Swan Foreshore Protection Association Incorporated v City of Melville
[2018] WASC 211
•17 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SWAN FORESHORE PROTECTION ASSOCIATION INCORPORATED -v- CITY OF MELVILLE [2018] WASC 211
CORAM: ALLANSON J
HEARD: 27 MARCH 2018
DELIVERED : 17 JULY 2018
FILE NO/S: CIV 3185 of 2017
BETWEEN: SWAN FORESHORE PROTECTION ASSOCIATION INCORPORATED
Applicant
AND
CITY OF MELVILLE
Respondent
URBNSURF (PERTH) PTY LTD
Other Party
Catchwords:
Judicial review - Executive functions of local government - Where major land transaction - Where public notice requirements prescribed by the Local Government Act 1995 (WA) - Whether failure to comply results in invalidity
Statutory interpretation - Local Government Act 1995 (WA) s 3.59(5a) read with s 1.7 and s 1.8 - Whether failure to comply with requirement to give local public notice
Legislation:
Interpretation Act 1984 (WA), s 19
Land Administration Act 1997 (WA), s 18, s 46
Lands Act 1933 (WA)
Local Government (Functions and General) Regulations 1996 (WA), reg 8A(1), reg 30
Local Government Act 1995 (WA), s 1.7, s 1.8, s 2.5, s 2.7, s 3.58, s 3.59
Local Government Amendment Act (No 2) 1998 (WA), s 18
Rules of the Supreme Court 1971 (WA), O 56
Result:
Leave to bring the application out of time is refused
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr P D Lochore |
| Respondent | : | No appearance |
| Other Party | : | Mr M D Howard SC & Mr H H Jackson |
Solicitors:
| Applicant | : | Squire Patton Boggs |
| Respondent | : | No appearance |
| Other Party | : | Grondal Bruining |
Case(s) referred to in decision(s):
Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319
Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Federal Commissioner of Taxation v BHP Billiton Limited [2011] HCA 17; (2011) 244 CLR 325
Forrest & Forrest v Wilson [2017] HCA 30; 91 ALJR 833
Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146
NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514
Walker v Wimborne [1976] HCA 7; (1976) 137 CLR 1
ALLANSON J:
The applicant applies for judicial review of a decision and conduct of the respondent, the City of Melville, in resolving to enter and entering an agreement described as a 'ground lease agreement' with the other party, Urbnsurf (Perth) Pty Ltd.
The parties
The applicant was registered as an incorporated association on 30 November 2017. Despite its name, with the suggestion of a more general purpose, it was brought into existence primarily for the purpose of these proceedings.[1] At March 2018, the applicant had 56 members, all but three of whom are ratepayers of the City of Melville.[2]
[1] Affidavit of Clive Michael Ross, sworn 2 March 2018, [18] ‑ [20].
[2] Affidavit of Clive Michael Ross, sworn 2 March 2018, [26], [28].
The respondent, the City of Melville (the City), is a local government established pursuant to the Local Government Act 1995 (WA). It is a body corporate, with the legal capacity of a natural person.[3] The council of the City governs its affairs and is responsible for the performance of its functions.[4]
[3] Local Government Act s 2.5(2) and (3).
[4] Local Government Act s 2.7.
The other party (Urbnsurf) was registered on 12 October 2016 as an Australian proprietary company, limited by shares. Urbnsurf has 100 shares, and is wholly owned by Wave Park Group Pty Ltd. [5]
[5] Affidavit of Andrew Gary Ross, sworn 16 February 2018, AR 2, pages 119 - 121.
Wave Park Group, then named Wave Park Developments Pty Ltd, was registered in 2012 as an Australian proprietary company, limited by shares. It has the three directors, the same directors as Urbnsurf. At 16 February 2018, Wave Park Group had 29,405,416 issued shares.[6]
[6] Affidavit of Andrew Gary Ross, AR 1, pages 101 - 111.
The ground lease
On 11 April 2017, the City (as lessor) and Urbnsurf (as lessee) executed a document entitled Ground Lease for Wave Park Surf Sports Recreation & Leisure Facility: Lot 39 (No 596) Canning Hwy, Alfred Cove.[7]
[7] Affidavit of Andrew Gary Ross, AR 6, pages 135 - 188.
By cl 3, the City leased to Urbnsurf the 'Premises' for the term of the lease. The Premises are defined in Item 1 of the Schedule to the Ground Lease as an area of approximately 4.1 ha identified on an annexed plan. The Premises are part of land described as:
(1) Lot 39 on Diagram 17693, being the whole of the land comprised in Certificate of Title Volume 1185 Folio 584; and
(2)Reserve 35486, Lot 9789 being the land comprised in Crown Land Title LR 3141 Folio 868.
The Ground Lease describes the City as the registered proprietor of an estate in fee simple in Lot 39, and the management body of Lot 9789 under a management order, being a vesting order under the Lands Act 1933 (WA) or a management order pursuant to s 46 of the Land Administration Act 1997 (WA), under which Lot 9789 is vested in the City to be held for the purpose of 'Recreation'.[8] The difference in the nature of the City's title or control of the land may be significant at a later stage, but does not affect the result in these proceedings.
[8] Ground Lease, Background, cl A, and cl 1.1. Neither party referred the court to the certificates of title.
Subject to the satisfaction of specified Conditions Precedent, the lease is for a term of 30 years,[9] with two further terms of 10 years, commencing 10 business days from the date all of the Conditions Precedent are satisfied.
[9] Subject to the City obtaining approval to lease for that period: see cl 2.1(a)(iii).
The Premises are leased for the purpose of developing 'Wave Park'[10] and any lawful ancillary use permitted in respect of the Premises under the provisions of the Metropolitan Region Scheme.
[10] Wave Park is defined as a surf sports, recreation and leisure facility incorporating a surf lagoon together with ancillary built forms and amenities to be constructed on the premises: cl 1.1 (146).
The lease is conditional on the lessor and lessee satisfying conditions precedent set out in cl 2.1. Importantly, those conditions include consent of the Western Australian Planning Commission to the lease, the lessee obtaining satisfactory development approvals, and the lessee obtaining the required project finance. The Business Case refers to the need for approval under pt 4 of the Land Administration Act and, possibly, the consent of the Minister under s 46(3) of that Act.
The Business Case
The final Business Case is dated 29 November 2016.[11] Relevantly, it describes the proposal from Wave Park Group Pty Ltd 'to design, develop and operate a world-class, surf sports, recreation and leisure facility named "URBNSURF Perth" at Tompkins Park Alfred Cove in the City of Melville'. Wave Park Group is described as a Perth‑based group of companies with Australian rights to a surf park technology, and with similar projects being progressed in Melbourne and Sydney.[12]
[11] Affidavit of Andrew Gary Ross, AR 23, pages 503 - 526.
[12] Affidavit of Andrew Gary Ross, AR 509.
The Business Case includes a Financial Risk Assessment, with an analysis of the Wave Park Group financial structure, project funding and financial capacity to construct and operate the facility.[13] The Financial Risk Assessment was a confidential attachment, although a redacted version is now available.
[13] AR 509.
The Business Case refers, on occasions, to URBNSURF Perth and 'Urbnsurf', but as the name of the facility. The body of the Business Case refers, generally to 'WPG', defined as Wave Park Group Pty Ltd.[14] The other party is not named in the Business Case.
[14] AR 505.
The application for judicial review
The application is brought on one ground, as amended at the hearing:
The respondent exceeded its jurisdiction by:
a.resolving or purporting to resolve on 6 April 2017 to direct its Chief Executive Officer and Mayor to enter into a ground lease agreement with the Other Party in respect of that portion of land at Tompkins Park, Applecross (Purported Resolution); and
b.executing the ground lease agreement on or about 11 April 2017,
in circumstances where the Respondent was required, but failed, to comply with the public notice requirements for disposing of property under section 3.58 and section 3.59 the Local Government Act 1995 (WA).
Particulars
I.The local public notice placed locally by or on behalf of the respondent in the Melville Times on 6 December 2016 failed to name the Other Party as the party concerned in the disposition which was to arise from the Purported Resolution, as required by section 3.58 (4)(a) of the Local Government Act, and omitted any information about where the business plan could be inspected contrary to section 3.59(5a), read with section 3.59(4)(a)(ii) and section 1.7 of the Local Government Act.
II.The disposition which was to arise from the Purported Resolution was not exempt from the requirements of section 3.58 under regulation 30(2a)(c) of the Local Government (Functions and General) Regulations 1996 because the business plan the subject of Statewide public notice under section 3.59(4) of the Local Government Act failed to name the Other Party as a party concerned in the disposition.
III.The notice placed locally by or on behalf of the Respondent in the Melville Times on 10 January 2017 failed to meet the public notice requirements of section 3.59(5a) of the Local Government Act which, when read with section 3.59(4)(a)(iii) and section 1.7 of the Local Government Act, requires that the notice be issued 6 weeks before the deadline for submissions. The notice failed to meet these requirements by only allowing a period of 2 weeks and 13 days for submissions to be lodged with the respondent before its advertised deadline of 27 January 2017.
The legislative context
Part 3 of the Local Government Act provides for the functions of local government. Subdivision 6 is headed 'Various Executive Functions'; within sub‑div 6, s 3.58 regulates the disposal of property by a local government:
(1)In this section
dispose includes to sell, lease, or otherwise dispose of, whether absolutely or not;
property includes the whole or any part of the interest of a local government in property, but does not include money.
(2)Except as stated in this section, a local government can only dispose of property to ‑
(a)the highest bidder at public auction; or
(b)the person who at public tender called by the local government makes what is, in the opinion of the local government, the most acceptable tender, whether or not it is the highest tender.
(3)A local government can dispose of property other than under subsection (2) if, before agreeing to dispose of the property ‑
(a)it gives local public notice of the proposed disposition ‑
(i)describing the property concerned; and
(ii)giving details of the proposed disposition; and
(iii)inviting submissions to be made to the local government before a date to be specified in the notice, being a date not less than 2 weeks after the notice is first given;
and
(b)it considers any submissions made to it before the date specified in the notice and, if its decision is made by the council or a committee, the decision and the reasons for it are recorded in the minutes of the meeting at which the decision was made.
(4)The details of a proposed disposition that are required by subsection (3)(a)(ii) include ‑
(a)the names of all other parties concerned; and
(b)the consideration to be received by the local government for the disposition; and
(c)the market value of the disposition ‑
(i)as ascertained by a valuation carried out not more than 6 months before the proposed disposition; or
(ii)as declared by a resolution of the local government on the basis of a valuation carried out more than 6 months before the proposed disposition that the local government believes to be a true indication of the value at the time of the proposed disposition.
By s 3.58(5)(d), the section does not apply to a disposition that is excluded by regulations from the operation of the section.
Additional requirements apply where the disposal is a major land transaction. For a local government in the metropolitan area, a transaction is a major land transaction if the total value of the consideration under the transaction and anything done by the local government for achieving the purpose of the transaction, is more, or is worth more than the lesser of:
(i)$10 000 000; or
(ii)10% of the operating expenditure incurred by the local government from its municipal fund in the last completed financial year.[15]
[15] Local Government (Functions and General) Regulations reg 8A(1).
Before a local government enters into a major land transaction, it is to prepare a business plan: s 3.59(2). The requirements for a business plan for a major land transaction are set out in s 3.59(3):
The business plan is to include an overall assessment of the …major land transaction and is to include details of ‑
(a)its expected effect on the provision of facilities and services by the local government; and
(b)its expected effect on other persons providing facilities and services in the district; and
(c)its expected financial effect on the local government; and
(d)its expected effect on matters referred to in the local government’s current plan prepared under section 5.56; and
(e)the ability of the local government to manage … the performance of the transaction; and
(f)any other matter prescribed for the purposes of this subsection.
Section 3.59 sets out further procedures with which the local government is to comply:
(4)The local government is to —
(a)give Statewide public notice stating that ‑
(i)the local government proposes to …enter into the major land transaction described in the notice or into a land transaction that is preparatory to that major land transaction; and
(ii)a copy of the business plan may be inspected or obtained at any place specified in the notice; and
(iii)submissions about the proposed … transaction may be made to the local government before a day to be specified in the notice, being a day that is not less than 6 weeks after the notice is given;
and
(b)make a copy of the business plan available for public inspection in accordance with the notice.
(5)After the last day for submissions, the local government is to consider any submissions made and may decide* to proceed with the … transaction as proposed or so that it is not significantly different from what was proposed.
* Absolute majority required.
(5a)A notice under subsection (4) is also to be published and exhibited as if it were a local public notice.
(6)If the local government wishes to commence an undertaking or transaction that is significantly different from what was proposed it can only do so after it has complied with this section in respect of its new proposal.
The requirement for local public notice and Statewide public notice are found in s 1.7 and s 1.8. I discuss them further below.
The Local Government (Functions and General) Regulations 1996 (WA) prescribe which dispositions of land are exempt dispositions and excluded from the application of section 3.58: reg 3.58(1). Relevantly to the present application, reg 30(2a)(c) provides:
A disposition of property is an exempt disposition if the property is disposed of within 6 months after it has been ‑
(c)the subject of Statewide public notice under section 3.59(4) of the Act, and if the business plan referred to in that notice described the property concerned and gave details of the proposed disposition including ‑
(i)the names of all other parties concerned; and
(ii)the consideration to be received by the local government for the disposition; and
(iii)the market value of the disposition as ascertained by a valuation carried out not more than 12 months before the proposed disposition.
Public notice is an important part of the procedures prescribed by s 3.58 and s 3.59. This accords with the objects of the Local Government Act as set out in s 1.3(2):
This Act is intended to result in ‑
(a)better decision‑making by local governments; and
(b)greater community participation in the decisions and affairs of local governments; and
(c)greater accountability of local governments to their communities;
The land transaction
The proposed transaction is a lease by the City to Urbnsurf of land in Tompkins Park. The term of the lease is a period of 30 years, with provision for two further terms.[16] The annual rent over that period[17] is sufficient for the lease to be a major land transaction, without taking into account the other consideration under the lease.
[16] Schedule Items 2 and 3, affidavit of Andrew Gary Ross, 16 February 2018, page 180.
[17] Schedule item 5.
The public notices
On 3 December 2016, the City published a notice in these terms in The West Australian newspaper:
Public Notice of Major Land Transaction
Proposed Lease of a portion of Tompkins Park to Wave Park Group Pty Ltd
In accordance with section 3.59 (4) of the Local Government Act 1995, the City of Melville gives notice of its intention to enter into a Major Land Transaction being the grant of a ground lease of a portion of Tomkins Park to Wave Park Group Pty Ltd (or Wave Park Developments (Perth) Pty Ltd a wholly-owned subsidiary of Wave Park Group Pty Ltd) for the development and operation of a surf sports recreation and leisure facility.
A Business Plan providing details of the proposed Major Land Transaction is available for public inspection at City of Melville Civic Centre, 10 Almondbury Road, Booragoon, or on the City's website at Melvillecity.com.au/consultation.
Written submissions in respect of the Business Plan may be lodged with the city by 5 pm, Friday 27 January 2017.[18]
[18] AR 27, page 577.
On 6 December 2016, the City published a notice in the Melville Times. The notice omitted the second paragraph, giving notice of the Business Plan and where it could be inspected. It did not otherwise differ from the notice in The West Australian.
The City published further notices in the same terms as the 3 December 2016 notice in the Melville Times on 10 January 2017, and in The West Australian on 11 January 2017. [19]
[19] Affidavit of Clive Michael Ross, 2 March 2018, CMR 13 page106; affidavit of Andrew Gary Ross AR 30, page 583.
It is not in dispute that The West Australian is a newspaper that circulates generally in Western Australia, and the Melville Times circulates throughout the relevant district.
The meetings of the council
At an ordinary meeting on 21 February 2017, the Council of the City of Melville resolved by an absolute majority to authorise the Chief Executive Officer to proceed with the drafting and negotiation of a ground lease agreement with Wave Park Group Pty Ltd.[20]
[20]Affidavit of Andrew Gary Ross, sworn 15 March 2018, AR 31, pages 621 ‑ 622.
On 6 April 2017, at a special meeting, the Council considered the draft lease and resolved to direct the Chief Executive Officer and Mayor to sign and execute the ground lease agreement as amended by council with Urbnsurf (Perth) Pty Ltd.[21] The City and Urbnsurf executed the 'ground lease agreement' on 11 April 2017.[22]
[21] AR 35, page 846.
[22] AR 6, pages 135 ‑ 188.
Was the disposition exempt from s 3.58
Regulation 30(2a) assumes that the disposition of property is subject to s 3.59, and that Statewide public notice has been given under s 3.59(4). Relevantly, it exempts a major land transaction from the obligation to comply with s 3.58(4)(a) and (b) where the business plan referred to in the Statewide public notice given under s 3.59(4) includes the details required for a notice under those paragraphs.
In this case, whether the disposition was exempt from s 3.58 turns on whether the Business Plan referred to in the Statewide public notice gave details of 'the name of all other parties concerned'.
It is not in dispute that the Business Plan did not name Urbnsurf as the proposed lessee, but merely referred to the proponent as 'Wave Park Group Pty Ltd'.
Although wholly owned by Wave Park Group, Urbnsurf is a separate and independent legal entity from its parent.[23] While it may be required to pursue the interests of its parent (and its parent's shareholders), that is so 'to the extent that those obligations are compatible with other obligations of the subsidiary imposed by the applicable companies legislation and applicable judge‑made law'.[24]
[23] Walker v Wimborne [1976] HCA 7; (1976) 137 CLR 1, 7; NEAT Domestic Trading Pty Ltd v AWB Ltd[2003] HCA 35; (2003) 216 CLR 277; Federal Commissioner of Taxation v BHP Billiton Limited [2011] HCA 17; (2011) 244 CLR 325 [61] ‑ [64].
[24] NEAT Domestic Trading Pty Ltd v AWB Ltd [47].
Urbnsurf submitted that the purpose of the requirement to name all other parties concerned is not immediately apparent, and pointed to the breadth of the term 'concerned'.[25] But, in my opinion, even if there may be uncertainty at the boundaries of what is included in that term, there is no doubt that the lessee in a disposition by lease is a 'party concerned'. The text of the legislation requires that party to be named. Even assuming that the interests of Urbnsurf and Wave Park Group coincide, it is a separate body, and naming the parent company, or another subsidiary of the parent, does not comply with reg 30(2a)(c)(i).
[25] Written Submissions [32] ‑ [35].
Reading the whole of reg 30, in the context of s 3.58 and s 3.59, I am satisfied that the intended consequence of failing to name the lessee, as a party concerned, is that the exemption does not apply. If the business plan does not include the prescribed details, and s 3.58(4) does not apply, there will have been no public notice given of them.
It is, arguably, a technical objection. But it is supported by the text of the legislation and is consistent with the purpose of the Local Government Act in promoting community participation and accountability of local governments to their communities.
The result is that the provisions of s 3.58 and s 3.59 both apply and regulate what notice must be given to the public.[26]
[26] The Act does provide for exemption from the requirements of s 3.59, but under reg 8A(2), reg 8 and reg 10.
Non-compliance with s 3.58
The sole ground of review alleges, generally, that the City failed to comply with the public notice requirements for disposing of property under s 3.58 and s 3.59 the Local Government Act.
Once it is accepted that the disposal was not exempt under reg 30, the public notice was required to comply with s 3.58(3) and (4) and to give the details of the proposed disposition set out in s (4). None of the published public notices ‑ in the Melville Times or The West Australian ‑ gave notice of any of the details required.
What is the consequence of failure to comply? The answer to that question is to be found in the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[27] The consequences of noncompliance are not necessarily the same for s 3.58 and s 3.59.
[27] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [91].
Section 3.58 falls within pt 3, div 3, sub‑div 6 of the Act, which regulates the executive functions of a local government. By s 3.1:
(1)The general function of a local government is to provide for the good government of persons in its district.
(2)The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.
(3)A liberal approach is to be taken to the construction of the scope of the general function of a local government.
Executive functions, in pt 3 div 3, are of many kinds, and the Act includes a range of powers which a local government may exercise.
The power to dispose of property is not found exclusively in the provisions of the Local Government Act. A local government is a body corporate with the legal capacity of a natural person.[28] It may hold land as registered proprietor; or, as in this case, it may have the care, control and management of a reserve placed with it under the Land Administration Act, with its power to lease governed by the Land Administration Act s 18 and s 46.
[28] Local Government Act s 2.5.
The power to dispose of property is regulated by s 3.58 of the Local Government Act. Relevantly, s 3.58(2) regulates to whom the local government may dispose of property, by reference to the processes of public auction and public tender. Subsection (3) authorises disposal, other than under s 3.58(2), if 'before agreeing to dispose of the property' the local government follows prescribed processes of giving notice and considering submissions.
The language of the section is directed to the objects of community participation and accountability of local governments to their communities. It is not, in my opinion, directed to whether a disposition that does not comply with the section is legally effective. It is not concerned with power, but with regulating process. This does not leave a failure to comply with s 3.58 without consequence. The sanction or consequence for failure of a local government to perform its functions properly lies in pt 8 of the Act which provides for scrutiny of the operations and affairs of a local government.
The applicant relies on authorities dealing with the power of the executive government of a State to grant exclusive rights to exploit the resources of the State, and with the disposal of Crown lands or an interest in them. [29] Those authorities do not, in my opinion, assist in the present matter. Section 3.58 is not confined to interests in Crown land or land generally, but regulates the disposal of any property except money.
[29] See Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520, 533; Forrest & Forrest v Wilson [2017] HCA 30; 91 ALJR 833.
The consequences of holding invalid any disposition of property where the local government did not comply would potentially cause substantial public inconvenience. In this case, as counsel for Urbnsurf submitted, any breach of legislative requirements was not the result of anything it did or omitted to do. More generally, a party dealing with a local government, in good faith and on commercial terms, could have no certainty if any disposition of property could be set aside for a technical noncompliance.
Accordingly, while the public notices published by the City did not comply with s 3.58, in my opinion the failure does not affect the validity of the decision to enter the lease.
Was there failure to comply with s 3.59
The amended application alleges non-compliance with s 3.59 in two particulars:
(1)the local public notices in the Melville Times on 6 December 2016 omitted information about where the business plan could be inspected, contrary to s 3.59(5a), read with s 3.59(4)(a)(ii) and s 1.7 of the Local Government Act; and
(2)the notice in the Melville Times on 10 January 2017 only allowed a period of two weeks and 13 days for submissions, and not six weeks as required by s 3.59(4)(a)(iii).
The public notice published in The West Australian on 3 December 2016, gave notice of the proposed major land transaction and where a copy of the business plan might be inspected, and specified a date, not less than six weeks after the notice, for submissions to be made. The complaint, as I understand it, is that the public notice in The West Australian was not sufficient, and the City was required to publish the notice a second time in a newspaper circulating generally throughout the district. On the applicant's case, s 3.59(5a) required the City to publish a notice in the Melville Times and that notice was required to comply with s 3.59(4).
Section 3.59 was amended in 1998.[30] The obligation previously prescribed by s 3.59(4)(a) to publish a Statewide public notice on at least two days was removed; and s 3.59(5a) added a requirement, by which the Statewide public notice 'is also to be published and exhibited as if it were a local public notice'.
[30] Local Government Amendment Act (No 2) 1998 (WA) s 18.
By s 1.7:
(1)Where under this Act local public notice of a matter is required to be given, a notice of the matter is to be ‑
(a)published in a newspaper circulating generally throughout the district; and
(b)exhibited to the public on a notice board at the local government's offices; and
(c)exhibited to the public on a notice board at every local government library in the district.
(2)Unless expressly stated otherwise it is sufficient if the notice is ‑
(a)published under subsection (1)(a) on at least one occasion; and
(b)exhibited under subsection (1)(b) and (c) for a reasonable time, being not less than ‑
(i)the time prescribed for the purposes of this paragraph; or
(ii)if no time is prescribed, 7 days.
By s 1.8:
Where under this Act Statewide public notice of a matter is required to be given, section 1.7 applies except that the newspaper referred to in section 1.7(1)(a) is required to circulate generally throughout the State.
A Statewide public notice must be exhibited in the same manner as a local public notice, and be published in a newspaper that circulates generally throughout the State. Section 1.7 does not require that the newspaper referred to in par (1)(a) circulate only throughout the district. The applicant did not contend that The West Australian, while it circulates generally throughout the State does not circulate generally throughout the relevant district.
The applicant submitted that the apparent purpose of s 3.59(5a), in particular the word 'also', is to require something additional to a notice given in accordance with s 1.8.
The applicant submitted that the court should have regard to the record of proceedings in Parliament on the amendment of s 3.59 to insert s 3.59(5a).[31] In effect, the amendment was described in proceedings as a compromise by which public notice was not required to be given on at least two days, but there was to be one Statewide public notice and one local public notice.
[31] Similar amendments were made to s 3.12, and s 3.16: see Local Government Amendment Act (No 2) 1998 s 18; Hansard, 9 December 1998, 5077.
The court may give consideration to material not forming part of a written law to determine the meaning of the provision when the provision is ambiguous or obscure, if that material 'is capable of assisting in the ascertainment of the meaning of the provision'.[32] What was said in Parliament is available as an aid to interpretation and must be given serious consideration. But it cannot be determinative.[33] Statutory construction must start with a consideration of the text itself.[34] In Corporate Affairs Commission (NSW) v Yuill, Gaudron J said 'those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage'.[35]
[32] Interpretation Act 1984 (WA) s 19(1).
[33] Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518.
[34] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 [47].
[35] Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319, 340. See also Interpretation Act 1984 (WA) s 19(3).
In the present matter, there are three difficulties in construing s 3.59(5a) in the way contended for by the applicant. First, it assumes (although it may be the case) that for all local government districts there is a newspaper which circulates generally in the district but not generally throughout the State. Second, s 3.59(5a) requires the notice to be published and exhibited as if it were a local public notice. Section 1.8 already applies s 1.7. The requirements for exhibition of a public notice are the same, whether it is local or Statewide. Third, what was said in Parliament is not consistent with the text of s 1.8. Statewide public notice does not differ from local public notice except that the newspaper referred to in s 1.7(1)(a) (a newspaper that circulates generally throughout the district) is required to circulate generally throughout the State. It cannot be a failure to comply with s 1.7 to publish a notice in a newspaper that circulates generally within the district, even if that newspaper has wider circulation.
Reading s 3.59(5a) with s 1.7 and s 1.8, the ordinary meaning is that the notice must be published in a newspaper that circulates in the district which may include a newspaper that circulates in a wider area (including the State). The notice must be exhibited as specified in s 1.7(1)(b) and (c), be published on at least one occasion, and be exhibited for not less than the time specified in s 1.7(2)(b). The applicant does not allege any failure to comply with the requirements for exhibition.
The applicant has not demonstrated failure by the City to comply with s 3.59. The notice published in The West Australian on 3 December 2016 was sufficient compliance with that section.
Delay and standing
The application for review was filed on 22 December 2017. It was brought more than two months after the limitation period prescribed by O56 of the Rules of the Supreme Court 1971 (WA) had expired and about 8 1/2 months after the decision challenged. By O 56 r 2(4) and r 5(2), the applicant requires leave of the court. When considering a discretion to extend time (or grant leave to proceed out of time) the court will consider factors including
(a)the length of the delay;
(b)the reasons for the delay;
(c)the substantive merits of the application; and
(d)whether the other party has suffered any specific prejudice over and above the general prejudice inevitably associated with delay.[36]
[36] Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198. See also Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146 [13].
Ultimately, the discretion to grant leave should be exercised in the interests of justice.
The applicant offers two explanations for the delay. First, Clive Ross was waiting for a written response from the City, which he received only on 31 October 2017. Second, time was spent in obtaining advice, gathering support, registering the applicant and fundraising.[37]
[37] Affidavits of Clive Michael Ross made 22 December 2017 at [13] ‑ [14] and 2 March 2018 at [5] ‑ [25].
In opposing the grant of leave, Urbnsurf submitted that Mr Ross had engaged the lawyers who now represent the applicant to advise him and challenge the lease from as early as 5 July 2017. Further, the applicant itself was only incorporated on 30 November 2017, well after the time for commencing review proceedings had expired.[38]
[38] See Annexure CMR1 of the affidavit of Clive Michael Ross sworn 2 March 2018; Annexure AR37 to the affidavit of Andrew Gary Ross sworn 16 February 2018.
The parties also joined issue regarding the standing of the applicant. Standing was generally dealt with in submissions as a discretionary consideration - that is, whether the court should grant relief to this applicant, having regard to the applicant's interest in or connection to, the decision and conduct under review.[39]
[39] See Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 [56] ‑ [67].
It is sufficient to note that the only relief that the applicant could be granted, on the findings I have made, is a declaration regarding the failure of the City to comply with s 3.58. That failure does not affect the validity of the challenged decision or resulting conduct. I doubt that there is any utility in making a declaration with no legal consequence. Even though the delay in bringing the application is not excessive, having regard to the delay and the reasons advanced for it, together with the lack of utility in any order, I am not satisfied that it would be in the interests of justice to extend time by granting leave under O 56.
Conclusion
I would refuse leave, and dismiss the application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZW
ASSOCIATE TO THE HONOURABLE JUSTICE ALLANSON17 JULY 2018
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