Yallingup Residents Association (Inc) v State Administrative Tribunal - [2006] WASC 162

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: YALLINGUP RESIDENTS ASSOCIATION (INC) -v- STATE ADMINISTRATIVE TRIBUNAL & ORS [2006] WASC 162

CORAM: JOHNSON J

HEARD: 2021 JUNE 2005

DELIVERED : 4 AUGUST 2006

FILE NO/S: CIV 1162 of 2005
CIV 1161 of 2005
Matters consolidated by Order dated 23 March 2005

BETWEEN: YALLINGUP RESIDENTS ASSOCIATION (INC)
Applicant
AND
STATE ADMINISTRATIVE TRIBUNAL
First Respondent
SILVERLAND ENTERPRISES PTY LTD
Second Respondent
SHIRE OF BUSSELTON
Third Respondent

Catchwords:

Administrative law Return of order nisi for writ of certiorari Association of ratepayers Refusal to allow plaintiff to be joined to proceedings in the Town Planning Appeal Tribunal to review development application Test to be applied Effect of delay in making application Relevance of obligation to accord natural justice

Originating summons for declaratory relief Declaration that zoning of specified lots under town planning scheme invalid Failure of local authority to consult persons likely to be affected by town planning scheme Failure to bring application in a timely fashion

Legislation:

Associations Incorporation Act 1987 (WA)
Conservation and Land Management Act 1984 (WA)
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Protection Act 1986 (WA)
Interpretation Act 1984 (WA)
Interpretation Act 1987 (NSW)
Royal Commissions Act 1968 (WA)
State Administrative Tribunal Act 2004 (WA)
Town Planning and Development Act 1928 (WA)
Town Planning Appeal Tribunal Rules 2003 (WA)

Town Planning Regulations 1967 (WA)

Result:

Originating summons dismissed
Order nisi for writ of certiorari discharged

Category: B

Representation:

Counsel:

Applicant:     Mr P G Clifford
First Respondent           :     No appearance
Second Respondent       :     Mr C G Colvin SC & Mr M J Hardy
Third Respondent         :     Mr L A Tsaknis

Solicitors:

Applicant:     Alan Rumsley
First Respondent           :     No appearance
Second Respondent       :     Hardy Bowen
Third Respondent         :     Watts & Woodhouse

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

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Andrews v Howell (1941) 65 CLR 255
Annetts v McCann (1990) 170 CLR 596
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney‑General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd & Ors [1977] 2 NSWLR 955
Attorney-General v J N Perry Constructions (1961) 6 LGRA 385
Bonton Pty Ltd v City of South Perth (1981) 4 APA 8
Buck v Bavone (1976) 135 CLR 110
Cabal & Ors v Attorney-General of the Commonwealth (2001) 113 FCR 154
Darling Casino Ltd v Minister for Planning [1995] NSWLEC 62
Dunkley v Evans [1981] WLR 1522
Ex parte Helena Valley/Boya Association (Inc) & Ors v State Planning Commission & Beggs (1990) 2 WAR 422
Gudgeon v Black, Ex parte Gudgeon (1994) 14 WAR 158
Hamilton v Minister for Immigration, Local Government & Ethnic Affairs (1993) 48 FCR 20
Harding & Reading v Shire of Chittering & Ors [2003] WATPAT 147
Harrington v Lowe (1996) 190 CLR 311
Homestyle Pty Ltd v City of Belmont & Anor [1999] WASCA 59
Ibbotson v Chaney, unreported; SCt of WA; Library No 980278; 22 May 1998
JN Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432
John Cooke & Co Pty Ltd & Anor v The Commonwealth & Ors; Field & Ors v The Central Wool Committee & Ors (1922) 31 CLR 394
Kintyre Holdings Pty Ltd v Shire of Busselton [2003] WATPAT 67
Kioa v West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Mount Barker Properties Ltd v District Council of Mount Barker (2001) 80 SASR 449
Murcia Holdings Pty Ltd v City of Nedlands (1999) 22 WAR 1
Olsen v City of Camberwell [1926] VLR 58
Ousley v The Queen (1997) 192 CLR 69
Parker v Churchill (1986) 9 FCR 334
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Peters v Attorney General for NSW (1988) 16 NSWLR 24
Port Louis Corporation v Attorney‑General of Mauritius [1965] AC 1111
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Connell; ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
R v The Commonwealth Court of Conciliation & Arbitration; Ex parte Whybrow & Co & Ors (1910) 11 CLR 1
Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen (1999) 21 WAR 158
Re Smith; Ex parte Rundell (1991) 5 WAR 295
Rollo & Anor v Minister of Town and Country Planning [1948] 1 All ER 13
S v Legal Practice Board of Western Australia (2004) 29 WAR 173
Scurr v Brisbane City Council (1973) 133 CLR 242
Selby v Pennings (1998) 19 WAR 520
Shire of Augusta‑Margaret River v Gray & Anor [2005] WASCA 227
Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 140
Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 165
Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 166
Silverland Pty Ltd v Shire of Busselton [2004] WATPAT 139
Tasker v Fullwood [1978] 1 NSWLR 20
The State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146
Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459
TVW Enterprises Ltd v Duffy & Ors (No 2) (1985) 7 FCR 172
Vanmeld Pty Ltd v Fairfield City Council & Anor (1999) 46 NSWLR 78

Case(s) also cited:

YuTing Liu v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 1058

JOHNSON J: On 11 February 2005 the applicant, the Yallingup Residents Association (Inc) ("the Association") commenced, by originating motion, an application for an order nisi for a writ of certiorari. The writ of certiorari was to be directed to the Town Planning Appeals Tribunal ("the Tribunal") to quash the Tribunal's decision made on 23 September 2004 to uphold Appeal No 47 of 2004 subject to conditions. The grounds for the application were as follows:
"(1)The respondent failed to take account of a relevant consideration being the invalidity of the zoning of the subject land; and
(2)The respondent failed to take account of relevant considerations being the evidence the applicant sought to tender in the appeal; and
(3)The respondents failed to take account of relevant considerations being the submissions the applicant sought to make in the appeal."
A further application was filed on the same day although its terms were later amended. That application was brought by originating summons against the Shire of Busselton ("the Shire") as first defendant and Silverland Enterprises Pty Ltd ("Silverland") as second defendant and sought a declaratory judgment in the following terms:
"1.the purported zoning of lot 800 and lot 801 on Deposited Plan 36341 and Sussex Location 269 (the 'Land') as 'Tourist' for the purposes of the Town Planning and Development Act 1928 (the 'Act') is invalid; and
2.the correct zoning of the Land, for the purposes of the Act, is 'Group Dwelling'."
At the hearing, counsel for the Association advised the Court that it was no longer seeking the declaration in par 2 of the originating summons.
The application for the order nisi was made ex parte and heard by Master Sanderson on 23 February 2005. The order nisi was granted, returnable before the Full Court. However, at a later time, the Association agreed to the matter being heard by a single Judge. On 1 March 2005, the State Administrative Tribunal ("SAT") wrote to the Court noting that the Tribunal as a body no longer existed and that SAT should be the proper respondent. The letter further conveyed to the Court that it submits to the jurisdiction of the Supreme Court and agrees to abide by any order that may be made, except as to costs.
On a further hearing on 2 March 2005, the Shire and Silverland appeared by counsel. On that occasion orders were made to join Silverland as a party to the application for a writ of certiorari and to change the name of the respondent from the Tribunal to SAT.
At a status conference before Registrar Boyle on 23 March 2005, orders were made to consolidate the two actions and to join the Shire as a party to the application for a writ of certiorari and to designate the Shire as the third respondent. The result is that SAT, Silverland and the Shire, are respectively the first, second and third respondents to both applications which have been consolidated.
For ease of reference, I shall refer to the relevant town planning review body, both then and now, as "the Tribunal". Further, in view of the significant legislative changes arising from the creation of SAT, any reference to the Town Planning and Development Act 1928 (WA), ("TPD Act"), will be a reference to the TPD Act at the time of Silverland's Appeal No 47 of 2004.

1. The application to amend

At the hearing of the application for declaratory judgment on 20 May 2005 an application to amend the application was made. The application for declaratory relief, as it was originally filed by the Association, identified only the zoning of Lots 800 and 801 as attracting a declaration of invalidity. At the hearing the Association made an application to amend the originating motion to include Lots 2, 3, 5 and 24. According to the counsel for the Association, notice was given to Silverland's solicitors on 23 March 2005 of the intention to add additional lots, although, as I understand it, the lot numbers were not specified. The first clear indication of the scope of the amendment occurred when the respondent parties were provided on 9 June 2005 with a copy of the papers for the Judge which contained the amendment.
In support of the application to amend, it is said that, in the Tribunal, the case was expressed to relate to "the owners of land to be rezoned or persons likely to be affected". On that basis, the parties have since that time been aware that the interests of the Association extended beyond Lots 800 and 801. That argument would have greater validity if the subject matter of the application in this Court must necessarily be identical to the subject matter in the Tribunal. However, applications of this type may be narrowed to address only aspects of the action with respect to which declaratory relief is sought. In my view, it is not obviously the case that the respondent parties must have been aware that the application for declaratory relief related to all lots in the Yallingup area affected by Town Planning Scheme No 20 ("TPS 20"), rather than simply Lots 800 and 801, as expressly stated in the originating motion. Further, whilst it may have been apparent that the Association's interest extends beyond Lots 800 and 801, the matter before the Tribunal related to a development application with respect only to those lots.
The Court was also referred by counsel for the Association to the following correspondence from adjoining landowners:
(a)Letter from the owners of Lot 32 (37 Elsegood Ave):
The owners identified themselves as "adjoining landowners to blocks Lots 1, 2, 3, 4 and 22 Elsegood Avenue". They objected to the fact that they were not consulted regarding the rezoning. They state that they "are also aware of the disgraceful situation regarding the fact that the landowners themselves were not consulted regarding the rezoning of their own properties".
(b)Letter from the owner of Lot 68 (25 Elsegood Ave):
The owner identified himself as an adjoining landowner. He expressed his amazement that the change in zoning had occurred "without reference or consultation with ratepayers in general and adjoining landowners in particular".
(c)Letter from the owners of (31 Elsegood Ave):
The owners identified themselves as landowners adjacent to Lot 24 Elsegood Avenue. They express their concern that they were not consulted during the rezoning process and were not informed of the rezoning.
It was submitted that this material constituted the state of the evidence, as at the time of the Tribunal application, from residents and owners of land allegedly affected by the change of zoning caused by TPS 20. The other material related to submissions on the impact of the change in zoning. According to counsel for the Association, there had never been any direct evidence from the owners of the rezoned land or the owners of the lots that the Association now proposes to incorporate into its application. It is unclear to me how this submission advances the Association's argument on an application to amend the originating motion. Counsel referred the Court to s 51(1)(c) of the TPD Act which states that the Tribunal is not bound by the rules of evidence and submitted that this evidence would be sufficient for the Tribunal's purposes. In my view, that submission misses the point. It may well be the case that the Tribunal was prepared to rely on this evidence in considering the review before it and that, in reviewing a decision of the Tribunal, this Court must also take into account that evidence of this type is admissible in the Tribunal. However, an application for declaratory judgment is not a part of the processes in the Tribunal. Nor does s 51(1)(c) of the TPD Act apply to an action in this Court, even where the action is derived from a proceeding in the Tribunal.
Senior counsel for Silverland opposed the application to amend on the basis that it was moved only at the commencement of the hearing when it could have been moved at an earlier time. The chronology of interlocutory applications and appearances set out at the commencement of this judgment, which is not exhaustive, makes it clear that there were a number of opportunities to deal with this issue. It was also submitted that no explanation has been given for leaving the application until the last minute. I accept that to be the case.
Further, senior counsel for Silverland emphasised that the action before the Court is an application for declaratory relief which requires the Court to make a decision as to the appropriate zoning of the land referred to in the declaration. Although the application was varied at trial to require only a declaration of invalidity of the zoning of "Tourist", senior counsel's proposition remains valid. If the Association's application for declaratory relief is successful, there will be consequences for the landowners who have not been joined as parties to the proceeding and hence have not had the opportunity to be heard on the issue. On that basis, it is said that the absence of the owners of the relevant lots is fatal to the application.
It is well established that a person ought to be joined as a party to an action if any order which might be made in the proceedings would affect that person's rights. The effect of the rule is to prevent an adjudication of the action being made without giving that person an opportunity of being heard: see O 18 r 6; Homestyle Pty Ltd v City of Belmont & Anor [1999] WASCA 59 (at 9) per Templeman J, with whom Malcolm CJ and Owen J agreed, citing Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, (at 55 – 56). Of course, as senior counsel noted, that proposition applies to the exercise of the Court's discretion whether to grant the application for declaratory relief, irrespective of whether the amendment is allowed. In this context, senior counsel noted that, on an application for a declaration of invalidity based on a failure to consult both the owners of land affected by zoning changes under TPS 20 and adjoining landowners, the failure to join the relevant landowners as parties deprives the respondents of the benefits of the discovery of documents going directly to the issue of consultation. I accept that this is a significant factor. Senior counsel acknowledged that the issue of liability for costs may affect a landowner's willingness to be involved as a party in a legal action. However, it was submitted, and I accept, that this does not detract from the accuracy of the proposition on which he relies. Indeed, it appears that no attempt has been made to overcome this impediment by providing the Court with information in an appropriate form to the effect that those persons whose interests may be affected do not wish to be heard or have properly bound themselves to the outcome of the action. No real attempt has been made to explain the lack of participation in this action of those persons who will inevitably be affected by the relief sought.
The Association maintains that it has sufficient standing to seek the declaratory relief so there is no need to join the owners as parties. It is said that the owners of the properties have sworn affidavits in support of the Association's applications. The first response which can be made is that the Association's standing is not relevant to the issue of whether other persons who may be affected by the outcome should be joined. The standing of the Association would only be relevant if the Association were acting on behalf of all landowners affected by the scheme. Despite the assertion that "the owners of the properties have sworn affidavits in support", a perusal of the affidavits filed in both actions indicate that, while the owners of three of the four lots sought to be included in the claim (referred to in the affidavits as the "Elsegood Avenue Land") have filed affidavits, the owners of the remaining three of the seven residential lots subject to a zoning change do not appear to have filed an affidavit. Therefore, the response of the Association is only partly accurate. However, because the residential lots are not numbered on the TPS 20 scheme map it is somewhat difficult to ascertain the lots to which the various deponents refer. The conclusion I have drawn, based on my understanding of the relevant material, is that none of the deponents who assert that they own land overlooking either the Surfside lots or the Elsegood Avenue lots are the owners of the three residential lots not specifically referred to as being owned by other deponents.
I also have some reservations about whether the Association does indeed have standing for an application of this type; that is, an application seeking a declaration of invalidity of the zoning applying to certain land.
Senior counsel for Silverland also noted that the late inclusion of the additional lots in the application deprives Silverland of the opportunity to address issues such as whether the owners of those lots and the owners of adjoining lots were aware of the scheme change, whether they were in fact consulted, and whether any complaint was made or action taken about any failure to advise or consult.
These are the matters of prejudice on which Silverland relied. With respect to the final point, Silverland was given an opportunity to apply to adjourn the hearing but declined to make such an application at that time whilst reserving the right to do so at a later point. Ultimately, no such application was made.
On the second day of the hearing, counsel for the Association provided the Court with a copy of a letter from Silverland's solicitors which confirmed their client's consent to the amendments, without the necessity of a formal application for leave. Senior counsel for Silverland had not been made aware of the letter but when it was drawn to his attention he properly withdrew the objection to the amendment.
However, the Shire's objection was maintained. The Shire objected on a number of grounds to leave being granted to amend the originating motion. The fact that the owners of Lots 2, 3, 5 and 24 are not parties to the action, and that those lots are not connected with Lots 800 and 801, was relied upon by the Shire in opposition to the application to amend. It was further disputed that Lots 2, 3, 5 and 24 were in issue or relevant to the proceedings before the Tribunal. As I have noted, it is the case that the matter before the Tribunal was a development application with respect to Lots 800 and 801 only. Although the impact on the amenity of the adjoining land may be a relevant factor in considering a development application, as I understand the thrust of the Shire's proposition, the fact remains that there was no necessity to address the ownership of Lots 2, 3, 5 and 24, or any consultation by the Shire with the owners of those lots, when responding to the application in the Tribunal.

The particulars relied on by the applicant for the purposes of the present application are set out in a letter from the Association's solicitors to the solicitors for the Shire dated 26 April 2005. The letter states:
"In relation to your request for particulars relied upon in relation to the assertion that the zoning of the Land as Tourist is invalid, in the originating process in both actions; I refer you to the affidavits of Graham John Greig sworn 2 February 2005, filed in each action.
The relevant particulars are contained at pages 27 to 32 of both affidavits (paragraphs 18 to 47) and summarised in a schedule at page 49 of both affidavits.
The relevant pages of the affidavits annex documents that were provided to Counsel for your client on 8 July 2004, prior to your firm receiving instructions."
The papers referred to in this letter as satisfying the request for particulars with respect to the two actions before me, were the papers relied upon by the Association in the Tribunal and were filed in the Tribunal on 22 July 2004. The response to the request for particulars would not have necessitated any investigations about the additional lots.
As counsel for the Shire pointed out, the originating summons for declaratory relief was filed on 11 February 2005 and the application to amend was not made until the commencement of trial on 8 June 2005. It is self‑evident that there was ample time to make the application to amend in circumstances where no prejudice would ensue. However, the first notice given to the Shire was when a copy of the originating summons, including the proposed amendment, was included in the papers for the Judge served on the Shire's solicitors on 8 June 2005.
The Shire also relied on the prejudice it would suffer if the amendment were allowed. The consequence which is said to prejudice the Shire is that it has not filed any affidavit material relating to Lots 2, 3, 5 and 24. The prejudice is compounded by the Association's reliance on this omission in support of its proposition that the Shire does not contest that the owners of these lots were not consulted. Yet, despite being given the opportunity to seek an amendment, an application of that type was not made. I do not consider the failure by the Shire to seek an amendment to be a concession that no prejudice arose, merely that such prejudice did not sufficiently outweigh the benefit of the matter being heard on the dates for which it was listed. In particular, I accept the proposition that the absence of information about the lots sought to be added by amendment cannot be taken as a basis for concluding that no relevant information exists nor can it operate as support for the position taken by the Association. The matter was left on the basis that, if it was considered that the prejudice arising had become insurmountable, the issue could be revisited.
The Association refutes the proposition that the Shire has suffered prejudice by the amendment, principally because of the number of occasions on which the inclusion of the residential lots was brought to the Shire's attention. Emphasis is placed on the provision of a copy of the amended originating summons on 23 March 2005 and on the fact that on 1 April 2005 the Shire's solicitors were informed that the Association's instructions remain to amend the claim as set out in the amended originating summons. In the same letter, the Shire was also advised that additional affidavits were currently being drafted which would include the factual basis for the amendment. The further affidavits which deposed to the lack of notice of the proposed zoning change of all the townsite lots were served on the Shire in April 2005. On 15 April 2005 the Shire's solicitors wrote to the Association's solicitors and referred to the letter of 1 April 2005 without objection to the proposed amendment and requested additional amendments to be made to the originating summons to include the particulars relied upon.
I accept that the Shire was put on notice of the Association's intention to apply to amend the originating summons. However, that is not a complete answer to the objection made by the Shire. Even where a party is put on notice, it is not until the application is made and granted that the obligation to deal with the amendment arises. It is the timing of the application which is the key factor. The fact that the application was not made until the morning of the hearing is also relevant to the proposition put on behalf of the Association that leave is not required as the amendment could be amended once without leave in any event. Order 21 r 3(1) provides that a party may, without leave of the Court, amend any pleading once at any time before pleadings are deemed to be closed. Order 21 r 4(1) allows any party, within 14 days after service on a party of a pleading amended under r 3 to apply to the Court to disallow the amendment. It is clear that the right to amend without leave does not apply when the amendment is made on the morning of the hearing.
In The State ofQueensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 the High Court addressed the issue of the approach to be taken to applications to amend pleadings in the context of case management principles. In that case, the defendants sought to amend the defence by making application at a time which was likely to result in the vacation of the trial date. The application was made at that late stage despite a number of interlocutory hearings and several prior amendments to the defence. Dawson, Gaudron and McHugh JJ concluded (at 155) that, save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Their Honours added (at 155):
"Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties."
In this case, the principles of case management were not averted to but, as I have indicated, allowing the amendment carried with it a risk that the commencement of the trial, or the trial itself, would be delayed. On that basis, the statement of principle referred to above made by the High Court in The State ofQueensland & Anor v JL Holdings Pty Ltd (see also Kirby J (at 167 – 168)) is apposite. The amendment sought raises no new legal issue for the defendants to meet and requires only some additional evidence with respect to whether there was consultation with the owners of the additional lots. In my view, the amendment has the benefit of bringing within the declaration sought a majority of the lots in the Yallingup townsite affected by a change in zoning under TPS 20.
Despite the lateness of the application, I consider that the amendment should be allowed. The prejudice to the Shire arising from the absence of evidence with respect to the additional lots could be overcome by the grant of an adjournment and an award of costs. As things transpired, neither defending parties sought the adjournment offered to them. On that basis I would grant leave to amend without further order although I will allow the parties to make submissions as to costs of the amendment application.

2. Background

The applications broadly relate to an area of land in the Yallingup townsite affected by a change of zoning to "Tourist" brought into effect on the promulgation of TPS 20. TPS 20 dealt with the Shire as a whole: Silverland Pty Ltd v Shire of Busselton [2004] WATPAT 139 (at 24 [44]). It was approved by the relevant Minister on 11 August 1999 and published in the Government Gazette of 7 September 1999. With respect to the Yallingup townsite, TPS 20 related to a small, although significant, area. There was no change in zoning with respect to the bulk of the lots in the townsite.
The lots in the townsite affected by the scheme ("the townsite lots") can be divided into two groups:
(a)A wedge shaped area of land to the north of the intersection between Valley Road and Dawson Drive and adjoining the Yallingup Beach foreshore.
The area originally comprised one lot (Lot 105) but was subsequently subdivided into two lots (Lots 800 and 801). The combined area of Lots 800 and 801 is 6880 square metres of which, prior to Silverland's application to redevelop the area, a portion was occupied by a restaurant and a retail outlet with associated residential quarters. The area is commonly referred to as "Surfside" arising from the name of the commercial premises which previously operated there. I will hereafter refer to the area as (the "Surfside lots"). Under the previous Shire of Busselton Town Planning Scheme, No 5, ("TPS 5"), the two original lots, moving from east to west, were respectively zoned "shopping" and "short‑stay residential" and were each marked with an "A".
(b)Another wedge shaped area to the south of the intersection of Dawson Drive and Elsegood Avenue.
The area comprises seven lots and is bisected by a pathway. Five of the lots are to the north of the pathway and two lots abut the pathway from the south. The lots are delineated on Town Planning Scheme Map No 20 of 20 but are not numbered. Under TPS 5 the seven lots were zoned "single residential". For convenience I will refer to these lots as ("the residential lots").
The Association was incorporated under the Associations Incorporation Act 1987 (WA) in 1991 for the purpose of providing members of the Yallingup community with representation in relation to a proposed development on the Surfside lots. The Association represents the interests of its 129 financial members who are ratepayers and residents of the Yallingup townsite, including some members who have properties near and adjacent to the relevant land. The membership of the Association represents approximately 65 per cent of the owners of land in Town Planning Scheme Map No 20 of 20.
In 2001 Kintyre Holdings Pty Ltd ("Kintyre") applied to the Shire for development approval to build 14 stand‑alone units on the Surfside lots ("the Kintyre application"). The application was refused by the Shire in December 2001 and a review by the Tribunal found against the applicant: Kintyre Holdings Pty Ltd v Shire of Busselton [2003] WATPAT 67. The basis upon which the appeal was dismissed was that the method of construction of the development, rather than the fact or type of development, did not enable the Tribunal to determine that the proposed development would not cause erosion of the primary dune: (at [40]). No other aspect of the proposed development would have justified refusing development approval: (at [24], [32], [34]). The concern for the stability of the primary dune arose from the fact that, on the evidence, the development proposal involved major destruction of dense remnant vegetation that had a stabilising effect on the dune. It was considered that the evidence adduced on behalf of the appellant placed insufficient emphasis on the ameliorating effects of proposed alternatives methods of development. Further, as is evident from the following comment, the Tribunal clearly considered that this issue should be capable of resolution between the parties (at [41]):
"The Tribunal is of the view that this site is clearly marked for development and therefore the matter should not hopefully come before the Tribunal again. What is necessary is that a new proposal be put forward to consolidate the development away from the primary dune supported by a clear plan for construction and subsequent stabilisation … This area should be developed but in a manner than can with certainty protect the foreshore dune system."
On 26 September 2003, Silverland lodged another application for approval to commence development on the Surfside lots ("the Silverland application"). The Silverland application was made to the Shire under TPS 20 which had rezoned the Surfside lots to "Tourist". The proposed development was for 19 tourist accommodation units, three commercial tenancies and one restaurant. Eleven of the units were stand‑alone two storey buildings fronting Dawson Avenue and an internal road. The remaining units were in a two storey building along the Valley Road frontage that also included non‑tourist accommodation uses. The roads were on the east and south boundaries. The remaining boundaries were adjacent to a reserve containing the primary dune at Yallingup beach which extends into the western edge of the Surfside lots. It can be seen that this proposed development included five more units than in the previous application with respect to the land, although the positioning of the units on the site differed. Under the Silverland application there would be three fewer stand‑alone two storey units fronting Dawson Drive.
The Association, through its members, lodged objections to the proposed development consistent with the members' proprietary interests in the land in the Yallingup townsite. There is no indication of whether, or to what extent, those objections were considered because the Shire failed to make a decision on the application within the 90 days provided for in cl 15(2) of TPS 20. Under TPS 20 the failure by the Shire to decide the application within that time was deemed to be a refusal of the application. As a result, Silverland appealed to the Tribunal from the deemed refusal by the Shire of its development application.
The Association instructed counsel to appear at the hearing of the appeal in the Tribunal. The instructions to counsel were to make submissions and tender evidence on behalf of the Association.
The hearing before the Tribunal took place on 8 July 2004 and 9 July 2004. At the commencement of the hearing on 8 July 2004, counsel for the Association appeared and sought to hand up written submissions and evidence on behalf of the Association. The Tribunal, constituted by a single member, refused the application to make submissions and tender evidence on the basis that the Association did not have a sufficient interest in the subject matter of the appeal. The hearing proceeded and heard evidence from six witnesses, five called on behalf of Silverland and one called on behalf of the Shire. The witnesses called by Silverland comprised a forestry consultant in bush fire management, a planner, a botanist, a coastal scientist and an environmental management consultant. The Shire's witness was a planner. The evidence of each of Silverland's witnesses was tested under cross‑examination by counsel for the Shire.
The Association applied to the President of the Tribunal for a review of that decision. McGowan P dismissed the application on the basis that the Association was not a party to the proceedings, or an applicant to be a party to the proceedings and therefore had no right to apply for a review. However, the Tribunal observed that it remained open to the Association to make application for joinder because the decision in the matter had not yet been delivered and there were no time limit constraints in the TPD Act, rules or regulations limiting the time within which to make such an application: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 140 (at 8).
On 28 July 2004 the Association applied to be joined as a party to the Silverland application. In support of the application, counsel identified the material sought to be adduced on behalf of the Association if joinder were granted. In due course I will refer to the content of that material in more detail but for the moment it is sufficient to state that the material incorporated written submissions prepared by counsel, evidence from the then President of the Association, Mr Ron Edwards, and an environmental report from Dr Darren Brearley from Onshore Environmental Consultants.
On 4 August 2004, the Tribunal refused the application on the basis that it was not necessary to hear the further evidence in order to deal with the matter the subject of the appeal. In reaching that conclusion the member referred to the following factors:
(a)The issues raised in the submission of Dr Brearley had already been put to the Tribunal to some extent by the witnesses called by Silverland and they had been cross‑examined on that evidence.
(b)Counsel for the Association, having been refused leave to appear to make submissions and tender evidence, sat in the gallery of the hearing room and watched the remainder of the proceedings. The Association then formed the view that it was dissatisfied with the way in which the Shire approached the appeal and the course taken in examining the evidence.
On 17 September 2004, the President of the Tribunal dismissed the Association's application for a review of the refusal of its joinder application. The President found that the relevant test for joinder set out in Harding & Reading v Shire of Chittering & Ors [2003] WATPAT 147 had been correctly applied. The President also commented that the member was in a unique position to apply the test having had the benefit of the whole of the evidence advanced by Silverland and the testing of that evidence by the Shire, both by calling evidence and in pursuing matters in cross‑examination. As to the argument based on the invalidity of TPS 20, the President concluded that the disposition of that issue would involve making a declaration, something the Tribunal did not have power to do: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 165 (at [6], [7], [10]).
On 23 September 2004 the Tribunal handed down its decision on Silverland's application, allowing Silverland's appeal, subject to conditions: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 166.
It is said on behalf of the Association that the Tribunal's refusal to hear the Association or to join it as a party results in two substantive injuries. Firstly, the Tribunal has approved a development on an invalidly zoned lot without hearing evidence or argument on the point. Secondly, the Tribunal has approved a development on that invalidly zoned lot without hearing evidence or argument from residents concerning an inappropriate development improperly affecting the amenity of the townsite and the coastal dune system.
It can be seen that the grounds of the order nisi can be reduced to two primary issues: First, the validity of the zoning of the lots the subject of the application and secondly, the refusal of the application to be joined as a party. Although the Shire has been joined as a party in both actions, its interest in the appeal is primarily confined to the Association's assertion of invalidity of the Shire's TPS 20.

3. Evidence

Before dealing with the two issues to which I have referred, it is necessary to identify the information on which the Association relied in the Tribunal, any additional information filed in support of the originating motion and the originating summons and other documentation included in the papers for the Judge setting out the factual material relevant to these actions.
The affidavit of Graham John Greig, President of the Association, dated 2 February 2005 and filed in support of the originating motion attaches a copy of the Association's documents in support of the application for review by the President. They are:
(a)Affidavit of Ronald Edward sworn 22 July 2004 and filed in the Tribunal in support of the application for review by the President ("the Edwards affidavit").
(b)Written submission of Yallingup Residents Association prepared by counsel and part of attachment "A" to the Edwards affidavit ("counsel's submissions").
(c)"Submission to the Town Planning Appeals Tribunal re Development Proposal: Lot 105 Dawson Drive/Valley Road, Yallingup" by Mr Ron Edwards, President, Yallingup Residents Association being attachment 1 to counsel's submissions.
(d)"Submission to the Town Planning Appeals Tribunal – Lots 800 and 801 Valley Road, Yallingup – 'Surfside'" by Dr Darren Brearley being attachment 2 to counsel's submissions.
(e)Schedule 1 purporting to set out the steps required under the TPD Act and the Town Planning Regulations 1967 (WA) ("the Regulations") to implement or substantially alter a town planning scheme being attachment 3 to counsel's submissions.
(f)Two letters to the Shire of Busselton and one to Mr and Mrs R Brearley from landowners in Elsegood Ave, Yallingup being attachment 4 and including:
(i)Letter to the Shire from James and Amanda Farrell of 37 (Lot 32) Elsegood Avenue, an owner of land adjoining Lots 1, 2, 3, 4 and 22 Elsegood Avenue, complaining that they were not consulted regarding the rezoning of the adjoining lots.
(ii)Letter to the Shire from Daniel Smetana of 25 Elsegood Avenue, an owner of land adjoining Lots 2 and 3 Elsegood Avenue, complaining of not being consulted about the zoning change to the adjoining land.
(iii)Letter to Mr and Mrs Brearley from Geoff and Lynne Hewitt of 31 Elsegood Avenue, advising that they have never been notified of the rezoning of the five lots belonging to Mr and Mrs Brearley and objecting to the rezoning.
(g)Letter to the Shire from Mr Ron Edwards, President, Yallingup Residents Association dated 26 November 2003 with respect to the proposed development of the Surfside lots.
The affidavit of Graham John Greig sworn 2 February 2005 filed in support of the originating summons is in substantially the same terms.

A number of affidavits have also been included in the papers for the Judge. They relate to the state of knowledge of certain landowners that TPS 5 was to be repealed and replaced with TPS 20 and that the effect would be to change the zoning of certain lots in the Yallingup area to tourist. In each case, the deponent states that he or she was not advised prior to the rezoning of his or her own lot or the townsite lots that TPS 5 was to be repealed and replaced. There were no signs displayed or any public notices anywhere in the townsite in relation to the purported rezoning. None of the deponents were aware of any notice published in the press and each maintains that they would have objected to the change in zoning if they had become aware. The following is a list of the deponents and the position of their property with respect to townsite lots.
(a)Affidavit of Don Hanran‑Smith sworn 31 March 2005.
Mr Hanran‑Smith and his wife own Lot 5 Elsegood Avenue. The property is adjacent to and overlooks the Surfside lots and is one of the four lots in Elsegood Avenue.
(b)Affidavit of Daniel Smetana sworn 6 April 2005.
Together with Anthony John McCartney, Mr Smetana owns Lot 68 Elsegood Avenue which is adjacent to and overlooking the Surfside lots and the residential lots.
(c)Affidavit of Russell Brearley sworn 6 April 2005.
Mr Brearley and his wife Carroll are the owners of five lots on Elsegood Avenue including Lots 2, 3, and 24. Their property is adjacent to and overlooks the Surfside lots and also includes three of the four lots in the Elsegood Ave land.
(d)Affidavit of Ronald Edwards dated 6 April 2005.
Mr Edwards is the immediate past President of the Association. His property in Yallingup overlooks the Surfside lots and the residential lots.
(e)Affidavit of Ronald Warren Woss sworn 6 April 2005.
Mr Woss's property overlooks the Surfside lots and residential lots.
(f)Affidavit of Graham John Greig sworn 6 April 2005.
Mr Greig deposes to the fact that his property at 56 Wardenup Crescent, Yallingup, overlooks the Surfside lots and residential lots.
(g)Affidavit of Geoffrey Hewitt sworn 6 April 2005.
Mr Hewitt and his wife are the owners of 31 Elsegood Avenue, Yallingup. Their property overlooks the Surfside lots and the residential lots.
(h)Affidavit of Pamela Greig sworn 6 April 2005.
Ms Greig's property overlooks the Surfside lots and residential lots.
(i)Affidavit of Andrea Denise Williams sworn 7 April 2005.
Ms Williams' property overlooks the Surfside lots and residential lots.
(j)Affidavit of James Farrell sworn 9 April 2006.
Mr Farrell and his wife are owners of Lot 32 Elsegood Avenue which is land adjacent to and overlooking the Surfside lots.
(k)Affidavit of John William Price sworn 14 April 2005.
Mr Price states that he resides in Yallingup but does not give a specific address. His property does not overlook either the Surfside lots or the residential lots.
The affidavit of Nigel Edward Bancroft sworn on 12 May 2005 was filed on behalf of the Shire. Mr Bancroft was employed by the Shire from 1994 to June 1999 in the positions, firstly, of Manager Strategic Planning and, secondly, of Director of Planning. He then ceased employment but later recommenced employment in December 2004. Mr Bancroft deposes to the following chronology of events including and commencing with the decision of the Shire to prepare a district planning scheme:
(a)On 25 November 1992, at its ordinary Council meeting, the Council resolved to prepare a new district town planning scheme ("draft scheme") in relation to an area which was delineated on a scheme area map and included the Yallingup area.
(b)On 15 January 1993 notice of the Council's resolution was published in the Government Gazette.
(c)On 21 September 1993 the Shire wrote to various statutory bodies and agencies giving notice of the preparation of the draft scheme.
(d)On 12 June 1997 the Minister for Planning gave consent for the draft scheme to be advertised for public inspection.
(e)On 2 July 1997 the WA Planning Commission ("WAPC") advised the Shire of the Minister's consent.
(f)On 4 July 1997 notice that the draft scheme was available for inspection and inviting submissions was published in the Government Gazette.
(g)On 4 July 1997 the Shire wrote a letter to various statutory bodies and other persons as appeared to the Shire to be likely to be affected by the draft scheme giving notice that the draft scheme was available for inspection and inviting submissions.
(h)On 7 July 1997 the Shire wrote to various persons giving notice that the draft scheme was available for inspection and that submissions could be made.
(i)On 9 July 1997 the Shire gave notice in the Busselton Dunsborough Mail newspaper that the draft scheme was available for inspection.
(j)Mr Bancroft prepared a one and a half page note to a member of the Shire's staff which included numerous instructions. The note, which is annexed to the affidavit, is undated but includes as a postscript the words "Copy to Library ‑ Notice Board and Alison". According to Mr Bancroft, the postscript was an instruction for the notice of the draft scheme to be placed on the main notice board of the Shire's offices and the Shire's library and for a copy of the draft scheme documents to be given to the receptionist. Mr Bancroft states that this was in accordance with the Shire's practice at the time. The copy of the draft scheme documents was provided to the receptionist in order to be made available for public inspection and perusal at the front counter.
Mr Bancroft states that he has no reason to conclude otherwise than that his instruction and these practices were complied with. However, it is clearly the case that he is unable to depose to any recollection of these instructions being carried out.
(k)Submissions were received as late as 16 October 1997 and were considered by Council.
(l)On or about 17 December 1997, the Shire wrote to all persons who made submissions acknowledging receipt, inviting them to attend a briefing session and advising whether the submission was rejected, or accepted with the draft scheme being modified accordingly. The mailing list is not annexed to the affidavit.
(m)On 19 August 1999 the WAPC wrote to the Shire advising that the Minister had granted final approval of the new scheme on 11 August 1999.
(n)On 7 September 1999 notice of the Minister's final approval of the new scheme was published in the Government Gazette.
(o)On 23 September 1999 notice of the Minister's approval of the new scheme was advertised in the Busselton‑Margaret Times newspaper.
The letter of 4 July 1997, said to be written to statutory bodies and "other persons as appeared to the Shire to be likely to be affected by the proposed scheme", was in fact only sent to various government organisations and departments. The letter of 7 July 1997 was sent to various community associations and groups. With respect to the Yallingup area, the letter was sent to the Yallingup Residents Association, the Yallingup Progress Association and Yallingup LCDC. It would appear that letters were sent to the owners of the land affected by the scheme in Yallingup or elsewhere. Further, the letter to these associations and groups did not contain any request that the information be passed on to any affected landowners in their area. The letter of 17 December 1997 is said to have been written to those who provided submissions on the draft scheme. However, the names of those who were sent such a letter are not included in Mr Bancroft's affidavit.
It can be seen from the summary of the Shire's actions, as set out in the affidavit of Mr Bancroft, that an individual landowner would only have become aware of the proposed zoning changes if he or she had attended the Shire office or the Shire library, had read the Government Gazette on 4 July 1997 or the Council Notices in the Busselton Dunsborough Mail on 9 July 1997, or was a member of one of the local associations, providing that the Association advised each of its members as a result of the Shire's letter.
The affidavit of Michael Swift was filed on behalf of Silverland. At the time the affidavit was sworn on 18 May 2005, Mr Swift was a director of a firm which was commissioned by Silverland to oversee and coordinate the design and approval tasks associated with the development of the Surfside lots. However, between 1992 and 1997 Mr Swift was employed by the Shire as its Principal Planner and from 1997 to 2002 as its Chief Executive Officer. The chronology of relevant events given by Mr Swift does not conflict with that provided by Mr Bancroft. However, it is a more detailed chronology and makes reference to additional occasions on which the draft scheme was advertised and other circumstances in which the draft scheme was placed in the public arena.
With one exception (the letter of 7 July 1997), the following list is of the additional matters set out in the chronology of Mr Swift:
(a)On 7 December 1992 the Shire advised the Department of Planning and Urban Development ("DPUD") that preparation of the draft scheme was almost complete and sought DPUD's agreement for the Shire to conduct a two stage consultation process whereby the draft scheme would be exhibited for inspection and comment by all relevant parties and thereafter a revised draft, based on such comments, would be prepared that would proceed through the formal processes.
The wide scope of the consultation proposed and its purpose is set out in the following extract from the letter:
"It is proposed, instead, to open up the process to early, intensive consultation. This simply means Council laying open the Draft Scheme (warts and all) and inviting input from all the players at once.
Government Authorities, community, neighbouring Shires, Department of Planning & Urban Development and Councillors – and Council Officers themselves, would all be given the opportunity to constructively criticise the Draft.
This mass influx of information would then be used to formulate a revised Draft which (should) be close to the mark in terms of addressing the issues …
The South‑West Region Planning Committee is also requested to agree that the draft scheme be advertised on a 'total consultation' basis, with all authorities, community groups, individuals, Councillors, Council Departments and Council Officers invited to comment simultaneously and on an equal footing." [italics only added]
(b)By letter dated 25 May 1993, DPUD advised the Shire that it would be necessary for the Shire to prepare a scheme report. The primary function of such a report was stated in the letter to be "to give planning rationale and justification to each aspect of the Scheme". It was further stated that "this involves presentation of the relevant background information and analysis, and an outline and explanation of the various scheme proposals".
(c)In accordance with its decision to conduct a two stage consultation process, the Shire placed a notice in the Local Government Notices section of the 26 August 1993 edition of the Busselton‑Margaret Times inviting public inspection and comment on the draft scheme and identifying the dates between which the draft scheme would be available for inspection at the Council Chambers and the Dunsborough Tourist Bureau. The draft scheme identified the relevant land in Yallingup as a tourist zone.
(d)The Shire placed a further notice in the 9 September 1993 edition of the Busselton‑Margaret Times inviting public inspection and comment on the draft scheme and adding the Busselton Public Library as another place where the draft scheme could be viewed.
(e)On 23 September 1993 the Shire wrote to the Association and others noting that, due to a printing deadline, there were some zoning and mapping errors and attaching amended copies of the sheets on which the errors occurred. I note that the list of addressees for the letter is different to the lists for the letters of 21 September 1993 and 4 July 1997 annexed to the affidavit of Mr Bancroft. The list for this letter includes certain individuals although the basis of their inclusion in the list is not identified.
(f)By letter dated 5 October 1993 addressed to the Shire, Feilman Planning Consultants made submissions on behalf of Griffin Coal in relation to the draft scheme. The submissions acknowledge the proposed new "Tourist Zone" in the draft scheme and seek to include within it Griffin Coal's site known as Cape Farm in Bunker Bay.
The purpose in referring to this letter is unclear. Presumably it provides an indication that at least some landowners affected by the scheme were aware of the proposal for a tourist zone. However, in the absence of information concerning the way in which that organisation came to be aware of the proposal, little weight can be attached to it.
(g)The Shire placed another notice, in identical terms to the last, in the Local Government Notices section of the 7 October 1993 edition of the Busselton‑Margaret Times.
(h)By letter dated 18 October 1993 the Association wrote to Mr Swift in his capacity as Town Planner thanking him for the opportunity to comment on the draft scheme. The Association also invited Mr Swift to speak at its next meeting on 9 January 1994. In the text of the letter the Association noted that it was "comfortable with the notion that the designated tourist development sites have a higher density". With respect to the Surfside lots, the Association made a specific recommendation including that the portion of this site used for commercial purposes be a lower density development.
(i)A further notice was published in the Local Government Notices section of the Busselton‑Margaret Times on 21 October 1993. The only change to the wording of the notice was to extend the period during which the draft scheme may be inspected.
(j)Under cover of a letter dated 29 February 1994 the Association made submissions to the Shire for the designation of the Yallingup townsite as a special character area. The Association emphasised the importance of maintaining the existing emphasis on low cost short‑stay accommodation and strongly opposed group housing development and "any further changes in the zoning in the immediate townsite area". The Surfside lots were the subject of specific comment.
(k)On 26 April 1994 the Shire's Special Town Planning and Building Committee recommended that Council submit the draft scheme to DPUD with a request that approval be given for advertising the draft scheme for public comment for a period of three months.
(l)On 27 April 1994 Council resolved to adopt the Committee's recommendation.
(m)By letter dated 2 July 1997 the WAPC advised the Shire that Ministerial consent had been given to advertise for public inspection the amended draft scheme.
(n)On 2 July 1997 the Busselton‑Margaret Times included a notice placed by the Shire inviting public inspection and comment on the draft scheme and advising that the plans and document had been deposited at the Council offices and the WAPC and could be inspected up to and including 2 October 1997.
(o)By letter dated 7 July 1997 the Shire advised the Association and others that the draft scheme was available for public inspection and comment at the Council offices and other locations until 2 October 1997. The list of addressees is a different one from that previously used when sending the letter referred to in item v. However, the list is consistent with the list referred to by Mr Bancroft as having been used to send the letter of 7 July 1997.
(p)On 29 July 1997 the Department of Environmental Protection provided written advice that the draft scheme would not be subject to assessment under s 48A of the Environmental Protection Act1986 (WA). However, environmental issues would still be dealt with when applications for development were made.
(q)The Shire placed a notice in the 24 September 1997 edition of the Busselton Dunsborough Mail advising of the residential zoning proposals under the draft scheme. However, the copy of the relevant notice annexed to Mr Swift's affidavit concerns the industrial zoning proposals.
(r)On 17 December 1997 the Shire advised parties who had made submissions on the draft scheme of its recommendations in relation to their submissions. The list of addressees is different to that used in any earlier correspondence and does not include the Association. A schedule of submissions is also attached and does not include the Association nor does it make reference to the Association's submission. This would appear to be the mailing list which was omitted from Mr Bancroft's affidavit.
(s)By letter dated 27 May 1998 the Shire advised the Ministry for Planning that TPS 20, being the draft scheme as amended at that date, had been approved and requested that TPS 20 be submitted to the Minister for final approval. Copies of the scheme text, maps, schedules and submissions were enclosed.
(t)On 24 February 1999 the WAPC advised the Shire of modifications to TPS 20 it required prior to final approval being granted. The modifications did not relate to either the Surfside lots or the residential lots.
(u)On 21 April 1999 the Shire resolved to defer further consideration of TPS 20 until the modifications proposed by the WAPC had been considered in a workshop.
(v)On 21 April 1999 the Shire's Executive Committee met to consider the modifications required by the Minister for Planning and to make recommendations to Council.
(w)On 28 April 1999 the Shire resolved to submit TPS 20, subject to modifications, to the WAPC and the Minister for Planning for final approval.
It would appear that there was not a standard list of addressees for all communications concerning the draft scheme. No explanation was provided for why a standard list, or one of two standard lists depending on the purpose of the letter, was not used when dealing with the same issue. Neither is it clear to me why the Association's submissions were not included in any summary of submissions relevant to the draft scheme or why the Association was not made aware by the letter of 17 December 1997 of the Shire's recommendation on its submission.
It can be seen from the evidence of Mr Bancroft and Mr Swift that, apart from publication in the Government Gazette, the draft scheme was advertised in a local newspaper, usually in the Local Government Notices section of the Busselton‑Margaret Times, on seven occasions. On another five occasions the Shire wrote to various persons considered to have an interest in the draft scheme. It is also apparent from the information in the affidavits that the Association was well aware of the terms of the draft scheme and had participated in the consultation process. With the exception of Mr Edwards, there is no evidence as to whether any of the deponents who have stated that they were not aware of the terms of the draft scheme affecting the Surfside lots and residential lots, were members of the Association. Mr Edwards was the President of the Association at the time that Silverland's development application was made. However, it would appear that he did not hold that position during the period leading up to Ministerial approval of TPS 20.
There is also an absence of evidence of any action taken by the Association to advise its membership of the changes to zoning effected by TPS 20. There is no evidence from the owner of the Surfside lots that there was a failure to consult.

4. The Validity of the Zoning

The Association seeks a declaration that the purported change in zoning of the townsite lots as "Tourist" is invalid. The proposition that the zoning change is invalid is based on the allegation that the change occurred without notice to the owners of the residential lots and of the owners of land adjoining the townsite lots, contrary to the Shire's obligation under s 7(2aa) of the TPD Act to consult "such public authorities and persons as appear … to be likely to be affected".

The Association does not seek to invalidate the whole of TPS 20 and suggests that, if it is established that the provisions of s 7(2aa) were not met with respect to the townsite lots, it is open to the Court to sever that portion of TPS 20 dealing with the townsite lots.

(a) Statutory framework

Section 7 of the TPD Act identifies the procedure to be adopted before a local government's town planning scheme, or amendment to a town planning scheme, comes into effect. The Regulations also sets out additional obligations on the Shire with respect to town planning schemes, from the point of the resolution to prepare or to amend a scheme to the endorsement and deposit of a scheme once approved by the Minister: reg 4 to reg 25AA. Those obligations include publication of resolutions pertaining to the draft scheme and of the scheme itself, throughout the various stages. The relevant steps set out in s 7 are subject to compliance with s 7, s 7A1, s 7A2, s 7A3 and s 7A4 which relate to schemes affecting the Swan Valley and also to environmental issues, neither of which have application to this matter and will therefore be omitted from the following summary of the statutory framework.
Section 7(1) allows local governments to prepare town planning schemes and to amend a town planning scheme. Once the draft scheme is prepared and adopted, the local government is required to advertise the draft scheme for public inspection in accordance with the Regulations: s 7(2)(a). The draft scheme is then submitted to the Minister for approval: s 7(2)(b).
However, both these steps are stated to be subject to subs (2aa) which is in the following terms:
"A local government shall, before submitting a town planning scheme or amendment to the Minister under subsection (2)(b), make reasonable endeavours to consult in respect of the town planning scheme or amendment such public authorities and persons as appear to the local government to be likely to be affected by the town planning scheme or amendment." [emphasis added]
Section 7(2a) sets out the options open to the Minister when a town planning scheme is submitted to him under subs (2)(b). He may either approve the scheme or amendment (subs (2a)(a)), require modifications to the scheme or amendment before it is resubmitted for his approval (subs (2a)(b)), or refuse to approve the scheme or amendment (subs (2a)(c)). Section 7(3) states that when a scheme or amendment is approved by the Minister and published in the Government Gazette, it shall have full force and effect as if it were enacted by the TPD Act. Section 7(4) sets out the ways in which a town planning scheme may be revoked, varied or amplified. Variation or amplification of a town planning scheme is effected by an amendment to the scheme prepared by local government, approved by the Minister and published in the Government Gazette: s 7(4)(b). The remaining subsections are of no relevance to the issue to be resolved.
Subsection (2aa) was an addition to s 7 which came into effect on proclamation on 4 August 1996. As can be seen from the chronologies to which I have already referred, by that stage the process of rezoning had already commenced. However, TPS 20 was not submitted to the Minister for approval until 28 April 1999 by which time the requirement to consult was in effect.
Regulation 15 sets out the requirements for advertising a scheme. Regulation 15(1) and reg 15(3) deal with the content of the notice to be published when consent to advertise the scheme has been granted. Subregulation (1) requires the Shire to advertise the scheme in the form of a notice and to take the necessary steps "to make public the details of the Scheme". Under reg 15(3) that obligation is met by publication of the notice in the Government Gazette and by publication on one occasion in "a newspaper circulating in the district where the land the subject of the Scheme is situated". The Shire is also required to display a copy of the notice in the offices of the responsible authority. A copy of the scheme is to be made available for public inspection during office hours at the Shire's office and a copy of the relevant portion of the scheme is to be made available at the office of any local government affected by the scheme: reg 15(2). These provisions are the regulations relevant to advertising a draft scheme under s 7(2)(a) of the TPD Act.
Regulation 15(4) deals specifically with consultation required by s 7(2aa):
"(4)The responsible authority shall give to each public authority and other person whom the local government is required by section 7(2aa) of the Act to consult, and in the case of a development scheme to every landowner within the area the subject of the Scheme a notice in writing in the Form No 3 in Appendix A."
Regulation 15(4) has been in the Regulations from the start, although in a slightly different form. As initially enacted, the requirement was to give notice to every public authority affected by the scheme: Government Gazette 28 November 1967 (at 3231). In 1981 subreg (4) was amended to include, "in the case of a development scheme, to every landowner within the area the subject of the scheme": Government Gazette 15 May 1981 (at 1494). However, the way in which the amendment was effected removed the qualification that the public authorities to be given notice had to be affected by the scheme. That unintended omission was corrected in 1986: Government Gazette 7 March 1986 (at 705). The reference to "each public authority and other person whom the local government is required by section 9(2aa) of the Act to consult" was inserted into the regulations on publication in the Government Gazette on 2 August 1996. Consequently, as TPS 20 was not submitted to the Minister for approval until 28 April 1999, at the relevant time the Shire was required to meet the obligation set out in reg 15(4).
It is apparent from the reference in reg 15(4) to Form No 3 in appendix A that the form of the notice to be provided under s 7(2aa) is the same as the notice to be published in the Government Gazette and in the newspaper and to be displayed in a prominent place in the Shire office. Regulation 15(5) then identifies the content of the notice. The notice is to describe the purpose of the scheme, state the times and places where the scheme may be inspected, and specify a date on or before which submissions in respect of the scheme may be made providing that date is not less than three months from the date of publication in the Government Gazette. It can also be seen from the difference in the requirements of reg 15(3) and reg 15(4) that the requirement of "publication" is different from that of "consultation".
The Association alleges that the Shire failed to meet its obligation under s 7(2aa) of the TPD Act with respect to the township lots, thereby invalidating that portion of TPS 20 which changed the zoning of the township lots to tourist. That proposition gives rise to a number of issues of construction with respect to s 7(2aa).

(b) Construction of s 7(2aa) of the TPD Act

The Association submits that the Court should use an objective test to construe the phrase "make reasonable endeavours to consult". I accept that proposition. I see no reason why the use of the term "reasonable" in this context would attract a different approach to the use of the term in other statutory contexts.
I have greater difficulty with the Association's submission on the approach to be taken to identifying the persons to be consulted. The persons to be consulted are those "as appear to the local government to be likely to be affected". The Association also submits that this requirement should be construed objectively. In my view, the effect of an objective construction is to ignore the expression "as appear to the local government" and render it redundant. Also, as I have noted, the inclusion of the adverb "reasonably" is the more usual form of drafting consistent with an objective construction. However, reliance on a wholly subjective test would hardly encourage broad consultation. The fact that public consultation was considered of sufficient significance to justify a legislative amendment is, in my view, inconsistent with a restrictive interpretation of the provision either in the scope of those consulted or in the content of the information provided for the purpose of initiating consultation. The words "likely to be affected" create an obligation on the Shire to make decisions of a qualitative kind about persons who are likely to be affected more than others or to the exclusion of others within the area covered by the scheme. Whilst selection of those to be consulted is an obligation placed on the Shire, and is to that extent subjective, that approach is consistent with recognition of the fact that those involved in the preparation of the scheme are the ones who would be in the best position to ascertain those affected by it.
However, in my view, once the exercise of identifying those to be consulted has been undertaken by the local government and falls to be reviewed, the appropriate approach is to ask whether a local government officer could reasonably have considered that a particular person or group of persons was not likely to have been affected by the scheme, or to put it another way, whether the local government officer could reasonably have failed to appreciate that a particular person or any group of persons was likely to be affected.
I consider that conclusion to be supported by the decision of the High Court in R v Connell; ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 where the Court was asked to construe the expression "as appear to the local government to be likely to be affected", although in a different context. Latham CJ said (at 430):
"Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power."
The conclusion is also supported by the decision of the Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (at 299).
In resolving this issue it must first be kept in mind that the act (or omission) complained of is an executive act and not a judicial one and the Court's power to interfere with an act of executive authority only arises in a limited class of case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (at 228) per Lord Greene MR with whom Somerville LJ and Singleton J agreed. Lord Greene considered the scope of the test as follows (at 229):
"I am not sure myself whether the permissible grounds of attack cannot be defined under a single head. It has been perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty ‑ these of course, stand by themselves ‑ unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that have all been referred to, according to the facts of individual cases, as being matters which are relevant to the question. If they cannot all be confined under one head, they at any rate, I think, overlap to a very great extent."
Lord Greene MR further considered the meaning of the term "unreasonable" and the inter‑connectedness of most explanations of the term and of the various examples proffered (at 229):
"It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in the law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person would ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation ([1926] Ch 66 at 90, 91) gave the example of the red‑haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another."
Ultimately, the Court identified the following test for reviewing an act of executive authority (at 230):
"It is true to say, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere."
In determining the effect of s 7(2aa) I have considered the order in which the scope of each aspect of the obligation to consult (that is, the persons consulted and the material to be provided) should be determined. In my view, the terms are interconnected. To a certain extent the scope of one may affect the other. However, I have formed the view that, in principle, the individual issues should be separately determined. Consequently, in the course of each determination consideration should be given to the impact on the other in order to ensure that the conclusion reached does indeed reflect the legislature's intention. I consider the appropriate starting point to be the identification of those "persons as appear … likely to be affected".

(c) Persons to be consulted under s 7(2aa)

Section 7(2aa) provides for consultation with "such public authorities and persons as appear to the local government to be likely to be affected by the town planning scheme or amendment". The Association's position is that the owners of land directly affected by the scheme and all adjoining landowners should be consulted.
The circumstances of this case do not specifically relate to any consultation with public authorities. However, because of the terms of s 7(2aa), it would be reasonable to expect consultation of a similar scope with both public authorities and with landowners and other persons. On behalf of the Shire it is said that the extent of consultation with government agencies suggests that the Shire was concerned to extend, not restrict, the prescribed notification requirements. It is the case that the list of public authorities is quite extensive, although the Court has not been provided with evidence of any other list to which it can be compared. However, it must be kept in mind that the Yallingup townsite is only one of many areas affected by TPS 20. In my view, the number of public authorities consulted is as likely to reflect the breadth of the scheme as the extent of the consultation and the nature of the changes implemented by it. On that basis, I consider that any comparison with the extent of consultation with public authorities does not assist in determining the scope of consultation with interested persons.
Neither do I consider that the extent of consultation with public authorities is indicative of an intention to widely consult every person entitled to be consulted. Contact between agencies may well be viewed by the Shire as of greater significance. In the absence of any evidence establishing that it was the approach taken by the Council to firstly determine the scope of the consultation to be undertaken with all interested parties, I do not believe that the evidence of consultation with public authorities is of assistance.
However, some assistance in determining those persons with a right to be consulted can be found in the wording of reg 15(4) where a distinction between scheme changes and development schemes is made. In the former category a copy of the notice is to be given to public authorities and persons likely to be affected. However, in the case of a development scheme, a copy of the notice is to be given to "every landowner within the area the subject of the Scheme". It would seem then that the term "persons likely to be affected" must be something less than "every landowner within the area". However, the requirement to give notice to every landowner in the area where a development scheme is proposed provides some support for the view that certain changes have an affect well beyond the land to which they directly apply. On that basis, it can readily be argued that a scheme which affects a change of zoning to a particular lot is likely to affect at least the adjoining landowners.
In determining whether persons other than the owners of directly affected land should be included in the group to be consulted, I consider proximity to the directly affected land to be a relevant factor. In my view, changes to the use of the land affected by the scheme, or changes to the type and density of development of that land arising from a change in use, will in most cases have some level of impact on the owners of adjoining land. Whether the nature and extent of that impact is such as to warrant consultation will depend on the circumstances.
In my view, a change in the zoning of land will necessarily impact on the owner of that land. Further, I consider a change in zoning has the potential to adversely impact on the amenity of adjoining land, thereby warranting consultation with adjoining landowners. It is unnecessary for me to decide the extent of consultation with respect to other changes effected by a town planning scheme.
I do not accept the submission that this level of consultation is too onerous. It can be seen from the legislative provisions that the implementation of a town planning scheme is quite an involved exercise requiring considerable resources. Fortunately, it is not an exercise that is carried out on a regular basis. I see no reason why the statutory requirement to consult persons likely to be affected should be the obligation that is to be curtailed. I accept that the exercise will require more resources than mere consultation of collective bodies such as ratepayers' associations. Effectively, the right to be consulted is the only right which accrues to a person when a town planning scheme which affects the land the person owns is implemented by government; that is other than the right to vote against the government responsible for the scheme. In view of the importance of the consultation process, that circumstance does not convince me that consultation with individuals affected is onerous.
In Vanmeld Pty Ltd v Fairfield City Council & Anor (1999) 46 NSWLR 78 Spigelman CJ supported the importance of the process of public consultation in the formulation of local government plans, a principle which he considered to have been long recognised by the Courts, for example, by the High Court in Scurr & Ors v Brisbane City Council & Anor (1973) 133 CLR 242 (at 251 ‑ 252). His Honour further noted that the detailed scheme of consultation and public exhibition in the Environmental Protection Act 1986 made it clear that Parliament regarded the procedural steps as of considerable significance for the integrity of the process of formulating local environment plans: see also Darling Casino Ltd v Minister for Planning [1995] NSWLEC 62 and Port Louis Corporation v Attorney‑General of Mauritius [1965] AC 1111 per Lord Morris of Borth‑Y‑Gest (at 1124).
It is not possible to lay down criteria of general application for the identification of persons likely to be affected by a town planning scheme. Identification of the group to be consulted will be affected by the relevant circumstances, including the nature of the changes arising from the scheme. However, in my view, the owner of land which has had its zoning changed under a town planning scheme is clearly a person likely to be affected by a town planning scheme and is entitled to be consulted. I consider the owners of land directly adjoining the "re‑zoned" land are also likely to be affected and should also be consulted.

Dr Brearley considered the revegetation list and the barrier to informal access to be inadequate. He also notes that revegetation has proved in the past to be a very difficult and slow process. The position of the development on the dune slopes and the intrusion of buildings into the skyline is also the subject of criticism. In my view, it is apparent from the Tribunal's analysis of these issues that many of Dr Brearley's criticisms were the subject of concessions made by Silverland's experts under cross‑examination and hence were before the Tribunal. Further, it is not the case that the Tribunal was not aware of these issues or failed to give them consideration. The fact is that the Tribunal did not consider them to be impediments to planning approval although some issues were considered to be in need of further attention and were the subject to conditions to be imposed on the development approval.
The question of whether it was necessary for a proper consideration of the appeal to hear the evidence of Dr Brearley should be considered in the context of the Association's proposition that, while the developer called evidence from various experts including environmental experts, the Shire did not. As counsel for the Association observed, the Shire did not meet that evidence head on. The Association's purpose in seeking to be joined as a party is "to put on positive evidence when it had not been put on by the Shire". That is said to be the whole purpose of the evidence of Dr Brearley. It is also said on behalf of the Association that one of the bases on which it was refused permission to be heard was because "the Shire represents the interests of the residents in any event". As to the latter proposition, I do not accept that the Shire represents the interests of residents affected by a proposed development. There are many influences on local government agencies only one of which is that of residents or ratepayers. This would not be the first occasion on which a resident has held a different view from that of the local council of the impact of a development. That is not to say that, in every case, it is necessary for adjoining landowners to be heard on an appeal from a decision on a development application. However, in this case I am not of the view that the Shire's role in the proceedings included representing the interests of landowners and residents in Yallingup. However, I am unpersuaded that the decision to refuse the Association's application was affected by that observation.
Whether in order to adequately deal with a review of this type it is necessary to hear positive evidence in opposition to the evidence of the proponents of the development will depend on the facts of individual cases. I do not accept that, in this case, the absence of such evidence would adversely affect the outcome. As I have indicated, the experts conceded that stability was an issue with the dune, that revegetation was a difficult exercise, and that pedestrian access would adversely impact on both the vegetation and dune stability. They were also some differences in the evidence of each witness requiring careful consideration of the evidence. Whilst some of those differences were a matter of degree, they are sufficient to reduce the concern which sometimes arises in cases of this type that the expert witnesses may not be quite as independent as they are required to be. In my opinion, all of the significant matters raised by Dr Brearley were adequately addressed in cross‑examination. Consequently, I remain unpersuaded that, in order to adequately dispose of the appeal, the Tribunal was required to hear the evidence sought to be presented by the Association and hence I do not consider that, on that basis, the Tribunal has fallen into error in denying the Association's application to be joined as a party.
As to the argument that joinder should have been granted because of the procedural shortcomings in the implementation of TPS 20, the Association's submission is that the Tribunal should take into account the fact that the zoning to tourist had not followed the procedural path mandated by the TPD Act. According to counsel it would be a fact it took into consideration in determining whether or not to approve a development for that zoning. If it did, the Association submits that the development would not have been approved on appeal because the previous zoning did not allow such a development as the average lot size of the development was too low.
I accept that the validity of the zoning of the land would not otherwise be put before the Tribunal. I accept also that the zoning of the Surfside land is relevant to the resolution of the appeal, a view held also by the President: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 166 (at [32]). That is particularly so in this case where Silverland has made it clear that the proposed development is not group housing but tourist accommodation only permissible under a "Tourist" zoning: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 166 (at [36]). On that basis, if the land was not validly zoned "Tourist" the proposed development could not have been approved.
The Association submits that for the purposes of prerogative relief, it is sufficient that it raises a matter that is relevant, such as the zoning aspect. It submits that it is not required to establish on balance that the purported change of zoning was invalid (although it does submit that invalidity has been established). Whilst I accept an applicant for joinder need not establish as fact the matter of relevance on which the application is based, the matter must be something which can be determined by the Tribunal or taken into account in determining the appeal.
Silverland concedes that the issue of the validity of the zoning is a jurisdictional fact which, if properly raised, the Tribunal should receive and consider. However, Silverland's submissions is that the Tribunal cannot itself make a binding decision as to the limits of its jurisdiction (in this case the validity of the zoning): Trajkovski v Telstra Corporation Ltd (1998) 81 FCR 459 (at 466 ‑ 468)
It is for the Court to determine independently and for itself whether the jurisdiction has been established: Cabal & Ors v Attorney-General of the Commonwealth (2001) 113 FCR 154 (at 169). The matter having now been raised before the Court as to the validity of the zoning it should be determined by the Court and the Court should exercise its discretion to decline to grant certiorari in relation to any failure to consider the validity of the zoning.
The President of the Tribunal on reviewing the joinder application dealt firstly with the proposition that TPS 20 rezoned the Surfside lots. The President accepted Silverland's submission that the effect of TPS 20 was to create a new town planning scheme, which came into effect in 1999, and that the zones under that scheme changed the way in which the subject property was to be addressed. The President concluded that to describe that as a rezoning is both incorrect and inapposite: Silverland Enterprises Pty Ltd v Shire of Busselton [2004] WATPAT 165 (at [23]). As I have indicated above, the distinction is relevant to whether the effect of a failure to consult with respect to that portion of TPS 20 which related to the Yallingup townsite was to invalidate only that specific part of TPS 20.
The conclusion of the President was that the validity of the zoning of the Surfside lots was not an issue which the Tribunal would be able to determine as it involved making a declaration which was beyond the power of the Tribunal: (at [31] ‑ [32]). The reasoning behind the conclusion can be identified from the following extract from the President's reasons (at [32]):
"I say that because since the Shire of Busselton is to be bound by the decision, and since it is its town planning scheme which is the subject of the attack, a determination by the Tribunal must necessarily be binding on upon the Shire. If it is binding upon the Shire in relation to its own scheme it could not operate to some contrary effect. As a result, it seems to me that what is being asserted, in effect, for the purpose of the disposition of the issue to be agitated by the applicant for joinder is a matter which would involve effectively a declaration."
In support of its position, the Association relied on the decision in Bonton Pty Ltd v City of South Perth, a decision of the Tribunal under the chairmanship of this Court's previous Chief Justice. In that case the validity of an amendment to the City of Perth's town planning scheme was raised in the course of an appeal. The Tribunal held that, in order to decide an appeal within its jurisdiction, the Tribunal was required to identify and decide any relevant question of law necessary for the determination of the appeal. However, in this context it was noted that the legislation did not confer on it the jurisdiction to make binding declarations of law. The following passage of the judgment was quoted by the President and relied upon in reaching his decision:
"However, while a Tribunal cannot make binding declarations of law, that does not necessarily mean that it has no jurisdiction to decide for the purpose of the instant appeal whatever questions of law arise for decision on that appeal.
The Tribunal's decision may have no more effect than a mere opinion expressed along the road towards a determination of the appeal, but it may not be prevented from coming to a conclusion on the point."
In so far as the decision in Bonton Pty Ltd v City of South Perth suggests that, where a Tribunal would not be entitled to make a declaration on a matter of law founding jurisdiction, the Tribunal may make a finding to that effect for the purposes of the hearing in the Tribunal, I would not be prepared to follow such a decision. I do not accept that the Tribunal has the power to decide a question of law for the purpose of an appeal where the finding could have consequences outside the Tribunal if it were adopted in another situation. Having considered the reasons for decision I do not agree with the view of the President of the Tribunal that the passage from Bonton Pty Ltd v City of South Perth is mostly limited in its application to incidental questions: (at [27] ‑ [28]). However, I accept that it should be. In my view, the issue sought to be raised by the Association is one which can only be resolved by the making of a declaration which the Tribunal has no power to make.
It is said by the Association that the rules of natural justice, by which the Tribunal was bound, obliged the Tribunal to consider both these issues. Certainly, s 51(1)(a) of the TPD Act provides that, in the performance of its functions, the Tribunal, however constituted, is bound by the rules of natural justice. It is also submitted that the Association was entitled by the rules of natural justice to be heard in relation to any matter that might be adverse to its interests. The decision in Annetts v McCann (1990) 170 CLR 596 (at 599) is said to be the authority for that proposition. I accept that Annetts v McCann is authority for the proposition that a person granted representation at a coronial inquiry must be given the right to be heard before any finding adverse to that person is made. It is also the case that the principle applies even where the finding, of its own force, could not affect a person's legal rights or obligations: (at 599). Further, I accept that the principle has application beyond that particular jurisdiction and would apply to any situation where a finding adverse to a person's interests may be made and has consequences to the person, even if that consequence is an adverse impact on the person's reputation. However, it must also be noted that the High Court concluded that a person given the right to be heard is not entitled to make submissions on the general subject matter of the inquest: (at 601).
The fact that the Tribunal is bound by the rules of natural justice is not the subject of debate. It is a more interesting question whether that obligation extends beyond affording natural justice to the parties to the appeal. I accept the Shire's submission that, where a decision is made under statute, the application and the content of the doctrine of natural justice depends to a large extent upon the construction of the statute: Kioa v West (1985) 159 CLR 550 (at 584). Consequently, the right of a person to be heard and participate in an appeal is confined by the scheme of the Act. The Shire submits that the proposition in s 51(1)(a) of the TPD Act that the Tribunal "in the performance of its functions" is bound by the rules of natural justice, must be construed in the statutory context referred to above; in particular where the TPD Act distinguishes between a party to an appeal and a person with a sufficient interest who is entitled to make submissions. It is only parties who are given the right under the Act to present their case, introduce evidence and express grounds for consideration by the Tribunal. It is therefore significant that the matter before the Tribunal was an appeal by Silverland in respect of its application for development approval. The Shire, as decision maker in the public interest and as the entity with the ultimate responsibility for overseeing the development, was a respondent to the appeal. It is in this context that the obligation to afford natural justice operates.
The conclusion that I have reached is that the only right to natural justice to which the Association was entitled was the right to be heard on its application for joinder. The facts of this case do not allow me to conclude that any finding which the Tribunal was entitled to make in the context of the appeal was adverse to the Association's interests. Indeed, if the Association was afforded the opportunity to raise issues such as the validity of the scheme it would be making submissions on the general subject matter of the hearing, which is not within the scope of the rules of natural justice. More importantly, however, I believe the Association misconstrues the meaning of the expression "adverse to it's interests". The fact that a finding may be adverse to the views of the Association does not mean that it is adverse to the Association's interests. The fact that the outcome of the proceeding might be one which affects a member of the Association or to which a member objects does not meet that description. It is the particular interests of the Association which must be at risk of an adverse finding. For these reasons I do not consider that the application of the principles of natural justice would entitle the Association to be heard as an interested person or to be joined as a party to the proceeding.
The Association also places emphasis on the fact that the Tribunal was not bound by the rules of evidence (s 51(1)(b) TPD Act) and was, therefore, entitled to inform itself of any matter as it thinks fit (s 51(1)(c)). On that basis the Tribunal could have received the extra material, irrespective of whether the Association was joined as a party and even if that evidence is not presented or received in the more usual format required by courts. This power was used as a basis for justifying joinder without the need to apply the test set out in Harding & Reading v Shire of Chittering & Ors. Even if the power to inform itself of any matter as it thinks fit extends to calling evidence from an organisation such as the Association, I do not accept that it would be an appropriate exercise of the power in the circumstances of this case. Whilst no doubt the power is important, it is use must be carefully considered. In particular it would be important for a Tribunal not to be seen to afford one particular special interest organisation the right to put its views forward without affording that opportunity to others. I can see the use of such a provision in circumstances where the form a particular piece of evidence might be of concern. It might also be useful in order to resolve an issue before the Tribunal which cannot be resolved by the evidence adduced by the parties. However, in my view, this is not such a case. These examples are not intended to limit the circumstances in which the power in s 51(c) may be utilised, they simply indicate that allowing any person who wishes to be heard on relevant matters the right to be joined as a party is not within the proper scope of s 51(c).
Of course, the fact that the Tribunal is not bound by the rules of evidence can be a two edged sword. Because the Tribunal is not so bound it could consider matters that depend on a subjective assessment without receiving the views of the members of the Association. However, in this case, there is no suggestion that the Tribunal relied on this exemption in reaching its conclusion on whether to join the Association to the appeal.
In determining whether error has been established in the decision of the President not to order joinder, I accept that it is a relevant factor that the application was not made at the first opportunity. As I have indicated, the initial application was made under s 62. When that application was refused, members of the Association and the Association's legal representatives remained in the hearing room and followed the proceedings to the point where the decision was reserved. Rather than applying to be joined as a party during the course of the hearing, the decision was made to appeal the Tribunal's decision. It was not until that appeal was refused that an application to be joined as a party was made.
Silverland submits that a proper consideration of the appeal required fairness and finality and, therefore, the Tribunal correctly had regard to the fact that the Association, by its counsel, had stood by without making an application for joinder and allowed the matter to proceed. Silverland further submitted that the Tribunal was required to evaluate what a proper consideration of the matter required in the context of a requirement to deal with each appeal "with as little formality and technicality and … as much speed" as a proper consideration permitted: see s 51(1)(e).
On the Association's submission it was proper for it to wait and see what positive evidence the Shire presented in answer to the appeal. Once it became clear that the Shire was not putting on positive evidence going to the environmental issues and was not intending to address the zoning issue, the decision to apply to be joined was made. The Association's submission was that, prior to that point, the need to be joined as a party was not apparent. On this basis, it is said, there was no delay and the fact that the application for joinder was not made until after the hearing should have no impact on the grant of the relief sought.
I am not persuaded that it was the realisation of what were perceived to be deficiencies in the way in which the Shire responded to the appeal that caused the application for joinder to be made. If that were the case one would have expected the Association to make an application for joinder instead of the application to review the s 62 application. Alternatively, one would expect the joinder application to supersede the s 62 application. I believe it is apparent from the transcript of proceedings before the member (as quoted in the subsequent decisions) and the concluding paragraph of the President's reasons on the appeal of the s 62 application, that the decision to apply to be joined was made.
I accept Silverland's submission that the Association's failure to raise at the outset what are said to be matters necessary for the resolution of the appeal was a matter which the Tribunal was entitled to take into account when determining the joinder application. Once it was apparent that the matters were not to be raised by the parties, an appeal was instituted rather than an application for joinder. To my mind, this factor not only impacts on the exercise of the discretion to allow joinder but also adversely reflects on the Association's proposition as to the significance of the material. The Shire also submits that there has been undue delay in the bringing of the application and relies on the decision in Re Smith; Ex parte Rundell (1991) 5 WAR 295 (at 307, 322) in support of that proposition.

The Association's response is that the application was brought within the time provided by O 56 r 11 which requires an order nisi for a writ of certiorari to be made within six months after the date of the judgment, order or other proceeding to which the application relates. The significance of any limitation period is more relevant to the issue of whether the action is time barred. It is of no relevance to the issue of whether the timing of the application is such as to justify declining to make an order which would otherwise be made.
I accept that, in circumstances where there is a requirement in s 51(1)(e) to deal with each appeal with as little formality and technicality, and to determine each appeal with as much speed as the requirements of the Act, the regulation and the rules and the proper consideration of the matter before it permits, the fact that two days of hearing have gone by and an appeal on an interlocutory issue has been heard and resolved would militate against the application for joinder being granted.
To a large extent, the two issues, the merit of the application and the affect on the outcome of any delay, are inextricably linked. If there was substantial merit in the application for joinder, the fact of delay would have less impact. However, in this case, the merits are more marginal. Hence the issue of the delay becomes of greater import.
Keeping in mind the nature of the Tribunal and the aim to dispose of matters before it in a timely, less costly fashion, I consider the delay involved in the application would, in the absence of a reasonable explanation, justify a refusal of the application. The explanations proffered on behalf of the Association do not, in my view, meet that description. Consequently, I have formed the view that, even if I were persuaded of the merit of the application, I would not be minded to grant the relief sought.
For all the reasons to which I have referred, I have reached the conclusion that the Tribunal did not, as alleged by the Association, fail to take into account any relevant and necessary consideration or to properly exercise a power available to it. Neither was the Association deprived of any right to natural justice. Therefore no error has been shown which would justify granting the relief sought.
As senior member of the Tribunal, Mr Jordan, commented:
"That the Association does not like the form of development that might be allowed by the provisions of TPS 20 is clear, as is its preference for a form of development quite different from that applied for. The Association members do not want to have to look at this development. It can be inferred from the submission that the Association would prefer that there were different planning controls in place so that any developments were more in keeping with its vision for Yallingup, rather than that potentially allowed for under TPS 20."
I believe this comment is particularly apt. I have no doubt that many landowners would feel aggrieved if they were deprived of the right, however meagre, to be consulted on a proposed town planning scheme which impacts on their land. It is also the case that the view of the Association and surrounding landowners of the merits of this development may well be shared by other members of the public. However, the issue for the Court is not whether the development is appropriate for the area or whether it will have an adverse impact on the area. Those matters are properly dealt with by a Tribunal with expertise on the planning issues relevant to applications of the type under review. The role of this Court is simply to identify any legal error which might justify the grant of the relief sought. In this case I have found that I am unable to do so. For these reasons, the order nisi should be discharged.

6. Conclusion

As I am unpersuaded of the merit of either application, the order nisi should be discharged and the originating summons dismissed. I will hear the parties as to costs.