CITY OF SOUTH PERTH -v- ALH GROUP PROPERTY HOLDINGS PTY LTD [2016] WASC 141 (11 May 2016)

4 The Town Planning Scheme that applied to the development application was the City's Town Planning Scheme No 6 (the Town Planning Scheme). The authority responsible for implementing the Town Planning Scheme is the City. The land on which the development was proposed is zoned 'Highway Commercial' under the Town Planning Scheme. The proposed land use (a tavern and a shop) are either Discretionary Use or Discretionary Use with Consultation under the Town Planning Scheme.

5 On 15 August 2014 the JDAP refused the development application. On 17 February 2015, following review proceedings in the State Administrative Tribunal, the JDAP considered a modified development proposal. It again refused the development application.

6 After the JDAP's decision on 17 February 2015 there was further mediation in the State Administrative Tribunal. ALH submitted a further modified development proposal in March 2015.

7 The JDAP considered the development application again on 17 April 2015. On this occasion the JDAP approved the development. It is that decision that is the subject of the City's application for judicial review.

8 The members who attended the JDAP meetings of 15 August 2014 and 17 April 2015 were the same. One of those members Cr Glenn Cridland did not attend the meeting held on 17 February 2015. Cr Sharron HawkinsZeeb attended the meeting of 17 February 2015 but did not attend the other two meetings. The other four members attended all three meetings.

9 Clause 3.3(5) of the Town Planning Scheme provides that in respect of Discretionary Use and Discretionary Use with Consultation the Council of the City, in exercising its discretion as to whether or not planning approval ought to be granted, shall have regard to the objectives listed in cl 1.6, to any objectives for the precinct as stated within the relevant Precinct Plan and to such matters referred to in cl 7.5 as the City considers to be relevant in the circumstances. Clause 7.5 provides that in considering an application for planning approval the Council shall have due regard to and may impose conditions with respect to such of the matters identified in the clause as are, in the opinion of the Council, relevant to the proposed use or development the subject of the application. One of the matters identified in cl 7.5, in para (d), is any policy of the WAPC.

10 Regulations 8 and 16 of the Planning and Development (Development Assessment Panels) Regulations 2011 (the DAP regulations) required the JDAP to determine the development application as if the JDAP were the City and by reference to the Town Planning Scheme.

11 The DCP 5.1 addresses matters relating to the control of development adjacent to regional roads. Canning Highway is a regional road.

12 The City prepared a Responsible Authority Report (RAR) dated 10 April 2015 for the JDAP meeting of 17 April 2015, as it was required to do under reg 12 of the DAP regulations. Regulation 12(5) requires an RAR to provide sufficient information to enable the development assessment panel to determine the application including a recommendation as to how the application should be determined, copies of any advice received by the responsible authority from any other statutory or public authority consulted by the responsible authority in respect of the application and any other information that the responsible authority considers is relevant to determining the application. The JDAP determination of 15 August 2014, the JDAP determination of 17 February 2015, ALH's further modified development proposal, a letter from ALH's solicitors Squire Patton Boggs dated 16 March 2015 with enclosures, a transport assessment from Cardno, a consulting company that had been commissioned by the City to report on the development proposal and comments from Main Roads Western Australia were attached to the RAR.

13 The author of the RAR recommended that the JDAP resolve to reconsider its decisions of 15 August 2014 and 17 February 2015 and refuse the development application for five reasons. One of those reasons was:

1. As advised by Main Roads Western Australia, the retention of the existing vehicle access from Canning Highway conflicts with Development Control Policy 5.1 'Regional Roads (Vehicular Access)', poses an unacceptable vehicle collision risk and conflicts with future planning by the Public Transport Authority for a timed bus stop in an embayment in this location.

14 DCP 5.1 provides that as regional roads are principally for traffic movement, ideally there should be no vehicular access to or from properties abutting those roads.[1] However, many existing regional roads perform the function of giving direct access to properties fronting the road as well as carrying traffic. Furthermore, there has been a tendency for properties on regional roads to be developed for commercial uses which attract higher volumes of turning traffic than do residential uses.[2] The provision of access to properties on regional roads is not compatible with the requirements of traffic on those roads because turning traffic causes conflict and contributes to accidents and because junctions and driveways contribute to delay and congestion on regional roads.[3]

In summary, the capacity of regional roads to carry traffic, the safety of that traffic, and the free flow of traffic are all related to access the fewer the number of driveways and junctions, the smoother the traffic flow and safer the road.[4]

On regional roads not constructed or planned to freeway standards, there is a general presumption on traffic and safety grounds against the creation of new driveways or increased use of existing accesses to these roads. Where alternative access is or could be made available from side or rear streets or from rights of way, no access shall be permitted unless special circumstances apply.[5]

15 Canning Highway was not constructed or planned to freeway standards.

The impact of the proposed development on traffic entering or leaving Canning Highway at the Como Hotel

16 The existing development on the Como Hotel site has access to Canning Highway through a crossover to the north of the intersection with South Terrace. The development approved by the JDAP at the meeting on17 April 2015 retained that crossover.

17 Included in the attachments to the RAR was a letter from Main Roads Western Australia dated 1 April 2015 in which the author stated that the crossover on Canning Highway must be closed as alternate access is available to the land from Norton Street and South Terrace.

18 As I have said, the RAR recommended refusal of the development application. One of the reasons for this recommendation was the reference to Main Roads' view that the retention of the existing vehicle access from Canning Highway conflicted with DCP 5.1 which I have quoted at [13].

19 Traffic reports prepared by consultants engaged by the City of South Perth (Cardno) and consultants engaged by ALH (Riley Consultants) were annexed to the RAR, as was a peer review of the Riley Consultants assessment. All of these reports concluded that there would be an increased use of the cross over as a result of the proposed development.

20 It was common ground at the hearing of the City's application for judicial review that the proposed development will increase the use of the cross over.

21 In supplementary submissions filed by the first respondent on 1 February 2016 ALH withdrew a submission contained in its original outline of submissions that a report from Cardno supported the conclusion that there would be no increase in traffic movement as a result of the proposed development. ALH acknowledged that the submission was incorrect.

The decisions of the JDAP on 15 August 2014 and 17 February 2015

22 The JDAP gave reasons for its decision to refuse the development application made at the meeting on 15 August 2014 and it gave reasons for its decision to refuse the development application at its meeting on 17 February 2015.

23 At the meeting of 15 August 2014 one of the reasons for refusal of the application was:

As advised by Main Roads Western Australia, the retention of the existing vehicle access from Canning Highway conflicts with Development Control Policy 5.1 "Regional Roads (Vehicular Access)".

24 At the meeting of 17 February 2015 that reason was expressly removed as a reason for the decision when the application was being considered. The minutes of the meeting of 17 February 2015 record that the reason for removal of that reason was:

Reason 2 relates to a Western Australian Planning Commission policy and not a valid reason for refusal.

25 The minutes of the meeting of the JDAP held on 17 April 2015 record that after noting that the minutes of an earlier meeting were not available for consideration all members declared that they had duly considered the documents.

26 Several motions concerning the development application were voted on at the meeting. The first motion was that the JDAP reconsider its decisions of 15 August 2014 and 17 February 2015 and refuse the application. The motion expressed five reasons for the decision, one of which referred to Main Roads' view that the retention of the existing vehicle access from Canning Highway conflicted with DCP 5.1.

27 An amending motion was moved, proposing the deletion of a reason for the decision which referred to a possible future bus bay on Canning Highway. That amending motion was carried.

28 A second amending motion was moved, proposing that an additional reason for the decision be added, that reason being that large liquor outlets are to be located in the District Centre Commercial Zone only and sites directly adjacent to residential areas are to be discouraged. That amending motion was lost.

29 The motion that the JDAP reconsider its decisions of 15 August 2014 and 17 February 2015 and refuse the application was then voted on. That motion expressed reasons for the decision which were the reasons contained in the motion as first moved, but without the reason which referred to a possible future bus bay on Canning Highway. That motion was lost. The reason for that resolution was:

The Panel by a majority vote considered that the report recommendations are not sufficient reasons for refusal and cannot be sustained under town planning Scheme No 6.

30 A motion was then put that the JDAP reconsider its decisions of 15 August 2014 and 17 February 2015 and approve the application subject to 32 conditions. The first condition contained ten paragraphs, one of which (condition 1(e)) required that the existing crossover onto Canning Highway be closed, and expressed the reason for this condition that it was the view of Main Roads that the retention of the existing vehicle access from Canning Highway conflicted with DCP 5.1.

31 An amending motion was moved, proposing the deletion of condition 1(c), which provided for increasing the street setback of the external walls of the liquor store on the Norton Street boundary, and the renumbering of the remaining conditions. This amending motion was carried.

32 Another amending motion was then moved. This proposed the deletion of the renumbered conditions 1(d) and (e). Renumbered condition 1(d) was the former condition 1(e) which required the closing of the crossover onto Canning Highway. Renumbered condition 1(e) required a plan demonstrating that delivery service vehicles could exit the site using the South Terrace crossover.

33 This amending motion was carried. The minutes contain the following reason for the amending motion:

The development application relies upon the use of this existing crossover and the WAPC has not required its closure and the condition would have a significant impact on the functionality of the submitted proposal.

34 Seven further amending motions were then put and carried. Another amending motion lapsed for want of a seconder. None of these concern the crossover onto Canning Highway.

35 The motion that the JDAP reconsider its decisions of 15 August 2014 and 17 February 2015 and approve the application subject to conditions was then voted on. It was carried.

36 The minutes contain the following reason for the resolution:

The Joint Development Assessment Panel felt they could support the alternative recommendation with a majority vote.

37 The City contends that the JDAP acted in excess of its jurisdiction because it did not have due regard to DCP 5.1. An allegation that there has been an excess of jurisdiction by reason of a failure to take a consideration into account can only succeed if the decision maker is bound to take that consideration into account.[6]

38 The DAP regulations required the JDAP to determine the development application as if it were the City and by reference to the Town Planning Scheme. The JDAP was therefore required to have due regard to DCP 5.1 if the City would have been required to have regard to DCP 5.1 if it were considering the development application.

39 Clause 7.5(d) of the Town Planning Scheme requires the Council of the City to have due regard to any policy of the WAPC which, in the opinion of the Council, is relevant to the proposed use or development. DCP 5.1 applies to the control of development adjacent to regional roads. The development application was adjacent to Canning Highway, a regional road.

40 The JDAP was therefore obliged to have due regard to DCP 5.1.

The content of the obligation to have due regard to DCP 5.1

There are divergent authorities on the question of what is required to satisfy the duty to take into account relevant considerations Re Mactiernan; ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 [62]. One view is that proper, genuine and realistic consideration is required - Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, 292 (Gummow J); see also Re Minister for Resources; ex parte Cazaly Iron Pty Ltd [226]. The alternative view is that provided the matter is given some consideration, the duty is discharged - see Peko-Wallsend, 40 - 41. In Re Shire of Carnarvon; ex parte Humphrey [2005] WASCA 182, McLure JA (Le Miere AJA agreeing) noted that 'the preponderance of authority is to the effect that the duty requires proper, genuine and realistic consideration of the relevant matter', referring to Khan and Williams v Minister for the Environment & Heritage (2003) 74 ALD 124 [60].[7]

41 In A v Corruption and Crime Commissioner it was not necessary to resolve those differing authorities.

42 The phrase 'due regard' has been in use in town planning matters in this State for many years. It was used in s 7(5) of the Town Planning and Development Act 1928 (WA) with reference to the obligations on a local government in preparing or amending a town planning scheme. The phrase now appears in s 77(1) of the Planning and Development Act 2005 (WA), which deals with the preparation and amendment of local planning schemes.

43 Carcione Nominees Pty Ltd v Western Australian Planning Commission[8] and Marshall v Metropolitan Redevelopment Authority[9] are cases which have referred to the appearance of the phrase in both legislation and schemes made under that legislation. In Marshall v Metropolitan Redevelopment Authority, Pritchard J held that an obligation to have due regard, in both the legislation and the scheme being considered by her Honour, was an obligation to give active or positive consideration to matters that applied in any particular case.[10] At the hearing of the City's application before me the parties agreed that the obligation of the JDAP to have due regard to DCP 5.1 was an obligation to give active and positive consideration to DCP 5.1

44 As Pritchard J said in Marshall v Metropolitan Redevelopment Authority, the content of the obligation on a decision maker to take matters into account is to be determined by the context in which those words appear.[11]

45 The words appear in pt VII of the Town Planning Scheme, which is concerned with applications and procedures for dealing with planning approval. In that context, the clear desirability of ensuring consistent, proper and orderly planning within the City indicates that the use of the phrase in cl 7 requires that proper, genuine and realistic consideration is given to the matters identified in the clause which are relevant.

46 In this case I prefer the phrase 'proper, genuine and realistic consideration' to the phrase 'active and positive consideration' because the words 'positive consideration' might suggest that the Town Planning Scheme created an obligation to reach a decision that was consistent with DCP 5.1. That is not my interpretation of the Town Planning Scheme. The obligation was to give proper, genuine and realistic consideration to DCP 5.1

The reference in the minutes to the members having duly considered the documents

47 As I have said the minutes of the meeting held on 17 April 2015 recorded that the members declared that they had duly considered the documents. The minutes of all three of the meetings at which the JDAP considered the development application record the same declaration.

48 ALH has referred to the declaration in the minutes of the meeting of 17 April 2015 as indicating that the JDAP had due regard to DCP 5.1. Counsel for ALH has referred to Pierce v Rockhampton Regional Council[12] where the minute of the resolution the applicant challenged expressly averred that the decision maker had considered a report.

49 In my view Pierce v Rockhampton Regional Council does not provide assistance to this case. In Pierce v Rockhampton Regional Council the council was required to give due consideration to all objections. A report was prepared. It contained details of the objections. The resolution by which the council made the challenged decision said that the council reached its decision having considered the report. McMeekin J said that 'prima facie' he saw no reason why it should not be assumed that the decision maker had considered the information placed before them for the purpose of making the decision, particularly where the decision reflected the content of the information provided and where, by their resolution, they had claimed to have done so.[13] His Honour held, on the facts of that case, the applicants had not established that the report was not given appropriate consideration by the council members in their decision making.[14]

50 In this case the issue is whether, in considering the development application, the JDAP had due regard to DCP 5.1. A statement by all members that they have duly considered the meeting's documents does not necessarily mean on the facts of this case that, in making the decision to approve the development, the members had due regard to DCP 5.1.

Whether the JDAP failed to have due regard to DCP 5.1

51 The decision to approve the development did not refer to the increased use of the crossover. A condition that the crossover be closed was deleted from the motion before it was carried. Counsel for the City pointed to the reasons for the deletion of that condition as demonstrating that the JDAP failed to have due regard to DCP 5.1. As I have said, those reasons were:

The development application relies upon the use of this existing crossover and the WAPC has not required its closure and the condition would have a significant impact on the functionality of the submitted proposal.

52 Counsel for the City submitted that three reasons were contained in that passage:

1. The development application relies on the use of the existing crossover;
2. The WAPC has not required the closure of the crossover; and
3. The condition would have a significant impact on the functionality of the submitted proposal.

53 He submitted that those reasons do not demonstrate or suggest that the JDAP had due regard to DCP 5.1 and that those reasons, along with the prior history of refusal of the development application by reason of the crossover demonstrate that due regard was not given to DCP 5.1.

54 As to the first reason counsel for the City submitted that DCP 5.1 is engaged by reason of the increased use of the crossover and the fact that the developer relies on the use of the crossover could not rationally found a reason to approve the development which will result in increased use of the crossover.

55 As to the second reason counsel for the City submitted that the JDAP was bound to consider the application of DCP 5.1 itself and, in any event the WAPC was not asked to consider whether the crossover should be closed, other than in its capacity as an adjacent landowner, in which capacity it expressed no objection. He pointed to the fact that the RAR for the meeting of 17 April 2015 did not refer to the position of the WAPC. The reference to the position of the WAPC appears to come from RAR for the JDAP meeting of 15August 2014 which provided, at page 7:

Department of Planning

The application was referred to the Western Australian Planning Commission for comment through the public consultation mail out, as the Commission is the landowner of nearby lots affected by future widening of Canning Highway. The Department of Planning, on behalf of the Commission, advised that it has no objections to the application.

56 As to the third reason counsel for the City submitted that it would be obviously irrational to dismiss the objection of increased use of the crossover contravenes DCP 5.1 on the ground that upholding that objection would impact the functionality of the proposed development.

57 The City's application is based on excess of jurisdiction by failing to have due regard to DCP 5.1. In considering that ground it is important that I bear in mind that it is not my function to substitute my views for those of the JDAP. I need to proceed with caution when reviewing the decision on this ground so that I do not exceed the court's supervisory role by reviewing the merits of the decision. The preferred ground on which to set aside an administrative decision which has failed to give adequate weight to a relevant matter is unreasonableness.[15] The City does not seek to set aside the JDAP decision on the ground of unreasonableness. Counsel for the City confirmed that this was so on the hearing of the application for judicial review.

58 When considering whether to impose a condition that the crossover be closed the JDAP decided not to do so for the reasons that I have quoted. Looking at those reasons in the context in which they appear in the minutes it appears to me that the City has not established that the JDAP did not give proper, genuine and realistic consideration to DCP 5.1. The minutes of the meeting show that the members of the JDAP were aware that the development proposal conflicted with DCP 5.1. A reference to that conflict was included as a reason in the motion to refuse the application. That motion was lost for the reason that a majority of members of the JDAP considered that the report recommendations, which included reference to that conflict with DCP 5.1, were not sufficient reasons for refusal and could not be sustained under the Town Planning Scheme.

59 I do not accept the submission of counsel for the City that the fact that ALH relied on the use of the crossover could not rationally found a reason to approve the development when it conflicted with DCP 5.1. Nor do I accept the submission that it was irrational to dismiss the objection that increased use of the crossover contravened DCP 5.1 because upholding that objection would impact the functionality of the proposed development. The fact that the development will result in increased use of the crossover is, by reason of due regard being had to DCP 5.1, a reason not to approve the development when it included the use of the crossover. However that does not mean that the JDAP was required not to approve the development or to impose a condition that the crossover be closed. It could rationally, in my view, when considering the application and the impact of the increased use of the crossover, take into account the importance of the increased use of the crossover to the success of the proposed development and decide that, notwithstanding the conflict with DCP 5.1, it would approve the development including the use of the crossover.

60 Nor do I accept the submission that because the JDAP gave as a reason for not requiring the closure of the crossover that the WAPC did not require its closure the JDAP failed to have due regard to DCP 5.1. The taking into account in its decision that the WAPC had not required the closure of the crossover does not demonstrate that the JDAP did not consider the application of DCP 5.1 itself. It shows only that it had regard to the position of the WAPC. The fact that the WAPC had expressed its view only as an adjacent landowner does not mean that the JDAP could not take the view into account and still have due regard to DCP 5.1.

61 The reasons why the JDAP approved the development application despite the development conflicting with DCP 5.1 are contained in the reasons for removal of the condition that the crossover be closed. The JDAP considered the importance of the crossover to ALH, the position of the WAPC on the crossover and the impact of the closure of the crossover on the development and decided to approve the development without imposing a condition that the crossover be closed. Although the approved development conflicts with DCP 5.1 I do not consider that the reasons given by the JDAP for its decision demonstrate that the JDAP failed to give proper, genuine and realistic consideration to DCP 5.1. It is not my function to review or comment upon the merits of the JDAP's decision.

62 The fact that the previous two meetings of the JDAP had refused the development application does not demonstrate that the JDAP failed to have due regard to DCP 5.1 at its meeting of 17 April 2015. It demonstrates only that the JDAP made a different decision at the meeting on 17 April 2015 to that which it made at the first two meetings.

63 As I have said the JDAP at its meeting of 17 February 2015 resolved to delete reference to the conflict with DCP 5.1 as a reason for refusing the development application, saying that the reason related to a WAPC policy and was not a valid reason for refusal of the development application. That was wrong. A conflict with DCP 5.1 was a valid reason to refuse the application.

64 However that error was not repeated at the meeting of 17 April 2015. At the meeting on 17 April 2015 the JDAP considered the conflict with DCP 5.1 but decided to approve the development application notwithstanding that conflict.

65 I am not satisfied that the City has demonstrated that the JDAP failed to have due regard to DCP 5.1. The city has not established its ground for review of the decision and I dismiss the application for judicial review.

[6] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J); Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91] [93] (McHugh, Gummow, Kirby & Hayne JJ).

[7] A v Corruption and Crime Commissioner [2013] WASCA 288 [92] (Martin CJ & Murphy JA).

[8] Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56.

[9] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226.

[10] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [115] [116] (Pritchard J).

[11] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [109] (Pritchard J).

[12] Pierce v Rockhampton Regional Council (2014) 202 LGERA 61; [2014] QSC 1041.

[13] Pierce v Rockhampton Regional Council (2014) 202 LGERA 61; [2014] QSC 1041 [41].

[14] Pierce v Rockhampton Regional Council (2014) 202 LGERA 61; [2014] QSC 1041 [43].

[15] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 40 42.