Wilson v Peter Dans, Chief Executive Officer of the Department of Biodiversity, Conservation and Attractions

Case [2025] WASC 457

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   WILSON -v- PETER DANS, CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF BIODIVERSITY, CONSERVATION AND ATTRACTIONS [2025] WASC 457

CORAM:   SEAWARD J

HEARD:   18 MARCH 2025

DELIVERED          :   31 OCTOBER 2025

FILE NO/S:   CIV 2295 of 2024

BETWEEN:   JOHN LESLIE WILSON

Applicant

AND

PETER DANS, CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF BIODIVERSITY, CONSERVATION AND ATTRACTIONS

Respondent

ATTORNEY GENERAL FOR WESTERN AUSTRALIA

Intervenor


Catchwords:

Administrative law - Judicial review - Statutory construction - Swan and Canning Rivers Management Act 2006 (WA) - Was the CEO required to determine whether recommending the approval of the Application would protect and enhance the amenity of the development control area and the Riverpark - Did the CEO only determine whether the development would, if approved, be likely to comply with the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) and Australian and New Zealand standard in relation to the Control of the Obtrusive Effects of Outdoor Lighting

Statutory construction - Swan and Canning Rivers Management Act 2006 (WA) - The scope and nature of the CEO statutory power

Legislation:

Swan and Canning Rivers Management Act 2006 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant : Mr J Winton
Respondent : No appearance
Intervenor : Mr J Misso & Ms S Smith

Solicitors:

Applicant : Tudori Hager Grubb
Respondent : State Solicitor's Office
Intervenor : State Solicitor's Office

Case(s) referred to in decision(s):

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491

Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593

Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation [1996] FCA 1580; (1996) 68 FCR 406

BE Australia WD Pty Ltd (Subject to a Deed of Company Arrangement) v Sutton [2011] NSWCA 414; (2011) 82 NSWLR 336

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384

City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96

DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177

Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421

General Nominees Pty Ltd (Atf Family Trust Four) v The Metro Inner-North Joint Development Assessment Panel [2022] WASC 114

Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149

Johnson v Minister for Planning [2018] WASC 334

Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76

Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

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AGLC
Wilson v Peter Dans, Chief Executive Officer of the Department of Biodiversity, Conservation and Attractions [2025] WASC 457
Case
[2025] WASC 457
Decision Date

CaseChat Overview and Summary

In the matter of Wilson v Peter Dans, Chief Executive Officer of the Department of Biodiversity, Conservation and Attractions, the applicant, Mr. Wilson, sought judicial review of the CEO's decision to recommend the approval of a development application, which he claimed was based on an incorrect legal question. The primary legal issues revolved around whether the CEO misconceived his statutory function under the Swan and Canning Rivers Management Act 2006 (WA) and if his decision-making process was flawed by asking the wrong question of law. Specifically, the court had to determine if the CEO was required to assess whether the approval of the application would enhance the amenity of the development control area and the Riverpark, or if he was only required to consider compliance with noise regulations and lighting standards.

The court examined the statutory language of the Swan and Canning Rivers Management Act 2006 (WA) to interpret the scope and nature of the CEO's statutory power. The court concluded that the CEO had indeed misunderstood his statutory obligations by focusing solely on compliance with noise and lighting regulations, rather than also considering the broader amenity impacts of the development. This misunderstanding constituted a jurisdictional error because it was material to the decision made, creating a realistic possibility that the outcome could have been different had the CEO asked the correct legal question.

The court further held that Mr. Wilson had established the necessary standing to bring the application, given his direct interest in the development due to his properties' proximity to the proposed site. The decision underscores the importance of correctly identifying and applying statutory criteria in administrative decision-making processes. Based on this reasoning, the court granted the application for judicial review, quashed the CEO's decision, and declared it invalid and of no force and effect.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The CEO then recommended to the Minister that the application be approved, subject to several specified conditions (Decision). The following affidavits were tendered by the parties:(a)affidavit of John Leslie Wilson, sworn 30 October 2024; and(b)affidavit of Gregory Joseph John Comiskey, sworn 14 February 2025. Mr Comiskey is the Manager of the Statutory Assessments Unit, Swan Canning Waterways Branch, Conservation and Ecosystem Management Division of the Department. Each these two affidavits provide details regarding the process leading to the preparation of the CEO's final report and attach the documents relevant to that decision making process, including the final report. In addition, copies of the relevant deposited plans for the purposes of ascertaining the development control area were tendered. On 31 October 2024, Mr Wilson commenced an application for judicial review of the Decision and seeks a writ of certiorari quashing the Decision; a declaration that the Decision is invalid and of no force and effect; and a writ of mandamus compelling the CEO to determine the application according to law. Mr Wilson only presses ground 1 of the application, which is as follows:The CEO committed jurisdictional error, in that he erred in law, in making the Decision by misconceiving his function, and asking himself a wrong question of law, in that the CEO: 1.was required to determine whether recommending the approval of the Application would protect and enhance the amenity of the development control area and the Riverpark; and 2.instead, only determined whether the development would, if approved, be likely to comply with the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) and AS/NZS 4282:2023 Control of the Obtrusive Effects of Outdoor Lighting. Jurisdictional error refers to a breach of an express or implied condition of a statutory conferral of decision making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute.[28] This court, in exercising its supervisory jurisdiction to review a decision for jurisdictional error, is concerned with the limits of the powers and functions given to the decision maker and not the merits of the decision.[28] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [2]. The applicants bear the burden of proving jurisdictional error including the burden of proving, on the balance of probabilities, all of the facts on which the allegation of jurisdictional error is founded.[29][29] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 [24]. As observed by the High Court in Kirk v Industrial Court of New South Wales, it is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error.[30] However, relevantly for present purposes, if an administrative decision maker (not being an inferior court or anomalous tribunal) misunderstands the applicable law under which they exercise statutory powers, or asks themselves the wrong question, they will commit a jurisdictional error.[31][30] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [3] and the authorities cited therein.[31] Aronson M, 'Jurisdictional Error without the Tears' in Groves M & Lee HP, Australian Administrative Law: Fundamentals, Principles and Doctrines, Cambridge University Press, Victoria, (2007) 330, 335 - 336, as cited in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71]. See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [3].

Ratio Decidendi

Legal Principle Established

In addition, an error will only be jurisdictional if the error was also material to the decision that was made. Some errors (eg bias or unreasonableness in the final result) will, of their nature, always be jurisdictional errors. However, for most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred.[32] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error, but the threshold is not demanding or onerous.[33][32] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [6] - [7]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [32] ‑ [33], [46], [63].[33] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [14] ‑ [15]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [46] ‑ [47]. The principles regarding standing in relation to applications for writs of certiorari and mandamus were helpfully outlined by Pritchard J (as her Honour then was) in Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs.[34] As outlined by her Honour, the prevailing view in the authorities is that an applicant for a writ of certiorari need not establish standing to bring that application, although the lack of any interest in, or connection to, the decision under review may still be relevant to the grant of certiorari, it being a discretionary remedy.[35][34] Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 [56] ‑ [67].[35] Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 [65] ‑ [66]. The position in relation to an application for a declaration is different. Declaratory relief must be directed to the determination of legal controversies, and an applicant for a declaration must establish that they have 'a real interest' in that legal controversy.[36][36] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 ‑ 582; Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 437; Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation [1996] FCA 1580; (1996) 68 FCR 406, 414. In the present case, the evidence before the court establishes that Mr Wilson owns two properties directly opposite the Tennis Club. One is located on the Strand, and the other is immediately behind that property, with a street address being Duncraig Road. Mr Wilson has a view of the Tennis Club from his land and therefore his use and enjoyment of his property may be affected if the development application is granted. I am therefore satisfied that to the extent standing is required to be established, Mr Wilson has done so here. No issue regarding standing was raised by the Intervenor.