Administrative law - Town planning - Prerogative writs and orders - Certiorari and mandamus - Refusal by Minister of Planning - Minister taking into account submissions on behalf of objectors without giving the applicants the opportunity to be heard on such submissions - Decision of the Minister inconsistent with decision of previous Minister on previous appeal - Decision arbitrary and unreasonable - Denial of procedural fairness

Town of East Fremantle Planning Scheme No 2, cl 3.1.1(a), cl 5.3.1(b)

Town Planning and Development Act 1928 (WA) s 8A, s 36, s 37, s 39, s 40(3)

Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510

Attorney General of the Commonwealth v Breckler (1999) 197 CLR 83

Bromley London Borough Council v Greater London Council [1983] 1 AC 768

Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51

Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

James v Secretary of State for Wales [1968] AC 409

King-Brooks v Roberts (1991) 5 WAR 500

Levy v Victoria (1997) 189 CLR 579

Mackvile & District Hospital v Mayze (1987) 10 NSWLR 708

Parramatta City Council v Patell [1972] HCA 59; (1972) 128 CLR 305

Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527

Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389

R v Fowler; Ex parte McArthur and Murray [1958] Qd R 41

R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] EWCA Civ 1; [1952] 1 KB 338

Re City of Dartmouth (1976) 17 NSR (2d) 425

Re Honourable G D Kierath, Minister for Heritage; Ex parte City of Fremantle [2000] WASCA 156; (2000) 22 WAR 342

Re Monger; Ex parte Ivy [1999] WASC 250

South Australia v O'Shea [1987] HCA 39; (1978) 163 CLR 378

Tempora Pty Ltd v Shire of Kalamunda (1994) 10 SR (WA) 296

The Refugee Review Tribunal; Ex parte AALA [2000] HCA 57; (2000) 176 ALR 219

Wardley Australia Ltd v Attorney General (WA) (1991) 5 WAR 453

Western Australian Field and Game Association and Ors v Pearce and Anor (1992) 8 WAR 64

1 MALCOLM CJ: This is the return of an order nisi made by White AUJ dated 6 August 2001 by which the learned Judge ordered that the respondent show cause why a writ of certiorari and a writ of mandamus should not be issued against the respondent.

2 At the hearing on 3 December 2001 the applicants sought and obtained leave to amend the original grounds for the application in terms of a minute dated 28 November 2001 so that the order nisi would be in the following terms:

"1. A Writ of Certiorari be issued against the Respondent to quash her decision to refuse the Applicant's appeal from a decision made by the Town of East Fremantle to deny the Applicants planning consent to develop and extend the dwelling on the property at 132 Preston Point Road ('the Appeal'), on the grounds that:

(a) The Respondent referred in the Decision to a submission from the Hon Jim McGinty MLA, Member for Fremantle and other objectors. The Applicants did not at any stage have access to a copy of that submission or those of other objectors, nor were they given any chance to respond to it. In denying the Applicants this opportunity the Respondent did not exercise procedural fairness.

(b) The Respondent's decision was not consistent with the decision of the previous Minister the Honourable Graham Kierath, was contrary in material respects to the advice she received from the Town Planning Appeal Committee Member whom she had appointed pursuant to s 40(3) of the Town Planning and Development Act 1928, was manifestly unreasonable and did not treat the Applicants consistently with other like individuals also resident on Preston Point Road whose planning applications to build up to and possibly within the minimum front set-back were approved either by the Town or by the Respondent and was thereby unreasonable in the sense that no reasonable person could have made the decision.

2. A Writ of Mandamus be issued against the Respondent to direct her to consider and determine the Appeal according to law, on the grounds given above.

3. Costs of the Application be in the cause."

3 Notice was given by the Hon Minister that she will abide the decision of the Court and would not appear by counsel. In these circumstances leave was given to the Attorney General to appear as amicus curiae. Senior counsel for the applicants commented that it seemed unusual that the Attorney General would seek to appear as an amicus, because this was not a matter of general public interest between parties. In this case, however, the Minister was not being proceeded against in her normal ministerial capacity, but in her capacity as a tribunal of appeal being an alternative avenue of appeal to the Town Planning Appeal Tribunal under s 39 of the Town Planning and Development Act 1928 (WA). In such a case it is proper that the Minister abide by the decision of the Court, but that there be an appropriate contradictor.

4 The effect of the amendment to the grounds was that the original grounds were entirely deleted and substituted by the new grounds. In those circumstances, the original orders nisi were discharged, to the extent that reliance was placed on the original grounds (a) to (e) inclusive of the order and the applicants were granted leave to substitute the two new grounds (a) and (b) above in respect of which, in effect, there was a new order nisi.

5 Counsel for the applicants dealt with the new grounds in the reverse order. On this basis it was submitted that the case raised two questions. The first, raised by par (b) of the order, was whether the decision by the Minister was unreasonable. The second, raised by par (a), was whether there had been a denial of natural justice to the applicants.

6 The applicants are the owners of a house at 132 Preston Point Road, East Fremantle. In July 1998 they engaged a Mr Simon Maxwell, a Building Designer and a Director of Urbanise Architect Pty Ltd to assist in the design of and obtaining approval for alternations and additions to the house. The house is located within the Town of East Fremantle ("the Town") and is within the scheme area of the Town of East Fremantle Town Planning Scheme No 2 ("the Scheme").

7 In November 1998 the applicants applied for planning consent to carry out alterations to the house. They then proposed set-backs from the front of the house which were well within the limits provided by the Scheme. Special approval was required for extensions to the side walls, by reason of the provisions of the Scheme for side set-backs.

8 Mr Maxwell has produced a true copy of the floor plan lodged with the application. The application proposed, among other things:

(a) construction of walls on the second storey of the house at a distance of 1.6 m from the side boundary of the property, which was less than the 3.0 m side set-back required under the Scheme; and

(b) front set-backs of approximately 9.28 m on the west side of the house and slightly more than that on the east side of the house.

9 The Development Table on pp 12 - 25 of the Scheme contained a requirement for front set-backs of 7.5 m on p 12 and a requirement for side set-backs of 3 m on p 23.

10 The application was considered at a meeting of the Planning and Building (Private Domain) Committee ("the Committee") of the Town on 9 March 1999. The Town Planner recommended that the application be approved. Notwithstanding the recommendation, the Committee itself recommended refusal. The Town subsequently refused to grant planning consent to the applicants, who were informed of the decision by letter from the Town to Mr Dilatte dated 31 March 1999.

11 Mr Dilatte then instructed Peter D Webb & Associates, Town Planning Consultants, to lodge an appeal to the then Minister for Planning, the Hon Graham Kierath, pursuant to s 39 of the Town Planning and Development Act ("the first appeal"). By an undated letter received on or about 28 July 1999 the then Minister notified Mr Webb in writing that the first appeal had been successful, planning approval had been given in terms of the application and that approval would remain on foot for 2 years from the date of the letter.

12 On 19 June 2000 Peter D Webb & Associates submitted to the Town a variation of the plans previously approved ("the first variation"). In August 2000 the first variation was partially approved by the Town in that the front set-back of 8.9 m on the east side of the building was approved, but the front set-back of 7.5 m on the west side of the building was not approved. The principal difference between this application and the original was that it reduced the front set-back. The reduction did not involve encroachment of the set-back beyond the 7.5 m said to be permitted by the Scheme. The Town's Town Planning and Building Committee recommended that the proposed change to the front set-back on the eastern wing be approved, but recommended against the reduction to the front set-back on the western wing. The Committee took the view that it did not have the power to alter the planning consent on other aspects which had been determined by the Minister.

13 Mr Maxwell then obtained from Mr Webb a transcript of the report and recommendation of the Heritage Planner contained in the report to the Committee at which the first variation was considered. The transcript was dated 8 August 2000.

14 It appears to be the fact that a number of properties in close proximity to the subject land, which have recently been renovated or constructed or were under construction, had a front set-back which is considerably less than that proposed in the first variation. Such properties include 134 Preston Point Road, which is adjacent to the subject land. Mr Maxwell visited the area to verify that information and determined that the building at 134 Preston Point Road had been constructed with a set-back of 7.5 m from the front boundary. It was contended by the applicants that the inference was that after the applicants' first successful appeal, planning approval to these set-backs had been given by the Town or the Minister.

15 Subsequently, on 5 September 2000 Mr Maxwell submitted a further variation of the application by the applicants for consideration by the Town. This second variation involved an increase of the front set-back from the front on the western wing, because this had been seen by the Town as a difficulty in the first variation. At the same time it was proposed to decrease the set-back on the eastern wing, but in either case not to infringe the minimum scheme distance. They did, however, propose the construction of a cantilevered balcony on the east side of the house to within 6.3 m of the road or 1.2 m less than the 7.5 m required of front set-backs by the Scheme. This reduction in the front set-backs, with the consequent extension of the side set-backs, was the only substantial difference between the second variation and the first appeal. Although this resulted in the first floor balcony encroaching 1.2 m, the encroachment was less than the encroachment of the deck of the next door neighbour to the east. It was contended that this balcony did not raise any issue of privacy or overlooking in respect of the neighbouring properties on either side, namely numbers 130 and 134 Preston Point Road. This was the only variation to the project as approved by the former Minister.

16 The reason for the reduced set-back in the second variation was to preserve the existing river views from the property, which would otherwise have been obstructed or obscured by the reduced set-back in the development at 134 Preston Point Road. The reduction in the set-back of the neighbouring development has significantly obscured the view from the applicants' property. The intention of the further reduction was to preserve the pre-existing views which the altered set-back was intended to achieve.

17 At a meeting on 21 November 2000 the Town resolved to refuse the application on the following grounds:

"1. Non-compliance with the side (west) setback requirements of Town Planning Scheme No 2 which will have an adverse impact upon the privacy, visual amenity and solar access of the adjoining neighbour (west).

2. Non-compliance with the front (north) setback requirements of Town Planning Scheme No 2 which will have an adverse impact upon the streetscape and create an undesirable precedent likely to result in a domino effect of landowners jostling forward into the setback area to gain or re-gain views in the future and is contrary to orderly planning.

3. Non-accordance with Council's Policy on Footpaths & Crossovers which will have an adverse impact upon pedestrian safety and is contrary to orderly planning.

4. In considering the impact the proposal will have upon views in accordance with Clause 5.3.1(b) Council has concluded that the proposed front setback of the western wing at the first and second storeys will have a significant adverse impact upon the views of the adjoining dwelling (west) and is therefore not in compliance with the following Scheme provisions:

..Clause 1.4(b) - Objects of Scheme

..Clause 1.4.2 - Particular Objects of the Scheme

..Policy Statement for the Area

..Clause 3.1.1(a) & (d) - Standards for Housing

..Clause 5.3.1(b) - Matters to be considered by Council

5. Non-provision of information regarding drainage.

6. In considering the impact the proposal will have upon views in accordance with Clause 5.3.1(b) Council has concluded that the proposed side setback in general and the relaxations in particular that are requested will have an adverse impact upon the views of the adjoining neighbours (south) and is therefore not in compliance with the following Scheme provisions:

..Clause 1.4(b) - Objects of Scheme

..Clause 1.4.2 - Particulars Objects of the Scheme

..Policy Statement for the Area

..Clause 3.1.1(a) & (d) - Standards for Housing

..Clause 5.3.1(b) - Matters to be considered by Council."

18 By letter dated 24 November 2000 the applicant was informed by the Town that the application for the second variation had been unsuccessful. Mr Maxwell then requested and obtained on behalf of the applicants a transcript of both the meeting of the Committee and the meeting of the Town at which the second variation was considered. The meeting of the Committee was held on 14 November 2000 and the meeting of the Town on 21 November 2000.

19 At the request of the applicants, Mr Maxwell instituted an appeal to the Minister for Planning against the decision of the Town on 16 January 2001 ("the second appeal"). The submissions in support of the appeal pointed out that since the applicants' previous application, the owners of 120 Preston Point Road had received approval for and constructed additions to the existing house, including a reduction of the front set-back from the frontage of approximately 5.5 m. It was submitted that the applicants had only applied to the Town for a variation of the Minister's previous approval, the only change being a reduction in the front set-back. In the result, the Town had re-assessed the whole proposal and reached conclusions which disagreed with the decision of the Minister on the first appeal. In addition, there had been a failure to grant special approval for a balcony to cantilever 1.2 m into the front set-back, ie, a partial reduction of the front set-back to 6.3 m at the first floor or balcony level.

20 As to ground 1 of the Town's reasons for refusal, the applicants contended that:

"This issue was already addressed by the minister within the previous appeal. We consider that the additional 1.28 metres in length has a minimal impact on that previous determination. Please note the diagram indicating the impact on neighbours amenity (appendix 3) and the worst case viewing arc of 135 degrees."

"The Non compliance with the front setback is limited to a small section of cantilevered balcony on the eastern side of the proposal. Although this section of balcony is not critical to the amenity or the aesthetics of the design we feel this is worthy of special approval given,

1. The approved setbacks on the eastern development.

2. The planning officers statement that 'The overlooking of front yards is of little impact due to the open nature of the Preston Point Road frontages.' "

"The proposal contains the original crossover. Any perceived problem would be resolvable."

"Please refer to response to 1.

The Western side is 500mm inside the front setback and curved to improve site lines."

"A building issue. Any perceived problem would be resolvable."

"There is no change to the silhouette of the rear elevation from the previous ministers determination. There would be little change in the previously assessed impact on the views of the rear neighbours. Please refer points 1 and 4 as well as the provided neighbours impact drawing regarding the views from 130 and 134 Preston Point Road."

In support of the appeal the applicants contended that:

"Reasons for Appeal

1. Previous Appeal

Council's refusal to recognize the minister's previous determinations on;

1. Special approvals for side setbacks.

2. The impact of the proposal on the amenity of the rear neighbours.

Council's failure to identify the minimal change in impact upon the western neighbour between the current proposal and the previous ministers approval.

2. Special Approval for the relaxation of the front setback

Council's failure to determine the minimal impact of the 1200 mm of balcony within the front setback upon the adjoining neighbours.

Council's failure to recognize the change in circumstance created by councils approval of the additions to No 130.

Conclusion

Council's [sic decision] was unreasonable in not recognizing that the proposal is a minor variation to a previously upheld appeal. Given that, the only planning issue required to be resolved is the special approval required for the section of balcony that is within the 7.5 metre setback. Therefore we respectfully seek the ministers support in upholding this appeal."

21 Mr Maxwell received a letter dated 4 April 2001 to the effect that the Minister would consider the second appeal. Attached to that letter was a copy of a report dated 4 April 2001 from a Member of the Town Planning Appeals Committee, a Mr F E McGrath, on the subject matter of the second appeal. Mr Maxwell was invited to respond by 5.00 pm on Wednesday 18 April 2001. The report by Mr McGrath incorporated a summary of the case for the appellants, noting that the application was based on a previous application that was refused by the Town and upheld on appeal by the Minister. There were no changes to the heights, side set-backs or rear set-back. Only the front set-back was proposed to be reduced and the side walls had been lengthened to reflect the reduced front set-back. The balcony only required a special approval for a 6.3 m set-back and was described as "only a minor intrusion into the set-back area which comprised a deck and handrail".

22 The Town Planner's report stated that privacy was not an issue and that the balcony did not affect visual amenity of the side neighbours. There were no changes to the silhouette of the rear elevation from the previous determination by the Minister, and the changes proposed would have minimal effect on the rear neighbour's views to the river. The applicants contended that the Town was acting unreasonably in treating the amended plan as a fresh application because it was simply a variation of the plan previously approved by the Minister.

23 As against the above, the case for the Town was that the Town Planning Advisory Panel had recommended refusal of the amended plan, while noting that the Minister's decision on the previous appeal was still valid. The Town took the view that it had no power to vary the previous planning consent and must regard the new application as a fresh one. The adjoining owner to the rear had objected and special approval was required for the reduced front set-back as well as for the two storey reduced side set-backs. It was noted that the adjoining house to the west was located close to the common boundary and would be affected by the reduced set-backs. The Town also noted that houses to the rear at 28 and 30 Locke Street would have their view corridor reduced. The adjoining house to the east was further from the side boundary and there were no openings in the wall. This would mitigate the effect of the reduced set-back to the applicants' house. The open balcony proposed to be forward of the set-back would allow overlooking into adjoining yard space, but these were open front yards which could be viewed by the public. Relaxation would have little impact on the neighbours.

24 The Town noted that the site has a caveat imposed on it restricting roof height, which was imposed by the neighbour to the immediate rear. This caused considerable difficulty in fitting a roof within the height restriction. The higher wall plate would impose some effect on views.

25 It was also noted by the Town that there was very little effect on privacy in the front set-back areas adjoining as they were open to the street. There was very little overlooking to the rear. There was no overlooking to the east. The window in the addition facing west was to be located adjacent to a sliding door in the adjoining house. This was likely to have an impact on privacy.

26 In the previous decision the Minister had held that the proposal would not be likely to have an impact on views. The Scheme permitted two storey buildings. The owner of 30 Locke Street had originally purchased this house and imposed a height limit caveat on the property. He then built a two storey house on his own land at the rear and sold the house the subject of this appeal. The Town considered the front set-back reduction would have an impact upon the neighbours' views and would also set a precedent for other houses in the street to start juggling set-backs to get or to get back views.

27 The author of the report to the Minister concluded that:

"The Council has chosen to treat this application for variation to the approved plan as a new application. It has stated it has no choice in this matter. I can find no reason in the Town Planning Scheme to not consider this application as a simple variation. The existing house remains at the rear and side set-backs. The only addition is to the front of the dwelling approximately 1.6 m further forward on the west side but still within the permitted set-back. The addition to the east side is approximately 3.5 m forward of that approved and to the permitted front set-back. The only point at issue is the proposed balcony at 1.4 m forward of the set-back line.

The additional heights referred to are the result of the downslope to the street. The building is to the height line set by caveat from the former owner who lives in the house to the rear and who appears to be the principal objector.

It is difficult to see that the continuation of the side set-backs in any way detracts from the 'view corridor' that may exist down the side of the house. Especially as the house to the rear has similar side set-backs. This would leave the 'view' to be available from ground level in the yard space. The dividing rear fence screens that view already. I would agree with the Council that there is every reason not to approve the reduced front set-back with the balcony. It would be an example quickly followed by the neighbours to get back or to obtain views to the Swan River. They are particularly good views at this location."

28 The report concludes that the decision by the Town to treat the application as a new plan was unreasonable because the Minister's decision on the previous appeal had clearly addressed the issues of view corridors, set-backs and building heights. The only change to this plan was the proposal to reduce the front set-backs from that original plan. The west side complied with the Scheme provisions. Only the balcony projection past the set-back of 7.5 m was at issue.

29 It was also said that the claim that the forward projection of the dwelling past that approved would reduce "view corridors" and the "extra height" for similarly affected views, was unreasonable. The views available to the house at the rear were set by covenant affixed by the owner of that lot before he sold it. It was unrealistic to now claim that he relied upon the Scheme to protect the side views. The side set-backs were less than that provided in the Scheme and had previously been determined by the Minister to be acceptable as they followed an existing 10.0 m long wall line.

30 It was recommended to the Minister that the reduced front set-back for the balcony not be approved and that the appeal in that respect be refused. However, it was also recommended that the principles determined in the previous appeal regarding side set-backs and wall heights were equally valid in this amended plan, notwithstanding the building was now brought forward to the standard set-back line. In this respect it was recommended that the appeal be upheld.

31 Responding to Mr McGrath on behalf of the applicants by letter dated 17 April 2001, Mr Maxwell expressed general agreement with the body and conclusions of the report. Although it was agreed that only the balcony projection past the set-back of 7.5 m was at issue, it was asked that the Minister consider approving this variation for various reasons.

32 The Minister's decision, which was to dismiss the appeal, is contained in a letter to Mr Maxwell dated 22 May 2001. The reasons stated by the Minister were as follows:

"The application proposes to incorporate the existing dwelling into a substantial redesign which includes a second storey, proposes to extend the building well forward of the existing building line and to create a new façade. The overall development will significantly transform the character of the existing building.

A similar application for alterations and additions was the subject of a previous application to the Town and an appeal to the former Minister for Planning. It appears that the key issue on this earlier appeal was whether or not variations should be granted in relation to the proposed side setbacks to the second storey. The second storey requires 3.0 metre side setbacks under the Town of East Fremantle Town Planning Scheme No 2 (the Scheme) but only 1.6 metre setbacks are proposed to both side boundaries. The Town refused this proposal on the basis that the reduced side setbacks would obstruct the views of adjoining neighbours at the rear to the Swan River. The former Minister, however, determined that such variations would have only a minor impact on such views and upheld the appeal.

The current proposal is generally the same as that which was the subject of the previous appeal, with the exception that the building is now to be extended further to the front boundary, to a minimum of 7.5 metres at the eastern wing, with a balcony cantilevered 1.2 metres into the 7.5 metre setback, and to a minimum of 8.0 metres at the western wing. The Scheme requires a minimum front setback of 7.5 metres.

While the only variation to the plan previously approved by the former Minister relates to the front setback, the current proposal still forms part of a new application to the Town and it is therefore necessary for me to consider it in its entirety. In doing so, my conclusions are not the same as the former Minister.

I have accepted the advice from the Town that the proposed variations to the side setbacks and the resultant loss of views to the Swan River from neighbouring properties will have a significant amenity impact on those neighbours. This is reinforced by the objections submitted. In the case of the neighbour to the south-west, I am of the opinion that the eastern side setback variation will have a significant impact on the last remaining view corridor to the river from their rear balcony. While I accept generally that there is no right to a view, I note that the Scheme makes provision for the protection of views, in the case of residential development, through clauses 3.1.1(a) and 5.3.1(b). I am also of the opinion that where a variation to a standard of the Scheme is sought, it should only be permitted where it maintains the objectives of the Scheme, which include preserving the amenity of the district. In this case, I do not believe that the reduced side setbacks meet the Scheme objectives.

I also believe that some alternative design could have been considered to preserve the views of the western side neighbour. While the obstruction to the views of this neighbour will occur without any variation to Scheme requirements, the proposed extension of the western wing will eliminate any hope of retaining a reasonable view to the river. I believe you should have had some regard to this when considering your design options.

It has also been brought to my attention that the proposed building height does not comply with a height restriction that has been placed on the title through a restrictive covenant, although it does comply with the height limit in the Scheme. I accept that it is not the responsibility of the Town, nor me on appeal, to ensure compliance with the requirements of a restrictive covenant but you should be aware that the rear neighbour, the beneficiary of the covenant, might pursue this matter in the relevant court.

Having fulling [sic] considered the detail of the application before me, I have decided not to support the side setback variations to the proposed second storey due to the impact such variations will have on the views from surrounding properties. I also consider the proposed extensions to be generally insensitive to the amenity of surrounding lots and believe they should be reconsidered to minimise their impact.

Accordingly, your appeal is dismissed."

33 Clauses 3.1.1(a) and 5.3.1(b) are contained in Pt III of the Scheme headed "General Provisions". This part is introduced by the following Policy Statement:

"This Part contains standards and safeguards which the Council will apply to development within the District to ensure, as far as is possible, that all future development is directed towards the objects of the Scheme and the protection of the quality of the environment enjoyed within the District. In particular, the Council's criteria for new development are indicated as the matters it must have regard to in considering applications under the Scheme."

34 Clause 3.1.1(a) appears under the main heading "STANDARDS FOR HOUSING" and a sub-heading "3.1.1 General Standards" in the following context, so far as relevant:

"In considering an application for planning consent to any residential development the Council shall have regard to and may impose conditions in respect of the following matters:

(a) the intensity of development and building bulk of proposed buildings should not be excessive in relation to the composition and character of the buildings in the locality and should not have a detrimental effect upon the views from adjoining properties or the amenity or the locality".

35 By a fax to the Town dated 15 June 2001 Mr Maxwell confirmed that the partial approval of August 2000 was the last approval in place for the applicants' proposed additions and was valid until August 2002. This was confirmed by the Town by letter dated 20 June 2001, indicating that this meant that the development must be completed by 17 August 2002.

36 It is apparent that, although the Minister noted that the second application was "generally the same" as that which had been approved on the previous appeal and the "only variation" related to the front set-backs, the effect of the decision was to:

(a) reject the proposal in relation to the side set-backs on the basis that she agreed with the Town and disagreed with the decision of the previous Minister; and

(b) reject the proposal in relation to the front set-backs on the west wing.

37 In doing so, the Minister declined to follow the advice and recommendations contained in the report of the Town Planning Appeal Committee Member whose report she had sought pursuant to s 40(3) of the Town Planning and Development Act.

38 In relation to the previous appeal, the then Minister had determined that the only substantive planning issue was whether the side boundary set-back would cause a loss of amenity to the rear neighbour. This was not a concern raised by Mr McGrath's report to the Minister, apparently for the reason that it had been raised and dealt with in the previous appeal in a manner favourable to the applicants.

39 Exhibit 2 to Mr Maxwell's affidavit sworn on 28 November 2001 shows the subject land and the adjoining land on either side being Nos 132 and 136 Preston Point Road. Ms Wheeler and Mr Simpson live on the western side at No 132. That is a two storey brick and iron house. On the eastern side at No 136, the recently approved addition of the deck at the front extends beyond the set-back limit of 7.5 m from the frontage in the manner I have already described.

40 There is exhibited to an affidavit by Paul Andrew Hopwood sworn on 29 November 2001 a series of photographs of the applicants' property and the two adjoining properties on either side. These clearly show the relationship between the three houses, which can be looked at in conjunction with the comparative proposed site plan, comparing the previous Minister's approval and the proposed site plan indicating the set-backs. Under the previous Minister's approval and the applicants' proposals the set-backs are as set out below:

41 What was proposed and approved on the appeal to the previous Minister was that bedroom 1 on the western side of the applicants' house would be short of the 7.5 m set-back and have a more continuous balcony, but well short of the 7.5 m boundary set-back. This proposal was approved by the Town.

42 The second step was that the applicants applied to the Town to vary the proposal by taking the development up to the permitted 7.5 m set-back. This was an adjustment of 1.28 m to what was originally proposed. This was done to maximise the views from the subject land.

43 The third step was that, in the light of the approval of development on the eastern side, allowing the construction of a balcony encroaching beyond the 7.5 m set-back, they should be able to bring their balcony forward as well, while keeping the proposed bedroom 1 within the 7.5 m set-back. This complied with a view taken by the Town on the application for the first variation that the bedroom should not go up to the 7.5 m line because of amenity and view issues. The deck would provide expansive views to the west and north-west without significant truncation.

44 The house at 130 on the western side of 132 has a greater set-back from the frontage than 132, so far as the main structure of the house is concerned, but in front of the main structure, which is two storey, is a substantial deck area and then a pool in a forecourt area between the deck and the property frontage. The situation is well illustrated by a combination of the plan and photographs PH1, PH2, PH3 and, in particular, PH9.

45 From the floor plans in exhibit SM1, it can be seen that the applicants' house is closer to the frontage of Preston Point Road than No 130, but bedroom 1 as proposed for the applicants' house will not project beyond the deck area of No 130. There are no windows in the eastern wall of No 130, so that no views to the north-east would be obstructed by the proposed development to the applicants' house.

46 From the north-east corner of No 130, the development proposed for the applicants' house would have a significant unobstructed view path to the north coming around to the north-west. From the middle of the deck there would be an unobstructed view directly north to the Swan River.

47 In essence the situation which developed was that, having obtained approval from the previous Minister, the applicants sought a further adjustment or variation to the proposal approved by the former Minister to take account of developments undertaken or proposed, so as to protect the amenity of their land by way of a variation of what had previously been approved. These proposals were prompted, in particular, by what was happening to nearby properties and particularly on the eastern side.

48 It is apparent from the decision by the current Minister that, notwithstanding her acknowledgement that the only variation to the plan approved by the former Minister was to the front set-back, the current proposal:

"... still forms part of a new application and it is therefore necessary for me to consider it in its entirety and, in doing so, my conclusions are not the same as the former Minister."

49 It was submitted on behalf of the applicants that this approach was unreasonable and that it was not proper for the Minister to consider the whole matter afresh, given that the Minister was acting as a tribunal considering an appeal from an administrative decision. An appeal to the Minister, of course, is an alternative to an appeal to the Town Planning Appeal Tribunal. In this context, however the appeal tribunal is constituted, there is a need for consistency in decision making and the application of appropriate town planning principles.

50 In the present case, the only variation from the proposal previously approved was to bring forward bedroom 1 slightly, but still not exceeding the frontage set-back of 7.5 m on the west side. On the eastern side, while the balcony encroached, it was a relevant consideration that the development of No 136 had permitted a deck to project beyond the 7.5 m set-back line.

Was the decision of the Minister unreasonable?

51 In the circumstances, it was contended by senior counsel for the applicants that the Minister's decision was "wholly unreasonable". It was a decision in the unreasonable exercise of the discretion vested in the Minister in breach of her duty to exercise the statutory discretion "reasonably". In Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 229 Lord Green MR said:

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. 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 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 these 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 could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation [[1926] Ch 66, 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."

52 This was a statement in more blunt terms than an earlier statement by Dixon J in Swan Hill Corporation v Bradbury (1937) 36 CLR 746 where his Honour referred to statutory provisions which embargo or fetter particular individuals' private or proprietary rights unless he obtains the approval of a public authority. As to this, his Honour said at 757 - 758:

"In the course of the modern attempt by provisions of a legislative nature to reconcile the exercise and enjoyment of proprietary and other private rights with the conflicting considerations which are found to attend the pursuit of the common good, it has often been thought necessary to arm some public authority with a discretionary power to allow or disallow the action of the individual, notwithstanding that it has been found impossible to lay down for the guidance of the individual, or of the public authority itself, any definite rule for the exercise of the discretion. The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves. On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement. Whatever may be the cause, the not infrequent result has been a general embargo or fetter upon the exercise of the individual's private or proprietary rights unless he obtains the sanction of the public authority. When a provision of this kind is made, it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred. The duty may be enforced by mandamus. But courts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument. They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it. This means that only a negative definition of the grounds governing the discretion may be given. It may be possible to say that this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control."

53 In Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 504 - 505, Dixon J said in the context of an application for a writ of mandamus:

"The statutory provision which gives to the Commission the discretionary power of consenting to the transfer contains no statement of the matters which the Commission is to take into consideration in exercising the power. It contains a prohibition against transferring an irrigation-farm lease except with the consent of the Commission and proceeds to say that the grant or refusal of the application for consent shall be entirely in the discretion of the Commission. But there is no positive indication of the considerations upon which it is intended that the grant or refusal of consent shall depend. The discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view. No doubt the Commission is placed under a duty to consider an application for consent to a transfer and to grant or to refuse or withhold consent. And I agree with the view expressed by Jordan CJ that the use of the word 'entirely', while it indicates that the discretion is meant to rest in the Commission alone, does not necessarily indicate that it is intended to be arbitrary and unlimited, although I hardly think Shrimpton v The Commonwealth [(1945) [1945] HCA 4; 69 CLR 613] which his Honour cites, is much to the point, having regard to the constitutional limitations upon the operation of the word 'absolutely' there considered: See Dawson v The Commonwealth [(1946) [1946] HCA 41; 73 CLR 157] and Miller v The Commonwealth [(1946) [1946] HCA 42; 73 CLR 187]. But, though the discretion is neither arbitrary or completely unlimited, it is certainly undefined. I have before remarked on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power (Swan Hill Corporation v Bradbury [(1937) [1937] HCA 15; 56 CLR 746 at 757, 758]. But there must be some warrant in the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon. What warrant have we in point of law for saying that the considerations governing the Commission's refusal of consent to the transfer to Carbone can be material to no purpose falling within the scope and object of the Commission's discretion?"

54 The Wednesbury approach was followed in the High Court in Council of the City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305 in which it was held that, if an opinion required to be formed in the exercise of discretion was so unreasonable that no reasonable decision maker could have formed it, the exercise of the discretion will be invalid. Gibbs J specifically referred to Wednesbury at 327. In Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 41 - 42 Mason J noted that Wednesbury had been "embraced in both Australia and England", but that:

"... in its application, there has been considerable diversity in the readiness with which courts have found the test to have been satisfied: cf, eg, Wednesbury Corporation [[1948] 1 KB at 230], and Parramatta City Council [(1972) 128 CLR at 328], with the conclusions reached in South Oxfordshire District Council v Secretary of State for the Environment [[1981] 1 WLR 1092, at 1099; [1981] 1 All ER 954 at 960]; Shoreham-By-Sea Urban District Council [[1964] 1 WLR 240; [1964] 1 All ER 1]; and Minister of Housing and Local Government v Hartnell [[1965] AC 1134, at 1173]. But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v Lovell [(1950) [1950] HCA 52; 81 CLR 513, at 519]; Gronow v Gronow [(1979} [1979] HCA 63; 144 CLR 513, at 519-520, 534, 537-538]; Mallett v Mallett [(1984) [1984] HCA 21; 156 CLR 605, at 614-615, 622]. So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

(e) The principles stated above apply to an administrative decision made by a Minister of the Crown: Murphyores Incorporated Pty Ltd v The Commonwealth [(1976) [1976] HCA 20; 136 CLR 1]; Re Hunt, Ex parte Sean Investments Pty Ltd [(1979) [1979] HCA 32; 53 ALJR 552; 25 ALR 497]; Padfield v Minister of Agriculture, Fisheries and Food [[1968] AC 997]; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [[1977] AC 1014]. However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject-matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion."

"The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar [(1981) 38 ALR 363, at 375]; CREEDNZ Inc v Governor-General [[1981] 1 NZLR 172, at 183, 196-197]; Ashby v Minister of Immigration [[1981] 1 NZLR 222 at 225, 230, 232-233]. The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [[1948] 1 KB 223 at 228], that a decision-maker must take into account those matters which he 'ought to have regard to' should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion 'must call his own attention to the matters which he is bound to consider'."

56 In the context of town planning, the approach adopted by Lord Greene MR in Wednesbury was approved and applied by the House of Lords in Fawcett Properties Ltd v Buckingham County Council [1961] AC 636. Both these decisions concerned a decision authorised to be made by the local authority, in a context in which the decision was put within the discretion of the local authority without any express limitations. It is in this context that it must be recognised that the present proceedings are not an appeal against the Minister's decision. Judicial review of a decision otherwise than by way of appeal is generally confined to a review of the validity or lawfulness of the decision. The two main grounds of review are based upon the doctrines of ultra vires and jurisdictional error. The former is the more recent development.

57 The doctrine of ultra vires may be invoked in a range of circumstances, including where the decision maker has failed to take into account a relevant consideration or has taken into account an irrelevant consideration: Wednesbury, supra; R v Treblico; Ex parte FS Faulkner & Son Ltd [1925] HCA 11; (1936) 36 CLR 20; Padfield v Minister of Agriculture Fisheries and Food [1968] UKHL 1; [1968] AC 997.

58 These cases are aspects of unreasonableness because they lead to inconsistent and capricious decisions, although decisions by local authorities are not binding precedents and each application must be considered on its own merits: Vacuum Oil Company Pty Ltd v Ashfield Municipal Council (1957) 2 LGRA 8 at 14 per Sugerman J. Decisions in other cases, and the consequences of the decisions in them may be relevant and may be taken into account: cf Irwin & Johnson (Australia) Pty Ltd v Sydney City Council (1965) 10 LGRA 68 at 71 - 72 per Else-Mitchell J.

59 In the present case, both the Town and the Minister took the view that an application for a variation of the proposal previously approved on appeal by the former Minister should be assessed and considered as an entirely new proposal and reached conclusions on issues which were inconsistent with the decision of the former Minister and the merits of the previous appeal.

60 It was submitted by counsel for the applicants that the inconsistent exercise of a decision-making power without more may involve the decision being unreasonable in the Wednesbury sense: Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat & Livestock Corporation [1990] FCA 139; (1990) 96 ALR 153 at 166 - 168 per Gummow J; Sunshine Coast Broadcasters Ltd v Duncan (1988) 83 ALR 121; Premalal v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 82; [1993] 41 FCR 117 at 140 per Einfeld J; Bellinz Pty Ltd v Federal Commissioner of Taxation [1998] FCA 615; (1998) 155 ALR 220 at 232 - 3 per Hill, Sundberg and Goldberg JJ; Lawrence D Pickering & Ors v Deputy Commissioner of Taxation [1997] 890 FCA; 5 September 1997.

61 Inconsistency has the potential of bringing the decision making process into disrepute because it suggests that the decision is arbitrary, rather than one made in accordance with a disciplined approach reflecting the application of sound town planning principles and consistent with commonly accepted notions of justice: cf Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 639 per Brennan J; Rimington v City of West Torrens (1985) 55 LGRA 71 at 79 per Jacobs J; Hunter District Industries Pty Ltd v Newcastle City Council (1957) 2 LGRA 240 at 249 and 253 per Hardie J.

62 The determination whether there has been inconsistency between successive decisions depends upon a comparison of the circumstances in each case and, in particular, to those relevant to each decision. The comparison obviously involves questions of fact and degree. The test is that ordinarily there would need to be "a similarity, if not a virtual duplication of circumstances and conditions to establish the basis for a complaint of inconsistency": Progress Properties Ltd v Woollahra Municipal Council (1969) 18 LGRA 166 at 171 per Else-Mitchell J. Decisions by a council with respect to planning applications made by the same applicant in respect of the same land should ordinarily be consistent. For example, it is not open to a planning authority simply to change its mind about the merits of a particular application and withdraw a consent or approval previously made and communicated, even if the consent or approval has not been acted upon by the applicant: Northcott Pike & Associates Pty Ltd v Berri District Council (1984) 55 LGRA 119 at 123 - 4 per Cox J.

63 Concurrent or alternative applications, by the same landowner in respect of the same land with a common sub-stratum of development factors, should also be dealt with consistently, both for the sake of "consistency from the council's point of view and to ensure justice from the applicant's point of view": GA & LH Properties Pty Ltd v Bankstown Municipal Council (1967) 13 LGRA 344 at 349 per Hardie J. A council may be entitled to review a decision once made if, in hindsight, the earlier decision involved a serious and important mistake or error: Consolidated Realties Pty Ltd v Baulkham Shire Council (1964) 10 LGRA 120 at 122 - 123.

64 Against this background it was submitted that the decision by the Minister in relation to the appeal from the "second variation" application was unreasonable in that:

(a) in relation to the side set-backs, it was inconsistent with the decision of the former Minister on those very same issues, suggesting arbitrariness in decision making, with the result in any particular case being dependent upon the subjective views of the holder of the ministerial office from time to time;

(b) the decision was contrary to the professional advice of the Town Planning Appeal Committee member whom the Minister had appointed to advise and report to her pursuant to s 40(3) of the Town Planning and Development Act; and

(c) the statement in the decision of the Minister that "the proposed extension of the western wing will eliminate any hope of [the western neighbour] retaining a reasonable view of the river" was manifestly incorrect in point of fact, in that the western neighbour directly faces across to the Swan River and an additional 1.2 m in length on the applicants' western wall could not have the effect contended for by the Minister.

65 It was also submitted that the decision by the Minister did not appear to deal with the issue of the balcony. If the decision had rejected the application in relation to the balcony, it would be inconsistent with the virtually identical development on the adjacent land with respect to the set-back of a balcony, although the balcony proposed by the applicants is not as intrusive as the neighbour's balcony. Further, it would seem that the effect of the rejection of the application was arbitrary, as there was no explanation how the balcony might prejudice the amenity having regard to the balcony previously constructed by a next door neighbour on the western side.

66 In my opinion, these submissions should be upheld. There was no planning justification for the decision in relation to the set-backs. The Minister failed to give effect to the advice of the member of the Committee in his report which appears to have been based on his professional appraisal based upon sound town planning principles. The only significant new planning issue raised by the second application and the appeal related to the balcony. If and to the extent that dismissal of the appeal implied rejection of the proposed balcony, it was arbitrary and inconsistent with the approval of the balcony on the house on the adjoining land when in both cases it was apparent that there would be no significant adverse effect on amenity.

67 In my opinion, the order nisi should be made absolute on the ground that the decision of the Minister was unreasonable and should not be allowed to stand.

68 In her letter to the applicants' architect informing Mr Maxwell of her decision in relation to the subject appeal, the Minister said:

"As you are aware, your appeal has formed the subject of a detailed investigation by a Member of my Town Planning Appeal Committee. A copy of the Member's report was sent to you and the Town prior to me determining the matter. I am satisfied that you have had access to all of the available information. I have also noted a submission from the Hon Jim McGinty, MLA, Member for Fremantle."

"I have accepted the advice from the Town that the proposed variations to the side set-backs and the resultant loss of views to the Swan River from neighbouring properties will have a significant amenity impact on those neighbours. This is reinforced by the objections submitted."

The letter then goes on to canvass the merits of the objections.

69 It follows that the decision of the Minister discloses the existence of submissions in opposition to the development application from another Minister, namely the Hon Jim McGinty MLA, Attorney General, and other unspecified objectors. It is apparent that the Minister failed to give the applicants an opportunity to address the submissions received by her in opposition to the application. In this respect, it is patent that, in failing to give the applicants an opportunity to address the submissions in opposition, the Minister denied the applicants procedural fairness involving a denial of natural justice.

70 Section 8A of the Town Planning and Development Act provides that:

(a) under a town planning scheme, the grant of any consent, permission, approval or other authorisation is in the discretion of the responsible authority;

(b) a person has applied to the authority for such a grant; and

(c) the authority has refused the application or has granted it subject to any condition,

the applicant may appeal to the Minister against the authority's decision in accordance with Part V.

(2) Subsection (1) does not affect the operation of a right of appeal contained in the town planning scheme; but where rights of appeal are available under a scheme and under subsection (1), the commencement of an appeal under one extinguishes the right to appeal under the other.

(3) The Minister may allow the appeal with or without conditions, affix further conditions, or reject the appeal either in whole or in part.

(4) The decision of the Minister is final."

71 The general provisions in the Act relating to appeals are to be found in Pt V.

72 Section 36 of the Act provides that, notwithstanding the provisions of any other Part of the Act, Pt V "applies to and in relation to all appeals within the meaning of this Part". By s 37 "appeal" means, among other things:

(i) a town planning scheme that has effect under section 7, if the appeal is in respect of the exercise of a discretionary power by the responsible authority under the scheme."

73 The appeal to the Minister in the present case was such an appeal. Provision for the Town Planning Appeal Committee is made in s 40 of the Act. By s 40(3):

"The Minister may require the Committee or one or more of its members to consider, and report and make a recommendation to him on, any appeal to the Minister (not being an appeal referred to in subsection (3a)) and the Committee or the member or members shall do so as soon as practicable thereafter, and the Minister, after considering the report and recommendation, shall determine that appeal."

74 From a perusal of the report of the Committee Member and the correspondence, it would seem that a letter dated 10 April 2001 from the Hon Jim McGinty MLA to the Minister was not referred to the Committee Member for consideration and report. In his letter Mr McGinty referred to the subject land and said:

"Can you give consideration to referring the abovementioned appeal back to your Appeal Committee Members for a new report in the light of procedural shortcomings.

Briefly, Judith Wheeler, a neighbour was granted approval to lodge a late submission opposing the abovementioned appeal. The appeal submission was then to be lodged by Monday 19 February 2001.

Having complied with that date the submission was then ignored as the Member had completed his report to you. It has been indicated that the submission will be appended to the report when you consider it. It has also been indicated that the submission, and perhaps others, were lost after being received by your office.

In these circumstances a new report would appear to be appropriate."

75 Subsequently, by letter dated 16 February 2001, received in the Minister's office on 19 June 2001 and received by the Minister on 20 June 2001, solicitors for Mr and Mrs Dovey who resided in a home adjoining the subject property maintained that a restrictive covenant on the property limiting the height of any building would be breached by the proposed development. By a letter dated 2 December 2001 the solicitors for the applicants referred to the affidavit of James Griffith Jordan, the Acting Director of the Office of the Minister for Planning and Infrastructure (Planning Appeals) annexing correspondence to and from the Minister's office. The affidavit was sworn on 23 November 2001 and annexed correspondence to the Minister including an objection from a Mr David Browning, who resides in the house directly adjoining the rear of the subject land.

76 The correspondence attached refers to a report by a licensed surveyor that the ridge height of the existing residence on the subject land is 26.33 m AHD. This is below the covenant height of 26.35 m AHD, but it was asserted that the residence had a skylight/vent and a TV antenna that exceeded the covenant height by 0.33 m and 1.22 m respectively. It was asserted that the plans showed a deviation from this encumbrance. Following the receipt of this affidavit, the solicitors for the applicants noted in a fax dated 2 December 2001 that the affidavit of Mr Jordan sworn and filed on 29 November 2001 referred to documents on the Minister's file which had not been produced to the Court. They requested a copy of the submission by Mr McGinty referred to in the Minister's letter dated 25 May 2001 together with details of any oral submissions. They also requested that a copy of the submission of Ms Judith Wheeler referred to in Mr McGinty's letter be provided. It was noted that the letter from Ms Wheeler annexed to the written submission pre-dated the submission that Mr McGinty referred to in his letter.

77 In a letter dated 3 December 2001 it was asserted by the Crown Solicitor's Office that:

"There is no basis for or entitlement to further discovery of the Respondent's file. Orders for discovery and applications for prerogative writ will only be made where the applicant has demonstrated compelling circumstances. There is no compelling circumstance for discovery demonstrated in this case.

The letter to the Minister for Planning and Infrastructure from the Member for Fremantle, the Hon Mr Jim McGinty, which is dated 10 April 2001, is the only submission from the Member for Fremantle to the Minister for Planning and Infrastructure. It was included in the affidavit of James Griffith Jordan as annexure JGJ3.

The Member for Fremantle asked the Minister for Planning to prepare a new report which would take into account a late submissions [sic] from one of his constituents, Ms Judith Wheeler. There is no evidence that the Member for Fremantle actually enclosed a copy of the submission with his letter of 10 April 2001.

We enclose the following correspondence from Judith Wheeler to the Minister for Planning and Infrastructure:

(1) letter dated 19 February 2001 with the following annexure:

(a) letter dated 5 November 2000 from Judith Wheeler to Chief Executive Officer, Town of East Fremantle; and

(2) letter dated 11 April 2001 with the following annexure:

(a) letter dated 11 April 2001 to the Minister for Planning and Infrastructure.

The letter dated 19 February 2001 to the Hon Minister which related to the subject appeal was as follows:

'Thank you for the opportunity to respond to the Appeal AP02101.01L lodged by Mr Tony di Latte in relation to his property at 132 Preston Point Rd, East Fremantle.

This is the third application that Mr di Latte has made to develop his property since late 1998. His first application failed to gain an Absolute Majority vote at Council, and so was referred to the Minister, who upheld the Appeal in July 1999. We made comment on this first proposal in relation to the loss of views which we will experience should these plans be constructed, but supported the proposal overall as discussions with the then Town Planner, Greg Smith, led us to believe that opposing the plans might cause Mr di Latte to seek to build even further forward into his front setback.

Mr di Latte presented drawings to Council Officers early last year, seeking to build the Ministerially approved plans. However these drawings varied so greatly from the Minister's Approval that the drawings were treated as a second planning application. These plans - on which we, and other neighbours, again commented - failed at Council.

Mr di Latte submitted a new - third - set of drawings for consideration at the November 2000 meeting of Council. Again we, and our new neighbours, the Doveys, commented on the plans. Again, they failed at Council.

Each time Mr di Latte approaches Council with plans, he presents the same concept, only bigger. It is as though his initial success has spurred him on to seeking greater and greater relaxations, and in turn leading to greater and greater encroachments on the amenity and views of his neighbours.

I have enclosed a copy of our letter to Council concerning Mr di Latte's third application - the one which is currently before you - as it best sums up our response to the whole affair, and reiterate that this is a proposal which will have a negative impact on us, and our neighbours, in relation to setbacks (and therefore amenity) as well as views and property value.

We would be grateful if we could meet with a member of the Town Planning Appeal Committee when the matter reaches that level."

78 The report of the Committee Member dealing with the appeal was, as has been seen, forwarded to the applicants' representative by letter dated 4 April 2001 with a request for comments by 18 April 2001. It appears that a copy of the report was also forwarded to the Town, which was referred to as "the respondent". The report makes no reference to the submission by Ms Wheeler and Mr Simpson by a letter dated 19 February 2001 which was received in the Minister's office on 8 March 2001. That letter in turn enclosed a copy of the letter by Ms Wheeler and Mr Simpson to the Town dated 5 November 2000. There was a further letter to the Minister from Ms Wheeler dated 11 April 2001, which was received in the Minister's office on 17 April 2001. That letter contained the following:

"I am writing to you as suggested by Jim McGinty at a meeting I had with him yesterday. He himself has written to you in relation to the Appeal above, requesting you to refer this Appeal back to your Committee Members for reconsideration, which should include consultation with affected neighbours.

It appears that my submission to the Appeals Committee, and the submission made by my neighbours, the Doveys, of Locke Crescent, East Fremantle, may not have been considered when the Appeal was first dealt with. I am confident in making this statement as a result of a conversation I had with the Acting Director of your Department, Jim Jordan, last Tuesday. I rang to speak with him as a result of the letter he sent to us on April 2, 2001 (your ref 000050), in which he states the investigation had been completed prior to your letter arriving in this Office. Jim Jordan was unable to explain why our letter had not been considered, but he was able to tell me that my letter of February 19 was stamped received on February 20, but was then attached to the Appeal Committee's report on March 10, two days after the completed Report had been lodged. He also told me, when asked, that the Dovey's submission had also not been considered.

We consider these events to constitute a failure of due process, and therefore request that the matter be considered again.

When pressed, Jim Jordan suggested that we write to you, and tell you what we would have said to the Appeals Member/s who should have visited us, as both we and the Doveys asked to meet with the Member/s. Jim McGinty suggested that we do this also, even though we are requesting that the Appeal to be reconsidered. That letter follows.

Finally, we are concerned that the failure of process which has occurred in relation to this Appeal may have occurred in others, and believe that you should clarify this matter with your Officers."

79 This was followed by a further letter to the Minister of the same date as follows:

"We requested a meeting with the Member/s of the Appeals Committee for two reasons:

to show the effects of the proposed development on both our property and on the streetscape in our immediate neighbourhood; to point out the recent history of development in our area, which this application seeks to completely override.

In relation to the first point, it would not be difficult to show onsite the negative impact this proposal will have on our property. It will project some 4.5 metres in front of our home, and be very close to the side boundaries (relaxations are being sought for this). Not only will we suffer a significant loss of city views from upstairs and downstairs living areas (and suffer associated loss of property value), but our morning solar amenity will be vastly impacted upon (as the Heritage Planner's Report states) as 132 will be at least as tall as our home, further in front, and very close. We also wished to show the Member/s that this part of Preston Point Road has almost uniform front boundary setbacks - at between 12.0 and 12.5 metres - nothing like those proposed by diLatte, even though they fall within the guidelines of the Town of East Fremantle's Town Planning Scheme 2.

In relation to the second point, we had wanted to show that developments which have been undertaken in this part of Preston Point Road in the last ten years have not been moved forward of their original front setbacks, or if they have, not forward of adjacent homes. We would have shown the Member/s three homes very close to our own which, when they were developed recently, we [sic] not permitted by Council to move forward of their original front set-backs. (This same requirement also applied to our own home which was developed in the late 80s/early 90s.) We would have also been able to show one multiple residential development which does not sit forward from its neighbours, and another home, very recently developed, which sits barely in front of the general front setback in this part of Preston Point Rd. All this in about 300 metres.

Finally, we would have attempted to show that while diLatte has the right to move the front of his home to as close as 7.5 metres from his front boundary, this is not desirable. The move would induce the domino effect, which would ultimately cause the total loss of the original 1960s housing stock in this part of Preston Point Road, would cause the loss of sense of open space and garden landscape along the Road, and, in fact, would create unpleasant living conditions for all residents: Preston Point Road is a constantly busy road, and therefore noisy. DiLatte does not know about this - he has never lived at his property. We do not want to have to move our home further forward to recapture lost amenity, views and value. (We do not need to do this either - the Member/s would have seen that with three living areas, a study, three bedrooms, two bathrooms ... our property has gone as far as it sensibly ought to go.) Furthermore, any attempt by us to recapture our loss of amenity will only mean loss of amenity to other neighbours.

We are hopeful of putting our points to the Member/s in person on site, as are our neighbours, the Doveys, of Locke Crescent."

80 The applicants were given no opportunity to answer or respond to any of this correspondence. In my opinion, the procedure adopted constituted a substantial denial of natural justice and procedural fairness. There is a duty to accord procedural fairness in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear and unambiguous statutory provision to the contrary: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 - 585 per Mason J; at 616 - 617 and 619 per Brennan J; and at 632 per Deane J; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576 per Mason CJ, Dawson, Toohey and Gaudron JJ. In that case their Honours said at 576:

"It is now clear that the duty of procedural fairness arises, if at all, because the power is one which may 'destroy, defeat or prejudice a person's rights, interests or legitimate expectations' (Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ). Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise. That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness."

That qualification has no application to the present case.

81 In Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 311, after referring to a number of earlier cases, McHugh J said that:

"I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials. In the absence of a clear contrary legislative intention, those rules require a decision maker 'to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it' (Kioa v West, supra, at 587 per Mason CJ)."

See also Perron and the Northern Territory Planning Authority v Central Land Council [1985] FCA 156; (1985) 6 FCR 226; Amber Valley District Council; Ex parte Jackson [1985] 1 WLR 298 at 307 per Woolf J; Romanello and Anor v City of Melbourne (1986) 62 LGRA 327 at 329 - 330 per Murphy J; Idonz Pty Ltd v National Developments Commission (1985) 58 LGRA 99 at 120 - 121 per Neaves J (affirmed on appeal 67 ALR 46); R v West Coast Council (1995) 87 LGRA 383 at 388; and Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 109 - 110 per Barwick CJ.

82 In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ said at 175 - 176:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing ... of the impugned order or decision upon one or more of a number of distinct established grounds most importantly, jurisdictional error ..., failure to observe some applicable requirement of procedural fairness (see, eg, Stollery v Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374), fraud ... and 'error of law on the face of the record' ... Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertain an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. (See, eg, Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 167; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] EWCA Civ 1; [1952] 1 KB 338 at 353). In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court

or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

83 The evidence before the Court and, in particular, the letter by the Minister communicating her decision to the applicants' representative specifically refers to material in respect of which the applicants were not given any opportunity to comment or make submissions. This was a significant denial of procedural fairness because the Minister took into account and upheld the submissions of the objectors without providing the applicants with any opportunity to be heard in respect of them. Consequently, this is a clear case in which certiorari should lie to quash the decision on this ground alone.

84 In my opinion, both grounds having been made out, the order nisi should be made absolute and the decision of the Minister quashed on the return without further order of the Court as provided in O 56 r 13 of the Rules of the Supreme Court 1971.

85 While the applicants have also sought a writ of mandamus, I would anticipate that the original decision having been quashed, the Minister will proceed to re-consider the appeal and invite submissions from the applicants. In these circumstances it is reasonable to expect that the Minister would undertake to re-hear or re-examine the appeal according to law: cf R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] EWCA Civ 1; [1952] 1 KB 338 at 357 per Morris LJ. In order to provide the Minister with that opportunity I would adjourn the application for a writ of mandamus to a date to be fixed.

86 WALLWORK J: I agree with the reasons for judgment and the conclusions which have been reached by the Chief Justice.

87 There is nothing I wish to add to His Honour's comments.

88 WHITE AUJ: I agree with the reasons for judgment and the conclusions of the Chief Justice and have nothing further to add.