aspects of the submissions the applicant has put to me. However, I consider that there is no escape in this case from forming some assessment at least, if only a preliminary one, of the strength of the case the applicants have put forward. This is because of the relevance of such an assessment to the exercise of discretion whether or not to grant a stay as sought by the applicant.
I refer for this purpose to what seems to be the most recent discussion in general terms of this discretion in Yallingup Residents Association (Inc) v State Administrative Tribunal [2006] WASC 52 [19] ‑ [20] (Johnson J) and in particular in this respect, the matter of the strength of the case, at [19], where her Honour refers to other authorities. I will return to the discretion I have referred to below, where I will go further into the strength of the case as I believe it has been made to me.
I should not conclude this aspect of my reasons without noting that it was put to me by counsel for Commercial Properties that matters relevant generally to making a stay application should inform a discretion whether or not to grant the order nisi. No authority in support of that proposition was put to me, nor in support of the proposition implicit in it that there was a discretion to refuse an order nisi even after an arguable case had been made out.
I am not convinced of the latter proposition. See Civil Procedure Western Australia [56.1.2] and the authority there cited. However, there does not seem to be direct authority in point one way or the other, at least so far as I was able to find in the relatively limited time available to me. In any event, I am not convinced the discretionary factors should prevent the issue of the order nisi in this case, and I refer to my discussion of the discretion below.
I have also considered whether to call for the applicants to re‑craft the terms of the order nisi to respond to the Epic Energy concern that this court assist the court that will finally hear the proceedings to make the order absolute. I consider that at least one change should be made to the ground to make it plain that it is a jurisdictional error that is relied upon in respect of failure to take into account factors required to be taken into account as a fundamental element.
I have further considered whether the references to misapplication of the factors and of the decision the respondent would have made if it had considered the relevant factors as fundamental elements also need to be made. It seems to me that the references come very close to, what is in my view, the unsustainable proposition that these policies should be applied as if they were legislative provisions. Further, it is not suggested that ‑ and the applicants expressly disclaimed this ‑ there is any reliance on unreasonableness in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, (229 ‑ 230) (Lord Groone MR), in the way that Mason J allowed for in Peko‑Wallsend at (41); or for that matter extreme irrationality, as the more recent decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 would also allow for. I would indicate that any reference to the decision the respondent would have made if it had given consideration to the factor as a fundamental element would be problematic.
However, in my view, although perhaps the ground is not as artfully expressed for the purpose as might have been expected, it is clear enough from the particulars that what is being relied upon as the failure (the second aspect of the case being made) to give weight to the policies as fundamental elements is that they were misunderstood, and the misunderstanding is evidenced by the way in which they were applied or not applied; and that their significance was also misunderstood, as evidenced by the way they were applied or not applied.
In that respect it seems to me that the particulars have a useful role to perform for the court that would ultimately hear a return of the order nisi, and so there are no further changes that I would call for.
I turn then to the two other matters which I indicated at the beginning of these reasons had been called for by the originating motion, of discovery and of the stay.
The orders sought for discovery
The matter of discovery I deal with first. A number of documents were listed in the originating motion as being ones that the applicants sought, which they had, as I understood it, been unsuccessful in obtaining as a result of procedures under the Freedom of Information Act 1992 (WA), initiated shortly after the November 2009 decision was released.
Those Freedom of Information Act procedures included as well requests for information that was provided and, as I understand it, that information included the reasons for the November 2009 decision, as well as the attachments to that decision that form part of DHS10 or follow immediately after it.
The list of documents appears in the order rather confusingly, if I may say so, numbered 2 in the notice of originating motion, the number 2 that appears at page 5 rather than the number 2 that appears at page 3, and the documents required are listed 2.1 ‑ 2.15.
At the hearing before me, as I understood the applicants' position, they pressed, for the time being, only to have the document 2.12 and did not press for the remaining documents. However, they reserved, as I would consider it strictly unnecessary for them to do but nonetheless recognise they have done, the prospect that they would come back to the court to seek the other documents. Document 2.12 is attachment 1 to the Planner's Report which is the reasons, as I have described them, for the November 2009 decision. I will get back to the nature of document 2.12 shortly.
I begin my consideration of whether discovery should be ordered by referring to the basic principles. The basic principles appear to be these.
Firstly, this court does indeed have a discretion to order discovery and inspection of documents in an application for an order nisi for certiorari. McClure J, in Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 [134] associates this with Re Real Estate and Business Agent Supervisory Board; Ex Parte Cohen [1999] WASCA 47; (1999) 21 WAR 158 (Scott J).
I must admit to having a little difficulty with that because when I went to that decision it does not contain any judgment by Scott J. Indeed it appears to be a Full Court judgment. It is perfectly possible that something went wrong in the translation because I do not doubt that there is a decision of Scott J saying this.
I further note, in any event, that this decision is associated with an earlier authority or can be associated with an earlier authority, Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196. It is unfortunate I was unable to consult the judgment by Scott J to see whether he discussed the Perpetual Trustees decision; but in any event I did not detect a difference of significance as to either the proposition I have just described or the following propositions.
The next proposition about discovery is that it is unusual for discovery to be ordered and that it would, in the normal case, require the applicant to demonstrate compelling circumstances: see Perpetual Trustees [3] (Owen J).
However, it seems to me, from the way in which Owen J approached the application before him in that case, that the requirement for compelling circumstances does not rise to the level, as it were, of extraordinary circumstances. I also infer this from the way in which McLure J approached the matter in Coogee Coastal Action where she went into a further requirement or a further element in the order for discovery.
This was the element that the document should be relevant to the arguable ground of review. That seems to me to follow, without too much difficulty, from the basic understanding of discovery in civil proceedings generally. What perhaps may be of greater significance is what her Honour then said, that if the documents were of some marginal relevance, she would not, in the exercise of her discretion to make the order, make it because the documents would be primarily relevant to a merits review of the decision under challenge. If that is a separate proposition, with respect it seems to me that it would make eminent sense.
With those propositions in view I return to document 2.12. It was put before the respondent, as background information as it was described in the Planner's Report, and it is the proposed survey strata plan. In the Freedom of Information Act review proceedings, in which there was a refusal to provide this document, a refusal confirmed on further review, the ground for the confirmation described was that the document was one whose confidentiality should be maintained on the basis that it was information about the business of the provider of the information ‑ I take it Commercial Properties ‑ and could reasonably be expected, if it were required to be released, to have an adverse impact on the affairs of the person providing it to the prejudice of its future supply of information of that kind to the agency.
I infer, as best I can from all of that, that the documents have a fairly high, fairly intense characteristic often described in other settings as commercial in confidence. Undoubtedly it seems to me that is a factor that I should weigh, particularly in view of what Owen J had to say in Perpetual Trustees [3] to which I have previously referred.
However, when I refer back to the paragraphs in the reasons for the November 2009 decision, with particular reference to [9], [16(g)], [17] and [20], it seems to me that the proposed survey strata plan may well be expected to have much more than marginal relevance. It is difficult for me to say anything more than that at this point.
Further, the planner considered the document was relevant, at least to the extent of including it as an attachment to his report. I attach no particular significance to the fact that it was attachment number 1 of a large number of attachments. Nonetheless the planner approached it in the way that I have described.
I would therefore order discovery of the document. However, it seems to me in view of the nature of the document so far as I presently understand it that protective provisions should be included in the order for discovery of the kind that Owen J in Perpetual Trustees provided for when he ordered discovery of the documents there as to which a claim of legal professional privilege had been made.
His Honour there ordered (see [22]) that the material that is disclosed until further order is to be regarded as confidential, is to be viewed only by the solicitors and counsel for the applicants, and may not be used other than for the framing of an application, if appropriate, to the court that hears the return of the order nisi for leave to adduce further evidence.
The application for a stay
I turn then to the matter of the stay. There is no doubt that on the authorities in exceptional circumstances there is a power to order a stay. The exceptional circumstances that enliven that discretion include at least the real risk that a successful applicant for an order absolute will not be restored to their former position or, to put it as it was put in Stampalia v The Stewards of the Western Australian Trotting Association [1999] WASC 7 [11] (Owen J), that the subject matter or integrity of the proceedings would be prejudiced. See Yallingup Residents Association [19] and the other authorities there cited.
It is common ground that if the stay is not granted and the respondent endorses its approval under Planning and Development Act s 145 on the survey strata plan, after which the Registrar of Titles would be in a position to issue titles, and sale activity of the subdivided lots ensues, the position will be presented to a court at the return of the order nisi in which, in the exercise of its discretion in relation to the grant of that relief, it would have substantial reason to exercise the discretion against the grant of relief, notwithstanding that the order should otherwise be made absolute.
I refer for authorities on the discretion to Civil Procedure of Western Australia [56.0.7]. I note in passing that that section indicates the position may be otherwise where the defect relied upon is jurisdictional, precisely the defect involved in this case. However, I would also draw attention to the text by Aronson M and Others, Judicial Review of Administrative Action (4th ed, 2009) [12.155] - [12.165], indicating that any such limitation on the scope of the discretion is probably now no longer one that the courts would recognise.
I therefore accept that the discretion is enlivened and, further, as indicated in Yallingup Residents Association, the matter of the significant possibility of the refusal of an order absolute if the stay is not granted is a significant matter to be weighed in the exercise of the discretion also. That is to say, its impact is not exhausted in enlivening the discretion.
In exercising the discretion on the authorities reviewed in Yallingup Residents Association [19] ‑ [20] I accept that the court should have regard to the following four factors, at least.
The first is the prospects of success or otherwise on the return of the order nisi of the applicants. This is why the strength of the case needs to be considered in more detail.
The second is that prima facie the person against whom a stay is sought is entitled to the fruits of the decision that have been obtained, and I will have more to say about that in a moment.
The third factor is that the decision was obtained from a body with presumptive expertise in considering the very kinds of concerns that have agitated the applicants in this case. Finally, there is the balance of convenience.
I turn to each of those factors, firstly as to the prospects of success of the applicant for the order nisi here. The prospects of success are not easy to evaluate in proceedings of the current kind even if they did, as they did, extend over some days with substantial argument. I have already indicated, however, that this is not a case of the straightforward application of Re SAT. The decision‑makers are different, the statutory provisions are different, and the nature of the use of the policies in question is different.
Furthermore, the extent of the support for making the present order nisi absolute to be derived from Re SAT is under active consideration, it might be said, by the Court of Appeal ‑ not obviously in the context of the present application, but in ways which will have relevance to the present application.
Turning then to the second factor, the person entitled to the fruits of the November 2009 decision, Commercial Properties, has it seems to me over a lengthy series of decisions seen an extensive exploration of issues which are relevant, even if not all of the issues are relevant, or not relevant in precisely the same ways, to the November 2009 decision. They have seen that exploration in decisions of the respondent itself, a decision of the SAT, a decision of the Supreme Court General Division and a decision of the Court of Appeal. I list those decisions in a hierarchy, a hierarchy that is slightly misleading because of course the Court of Appeal was dealing with different issues in which it pronounced only on some aspects of the matters that might be of direct concern in the present application. The same might be said with rather less force of the decision of the SAT and in Re SAT.
I have considered the two affidavits of the officer of Commercial Properties which were prepared for the purpose of the present application for an order nisi, the affidavits of Mr Clive Raymond Hartz of 4 June 2010 and then of 10 June 2010, the latter affidavit being one that I gave leave to submit at the end of the first hearing in this matter and which brought about the second hearing in this matter. On that consideration I am satisfied that there is behaviour of Commercial Properties, including the incurral of liabilities in the project related to the November 2009 decision as it has evolved over time, that is most reasonably explained in terms of a calculation by Commercial Properties that the incurral of liabilities of that kind was justified. This was notwithstanding the risk, which did not mature until after the entry into the most recent contracts, with the substantial liabilities to which the second Hartz affidavit refers, that there would be further judicial review proceedings.
Substantial argument was addressed to me as to which, as between Commercial Properties and the applicants, had the burden of informing the other of what it proposed to do in relation to the November 2009 decision. It seems to me, on the factor I am presently considering, that Commercial Properties would be entitled to proceed, until it received some form of notice from the applicants of an intention to pursue judicial review proceedings, on the basis that it could enjoy the fruits of the November 2009 decision.
It further seems to me that in view of the complicated history in this matter that Commercial Properties, facing the specialised decision maker, the respondent, presumptively aware as the respondent could be taken to be of that complicated history, including all of the decisions to which I have previously referred of itself, of the Court of Appeal, of the SAT and the Supreme Court General Division, could take it the November 2009 decision could be relied upon.
It therefore seems to me that the incurral of those liabilities is not a matter that I should discount on the basis that these were expenditures incurred in the teeth of a risk that judicial review proceedings would be brought, and against the backdrop of a failure to explore beforehand with the applicants whether or not such proceedings would be commenced.
With respect to the further factor of whether there was a specialised decision maker which had considered the concerns which agitated the applicants, it seems to me reasonably clear from the November 2009 decision, viewed against the backdrop of the previous decisions of the respondent, including most notably the March 2008 decision, that the respondent is such a decision maker that did consider concerns of that kind.
The concerns undoubtedly relate to ones of amenity as well as of proper application of the respondent's own policies. It seems to me to be rather difficult to argue that the respondent is not expert in matters of both kinds.
That brings me then finally to the balance of convenience. The calculation here is a difficult one. I have already referred to the calculation on the applicants' side, that they face the real prospect of fruitless proceedings if the stay is not granted.
I also accept, as the applicants strenuously put to me, that Commercial Properties has not shown, beyond strong argument, that it will necessarily be in a position to meet the conditions for avoiding a call on the bank finance to which Commercial Properties is subject within the three to four‑week time period referred to in the first Hartz affidavit. I refer in this case to condition 10 in the November 2009 decision on which the applicants rested considerable emphasis.
If, however, it had been clear beyond any strong argument that the condition would be met and therefore the only thing that would stand between the Commercial Properties and avoiding a call on the finance of the bank was a stay, then the calculation of balance of convenience would have been a very difficult one indeed.
If there were a call on the finance as a result of an inability to make title the result of a stay, there are in the first Hartz affidavit, read with the second, indications of losses of not insignificant size which, however, are properly qualified as contingencies. Nonetheless it seems to me that those contingencies are sufficiently identified so as to count as real prejudice that should be borne in mind in making the determination I am called upon to make.
Furthermore, if a stay is ordered and it brings about the call, which in turn causes the risks referred to as contingencies earlier in my reasons to mature, the losses flowing from that, it is common ground, would be non‑compensable. There is, I was informed, not only at the first hearing but also at the second, no question of the applicants being able to provide an undertaking in this case. It is clear on the authorities that an adequate undertaking is relevant to the exercise of the discretion whether or not to order a stay: see Coogee Coastal Action [137].
Weighing all of this is a difficult matter. It seems to me that it is not a case where the failure to offer the undertaking is necessarily determinative. It is, however, a matter I have had to bear in mind. On balance, I would grant the stay and I would grant it without an undertaking.
However, I would grant it without an undertaking on liberty to apply to dissolve the stay on 24 hours' notice. It seems to me at the very least that if the conditions that Commercial Properties considers can be met within the three to four‑week period are met, and that therefore the only thing standing between Commercial Properties and avoidance of a calling of the bank debt in question is the stay, that Commercial Properties should have the opportunity to come back to the court on very short notice.
The issues have been ventilated at considerable length in the two days of hearing that I have referred to and there are now affidavits of some substance. It may well be that the applicants would wish to put on further affidavits. But it seems to me that this should not prevent the matter coming back to the court for argument on short notice.
Furthermore, it may well be that, between now and when such an application might be made under the liberty to apply, that the reasons in Zampatti will be released, and those reasons may have a very substantial impact on the prospects for success, another factor in the exercise of the discretion.
I would therefore, as I have said, make the stay order without the undertaking but on the basis that I have described.
That then brings me, in conclusion, to the other programming orders of the kind that are made in order nisi proceedings where the order nisi application is granted. The programming orders I have in mind are the programming orders numbered 3 ‑ the second number 3 in the order nisi ‑ order 4, order 6 (without the reference to dissolution of the stay because the matter of dissolution of the stay has been separately dealt with, and if any other question of dissolution of the stay arises, I notice that there is a general liberty to apply amongst the remaining orders I would make, order 7 and order 8).
That then brings me to order 9, the question of where the order nisi should be returnable and when. This is a matter of some difficulty. It seems to me that the likelihood is that whoever hears this matter will need to take account of the decision of the Court of Appeal in Zampatti. Indeed, it seems to me that it would not be appropriate for the return of the order nisi to occur before the release of the reasons in Zampatti unless it becomes evident that there will be a substantial delay in that regard, and if that were the case, I refer again to the general liberty to apply, which I will return to in a moment.
It further seems to me that following the release of the decision in Zampatti there will be the task of determining the application of that decision to the different decision maker, that is, the respondent to these proceedings, compared with the respondent to the Zampatti proceedings, and the different statutory context in which the matter will need to be approached.
It seems to me that there will be important implications for the alignment between the powers of the tribunal and the powers of the respondent in respect of the intensely significant issue of the decision‑making of the respondent, subject to review by the tribunal, in respect of subdivision matters under Planning and Development Act s 135 and s 145. In all of those respects, it seems to me that it would be a false economy to have this order nisi returnable before a single Judge. It seems to me highly likely that, regardless of the result of the decision before the single judge, that the matter would then be taken to the Court of Appeal. While it seems to me there is no call for the same coram of the Court of Appeal to hear the return of the present application ‑ and indeed, it is not clear to me that I have the power in any event to dictate such a manner - it is my conclusion that the matter should be returnable before the Court of Appeal.
It is, further, not entirely clear to me that I can make an order for expedited hearing before the Court of Appeal, as opposed to a hearing before another judge of the General Division. In any event, it would be my expectation that this order nisi would be returned before the Court of Appeal as soon as possible after the release of the reasons in the Zampatti decision.
Finally, that takes me to the remaining orders in the originating motion. It follows from everything I have said that there should be a general liberty to apply to a judge or master in chambers. The liberty to apply, I presume, however, given where the order nisi is returnable, would be to a judge of the Court of Appeal, and it is not clear to me then that there is occasion to make reference to the master in chambers.
So far as the costs of the application are concerned, there does not seem to me to be any reason to make any other than the order referred to in order 11.
I should say that I have spent some considerable time on these oral reasons, delivered in the circumstances in which they were delivered, considering carefully particularly the matter of making this application for certiorari returnable before the Court of Appeal rather than before the General Division. I am acutely aware of the workload of the Court of Appeal and I am acutely aware of the concern any judge in my position should feel about making an order for return of the order nisi before the Court of Appeal. I have also carefully attended to the strong arguments the applicants have made, that this matter should be returnable before a judge of the General Division. However, for the reasons I have indicated, this matter should be dealt with as I have described.
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