Wilson v Peter Dans, Chief Executive Officer of the Department of Biodiversity, Conservation and Attractions - [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
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Mohammadi v Bethune [2018] WASCA 98
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2005] WASCA 109; (2005) 30 WAR 138
Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

SEAWARD J:

Introduction

The Applecross Tennis Club is located on The Strand in Applecross and consists of 14 tennis courts. On 28 November 2022, the Tennis Club lodged a development application seeking approval to construct and install 12 lighting towers on four of these courts, to enable the courts to be used outside of normal working hours.
The land on which the Tennis Club is located falls within the development control area governed by the Swan and Canning Rivers Management Act 2006 (WA) (Act). The ultimate decision maker in relation to the development application is the Minister for Environment (Minister).
The procedural aspects of a development application under the Act are convoluted, but a key step in the process is that the Chief Executive Officer (CEO) of the Department of Biodiversity, Conservation and Attractions (Department) is required to consider the development application, engage in a consultation process, and then prepare a report to the Minister containing a recommendation in relation to the development application.
The applicant, John Wilson, is the owner of two blocks of land in the immediate vicinity of the Tennis Club. Mr Wilson has commenced an application for judicial review challenging the recommendation of the CEO of the Department to the Minister.
The CEO has filed a notice of his intention to abide by the decision of the court, save as to costs, and has confined his participation in the proceedings to the filing of affidavit material relevant to the decision making process of the CEO.
The Tennis Club and the relevant local government, being the City of Melville, were both served with Mr Wilson's application and supporting affidavit, and the orders of this court listing the application for final hearing. Neither have sought to be joined as parties and be heard.
In the absence of a contradictor, the Attorney General for Western Australia was granted leave to intervene. The court records its gratitude to counsel for the Intervenor for his helpful submissions and assistance.
For the reasons set out below, Mr Wilson's application for judicial review should be dismissed.

Statutory scheme

Prior to detailing the relevant facts surrounding the application and the actions of the CEO, it is useful to outline the statutory regime within which the facts take place.
The Act is concerned with the use, protection and management of the Swan and Canning Rivers, and associated land. The long title to the Act provides:
An Act to make provision for —
•the protection of the Swan and Canning Rivers and associated land to ensure maintenance of ecological and community benefits and amenity;
•the establishment of a Trust to provide advice and perform other functions in respect of the Swan and Canning Rivers and associated land;
•the management policies to be followed in relation to the Swan and Canning Rivers and associated land;
•the establishment of a Foundation with fund-raising and other functions,
and for related purposes.
The objectives of the Act are set out in s 5(1) of the Act, and relevantly include:
(a)to provide for the restoration and protection of the development control area and the Riverpark;
(b)to provide for the management of activities that affect the ecological and community benefits and amenity of the development control area and the Riverpark;
(c)to provide for the needs of future generations in relation to the ecological and community benefits and amenity of the development control area and the Riverpark;
Section 5(2) of the Act provides that in pursuing the objectives of the Act, regard should be had to a number of principles, including but not limited to the sustainability principles, the precautionary principle, biodiversity and ecological integrity and the intergenerational equity principle.
The 'development control area' means the land and waters that are:[1]
(a)part of the 'catchment area' - which is all of the land and waters within the area for the time being described in sch 1 of the Act (being the area shown on Deposited Plan 47464);[2] and
(b)within the area for the time being described in sch 3 of the Act (being all of the land and waters shown bordered in red on Deposited Plan 47465 Version 6).[3]
[1] Act, s 10(1).
[2] Act, s 3(1), s 8, and sch 1. Exhibit 2.
[3] Act, s 3(1), s 10(1)(b), and sch 3. Exhibit 3.
The Riverpark is a reference to the land and waters that are:
(a)part of the catchment area; and
(b)within the area for the time being described in sch 2 of the Act (being all of the land and waters shown hatched in blue on Deposited Plan 47465 Version 6).[4]
[4] Act, s 3(1), s 9(b), and sch 2.
Land and waters that are within the development control area may (as is the case here) overlap, or be the same as, land and waters that are within the Riverpark.[5]
[5] Act, s 10(2).
There is no dispute that the Tennis Club is located on land falling within the catchment area, the development control area and the Riverpark.
Part 4B is concerned with matters of administration The functions of the CEO are detailed in s 33(1) of the Act. These functions relevantly include:
(b)to protect and enhance the ecological and community benefits and amenity of the development control area and control activities and development in that area;
(c)to protect and enhance the ecological and community benefits and amenity of the Riverpark;
…
(f)to monitor –
(i)the state of the development control area; and
(ii)development on and adjoining the development control area; and
…
(j)to otherwise undertake the administration and enforcement of this Act and perform other functions vested in the CEO by this Act.
Section 34 of the Act is concerned with consultation and matters to be considered by the CEO when exercising their powers under the Act. Section 34(b) provides that the CEO 'must, so far as is practicable and consistent with the Act':
have regard, in the performance of his or her functions, to -
(i)protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark; and
(ii)the significance of the waters in the Riverpark to the Nyungah community; and
(iii)the requirements of public recreation; and
(iv)the need to preserve right of access for the public to waters in the Riverpark; and
(v)the interests of navigation, fisheries, agriculture and water supply.
Part 4 of the Act is concerned with targets and strategic documents, and provides for the development of strategic documents including the river protection strategy. The river protection strategy must establish coordinated management arrangements necessary for the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark, and the meeting of targets referred to in s 47 in of the Act.[6] The CEO must perform his or her functions under the Act in accordance with any strategic documents.[7]
[6] Act, s 51(1)(a).
[7] Act, s 65(1).
Part 5 of the Act is concerned with 'development' in the 'development control area'. 'Development' is defined to mean:[8]
(a)the erection, construction, demolition, alteration or carrying out of any building, excavation, or other works, in, on, over or under land or waters; and
(b)a material change in the use of land or waters; and
(c)any other act or activity in relation to land or waters declared by the regulations to constitute development,
but does not include any work, act or activity declared by the regulations not to constitute development;
[8] Act, s 3(1).
Part 5 of the Act provides for development approval to be granted by the Minister or, in certain circumstances by the CEO. In the present case, the Minister is the relevant decision maker.
Pursuant to s 70(1) of the Act, subject to some irrelevant exceptions,[9] a person must not undertake or cause to be undertaken any development to which pt 5 of the Act applies, without the approval of (relevantly) the Minister.
[9] Act, s 68.
The process for applying for development approval is convoluted. Mr Wilson does not allege that any of the procedural steps have not been complied with. However, as the statutory context, including the procedural steps, are relevant to the application, it is useful to detail that procedure.
The following is a helpful summary taken from Mr Wilson's written submissions, which the Intervenor accepts provides an accurate overview:
(a)because the development is proposed to be carried out on land that is within the district of a local government, the development application must be made to that local government,[10] in this case being the City of Melville;
[10] Act, s 72(1).
(b)the local government must then send the application to the CEO;[11]
[11] Act, s 72(6).
(c)the applicant must furnish such information and documents relating to the proposed development as the CEO may reasonably require for proper consideration of the application;[12]
[12] Act, s 72(7).
(d)the CEO must then refer the development application to the local government and, where relevant, the Metropolitan Redevelopment Authority, the Western Australia Planning Commission, and any other public authority that appears to the CEO to have functions that are relevant to the proposed development;[13]
[13] Act, s 73(1).
(e)each entity to which the development application is referred may then make submissions on the proposed development to the CEO;[14]
[14] Act, s 73(2).
(f)in addition, notice of the development application must be:
(i)published by the CEO on the Department's website;[15] and
[15] Act, s 74(1).
(ii)given by the applicant in newspapers if the CEO considers that the proposed development is of significant public interest or the Minister so directs;[16]
[16] Act, s 74(2)(c) and (e).
(g)where notice of the proposed development is given to the public, any person may make a submission to the CEO;[17]
[17] Act, s 74(5).
(h)after complying with the obligations to refer, and give notice of, the development application, the CEO must prepare a draft report on the proposed development and, in that draft report, make recommendations on the development application;[18]
[18] Act, s 75(1).
(i)in preparing the draft report, the CEO must consider all submissions received from the relevant entities and members of the public;[19]
[19] Act, s 75(2).
(j)the CEO must then provide a copy of the draft report to the Swan River Trust (Trust), which must then provide its comments and recommendations to the CEO;[20]
[20] Act, s 75(3A).
(k)after receiving the comments and recommendations of the Trust, and making such changes to the draft report as the CEO thinks appropriate, the CEO must then:[21]
[21] Act, s 75(3).
(i)give a copy of the draft report, with an invitation to make submissions to the CEO, to the applicant, the Trust, each local government and public authority to which the development application was referred, and each person who made a submission; and
(ii)publish the draft report on the Department's website and in any other way the CEO considers appropriate, with an invitation to the public to make submissions to the CEO;
(l)after considering any further submissions and making such changes to the report as the CEO considers appropriate, the CEO may give a copy of the report to the Trust and, in that case, the Trust must provide its final comments to the CEO;[22]
[22] Act, s 76(1).
(m)after considering any submissions made and comments received, and making such changes to the report as the CEO considers appropriate, the CEO must then:
(i)give a copy of the report to the Minister, the Trust, each public authority to which the draft report was given under s 75, to each person that made a submission, and publish the report on the Department's website;[23] and
[23] Act, s 76(2).
(ii)provide the Minister with (in addition to the report) a copy of each submission received, any comments or recommendations made by the Trust, and the CEO's comments on the submissions;[24]
[24] Act, s 76(3).
(n)the Minister may then:
(i)deal with the application under s 80;[25] or
(ii)instead, return the application to the CEO and direct the CEO to reconsider the CEO's recommendations within such period as the Minister may specify - or appoint a review committee to consider those recommendations and report to the Minister on them - before subsequently dealing with the application in accordance with s 80;[26]
(o)under s 80 of the Act, the Minister may:[27]
(i)approve the development; or
(ii)approve the development in a modified form; or
(iii)give approval but subject to any conditions or restrictions; or
(iv)refuse to give approval.
[25] Act, s 77(1)(a).
[26] Act, s 77(1)(b).
[27] Act, s 80(1).
This application for judicial review concerns the report of the CEO containing the CEO's recommendation in relation to the development application made by the Tennis Club.
That report has been prepared, but has not been forwarded to the Minister, pending the resolution of this application for judicial review.

Factual background

Location and development application

The Tennis Club is located on land entirely within both the development control area and the Riverpark. The land is owned freehold by the City of Melville, but is reserved for 'parks and recreation' under the Metropolitan Region Scheme, and is leased to the Tennis Club.
By application dated 28 November 2022, the Tennis Club applied for development approval for the installation of 12 lighting towers of between eight and 10 metres in height, on four of the 14 tennis courts, to be operated in the evening and night to permit members of the Tennis Club and others to play tennis outside of daylight hours until 9.00 pm or 10.00 pm, depending on the day.
There is no dispute that development approval was required for the construction and use of the lighting towers as each fall within the definition of development, and the land on which the lights are to be constructed and used falls within the development control area.

Report and recommendation of the CEO

There is no dispute that the Department and the CEO followed the statutory procedure for development approval under Act. The Department and the CEO advertised the application as required, received and took into account submissions from the City of Melville, other relevant authorities, the Trust and members of the public, prepared a draft report and engaged in the further advertising and consultation process.
At the conclusion of that process, the CEO prepared a final report to the Minister dated 7 October 2024.
The report consists of a memorandum and attaches the external referral responses (from the City of Melville and the Department of Water and Environmental Regulation); a letter of support from Tennis West; the public submissions received; a summary of the public submissions received; a lighting design report (prepared by Musco Lighting, dated 24 January 2024); and an environmental noise assessment report (prepared by EcoAcoustics dated 7 December 2023).
The report details the public consultation process that has taken place, including with the City of Melville, the Department of Water and Environmental Regulation and members of the public (both after advertising and in relation to the draft report). The report identifies the various relevant policies and plans.
The report goes on to identify the following three factors as being the relevant environmental and planning considerations: environmental protection; lighting and noise management; and amenity.
Part 6 of the report is titled 'Background' and provides an overview of the location of the Tennis Club and the details of the application. Paragraphs [6.9] ‑ [6.13] are headed 'Lighting' and provide a summary of the lights (and their features) that are proposed to be installed, along with an assessment of the extent to which the lighting complies with the Australian Standard and the relevant polices and guidelines, including the National Light Pollution Guidelines for Wildlife, and the extent to which the lighting minimises light spill so that fauna, community enjoyment, and visual amenity are not unacceptably affected.

Part 7 of the report is titled 'Discussion' and is separated into two sections: environmental protection and amenity.
In the sub-section concerning environmental protection, the report identifies that Corporate Policy Statement 42 is relevant and outlines that and its aim being to ensure that land use and development on and adjacent to the river system maintains and enhances the quality and amenity of the river environment. This section identifies relevant environmental aspects of the land adjacent to the Tennis club including the vegetation and shorebird species.
This section also refers to the National Light Pollution Guidelines for Wildlife, which recommend implementing light mitigation management measures. There is a discussion of the extent to which the lighting proposed by the Tennis Club are consistent with aspects of the guidelines, and at [7.8] the report states:
The applicant has proposed lighting infrastructure that is compliant with Australian Standards and incorporates mitigation measures such as glare shields, to reduce the potential for glare to surrounding residents and light spill to the foreshore and river. The lighting information from Musco predicts that there will be no light spill (0 lux) at the vegetation edge along the foreshore or into the river.
The sub-section headed 'amenity' is essential to Mr Wilson's application, and it is convenient to set it out full:
7.11Corporate Policy Statement 42 states that proposals should enhance and protect the character and landscape setting of the Swan Canning river system, consistent with the multiple use of the development control area. The development of recreational facilities must be consistent with the relevant reserve's assigned purpose.
7.12 The Swan Canning River Protection Strategy encourages the use of the Riverpark to promote active and healthy lifestyles for the community (Strategy 17, Action 17.4), while protecting the Riverpark aesthetics.
7.13 Night tennis at ATC is an intensification of use, being an extension of the existing operating hours and a corresponding increase in light and community noise, which has the potential to impact the adjacent residents. ATC has advised that there will be a maximum of 16 players on the courts during night games. ATC has indicated that it is not common for spectators to attend evening tennis competition games.
7.14 The acoustic information provided by EcoAcoustics (Attachment 1 F) includes site specific noise monitoring that indicates that the proposal to undertake night tennis will comply with the Environmental Protection (Noise) Regulations 1997.
7.15 The EcoAcoustics information was referred to DWER for advice in regard to potential compliance with the Environmental Protection (Noise) Regulations 1997. DBCA has obtained technical advice from DWER to assist in understanding the potential noise and amenity impacts from the proposal. The applicant is required to ensure that its operation addresses the requirements of the Environmental Protection (Noise) Regulations 1997.
7.16 DWER has acknowledged that measuring this type of community noise is difficult due to the variability of noise from the activities and the background noise that interferes with monitoring. It is noted that noise monitoring of night tennis at ATC cannot be undertaken until the lights are in place, however, a comprehensive review of the existing acoustic information indicates that the proposal is unlikely to contravene the noise regulations.
7.17 It is acknowledged that night tennis at ATC will result in additional noise in the evening that may impact adjacent residents, particularly as people leave the site in cars. DWER has advised that the noise from propulsion or braking systems of motor vehicles operating on the road reserve, which includes the parking along The Strand, is exempt from the Environmental Protection (Noise) Regulations 1997.
7.18 ATC currently relies on parking provision within the adjoining road reserve. Existing parking available along The Strand is approximately 56 perpendicular bays. It is noted that there will be a maximum of 16 players on the courts during night games and spectators do not usually attend these games. The existing parking is therefore considered adequate to accommodate evening patronage of the four lit courts when in use.
7.19 ATC has requested that lights be allowed until 10pm from Tuesday to Thursday and to 9pm for the rest of the week. Courts will only be lit to 10pm when competition tennis is scheduled, and will be switched off at 9pm otherwise. Competition games will occur for a maximum of 24 weeks of the year.
7.20 The City of Melville initially recommended a condition that lights are turned off at 9pm nightly to align with LPP1.16: Flood and Security lighting and LPP3.4: Tennis courts. It is noted that LPP1.16 does not apply to the lighting of private or public tennis courts and LPP3.4 applies to domestic tennis courts in residential properties.
7.21 It should be noted that the City of Melville's initial advice was provided in the context of the original lighting and noise information submitted to DBCA. The revised lighting and acoustic information has addressed initial concerns in terms of potential impacts to the environment and amenity for adjacent residents. Further, DBCA considers that operating the lights at ATC for an extra hour to 10pm for three nights of the week will not present significant additional impacts to the environment or amenity of the locality.
7.22 The City presented the draft report to the Council meeting of 20 August 2024, in which the draft report was endorsed. Council provided a suggested amendment to Condition 5 to recommend that lights are not operated on Sundays. The condition relating to approved operating hours has been modified accordingly.
7.23 It is recommended that ATC encourages people to be mindful of residents by keeping noise to a minimum when playing in the evening and leaving the site. An Operations Plan including this commitment is recommended.
7.24 The expected light spill from courts 11 and 12 towards the residential property line along The Strand is predicted to be 0 lux and within the levels recommended by Australian Standards in a suburban setting. The proposal has incorporated lighting infrastructure and specifications that aim to reduce any potential adverse light impacts for adjacent residents.
7.25 It is acknowledged that implementation of the proposal will modify the adjacent residents' views with the installation and operation of light poles. However, the light poles are narrow and while visible during the day, are not considered to be visually obtrusive structures and will not dominate or block river views.
7.26 While the visual landscape of the reserve will change with the installation and operation of the light poles, the bulk, scale and style of the proposed development is not considered likely to create significant visual impacts. The applicant has addressed the potential for glare and light spill towards residents and the river by proposing appropriate lighting design. The amenity values of the adjacent residents and community will be largely maintained, and the development is compatible with the purpose of the land as a Parks and Recreation reserve.
The report then details the results of consultation with the Trust, including the Trust's comments in relation to the draft report.
The conclusion of the CEO is that:
9.1 The installation of lighting towers at ATC can be managed to mitigate any potential adverse impacts to the vegetated foreshore and river, and adjacent residents.
9.2 The draft report recommended operating the lights to 10pm for three days of the week (Tuesday to Thursday) when competition games are scheduled and to 9pm for the rest of the week, including Sunday. Consistent with advice from the City of Melville and a Council resolution, it is recommended that lights do not operate on Sunday.
9.3 On balance, the proposal provides an opportunity to improve the community benefits and amenity of the Riverpark while managing any significant adverse impacts to the environment and adjacent residents.
9.4 For these reasons, the proposal is recommended for approval, subject to conditions and advice.
The CEO then recommended to the Minister that the application be approved, subject to several specified conditions (Decision).

Evidence

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.

Grounds of review

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.

Legal principles - judicial review

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].
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].

Does Mr Wilson have standing?

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.

Is the recommendation of the CEO amendable to judicial review?

Certiorari only lies against acts and decisions that have legal effect.[37]
[37] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 580 and 595; Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 158 ‑ 159 and 178.
As is revealed by the above outline of the statutory scheme, the decision the subject of this application for judicial review is not the final decision in the statutory process. It is not the decision of the Minister as to whether the development application is approved or not. Rather, it is a preliminary or intermediatory decision, being the recommendation of the CEO.
A preliminary decision or recommendation, if it is one which constitutes a condition precedent to an exercise of a power that will affect legal rights, will have sufficient legal effect upon rights to attract certiorari.[38]
[38] Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 164 ‑ 165; Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2005] WASCA 109; (2005) 30 WAR 138 [42].
In the present case, the Minister's power to approve a development is conditional upon the Minister having regard to the CEO's report. That is, the CEO's report is a mandatory relevant consideration.[39] Accordingly, the CEO's report has sufficient legal effect upon rights and certiorari will lie in relation to the recommendation of the CEO.
[39] Act, s 77(1) and s 80(1).
For completeness, I observe that s 6(10) of the Act consists of a privative clause which provides that the performance of a function by (relevantly) the CEO cannot be appealed or reviewed, quashed, challenged or called into question in a court. In light of the decision of the High Court in Kirk v Industrial Court of New South Wales,[40] such a privative clause does not exclude the supervisory jurisdiction of this court to review the exercise of a function by the CEO for jurisdictional error.
[40] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531.

The competing constructions and issues for consideration

Mr Wilson submits that, properly construed, the Act requires the CEO, when making a recommendation to the Minister, to form a positive opinion as to whether the development would protect and enhance the amenity of the development control area and the Riverpark. Further, the CEO can only recommend approval of the development if they have formed the positive opinion that the development would protect and enhance the amenity of the development control area and the Riverpark.
Mr Wilson submits that the CEO has not done this. Rather, Mr Wilson submits that the CEO has instead only considered and determined whether the development would, if approved, be likely to comply with the requirements of the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) and AS/NZS 4282:2023 Control of Obtrusive Effects of Outdoor Lighting (Australian Standard).
In these circumstances, Mr Wilson submits that the CEO has misconstrued the nature of his statutory power and has made a material jurisdictional error. Mr Wilson submits that the CEO's recommendation should be set aside, and that the matter be remitted to the CEO for consideration according to law.
For completeness, I observe that Mr Wilson submits that the proper construction of the Act is that the CEO is required to form a positive opinion as to whether the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark (and only recommend the development if forming that positive opinion). However, Mr Wilson's application for judicial review only concerns the element of amenity (and not the ecological and community benefits), as that is the particular element in relation to which Mr Wilson submits the CEO has failed to form the requisite positive opinion.
The Intervenor submits that, properly construed, the CEO is not required to form any view or reach any level of satisfaction as to whether the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark. Rather, the Intervenor submits that in preparing the report and recommendation, the CEO was required to have due regard to whether the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark. Further, the Intervenor submits that the CEO's power to recommend approval of a proposed development is not subject to the condition that the CEO must be positively satisfied that the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark.

The Intervenor further submits that when the CEO's report is considered, it is clear that the CEO has had regard to this mandatory relevant consideration and gave it proper, genuine and realistic consideration, and that Mr Wilson's criticisms of the use of the Australian Standard and the Noise Regulations in the report stray into an attack on the merits of the decision.
Resolution of the application for judicial review therefore involves two issues:
(1)What is the correct question the CEO is required to ask when considering a development application and preparing the report and recommendation to the Minister?;
(2)Has the CEO, in the present case, asked himself the correct question?

Issue 1 - what is the correct question?

Legal principles

Issue 1 is concerned with questions of statutory construction of the Act, and of the functions of the CEO under pt 5 when making a report and recommendation to the Minister.
The general principles concerning the process of statutory construction are well known and are not in dispute. Statutory construction involves the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[41]
[41] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].
The court may have regard to extrinsic material to confirm the ordinary and natural meaning of statutory provisions or in cases of ambiguity or uncertainty,[42] but extrinsic material cannot be used to negate the plain meaning of statutory provisions.[43]
[42] Interpretation Act 1984 (WA), s 19.
[43] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47].
Finally, the provisions of the statute must be understood, if possible, as parts of a coherent whole and be construed on the prima facie basis that the provisions are intended to give effect to harmonious goals.[44] Where the text, read in context, permits more than one potential meaning, the choice between those meanings may turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.[45]

Appropriate construction

[44] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] ‑ [71]; Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [181].

[45] Mohammadi v Bethune [2018] WASCA 98 [34]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [180].

Having considered the text, context and purpose of the Act, I have concluded that the proper construction is that there is no requirement that the CEO can only recommend the approval of a development if the CEO forms the opinion that the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark.
Rather, there is a requirement that the CEO, when making a report and recommendation to the Minister in relation to a development application under s 76 of the Act, must have regard to the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark.
My reasons for reaching that conclusion are as follows.

Text

Mr Wilson accepts that there are no express provisions in the text of the Act that:
(a)require the CEO, when making a report and recommendation to the Minister, to form a positive opinion as to whether the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark; and
(b)provide that the CEO can only recommend a development if the CEO forms a positive opinion that the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark.
This is consistent with the text of s 75 of the Act (concerning the draft report) and also s 76 of the Act (concerning the final report to the Minister).
Section 75(1) of the Act provides that after complying with the various requirements of s 73 and s 74 of the Act, the CEO must prepare a draft report on the proposed development, and in that draft report make 'recommendations on the development application'.
The text of the Act provides that the following are mandatory considerations for the CEO when preparing the draft report and recommendation:
(a)the CEO should perform his functions with 'due regard to the objectives and principles' of the Act (s 6(1) of the Act); and
(b)the CEO must, 'so far as is practicable and is consistent with the Act, have regard, in the performance of his or her functions' to the matters listed in s 34(b) of the Act, which relevantly include:
(i)the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark; and
(ii)the requirements of public recreation;
(c)the CEO must consider all submissions received under s 73 and s 74 of the Act and any comments made by the Trust in accordance with s 75(3A) of the Act (s 75(2) - s 75(3) of the Act).
Section 76 of the Act concerns the final report. The text of the Act provides that the following are mandatory considerations for the CEO when preparing his final report to the Minister in accordance with s 76 of the Act:
(a)the CEO should perform his functions with 'due regard to the objectives and principles' of the Act (s 6(1) of the Act); and
(b)the CEO must, 'so far as is practicable and is consistent with the Act, have regard, in the performance of his functions' to the matters listed in s 34(b) of the Act, which relevantly include:
(i)the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark; and
(ii)the requirements of public recreation;
(c)the CEO must consider any submissions made under s 75 of the Act in relation to the draft report and any comments made by the Trust in accordance with s 76(1) of the Act (s 76(2) of the Act).
The Act also contains the various procedural requirements identified earlier in these reasons regarding the process that the CEO must following in preparing a final report, and s 76(3) of the Act details the various documents that must accompany the final report to the Minister. However, none of these provisions expressly provide that the CEO must form a positive opinion as to whether the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark, or provide that the CEO cannot recommend a development unless forming that positive opinion.

Context and purpose

Whilst Mr Wilson accepts that there are no express provisions in the text of the Act in support of his construction, Mr Wilson submits his construction is supported by the context, objects and purposes of Act.
Mr Wilson submits that whilst the discretion granted to the CEO is unrestrained, that does not mean that the exercise of the discretion is at large. Mr Wilson submits that the CEO is confined by the subject matter, scope and purpose of the Act.[46] This much may be accepted.
[46] See by way of example O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216; BE Australia WD Pty Ltd (Subject to a Deed of Company Arrangement) v Sutton [2011] NSWCA 414; (2011) 82 NSWLR 336 [181] - [183].
However, I am not satisfied, when regard is had to the context, objects and purposes of the Act, that the legislation reveals that that the power of the CEO to recommend the approval of a development is conditional upon the CEO forming the opinion that the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark. Rather, I consider that Mr Wilson's construction seeks to elevate one of the matters to which the CEO must have regard when considering a development application above the other various matters.
My reasons for reaching that conclusion are as follows.
First, s 34 of the Act is inconsistent with such a requirement. In particular, s 34(b)(i) of the Act expressly provides that the CEO, must so far as is practicable and consistent with the Act, 'have regard' to the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark in the performance of his or her functions.
The inclusion of a requirement to 'have regard', and also to do so only 'so far as is practicable and consistent with the Act', combined with the absence of any express requirement that the CEO can only recommend a development application if satisfied the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark, tends against imposing such a requirement on the CEO.
Secondly, there are other provisions in the Act where the particular power or function of the CEO is expressed as being conditional upon a particular criteria, including the CEO being satisfied of the particular criteria. For example, s 31 (ability of the CEO to cause forfeiture of a river reserve lease) and s 90 and s 91 (the ability of the CEO to issue a river protection notice). The lack of any express requirement in s 75 and s 76 of the Act, in contrast to these other sections, tends against a construction that the CEO can only recommend approval of a development application if the CEO forms the positive opinion that the development would protect and enhance development application if satisfied the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark.
Thirdly, there is no requirement in the text of the Act that the Minister, when considering an application for development approval, including the report and recommendations of the CEO, can only approve a development if satisfied it would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark. Section 80(2) of the Act does impose limits on the ability of the Minister to approve a development, including, approving a development in a manner which is inconsistent with a strategic document and an approved environmental protection policy under the Environmental Protection Act 1986 (WA). This lack of any express requirement is not determinative on its own, and it is possible for there to be different requirements for different officer holders under the same legislation. However, the lack of any such requirement, in circumstances where other limitations are expressly identified, tends against a requirement that the report and recommendation of the CEO would be subject to such a condition.
Fourthly, the nature of the assessment process that the CEO is required to undertake consists of considering and assessing a proposed development against several criteria. Some of these criteria may require nuanced consideration, some may be inconsistent with each other and the CEO may be required to undertake a balancing exercise.
In addition to matters in s 34(b)(i), the CEO must have regard, in the performance of his or her functions, to the significance of the waters in the Riverpark to the Nyungah community; the requirements of public recreation; the need to preserve the right of access for the public to waters in the Riverpark; and the interest of navigation, fisheries, agriculture and water supply. The CEO is also required to have due regard to the objectives of the Act and the principles contained in s 5 of the Act, including, inter alia the precautionary principle and intergenerational equity. The text of the Act does not specify that any of these matters are the primary or paramount matter to which the CEO must have regard when considering a proposed application.
By way of example, a proposed development may preserve a right of public access to part of the waters of the Riverpark, but not protect or enhance the ecological benefits of the development control area and the Riverpark. Alternatively, a proposed development may be in the interests of agriculture and water supply, but not enhance the amenity or provide for public recreation. A further alternative is that a proposed development may not have any impact (positive or negative) on the ecological benefits of the development control area and the Riverpark, but may provide for public recreation or may foster connection to area of cultural significance to the Nyungah community. There may be many other such combinations and each of them will involve a balancing of the impacts of the proposed development as part of the report and recommendation process.
Further, as a matter of practical application, in some circumstances a development may clearly have an identifiable and measurable impact (positive or negative) on the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark. In other instances, the impact may be neutral, and in still further instances, the impact may vary as between the different components. There may be other combinations, and each will be dependent on the facts and circumstances of the particular development application.
In addition, the CEO is required to consider submissions from the public and various bodies and authorities, each of which may provide different opinions, or identify further matters for investigation.
Accordingly, the nature of the matters which the CEO is required to have regard to when considering a development application (and the nature of the decision making process itself) tends against a construction that conditions the power of the CEO to recommend approval of a development to the situations where the CEO is satisfied the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark.
Finally, the above construction is consistent with the objects and purpose of the Act and the long title of the Act, and is consistent with the various matters to which the CEO (and ultimately the Minister) must have regard. Whilst Mr Wilson's construction is not necessarily inconsistent with the objects and purpose of the Act, it seeks to elevate one of the matters to which the CEO must have regard, above all others.

Other matters of construction relied on by the parties

First, Mr Wilson relies on s 33(1) of the Act which specifies the functions of the CEO. These functions include (in s 33(1)(b) and s 33(1)(c)) to protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark. Mr Wilson submits that this is a contextual indication of the primacy of this consideration in the context of the CEO's function when considering a development application, and a factor in support of Mr Wilson's construction.
The Intervenor submits that when the CEO is considering a development application, he or she is not carrying out the function referred to in s 33(1)(b) and s 33(1)(c) of the Act. Rather, the CEO is carrying out the function identified in s 33(1)(j), being to otherwise undertake the administration and enforcement of the Act and perform other functions vested in the CEO by the Act, for the reason that it is the Minister who makes the final decision as to the development application,[47] and therefore the CEO is not controlling the activities in the development control area and is not making a decision affecting either development.
[47] Leaving aside the sub-category of applications that the CEO is authorised to finally determine pursuant to s 85 of the Act.
I do not consider it is necessary for me to form a final view as to this issue because, assuming for now that the CEO is carrying out a function under s 33(1)(b) or s 33(1)(c), I do not consider that these sections, when considered the context of the other matters to which I have referred, are sufficient to prefer Mr Wilson's statutory construction. There is no dispute that the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark is an objective of the Act and a matter to which the CEO must have regard when considering a development application. However, in the absence of an express requirement that the CEO can only recommend approval of a proposed development if satisfied that the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark, combined with the express wording in s 34, and the nature of the decision making process and the matters to which the CEO must have regard, I do not consider the wording of s 33 of the Act is sufficient to result in the contrary construction.
Secondly, Mr Wilson refers to a number of other provisions of the Act which provide the CEO with the power to undertake other activities or functions. Mr Wilson submits that in these sections there is a reference to the CEO being able to exercise the power or function in question if satisfied that it is necessary for the protection and enhancement of the ecological and community benefits and amenity of the development control area and Riverpark. Mr Wilson submits that this is a further contextual factor in favour of his construction. For example:
(a)s 28(2)(b) which permits the CEO to enter into an agreement with the owner, lessee or licensee of private land for the management of that land by the CEO for the purpose of obtaining rights of access and other rights necessary for the protection and enhancement of the ecological and community benefits and amenity of the development control area or the Riverpark;
(b)s 32 and s 32A(2)(a) of the Act which permit the CEO to enter into a licence agreement with a person authorising the non‑exclusive occupancy and use of land and waters that are part of the River reserve, subject to conditions which can make provision for the regulation, control or prohibition of any activity, for the purposes of protecting or enhancing the ecological and community benefits and amenity or good management of the River reserve;
(c)s 37 of the Act which permits the CEO to enter into collaborative arrangements with any other person binding that other person to undertake programmes of a kind specified in the arrangement and directed towards protection and enhancement of the ecological and community benefits and amenity of the Riverpark or any part of the Riverpark; and
(d)s 90(1)(a) of the Act which permits the CEO to request advice from the Trust as to whether a river protection notice should be issued, if the CEO believes on reasonable grounds that, to protect or enhance the ecological and community benefits or amenity of the Riverpark, action by an owner, or both an owner and an occupier, of land in the catchment area is required.
The fact that the above sections include an express requirement conditioning the exercise of the relevant statutory power or function by the CEO could be suggestive of two different constructions. It could suggest that the objective of the protection and enhancement of the ecological and community benefits and amenity of the development control area and Riverpark is the primary objective of the Act and therefore supports Mr Wilson's construction. Alternatively, it could highlight the absence of any such express requirement when the CEO prepares a report and recommendation to the Minister in relation to a development application.

When these sections are considered in combination with all the other factors I refer to in these reasons, I consider they support the construction that the CEO is not required to form a positive opinion that the proposed development would protect and enhance the ecological and community benefits or amenity of the development control area and the Riverpark. The fact that there is an express requirement in these sections must be contrasted with the lack of any such express requirement in s 75 and s 76 of the Act.
Thirdly, Mr Wilson also relies on the fact that the CEO is required to consult with the Trust in relation to a development application, and is required to have regard to the comments and submissions of the Trust in preparing the draft and final reports. The Trust is established in pt 3 of the Act, and it has a number of functions including to develop policies for the protection and enhancement of the ecological and community benefits and amenity of the development control area and Riverpark.[48] Mr Wilson also relies on the functions of the Trust, as well as the fact that the Trust is required by s 6(1) of the Act to perform its functions with 'due regard' to the objectives and principles of the Act as contained in s 5 of the Act. To this, it can be added the requirement in s 25(1)(b) of the Act that the Trust must, so far as is practicable and consistent with the Act, 'have regard' in the performance of its functions to the same matters that the CEO is required to have regard to by s 34 of the Act. Mr Wilson submits that these are matters which supports his construction.
[48] Act, s 23(ab).
I do not accept this submission. The Trust is one of a number of bodies which the CEO may be required to consult with in the course of considering a development application. These could include the relevant local government; the Metropolitan Redevelopment Australia; the Western Australian Planning Commission and each other public authority that appears to the CEO to have functions that are relevant to the proposed development.[49] Each of these other bodies will have their own legislative framework governing the exercise of their functions and powers which may contain matters which are different to, and in some cases potentially inconsistent with, the legislation governing the exercise of the functions and powers of the CEO and the Trust. This potential for difference is expressly recognised in the consultation and 'dispute resolution' regime provided for in s 6(2) - s 6(9) of the Act. In these circumstances, I do not consider the fact that the CEO is required to consult with, and have regard to, the comments and submissions of the Trust elevates the comments of the Trust above all others, and supports a construction that the CEO can only recommend approval of a development application if positively satisfied that it would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark.
[49] Act, s 73.
Fourthly, Mr Wilson also relies on the provisions in the Act concerning the river protection strategy in support of his construction, and the river protection strategy itself in support of his construction. The text of the Act provides for the development of river protection strategy that establishes coordinated management arrangements necessary for the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark and the meeting of the targets in s 47 of the Act.[50] The text of the Act also provides that the CEO must perform his or her functions under the Act in accordance with any strategic documents.[51]
[50] Act, s 51(1).
[51] Act, s 65(1).
However, there is nothing in the river protection strategy[52] which provides, either expressly or by implication, that the CEO can only recommend approval of a development application if satisfied that it would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark.
[52] Affidavit of Gregory Joseph John Comiskey, sworn 14 February 2025, pages 318 - 361.
Rather, the river protection strategy identifies the following strategy to maintain, protect and enhance the ecological and community benefits of the Riverpark:[53]
The strategy to address the issues facing the Riverpark is to focus on the on-ground actions to achieve four broad outcomes:
●Better coordination
●A healthy river ecosystem
●Improving community engagement and enjoyment
●Better management
[53] Affidavit of Gregory Joseph John Comiskey, sworn 14 February 2025, page 331.
The river protection strategy goes on to identify, when discussing these four broad outcomes, the various uses and needs of the Riverpark which require management including environmental, recreational, cultural, agricultural and transport. The river protection strategy goes on to identify a number of different objectives and associated strategies and action. These various objectives and strategies address the four broad outcomes identified above and address the full range of uses and needs of the Riverpark. None is identified as being the primary or paramount objective or strategy. The broad range of matters addressed is consistent with the recognition in the Act that there are various competing activities that affect the development control area and Riverpark that need to be managed, and therefore various different matters to be balanced and considered by the CEO (and ultimately, the Minister) when considering a proposed development.
Finally, both Mr Wilson and the Intervenor refer to extrinsic materials. Mr Wilson relies on the second reading speech and explanatory memorandum for the Swan and Canning Rivers Management Bill 2005 (WA) in support of his construction. Mr Wilson submits that these indicate that the express and evident purpose of the Act is the protection and enhancement of the development control area and the Riverpark. I accept that the protection and enhancement of the development control area and the Riverpark is one of the objectives and purposes of the Act. This is consistent with the text of the Act, see by way of example the long title; the objectives in s 5 of the Act; the functions of the CEO in s 33 of the Act; and the requirement to develop a river protection strategy in s 51(a) and management programmes in s 53 of the Act. However, this is not the only objective and purpose of the Act, as the text of the above provisions reveals.
There is nothing in the second reading speech or the explanatory memorandum which elevates this purpose above all others identified in the Act. In the second reading speech, the key elements of the Bill were described as:[54]
●establishing the Swan Canning Riverpark and setting targets to protect it;
●developing a river protection strategy and management programs to achieve and report on the targets;
●providing opportunities for community involvement in establishing targets and management arrangements;
●streamlining and providing more transparent processes for assessing development proposals affecting the river; and
●improving the enforcement arrangements.
[54] Western Australia, Parliamentary Debates, Legislative Assembly, 22 November 2005, page 7589 (Dr J M Edwards).
Further, the second reading speech described the challenges faced by the State in dealing with the Swan and Canning Rivers as follows:[55]
There is still much we need to do to protect the health and amenity of the rivers. Our challenge is to sustain and balance the environmental, social and economic benefits of the rivers. It means balancing the needs of current and future generations.
[55] Western Australia, Parliamentary Debates, Legislative Assembly, 22 November 2005, page 7589 (Dr J M Edwards).
The explanatory memorandum contains the following introductory paragraphs in the section headed 'Overview of the Bill':
The purpose of this Bill is to make provision for the protection and enhancement of the ecological and community benefits and amenity of the Swan and Canning Rivers and associated lands.
The new legislation improves the State's ability to coordinate management of activities that may affect the Swan and Canning Rivers.
These extracts are consistent with the protection and enhancement of the ecological and community benefits and amenity of the development control area and Riverpark being an object, but not the only object of the Act. The extracts reflect the inherent balancing exercise that may need to be undertaken by those tasked with statutory functions under the Act.

Meaning of 'have regard' and have 'due regard'

One further aspect of Mr Wilson's case in relation to issue 1 is that the Act requires the CEO, when making a recommendation to the Minister, to form a positive opinion as to whether the development would protect and enhance the amenity of the development control area and the Riverpark.
Whilst I have concluded that, properly construed, the Act does not mandate that the CEO can only recommend approval of a development application if satisfied that it would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark, I have concluded that the CEO is required to 'have regard' to the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark.
This further aspect of Mr Wilson's case is best considered in the context of considering the meaning of the requirement to 'have regard' to the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark.
In Marshall v Metropolitan Redevelopment Authority,[56] Pritchard J (as her Honour then was) considered the meaning of the phrases 'have regard' and 'have due regard' in the context of planning legislation. Her Honour considered that there was no material difference between these phrases, and concluded that the word 'regard', when used as a verb, is synonymous with 'consider' and 'take into account'.[57] I respectfully agree with her Honour's conclusion in this regard.
[56] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226.
[57] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [106] - [107].
The result is that the CEO, when considering a development application is required to give consideration to, and take into account, the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark. However, a question remains as to what is required to give effect to this requirement.
In Marshall v Metropolitan Redevelopment Authority, Pritchard J also observed that there is a divergence of authorities about the content of the requirement to 'have regard to' and the extent to which a decision maker is required to take into account or give consideration to mandatory relevant considerations. One line of authority is to the effect that provided the relevant matter is given some consideration, the duty is discharged.[58] The alternative line of authority, which has received support in Western Australia, is to the effect that the requirement to take into account a relevant consideration is a requirement to give proper, genuine and realistic consideration to the relevant matter.[59] The question is one of statutory construction.[60]
[58] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 ‑ 41 (Mason J).
[59] Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 [60] (McLure JA, LeMiere AJA agreeing), but cf A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [88] ‑ [92] where Martin CJ & Murphy JA concluded it was unnecessary to determine which line of authorities was to be preferred.
[60] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [109].
The statutory context in Marshall v Metropolitan Redevelopment Authority is broadly similar to that under the Act in the present application. Both statutory frameworks concern (relevantly) development approval; that approval following a period consultation with relevant bodies; no express criteria that must be established or met; and a requirement that the decision maker have regard to various matters, including submissions received following consultation.
In the context of the planning legislative framework before her Honour, Pritchard J concluded that in circumstances where:
(a)there is no statutory requirement for the decision maker to be satisfied of the existence of particular facts or criteria or effects;
(b)where the relevant matters include submissions of agencies or authorities consulted about the proposed development;
(c)where those submissions may contain the views of the relevant agency as to whether the development application should be approved, or may identify matters which the agency considers warrant further investigation before a decision is made;
(d)where the decision maker is required to have regard to applicable planning instruments which typically set out broad guidelines or objectives for the use of land in a particular area, and leave a large measure of discretion for a decision maker to determine whether a proposed development is consistent with those guidelines or objectives,
the requirement to 'have regard' to a relevant consideration is something less than a requirement that a decision maker must apply or act in compliance with the relevant matters, and instead requires that a decision maker must give 'active or positive consideration' to the applicable relevant matters, whilst retaining a discretion to give such weight to those considerations as it considers appropriate in the circumstances.[61]
[61] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [111] - [115].
In City of South Perth v ALH Group Pty Ltd,[62] Martino J preferred the phrase 'proper, genuine and realistic consideration' out of a concern that the words 'positive consideration' might suggest that the relevant statute created an obligation to reach a decision that was consistent with a particular relevant consideration, when that was not his Honour's construction of the statute.[63]
[62] City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96.
[63] City of South Perth v ALH Group Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96 [46].
I do not discern from either Marshall v Metropolitan Redevelopment Authority or City of South Perth v ALH Group Pty Ltd any actual difference between their Honours as to the substantive meaning intended to be conveyed by the phrases 'active or positive consideration' and 'proper, genuine and realistic consideration'. As outlined by Tottle J in General Nominees Pty Ltd (Atf Family Trust Four) v The Metro Inner-North Joint Development Assessment Panel,[64] both phrases can be understood as falling within the concept of 'engaging in an active intellectual process', as referred to by the plurality of the High Court in DVO16 v Minister for Immigration and Border Protection.[65]
[64] General Nominees Pty Ltd (Atf Family Trust Four) v The Metro Inner-North Joint Development Assessment Panel [2022] WASC 114 [87].
[65] DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 [12].
Ultimately, I am of the view that the same approach as adopted in these authorities is applicable to the CEO's decision making process under the Act. The Act establishes a regime which provides the CEO with a broad discretion when exercising the statutory function to consider a development application and prepare a report and recommendation to the Minister. There are no express criteria in relation to which the Minister must be satisfied. The Act establishes a regime of consultation with the public and various statutory bodies, and the provision of submissions, which the CEO is required to have regard to. The Act also requires the CEO to have regard to broad objectives and principles (s 5 and s 6 of the Act) and strategic documents (eg the river protection strategy) that contains broad guidelines and objectives.
Significantly, the Act establishes a regime where various relevant matters are required to be considered and balanced by the CEO when considering a development application. As outlined earlier in these reasons, these matters may sometimes be competing or require more nuanced consideration.
In these circumstances, I do not consider it is consistent with the text, context and purpose of the Act to construe the Act so as to require the CEO, in every case, to form a positive opinion as to whether the development would protect and enhance the amenity of the development control area and the Riverpark. Rather, the highest it can be put as a matter of legal requirement, is that the CEO is required to engage in an active intellectual process by giving 'active or positive consideration'/'proper, genuine and realistic consideration' to the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark[66] when considering a development application. What that will look like in any one case will depend upon the facts.
[66] And any other relevant considerations.

Issue 2 - has the CEO asked himself the correct question?

Whilst I have concluded that the ability of the CEO to recommend approval of a development application is not conditional upon the CEO forming a positive view that the development would protect and enhance the ecological and community benefits and amenity of the development control area and the Riverpark, I have concluded that the CEO was required to 'have regard' to the protection and enhancement of the ecological and community benefits and amenity of the development control area and the Riverpark.
It therefore remains necessary to consider the final report of the CEO to consider whether the CEO did so 'have regard'. In reviewing the report, the court is not conducting a review of the merits of the recommendation of the CEO but rather is conducting a review in order to determine whether the CEO has correctly understood the statutory task, and whether the CEO has asked himself the correct question.
As Mr Wilson's application is concerned only with the question of amenity, when considering issue 2 I will refer only to the question of amenity, as opposed to the other relevant considerations.
The term 'amenity' is not defined in the Act. As observed by the learned author in Planning and Environmental Law in Western Australia,[67] there is no agreed definition of amenity or any absolute or universal test for amenity. However, the concept is one which is well used in the planning and development context and in broad terms involves an attempt to understand the location and context in which a proposed development is made and to ascertain the degree of impact of that development on the location.
[67] Willey S, Planning and Environmental Law in Western Australia (2021) 349 [14.70].
Whilst the precise meaning of the term 'amenity' in the context of the Act is a matter of statutory construction, it is not necessary to engage in a detailed assessment of the meaning of that term for the purposes of dealing with this application. Mr Wilson no longer presses the ground of review concerned with this issue. It is sufficient for present purposes to observe that the ordinary meaning of the term amenity includes 'the quality of being pleasant or agreeable in situation, prospect'.[68] In the context of the Act, the CEO is required to have regard to the protection and enhancement of the amenity of a particular area - being the development control area and Riverpark - when considering the application.
[68] Macquarie Dictionary Online; Johnson v Minister for Planning [2018] WASC 334 [154].

When the final report is considered as a whole, I am satisfied that it reveals that the CEO has had regard to the protection and enhancement of the amenity of the development control area and the Riverpark, in that the final report reveals that the CEO has engaged in an active intellectual process by giving 'active or positive consideration'/'proper, genuine and realistic consideration' to the protection and enhancement of the amenity of the development control area and the Riverpark. In this regard, the report:
(a)outlines and describes the locality of the Tennis Club, being the Jeff Joseph Reserve; the existing infrastructure and operation of the Tennis Club; and details what is proposed with the development;
(b)outlines the details of the lighting proposed and the potential impacts that the lighting could have on the foreshore, river and adjacent residences, being light spill; glare; and the visual impacts (bulk and scale) of the lighting poles themselves;
(c)outlines the requirements of the Australian Standard and other relevant and specified policies in relation to both lighting and noise, and assesses the proposed development as against those standards and policies;
(d)concludes that the applicant has proposed lighting infrastructure that is compliant with the relevant standards, and incorporates mitigation measures such as glare shields, to reduce the potential for glare to surrounding residents, and light spill to the foreshore and river;
(e)observes that the development will result in additional noise in the evenings; outlines the noise assessment that has been provided and details the consideration of that assessment by the relevant agency. The report details the conclusion of that assessment, which is that whilst night noise monitoring cannot take place until the lights are in place, a comprehensive review of the existing acoustic information indicates that the development is unlikely to contravene the Noise Regulations;
(f)identifies the relevant policies and components of the river protection strategy applicable to the question of amenity, including that the river protection strategy encourages the use of the Riverpark to promote active and healthy lifestyles for the community whilst protecting the Riverpark aesthetics;
(g)notes that the proposed development is an intensification of an existing use, and notes it has impacts of increasing light and community noise, which has the potential to impact adjacent residents;
(h)outlines the responses of the agencies consulted in relation to the lighting and noise impacts, and in particular that each considers the development addresses the potential impacts to the environment and amenity, including as to lighting and noise;
(i)considers each of the key impacts of the proposed development, and concludes that the amenity values of the adjacent residents and community will be largely maintained, and the development is compatible with the purpose of the land as a Parks and Recreation reserve;
(j)concludes that the installation of the lighting towers can be managed to mitigate any potential adverse impacts to the vegetated foreshore and river, and adjacent residents. Further, that, on balance, the development provides an opportunity to improve the community benefits and amenity of the Riverpark while managing any significant adverse impacts to the environment and adjacent residents; and
(k)recommends approval, subject to the various conditions identified and discussed in the report.
The fact that the CEO has assessed the lighting and noise impacts of the proposed development against the Australian Standard and the Noise Regulations, is not an indication that the CEO has made a jurisdictional error by failing to have regard to the protection and enhancement of the amenity of the development control area and the Riverpark. In circumstances where the Act does not specify any required method of assessment, the method by which the CEO has chosen to assess the extent of the impact of the lighting and noise on the amenity of the development control area and the Riverpark (and on the adjacent residences), and the weight to be given to that assessment as part of the final report and recommendation, is a matter for the CEO and does not (without more) go to jurisdiction.
I therefore consider that the CEO has asked himself the correct question.

Conclusion

For the above reasons, Mr Wilson's application for judicial review should be dismissed. I will hear further from the parties as to the appropriate orders and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HY
Associate to the Honourable Justice Seaward
31 OCTOBER 2025