Re Western Australian Planning Commission; Ex parte South Fremantle/Hamilton Hill Residents' Association Inc

The South Fremantle/Hamilton Hill Residents Association (Inc) applied for a writ of certiorari to quash decisions made by the Western Australian Planning Commission ("WAPC"), the Department of the Environment and the Department of Health in the course of a planning application by Stockland South Beach Pty Ltd ("Stockland") which wished to carry out a residential development on some 22 hectares of industrial land in the South Fremantle and Hamilton Hill area. The WAPC is joined as the first respondent. The Department of the Environment and the Department of Health are instrumentalities of the State of Western Australia which is joined as the second respondent. Stockland is joined as the third respondent. The question arising on this application was whether the applicant had made out a sufficiently arguable case to justify the return of the application before the Full Court or a single Judge on a substantive hearing. The court held that the applicant had made out a sufficiently arguable case to justify the grant of order nisi for a writ of certiorari to issue against the Department of Health, the Department of the Environment and the WAPC. The court held that the applicant was entitled to be heard before EMP 3 was approved, on the basis that the applicant was, and was recognised as being, the duly constituted representative of the residents. In the case of the two departments, that recognition arose from their respective dealings with the applicant in the early stages of consultation, particularly in relation to EMP 1. In the case of the WAPC, the argument may well be that if it did not recognise the applicant, it should have done, having regard to the communications between the applicant and the Department of Planning and Infrastructure, in which the applicant was requested to address its concerns to the Department of the Environment. The court held that the applicant was entitled to a stay of the relevant decisions, to preserve the subject matter and integrity of the litigation. The court held that the applicant was not required to give an undertaking in damages and that Stockland was not entitled to an order that the applicant provide $24,000 by way of security for its costs of the proceedings.