Town planning - Conditional approval - Approval subject to council being satisfied with traffic management plan - Subsequent approval to open Stage 1 of the development conditioned on preparation of revised traffic motion plan - Whether a variation or revocation of original approval - Whether subsequent approval valid

Certiorari and declaration - Orders nisi - Planning approval by council subject to conditions - Whether subsequent resolutions constituted variation or revocation of earlier condition - Validity

Orders nisi for certiorari and declaration to issue

Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369

Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206

Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187

1 ROBERTS-SMITH J: By notice of motion dated and filed 25 March 2002 the applicants sought orders nisi for certiorari and a declaration against the respondent. An amended notice of motion was filed on 8 April 2002. The grounds upon which the order nisi and declaration are sought are:

"1. The Applicant Aznavour Pty Ltd is the owner of land that adjoins the shopping centre and the Applicants Howson Nominees Pty Ltd and Universal Pty Ltd are the operator of Farmer Jacks on the land.

2. By resolution dated 20 February 2001, the Respondent granted planning consent to the owner of the shopping centre subject to the conditions, including condition 2.2 that states:

'All access and traffic management issues including public transport provision associated with the proposal are to be demonstrated through a Traffic Management Plan to the satisfaction of the City of Mandurah (Works and Services Section).'

3. That resolution was notified to the owner of the shopping centre by notice dated 7 March 2001 wherein the above condition became Condition 2.

4. By resolution dated 25 October 2001, the Respondent resolved:

'1. That the owners of Lot 504 Glencoe Parade, Halls Head (Halls Head Village Shopping Centre) be permitted to open as scheduled with interim access to and from the Centre through Guava Way South and Guava Way North turning left off Peelwood Parade only and access and egress (left turn only) via Bunbury Road.

2. That the City of Mandurah and the landowner of Lot 504 Glencoe Parade, Halls Head share the costs on a 50/50 basis for a revised Traffic Management Plan to be prepared by a consultant agreed to by both parties. That both parties use their best endeavours to ensure that the Traffic Management Plan is conducted within four months of the dated [sic] of this resolution and is to address the options of access being provided on to both Glencoe Parade and Peelwood Parage [sic] for the shopping centre.

3. That the City of Mandurah and the landowner of Lot 504 Glencoe Parade, Halls Head enter into an Agreement (with each party meeting its own legal expenses), which will require that upon acceptance of the Traffic Management Plan by Council (this may involve a public consultation process), the landowner of Lot 504 Glencoe Parade, will fund the necessary modifications to the road network as requested by Council. Both parties to use their best endeavours to ensure that the legal agreement is executed within 6 weeks of the date of this resolution.

4. Compliance with resolutions 2 and 3 shall be deemed by Council as the landowner being compliant with condition 2 of the Planning Consent dated 7 March 2001 which reads as follows ...' (the above condition is then set out).

5. Resolutions 1, 2, 3, 4 are ultra vires because:

(a) The Respondent does not have power to vary Condition 2 by Resolutions 1, 2, 3 and 4;

(b) The Respondent does not have the power to revoke Condition 2 by Resolution 1;

(c) Resolution 2 and 3 lack finality;

6. None of the Resolutions can be severed from the others and if one fails as ultra vires, they all fail."

2 Although the application was made ex parte, in accordance with O 56 r 1 of the Supreme Court Rules, notice of the application was given to the respondent which filed a notice of intention to appear dated 9 April 2002, and was represented by Mr McLeod when the application came before me that day. At that time he sought an adjournment, which was granted. The parties were given leave to file further affidavits.

3 When the application came before me again on 12 April 2002, Mr Hardy also sought leave to appear for Centro Properties Group ("Centro") in opposition to the application and that leave was granted.

4 The application is supported by a 200 page affidavit of Barry Robert Howson sworn 22 March 2002, an affidavit of Charles Lindsay Grimwood sworn 25 March 2002 and an affidavit of Guy Shenton French, also sworn 25 March 2002.

5 The respondent relies on an affidavit of Alan John Claydon sworn 9 April 2002.

6 In his text "Civil Procedure in Western Australia" (Supreme Court volume) Seaman explains the relevant test at [56.1.1]:

"The purpose of the order nisi or threshold stage by way of the ex parte application required by r 1 is to prevent the time of the court being wasted by busy-bodies with misguided or trivial complaints of administrative error. The court will not go into the matter in depth and the applicant for an order nisi for a writ of prohibition or certiorari need only demonstrate an arguable case for the relief sought: Re Capobianco; Ex parte Castelli (SC(WA), Parker J, Lib No 980567, 25 September 1998, unreported). That case holds that there is no necessity that the arguable case has some reasonable or real prospect of success, unless prerogative relief is sought in respect of quasi-criminal proceedings."

7 I accept this still to be the test, notwithstanding the preference expressed by McKechnie J in Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA; Library No 990195; 16 April 1999 for the proposition that "arguable case" in this context means a case which has some prospect of success. With respect, I agree with the conclusion and reasons expressed by Templeman J about this in Re Matthews; Ex parte MacKenzie [2000] WASC 147 8 June 2000 at [8] - [13].

8 Grimwood is a director of Aznavour Pty Ltd ("Aznavour"). He set that company up as an investment vehicle. Aznavour is the owner of the Halls Head Shopping Centre ("Aznavour Shopping Centre") which it purchased on 31 January 2001. The major business in the Aznavour Shopping Centre is Farmer Jack's Supermarket ("Farmer Jack's") which is operated in partnership by Howson Nominees Pty Ltd and Universal Pty Ltd.

9 When the Aznavour Shopping Centre was purchased Grimwood was aware that Foodland Associated Ltd or a subsidiary ("Foodland") was the owner of a significant parcel of land (the "Centro Land") immediately behind the Aznavour Shopping Centre. He was aware that there had been several applications made over the years to build a shopping centre on the Centro Land but was not aware when that would actually occur.

10 About mid January 2001 he learned that a plan was available at the respondent's Council Chambers, which showed a new shopping centre development on the Centro Land.

11 On 31 January 2001 Grimwood attended a meeting at his solicitor's office to discuss the plan with them and with town planning consultants. He deposes that their major concern was not that the shopping centre was being built but that the plan was inappropriate.

12 At par 15 of his affidavit Grimwood deposes that:

"When I saw the plan I was concerned because I had always understood that any new shopping centre on the Centro Land and the Aznavour Shopping Centre should be integrated into one shopping precinct. I was also concerned that the road layout as shown on the plan was designed in such a way that the Aznavour Shopping Centre was being isolated and traffic was being effectively directed into the new shopping centre at the expense of the Aznavour Shopping Centre."

13 On 6 February 2001 Grimwood attended a meeting of the respondent's Planning Development and Community Services Committee at which an oral submission was made on behalf of the applicants. Grimwood says he was disappointed with the way their presentation was received by the councillors and the Council officers.

14 The applicants subsequently circularised to all councillors a copy of a report prepared by their town planning consultants (Mitchell Goff & Associates) which dealt with the issues of the road plan in particular.

15 He deposes to further dealings with the respondent about these matters and refers to the fact that on 20 February 2001 the respondent gave conditional approval for the development of the new shopping centre. One of the conditions was that a Road Traffic Management Plan be prepared by the developers prior to the centre opening.

16 The construction of the shopping centre then proceeded over the next few months. On 31 July 2001 Grimwood was notified by a Council officer that a draft Traffic Management Plan had been received by the respondent.

17 At a meeting of representatives of the applicants in early October 2001 the Draft Traffic Management Plan was discussed. At par 27 of his affidavit Grimwood deposes that:

"I was totally opposed to the Draft Traffic Management Plan as it would filter traffic directly into the new shopping centre via Guava Way at the expense of the Aznavour Shopping Centre. This would impact on the businesses at the Aznavour Shopping Centre."

He refers to further subsequent dealings between the applicants and the Council whereby the former continued to express their concerns with, and dissatisfaction about, the development proposal.

18 The final point made by Grimwood in his affidavit is a complaint that since the new shopping centre opened in November 2001 there has been a dramatic increase in the number of vehicles moving through the loading area at the rear of the Aznavour Shopping Centre. He asserts that the increase of traffic using that area is so dramatic that it could cause accidents and thus potential injuries to the drivers of the vehicles, the general public and employees of the tenants at the Aznavour Shopping Centre. He says he is concerned that Aznavour may be held liable for any incident which occurs in the loading zone and that it may be required to undertake considerable expense in that area to ensure the risk of accident is reduced. He states that he believes it is unreasonable that because of the Council's failure to put in place a proper road management plan, Aznavour should be penalised and put to unnecessary expenditure.

19 Howson is the sole director of Howson Nominees Pty Ltd ("Howson Nominees") and is also the sole director of Universal Pty Ltd ("Universal"). Howson Nominees is the lessee of Farmer Jack's at the Aznavour Shopping Centre and operates Farmer Jacks in partnership with Universal. In his affidavit he gives details of the businesses operating in the Aznavour Shopping Centre. He relates the circumstances in which he became aware in January 2001 of Centro's development proposal for a supermarket on the Centro Land and which would have about two and a half times the floor space of Farmers Jack's. He outlines the concerns he formed when he had an opportunity to view the development proposal. The first was that the shopping centre was situated a significant distance away from the Aznavour Shopping Centre and was clearly not designed to be integrated with it. The second was that the road plan was designed in such a way that the Aznavour Shopping Centre was isolated and in his view would filter traffic into the new shopping centre and away from the Aznavour Shopping Centre.

20 Howson then deposes as to the action which he took about these concerns and the various meetings and representations which followed.

21 He deposes that, despite the terms of the Council's approval and the specific condition imposed by it on 20 February 2001, he has subsequently ascertained that no Traffic Management Plan was put in place at the time construction commenced. He asserts that in fact construction commenced and was completed without the traffic management plan having been done.

22 According to Howson, several efforts were made at his direction between March and September 2001 to obtain up-to-date information on the status of the Traffic Management Plan but that information was not forthcoming. However, through the respondent's newsletter and other sources, he became aware that the proposed development was continuing and that consideration was being given by the respondent to release building licences for stages 1 and 2 in order to facilitate building construction on the site. It was said that stage 3, which is the car parking area, would not be approved by Council until the required Traffic Management Plan had been finalised. This was the position at about May 2001.

23 It was Howson's expectation that once the Road Traffic Management Plan was forthcoming, Howson Nominees and Universal would be contacted to ensure that they were able to make any submissions they might wish.

24 A meeting was held on 4 October 2001 at which the draft Traffic Management Plan was discussed. This still contained aspects which were of significant concern to the applicants.

25 Howson discovered in December 2001 that the respondent had a Council meeting on 18 September that year in which it was agreed that the Centro Shopping Centre would officially open on 24 November.

26 Howson attended a special meeting of the Council on 23 October 2001 at which a number of resolutions were passed. They included the four resolutions the subject of this application.

27 The remaining paragraphs of Howson's affidavit largely express the same concerns as to the traffic situation as were expressed by Grimwood.

28 French's affidavit is essentially concerned with the question of delay. He deposes that he first met the applicants' representatives on 30 November 2001 and subsequently retained counsel, with whom he met in early December. Counsel was not available to consider the matter until early January 2002 and provided preliminary advice in early February this year. Documentation was then prepared and he had regular meetings with the client's representatives. Counsel was in the United States of America for approximately 10 days at the beginning of March 2002. As I have already noted, the application was filed on 25 March.

29 It is convenient at this point to briefly consider what appears from the Council minutes and resolutions.

30 The Centro development proposal was before Council on 20 February 2001. There had already been public consultation, meetings and submissions. It is apparent from the minutes that Council saw the proposal as very significant and one having considerable potential impact on the area. A resolution was passed. Clause (1) required Centro to respond to a request for confirmation of a range of specific matters before approval would be given for stage 1, which comprised a proposed supermarket and specialty stores.

31 Clause (2) stated that, on confirmation of the matters raised in cl (1), the planning application for stage 1 be approved subject to certain conditions. There was then set out a list of 22 conditions. So far as is presently relevant, cl (2) was in the following terms:

"2. That following written advice being received from the applicant confirming their acceptance to the point 1 outlined above, the planning application for the proposed Supermarket and Specialty Shops located on Lot 504 Glencoe Parade, Halls Head, be approved subject to the following conditions:

2.1 This approval is limited to Stage 1 of the proposed development, consisting of 5800 square metres Gross Leasable Area, as shown on SK1B Revision B drawn January 2001 and is subject to the following modifications ...

...

2.2 All access and traffic management issues including public transport provision associated with the proposal are to be demonstrated through a traffic management plan, to the satisfaction of the City of Mandurah (Works and Services Section)."

32 One of the conditions related to the provision of 67 additional car parking bays. Centro subsequently requested Council to reduce that, and at its meeting on 29 May 2001 Council resolved to approve the shortfall in parking bays as a cash-in-lieu contribution. That is said to have been appropriate and within power and no point is taken about it. However a number of other development issues were also dealt with in that resolution and one of them was item 6:

"The applicant be advised to prepare and submit a suitable legal agreement stating that stages 1 (Supermarket) and 2 (Speciality Shops) of the shopping centre development may not be occupied until such time as Council has approved the modified car parking layout for the associated shops and the required Traffic Management Report. All costs associated with the preparation with the legal agreement to be borne by the applicant."

33 At a meeting on 18 September 2001 Council was informed the Centro shopping complex was to officially open on 24 November and Centro had requested Council's approval to trade on Sunday 25 November as part of its planned opening celebrations. There was to be special entertainment, sporting and other events.

34 The minutes note that one councillor expressed concern that the Traffic Management Plan for the Centro shopping complex had not yet been approved by Council. The Director, Development and Environmental Services, advised that the report was currently up for public comment and would be considered by Council the following month. He added that if Council did not approve that plan and if the shopping centre buildings, landscaping and car parking plans were not approved by Council, these would remain outstanding and the proposed opening day would be called into question.

35 Another councillor queried whether the Aznavour Shopping Centre had also applied for Sunday trading on 25 November.

36 A resolution was then passed that subject to satisfying a number of conditions, including the Traffic Management Plan, Council delegated authority to its Chief Executive Officer to apply to the Department of Consumer and Employment Protection for the Centro shopping complex to trade on Sunday 25 November 2001 as part of its opening celebrations and that the Aznavour Shopping Centre be invited to make a similar application and the Chief Executive Officer be delegated authority to deal also with that.

37 The matter next arose at a special meeting of Council on 23 October 2001. There were five deputations of ratepayers, each of which made submissions about the Centro development proposal. The deputations included Mr Neville Gale, representing Farmer Jack's, and Mr Darren Levey of Uloth & Associates, who had been requested by the applicants to assess the plans.

38 Notice had been given of a motion that Council declare itself satisfied with the Centro Traffic Management Plan, subject to certain specified modifications being made and commitments given. One councillor then tabled a motion that Pt 6 of the resolution of 29 May 2001 (which had required the preparation and execution of the legal agreement) be revoked and foreshadowed that if that were passed he intended to move that the shopping centre be permitted to open subject to agreement to prepare and submit to Council a Traffic Management Plan which included providing access to Glencoe Parade and that the interim access to and from the centre be through designated roads and directions.

39 However, because it was a special meeting of Council, only motions of which notice had been given could be moved. Accordingly, it was resolved that the notice of revocation be referred to a special Council meeting to be held on 25 October 2001.

40 The revocation motion was put to the special meeting on 25 October and was carried unanimously. The motion which had been foreshadowed at the previous meeting was then moved but with modifications which had been suggested by Council officers. It was explained that the intent of the modifications was to ensure that the centre opened as planned, that a Traffic Management Plan which contained sufficient information was prepared to ensure that Council could make decisions with an appropriate level of detail, that the City would be protected in terms of any necessary works which may be required to be done by the land owner following agreement by Council and that the landowner did not have to pay a bond to the City for future works and had certainty in terms of the planning consent conditions.

41 Another councillor foreshadowed a different motion, although it appears the only difference was to alter designated access to or egress from the complex.

42 The modified motion was then put and was carried. It is Pts 1 - 4 inclusive of that resolution which are the subject of the present proceedings (I shall for convenience hereafter refer to them as resolutions 1, 2, 3 and 4 of 25 October, respectively) The foreshadowed motion lapsed.

43 The applicants say they place no reliance on the opinions expressed in the various affidavits about the intent or purpose of the several resolutions, nor on any debate or discussion in Council, to assist in the interpretation of the several resolutions. The substance of their argument is that the grounds they advance for their contention that the resolutions of 25 October are ultra vires are made out simply on an objective analysis of the terms of the resolutions themselves.

• the initial approval was expressed to be only for Stage 1;

• a traffic management plan was an essential element of and logical precursor to approval of Stage 1;

• that requirement was not for a partial plan, but expressly referred to all traffic issues in Stage 1;

• there was an expectation that subsequent approvals for other stages might attract similar conditions;

• compliance with this requirement was necessary for approval of Stage 1.

45 It was further submitted on behalf of the applicants that if Howson and Universal were unhappy with this condition they had a right under s 36 of the Town Planning and Development Act to appeal against its imposition. There was no appeal. Accordingly (the argument goes) the condition ran with the land.

46 In essence, counsel for the respondent and counsel for Centro both urge upon me that the resolutions of 25 October do not purport to revoke nor vary the conditions on the approval granted on 20 February 2001. If that be correct, the applicants' case is unarguable and so the order nisi should not issue. They further submit, for reasons to which I will return below, that even if the resolutions of 25 October were found to be invalid the result would be that they would be nugatory and so the parties would be left with an approval subject to a condition that had not been satisfied.

47 The gravamen of Mr McLeod's submissions can I think be summed up in his contention that the resolutions of 25 October are no more than an expression of Council's thinking at that time.

48 Mr McLeod submits that condition 2 of the planning consent of 20 February had no time limit for compliance and did not stipulate that it had to be satisfied prior to the opening of the first stage of the Centro development. He points to other conditions in respect of which a time limit for compliance was stipulated. For instance, in the planning consent for Stage 1, out of 29 conditions, 19 were subject to a time limit. Of those, eight required compliance at the time of the application for building licence and six required compliance before a building licence would issue.

49 Mr McLeod then submits that in any event a traffic management plan was produced on 20 July 2001, well before the opening of the first stage of the Centro development. He goes on to say that " ... the City and the Works and Services section of the City's administration were satisfied with that plan for the purpose of allowing the first stage to open on 25 November 2001" (outline par 2.5). And adds, " ... the Council was not however satisfied that the 20 July 2001 Traffic Management Plan dealt with all traffic issues needing to be resolved for later stages of the development" (par 2.6).

50 For the respondent, it is submitted that the resolutions of 25 October did not purport to vary or revoke condition 2, but on the contrary, clearly relied on the continued operation of it to support the Council's requirement for a revised Traffic Management Plan addressing issues relevant to the subsequent stages of the Centro development.

51 It is necessary first to decide to which material regard may be had in construing the development consent in the terms of the relevant resolutions.

52 In Auburn Municipal Council v Szabo & Anor (1971) 67 LGRA 427, Hope J held that a court would primarily be confined to the document constituting the approval, including any documents necessarily incorporated with that. His Honour said (ibid at 433 - 434):

"The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 and by the Court of Appeal in Miller-Mead v Minister of Housing and Local Government (1963) 2 QB 196. It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in a development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved."

53 Hope J went on to imply that if an application were made and a Council did no more than approve it, then by necessary implication the terms of the application must be incorporated in the approval. In the case before him, there was no express incorporation of the building application nor of any other document, save the plans and specifications - which threw no light on the use of the building, except that it was to be an extension or addition to the existing building - he was not entitled to have regard to other documents in order to determine what use was authorised in respect of what were described in the approval as "additions". He concluded that the approval authorised the use of the additions for the same purposes that were lawful in respect of the part of the structure which had been constructed earlier.

54 If authority be required for what I would have thought was the self-evident proposition that a planning approval is defined and circumscribed by any conditions upon which the approval is granted, it may be found in Garbin v Wild [1965] WAR 72.

55 There is no dispute before me that neither the Town Planning and Development Act 1928 nor the City of Mandurah Town Planning Scheme confer a power on a local authority to vary a condition upon which a planning approval has been given. Indeed, Mr Hardy expressly accepted that revocation or variation of the condition imposed on 20 February would be "an inappropriate exercise of power".

56 Planning approvals and conditions to which they may be subject not only necessarily turn on the provisions of the statute pursuant to which they are given or imposed, but are subject also to a restrictive approach to the allowance of any power to vary, amend or repeal such approval or condition. The reason for this restrictive approach was articulated by White J in The Queen v District Council of Berri; ex parte H L Clark (Berri) Pty Ltd & Ors (1984) 36 SASR 404 at 407:

"It will be seen that a condition in a consent binds not only the consent-holder but all persons who later acquire the benefit thereof. Not only are all persons bound but any act in breach of condition is deemed to be without consent and may lead to criminal prosecution. The need for certainty and finality in fixing conditions is self-evident. Further, consents are public documents directly and indirectly affecting the rights and interests of a potentially wide range of parties. Consent documents including associated plans can be searched. They must not be altered or tampered with (Decca Pty Ltd and Portobello Pty Ltd v Corporation of the City of Adelaide (1982) 52 LGRA 85). The importance of conditions is stressed by Wells J in City of Unley v Claude Neon Limited and Dalgety Australia Limited (1983) 32 SASR 329, at p 332:

'Sub-sections (8), (8a), and (9) of s 36 demonstrate how close to the heart of planning controls conditions lie. Their role makes it more than ever important that the purview of the power to annex conditions to consents, approvals, and permissions, should be strictly defined. For this purpose, it is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application: the consent must be either refused, or granted unconditionally, or granted subject to conditions. A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the Authority or tribunal has given its consent which would otherwise be unlimited in its generality and effect.' "

57 White J held that the Council had no power to modify, vary nor extend the conditions of its initial consent and that the later resolution was null and void and should be quashed.

58 On appeal, the Full Court held that the Council was empowered to vary the condition by the terms of s 41 of the Planning and Development Act 1966 (SA). Cox J (with whom King CJ and Lego J agreed) said that the proper construction of the statute (which expressly referred to the revocation of a condition) led to a conclusion that the power to revoke a consent condition was inherent in the scheme created by the section itself. That conclusion, of course, demonstrates the importance of having regard to the particular statutory provisions under which the approval is given and the conditions imposed. However, on his way to that conclusion his Honour had articulated the general principles which had to be applied. He rejected the submission that a power to impose conditions varies with it a power to vary them, as a general proposition, with respect to the kind of planning consent with which the legislation was concerned. He pointed out that the legislation prohibited an owner of land from erecting a building without the consent in writing of the local Council. That implied a decision by the Council and its written notification to the owner. As his Honour pointed out (416), if the Council has resolved to grant its consent but not yet given the necessary notification to the owner, the formal act required by the section will not have occurred and it would be open to the Council to rescind its earlier decision. However once notification had occurred the Council may, by following its rescission procedures, formally disavow what it had done, but it could not effectively claim that it did not give the owner the consent in writing that the section required. He described the effect of the authorities in the following way (417):

" ... the preponderance of authority, as it seems to me, favours the view that there is no general power to revoke or vary a typical planning consent, once it has been notified to the owner, whether he would thereby suffer a detriment or not, and this appears to accord with the way in which the statutory device is framed in such cases. The owner wants to build, but he is not permitted to do so without the consent in writing of the authority; he gets the consent in writing, and that constitutes an effective piece of history which no subsequent action on the authority's part can vary or annul. This is the reasoning, I think, that underlies most of the reported cases."

59 The same Judge expanded on these considerations in Remove All Rubbish Co Pty Ltd v City of Munno Para (Minister for Environment and Planning Intervening) [1991] SASC 2991; (1991) 56 SASR 254 in a judgment, with which King CJ again agreed. Having noted that the parties had agreed that the Planning Act 1982 (SA) did not anywhere spell out any general power in any authority to vary conditions attached to a planning consent, his Honour said (260):

" ... there can be no justification, in my opinion, for reading into the Act a general power to review and revise consent conditions at some later time, perhaps years after they were imposed. If a condition, why not the consent itself? If at the instance of the occupier, why not at the instance of any other party, or even of some other interested person? It is not as though this is a new problem. There are Planning Acts elsewhere in which the same absence of an expressed power to vary a condition has been perceived with the same negative result. It would have been very easy for Parliament to have written some speedier, simple procedure for review of a consent condition into the legislation, though presumably not to the total neglect of the interested persons referred to in s 53, but significantly the Act is completely silent on the point. I think the conclusion is inescapable that no such review procedure was intended."

60 These authorities clearly provide significant support to the applicant's case - and perhaps incontrovertible support in light of the concessions made by the respondent and Centro - if the resolution of 25 October can properly be characterised as revoking or varying that of 20 February.

61 In addition to that, but as a separate argument, the applicants advanced the proposition that in any event resolutions 1, 2 and 3 of 25 October are invalid as lacking finality, in that they leave open for later determination a fundamental aspect of the consent that could alter the nature of the development.

62 In my view, that proposition is at least arguable. The principle was well expressed by Clarke JA in Mison & Ors v Randwick Municipal Council & Ors (1991) 23 NSWLR 734 at 739 - 780:

"Where a consent has been granted in terms which leave open for later decision a particular aspect of the planned development the question may arise whether the consent is final. This will not necessarily be the case. Where, however, the question does arise there may be cases in which the answer is clear. In other instances questions of degree may be involved. It is neither possible nor desirable to attempt to lay down a criterion to be applied in every case in determining whether a consent is final. What must be decided is whether the consent finally determines the development application.

Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final. An example of a case in which a purported consent was held not to be final is to be found in Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61. In that case Cripps J (at 85) concluded that a purported consent which left to the city planner the power to determine which of two substantially different floor ratios should be applied to the development was not a valid consent."

And see also McBain v Clifton Shire Council [1996] 2 Qd R 493.

63 All this therefore brings me back to the threshold question, which is whether the resolutions of 25 October constitute a variation or revocation of the conditions imposed upon the approval of 20 February. In considering this question I confine myself to the terms of the resolutions themselves.

64 Clauses 1 and 2 of the resolution of 20 February expressly referred to approval for Stage 1 of the Centro development proposal. On its face, cl 2.2 was subject to a Traffic Management Plan which demonstrated "all access and traffic management issues, including public transport provision, associated with the proposal ... " to the satisfaction of the respondent. If one has regard only to the terms of the resolutions of 20 February it is arguable whether condition 2.2 is to be read as referable only to the approval of Stage 1, although the stronger argument probably is that it was so intended.

65 On one view, it might well be arguable that on the basis of authorities such as Mison (supra) and McBain (supra) condition 2.2 of 20 February was itself not a valid condition as lacking certainty and finality, but that is not an argument which has been advanced by the applicants, other than in reply to the submissions of the respondent and Centro that condition 2.2 has no time limit for compliance.

66 The point of construction in that regard therefore is whether it was a condition which had to be satisfied before Stage 1 could open. That seems to me a crucial issue in the matter. The condition is not happily phrased, but given the context in which it appears, and in particular that the resolution concerned a planning approval for Stage 1, it is at least arguable that it required Centro to have had prepared a Traffic Management Plan which addressed all access and traffic management issues to the satisfaction of the respondent, before Stage 1 could open.

67 If that construction were to be adopted, I consider it again at least arguable that resolution 1 of 25 October, which granted permission to Centro to open Stage 1 in circumstances in which a revised Traffic Management Plan still had to be prepared, in terms still to be determined (resolution 2), possibly following further public consultation (resolution 3), constituted a variation of condition 2.2 of 20 February. On this approach the applicants' contention that resolutions 2 and 3 of 25 October lack finality is also arguable, as is their proposition that none of the resolutions of 25 October are severable so that if one falls they must all fall (as to which see Corporation of the City of Adelaide v City of Salisbury (1998) 100 LGERA 160, 168 - 172).

68 It may further be observed in passing that there is some apparent force in the applicants' submission that the terms of resolutions 2 and 3 themselves show the respondent was not in fact satisfied that the draft Traffic Management Plan of July 2001 had satisfactorily addressed all access and traffic management issues (even those confined to Stage 1), so that the approval to open Stage 1 was in direct conflict with condition 2.2 of 20 February and so effectively a variation or revocation of it.

69 I come to the respondent's submission that the application should be refused because a grant of certiorari would be futile and the declaration should not be made because of the long delay between 25 October 2001 and the filing of the application on 18 March 2002.

70 Utility and delay are good reasons for declining to grant certiorari or declarations respectively, but they are discretionary considerations which it is for a court to take into account when considering whether or not to make the orders sought on the return of an order nisi. Certainly in the circumstances of this case I would not regard these considerations as being so inevitably overwhelming as to justify me refusing to make the order nisi.

71 Having come to the conclusion I have, for the reasons expressed above, that the grounds of the application are arguable, I would grant the orders nisi for certiorari and a declaration.