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[2022] WASC 114
Supreme Court of WA
2022-04-07
Tottle J
Original judgment source is linked above.
1 The applicant applied for judicial review of a decision made by the respondent, the Metro Inner-North Joint Development Assessment Panel (the JDAP) on 11 February 2021 to grant conditional approval to the Other Party (the Developer) for the development of a single lot of land in Mount Lawley (the Lot).
2 The Lot is located approximately 2.5km north-east of the Perth Central Business District within the City of Stirling (the City). The area of the Lot is 2,907m². The Lot is bounded by Field Street to the south-east, Rockwood Street to the north-east, Masel Lane to the north-west and Memorial Lane to the south-west. The approved development consists of a four-storey complex containing five ground floor apartments, seven level one apartments, seven level two apartments and five level three apartments, six three-storey townhouses, a communal gym, swimming pool, garden, and a basement carpark. Some of the apartments front onto Memorial Lane and others front onto Masel Lane. Three of the town houses front onto Field Street (one of which has its south-western boundary on Memorial Lane) and three front onto Rockwood Street (one of which has its north-eastern boundary on Masel Lane).
An outline of the layout of the development is depicted below (the location of the apartments is designated by the reference to 'multiple dwellings' and the location of the townhouses is designated by the references to 'grouped dwelling'):[1]
4 An impression of the 'built form and scale' of the development may be gained from the illustration below:[2]
5 The applicant challenges the decision on the ground that the JDAP exceeded its jurisdiction by failing to have due regard to vol 1 of the Residential Design Codes (R-Codes) in circumstances where such regard was a necessary precondition to the lawful exercise of the JDAP's decision making power. The applicant seeks a writ of certiorari and a declaration.[3]
6 In particulars filed before the hearing of the application,[4] the applicant asserted that the JDAP failed to consider any part of vol 1 of the R‑Codes but specifically asserted that the proposed development did not comply with primary and secondary street setback provisions of vol 1. Volume 1 applies to 'all single houses', 'all grouped dwellings' and 'multiple dwellings' where the zoning density is less than R40. Volume 2 of the R-Codes applies to multiple dwellings where the zoning is R40 or above. The Lot was zoned R60.
7 The Developer contests the proposition that the JDAP was required to assess street setbacks by reference to vol 1 of the R-Codes. It argues that, in any event, there is nothing to suggest that the JDAP did not have due regard to vol 1 and further, if the court should find the JDAP erred by not doing so, the error was not material. Additionally, the Developer contends the court should refuse relief on discretionary grounds.
(a) Was the JDAP required to have regard to vol 1 or vol 2, or vol 1 and vol 2 of the R-Codes?
(b) If the JDAP was required to have regard to vol 1, did the JDAP fail to have due regard to it?
(c) If the JDAP erred by failing to have due regard to vol 1, was that error material?
(d) If a material error is established should relief be refused on discretionary grounds?
9 As explained below I have resolved the first issue in the Developer's favour. Consequently, it is strictly unnecessary to determine the remaining issues. In case I have made an error in resolving the first issue, I have addressed and determined the second issue (which was the major focus of oral submissions) and resolved that issue in the Developer's favour. Without intending any disrespect to the submissions of counsel, I have addressed the third and fourth issues more briefly, resolving both issues in the Developer's favour.
10 It is convenient to outline the planning framework before turning to the facts.
11 Section 72(1) of the Planning and Development Act 2005 (WA) (the Act) allows a local government to prepare and adopt a local planning scheme and s 87(2)(a) empowers the Minister to approve a local planning scheme or amendment. Once approved by the Minister and published in the Gazette, the local planning scheme or amendment has full force and effect as if it were enacted by the Act.[5]
12 The City of Stirling Local Planning Scheme No 3 (Stirling Scheme) was approved by the Minister for Planning on 19 July 2010 and gazetted on 6 August 2010 as a local planning scheme.[6] The Stirling Scheme controls and guides land use and development and sets out procedures for the assessment and determination of planning applications within the City.[7]
13 All local planning schemes incorporate 'deemed provisions', that is the provisions set out in sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) which were made by the Governor pursuant to the regulation making power conferred by s 256(1) of the Act. A 'deemed provision' has effect, and is to be read as part of a local planning scheme.[8] If a deemed provision is inconsistent with another scheme provision, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.[9]
14 Clause 67 of sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sets out considerations for a local government when determining development applications.[10] Relevantly, cl 67(2)(c) provides:
(2) In considering an application for development approval (other than an application on which approval cannot be granted under subclause (1)), the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application -
16 The Lot is zoned for residential purposes and has a density code of R60. The higher the density code, the smaller the average size requirement for each dwelling on a lot. Thus, more dwellings can be placed on a lot with a density code of R60 than one with R20.
17 Volume 1 of the R-Codes stipulates minimum lot and design requirements for all single houses, all grouped dwellings and multiple dwellings on lots with a density code below R40.[13] Volume 2 of the R‑Codes stipulates minimum lot and design requirements for multiple dwellings with a density code of R40 and above, within mixed use development and activity centres.[14]
18 I set out the definitions of 'grouped dwelling' and 'multiple dwelling' later in these reasons when considering which volume of the R‑Codes applied to the proposed development. For present purposes it is sufficient to say that a 'multiple dwelling' is a dwelling where any part of the dwelling is vertically above or below any part of another dwelling and a 'grouped dwelling' is a dwelling forming a group of two or more dwellings on a lot each occupying a separate and distinct part of the lot.
19 The purpose, objectives and application of the provisions of vol 1 of the R‑Codes are set out in pt 1 of vol 1 as follows:
1.2 Purpose of the R-Codes
The purpose of the R-Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia.
1.3 General objectives of the R-Codes Volume 1
The R-Codes Volume 1 have the following objectives.
1.3.1 Objectives for residential development
(a) To provide residential development of an appropriate design for the intended residential purpose, density, context of place and scheme objectives.
(b) To encourage design consideration of the social, environmental and economic opportunities possible from new housing and an appropriate response to local amenity and place.
(c) To encourage design which considers and respects heritage and local culture.
(d) To facilitate residential development which offers future residents the opportunities for better living choices and affordability.
1.3.2 Objectives for the planning governance and development process
(a) To encourage design which is responsive to site, size and geometry of the development site.
(b) To allow variety and diversity as appropriate where it can be demonstrated this better reflects context or scheme objectives.
(c) To ensure clear scope for scheme objectives to influence the assessment of proposals.
(d) To ensure certainty in timely assessment and determination of proposals applied consistently across State and local government.
1.3.3 Application of objectives
In assessing and determining proposals for residential development the decision-maker shall have regard to the above general objectives, and any objectives provided in the R-Codes and the scheme.
1.4 Application of the R-Codes
The R-Codes apply to all residential development throughout Western Australia.
R-Codes Volume 1 and associated tables and figures apply to:
For multiple-dwelling developments in areas with a coding of R40 or greater, mixed use development and activity centres refer to R-Codes Volume 2.
Part 7 applies to the local planning framework.
Throughout this document, words written in bold print have a corresponding definition listed in Appendix 1.
For a proposal to receive approval under vol 1 of the R‑Codes, the proposal must either be assessed through the relevant 'design principles' or meet the 'deemed-to-comply' provisions of the applicable section.[15] Clause 2.1.1 provides a flowchart of the approval process under vol 1:
21 The term 'design principles' is defined as follows:[16]
In R-Codes Volume 1, specific design objectives for each element of R‑Codes Volume are to be met by all residential development subject to Volume 1 and are to be used in the preparation, submission and assessment for proposals for the purpose of determining their compliance with R-Codes Volume 1. A proposal is required to demonstrate compliance with design principles where it does not satisfy corresponding deemed-to-comply provisions.
22 The term 'deemed-to-comply' is defined as follows:[17]
A proposal, or a component of a proposal, that complies with the deemed-to-comply provisions of the R‑Codes, or an adopted local planning policy.
23 Part 2 of vol 1 governs the approval process. The following provisions govern the assessment of the merit of proposals:
2.5 Exercise of judgement
2.5.1
Subject to clauses 2.5.2 and 2.5.3, the decision-maker is to exercise its judgement to consider the merits of proposals having regard to objectives and balancing these with the consideration of design principles provided in the R-Codes Volume 1. The decision-maker, in its assessment of a proposal that addresses the design principle(s), should not apply the corresponding deemed-to-comply provision(s).
2.5.2
In making a determination on the suitability of a proposal, the decision‑maker shall exercise its judgement, having regard to the following:
(a) any relevant purpose, objectives and provisions of the scheme;
(b) any relevant objectives and provisions of the R-Codes Volume 1;
(c) a provision of a local planning policy adopted by the decision-maker consistent with and pursuant to the R-Codes Volume 1; and
(d) orderly and proper planning.
2.5.3
The decision-maker shall not vary the minimum or average site area per dwelling requirements set out in Table 1 (except as provided in the R‑Codes Volume 1 or the scheme).
2.5.4
The decision-maker shall not refuse to grant approval to an application where the application satisfies the deemed-to-comply provisions of the R-Codes Volume 1and the relevant provisions of the scheme and any relevant local planning policy.
2.5.5
For the purpose of the R-Codes Volume 1, a structure plan, local development plan or local planning policy, will only be a relevant consideration in the exercise of judgement where it is:
(a) specifically sanctioned by a provision of the R‑Codes Volume 1;
(b) consistent with the design principles of the R‑Codes Volume 1; and
(c) consistent with the objectives of the R‑Codes Volume 1.
24 It is common ground that the street setbacks of the proposed development did not comply with the deemed-to-comply provisions of vol 1 of the R‑Codes and no further reference need be made to the deemed-to-comply provisions.
(a) To ensure residential development meets community expectations regarding appearance, use and density.
(b) To ensure designs respond to the natural and built features of the local context and, in the case of precincts undergoing transition, the desired future character as stated in the local planning framework.
(c) To ensure adequate provision of direct sunlight and ventilation for buildings and to limit the impacts of building bulk, overlooking, and overshadowing on adjoining properties.
(d) To ensure open space (private and communal) is provided on site that:
is landscaped to enhance streetscapes;
complements nearby buildings; and
provides privacy, direct sunlight and recreational opportunities.
(e) To ensure that design and development is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing transition, development achieves the desired future character identified in local planning framework.
26 The design principles in vol 1 of the R‑Codes relating to setbacks are as follows:
5.1.2 Street setback
P2.1 Buildings set back from street boundaries an appropriate distance to ensure they:
27 The purpose of vol 2 of the R‑Codes is expressed in s 1.1 of vol 2 as follows:
Purpose
The purpose of the Residential Design Codes is to provide a comprehensive basis for the control of residential development throughout Western Australia.
The purpose of Volume 2 is to provide comprehensive guidance and controls for the development of multiple dwellings (apartments) in areas coded R40 and above, within mixed use development and activity centres.
For multiple dwelling developments in areas coded below R40, refer to Volume 1 of the R-Codes.
28 Volume 2 of the R‑Codes adopts a different approach to the assessment of developments to that contained in vol 1. The approach is explained as follows:[18]
Parts 2, 3 and 4 are presented as a series of design elements, each dealing with a different aspect of building siting and design.
Each design element includes the following sections to inform assessment of applications for development approval:
A statement of Intent for each element that explains the intended outcome and why it is important;
- Element Objectives that define the intended outcome for the element;
- Acceptable Outcomes that are specific measures and outcomes to assist in meeting the Element Objectives;
- Guidance including matters to be considered and design responses that can achieve the Objectives:
...
Performance-based policy
This is a performance-based policy. Applications for development approval need to demonstrate that the design achieves the objectives of each design element. While addressing the Acceptable Outcomes is likely to achieve the Objectives, they are not a deemed-to-comply pathway and the proposal will be assessed in context of the entire design solution to ensure the Objectives are achieved. Proposals may also satisfy the Objectives via alternative means or solutions.
29 Section 2.3 of vol 2 provides the Element Objectives, Acceptable Outcomes and Planning Guidance for street setbacks. They are as follows:
ELEMENT OBJECTIVES
Development is to achieve the following Element Objectives:
O 2.3.1 The setback of the development from the street reinforces and/or complements the existing or proposed landscape character of the street.
O 2.3.2 The street setback provides a clear transition between the public and private realm.
O 2.3.3 The street setback assists in achieving visual privacy to apartments from the street.
O 2.3.4 The setback of the development enables passive surveillance and outlook to the street.
ACCEPTABLE OUTCOMES
In Part 2 only, Acceptable Outcomes are default provisions to assist in satisfying the objectives. In order to achieve the Element Objectives, proposals may require additional and/or alternative design solutions in response to the site conditions, streetscape and design approach where specified in the local planning framework (clause 1.2).
A 2.3.1 Development complies with the street setback set out in Table 2.1, except where modified by the local planning framework, in which case development complies with the street setback set out in the applicable local planning instrument.
CONSIDERATIONS FOR LOCAL GOVERNMENTS
PLANNING GUIDANCE
Setting street setbacks for buildings should begin with consideration of the desired streetscape character. The proportions of a street are established by the distance between building frontages in combination with the height of buildings, with this aspect of streetscape character directly affecting how the street will be perceived and used.
PG 2.3.1 Determine street setback controls relative to the desired streetscape and building forms, for example:
define a future streetscape in a transitional area
match existing development
appropriate setbacks to maintain views and curtilage to special buildings
retain significant trees
consider parameters for articulation of building frontage through balconies, landscaping, porticos, awnings etc. where these elements are included in the street setback
use a setback range where the desired character is for variation within overall consistency, or where lot boundaries are at an angle to the street.
PG 2.3.2 Consider nominating a maximum percentage of development that may be built to the street setback (where one is set) to ensure modulated building frontages.
PG 2.3.3 Identify the quality, type and use of open space and landscaped areas facing the street so setbacks can accommodate landscaping and private open space.
PG 2.3.4 In conjunction with height controls, consider street setbacks for upper levels to:
reinforce the desired scale of buildings at street level
reduce overshadowing of the street and other buildings.
30 Clause 3(1) of sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) provides that a local government may prepare a local planning policy 'in respect of any matter related to the planning and development of the Scheme area'.
31 Two local planning policies adopted by the City are relevant:
(a) Local Planning Policy 3.1 - Character Retention Guidelines Mt Lawley and Menora (LPP 3.1); and
(b) Local Planning Policy 6.5 - Developments and Subdivisions Abutting Rights of Way (LPP 6.5).
32 LPP 3.1 recites that the objectives of the guidelines contained in it as follows:[19]
The purpose of these Guidelines is to ensure that the heritage character of Mt Lawley and Menora is retained and protected, as well as being reflected in new development.
The retention of the heritage buildings, gardens and streetscapes is important, as these are the features that give the area its special heritage character. Some buildings in the area are included on the State Register of Heritage Places, the City of Stirling's Heritage List and Local Heritage Survey, but many more contribute to the character of the area. New buildings, where they occur, should be designed to fit into the existing streetscape, and be designed in a similar style, scale, and proportions as the existing heritage buildings.
Given the above, the key objectives of these Guidelines are to: -
33 LPP 3.1 provides that in preparing development proposals, LPP 3.1 should be read in conjunction with other planning documents including the R-Codes. It provides: [20]
Where any conflict exists between these guidelines and the Acceptable Development standards of the [R-Codes], the provisions of these guidelines shall prevail 'with due regard given to the Performance Criteria of the [R-Codes]'.
34 LPP 3.1 contains a description of the architectural heritage of the areas to which it relates and describes in some detail 'traditional' housing types.
35 Part 4 of LPP 3.1 sets out various residential development provisions governing additions to traditional homes, the construction of new single houses and 'Infill Development' (involving grouped or multiple dwellings). The objectives of the provisions relating to Infill Development are described as follows:
36 The provisions of pt 4 of LPP 3.1 that apply to Infill Development include the following:
4.2.1 Streetscape
Street Setbacks
...
37 It is apparent from the plans submitted by the Developer and the documents attached to the responsible authority report produced by the City (the RAR) that the building line for the townhouses included in the development do not comply with the street setbacks required by s 4.2.1(c).
38 LLP 6.5 provides setback requirements that apply in respect of various categories of right of ways. Concerning its interaction with other policies, it provides:[21]
Where there is a conflict between this policy and other policies this policy shall prevail. The following standards are in addition to the Deemed to Comply Development standards contained in the Residential Design Codes of Western Australia ('R-Codes').
39 There is no dispute that the setback requirements that applied to the development's frontages onto Memorial Lane and Masel Lane were those specified in LPP 6.5 and that the proposed setbacks did not comply with the requirements of LPP 6.5.
The interaction between the R-Codes and the local planning policies
40 Clause 7.3.1 of vol 1 of the R‑Codes provides that a local planning policy may contain provisions that amend or replace certain 'deemed-to-comply' provisions in vol 1. Those provisions that may be amended or replaced include the 'deemed-to-comply' street setbacks in cl 5.1.2 of pt 5 of vol 1.
41 Clause 1.2.1 and cl 1.2.2 of vol 2 of the R-Codes provide, in effect, that any development standard provided in a local planning policy may amend or replace the 'Acceptable Outcomes' in pt 2 of vol 2, which include the Acceptable Outcomes for street setbacks.
42 There may be room for some argument that s 4.2.1 of LPP 3.1 is not a provision governing street setbacks but rather concerns setbacks from a building line, which is not a matter dealt with by any deemed‑to‑comply provision and thus cannot be incorporated into the deemed-to-comply provisions of vol 1. However, in my judgment, the better view is that s 4.2.1 of LPP 3.1 does replace the deemed‑to‑comply provision in vol 1 governing street setbacks.
43 Likewise, the 'Acceptable Outcome' relating to setbacks from the frontage of Memorial Lane and Masel Lane in vol 2 of the R‑Codes are replaced by the provisions of LPP 6.5.
44 The result is that primary street setbacks (the Field Street and Rockwood Street setbacks) are governed by LPP 3.1 and secondary street setbacks (the Masel Lane and Memorial Lane setbacks) are governed by LPP 6.5. This is the position whether vol 1 or vol 2 applies.
45 It may also be observed that that there is a significant overlap between the general objectives of LPP 3.1 and the specific objectives of pt 4 of LPP 3.1 on the one hand and the objectives and design principles in pt 5 of vol 1 of the R‑Codes and the Element Objectives applicable to street setbacks in vol 2 of the R-Codes.
46 The following account of the planning history is uncontroversial and is derived from the affidavits of the parties.[22] The inferences that may be drawn from the primary facts as to the JDAP's reasoning process are, however, controversial.
47 Between March and May 2020 initial and revised design concepts of the development were presented to the City's Design Review Panel.
48 On 5 June 2020, the Developer lodged with the City a Local Development Plan in respect of the Lot.
49 On 22 October 2020, the Developer's planning consultants, Planning Solutions, submitted plans and a Form 1 Development Assessment Panel application to the City.
50 On 27 October 2020 the City's Planning and Development Committee refused to approve the Local Development Plan on the grounds that:
(a) the height and scale of the proposed development were inconsistent with the heritage character of Mount Lawley; and
(b) height and setbacks were inconsistent with the existing context and character of the locality.
51 The development application was made to the City because the Stirling Scheme defines the City as the 'responsible authority' that determines development applications.[23] The application was referred to the JDAP for determination because the Lot was located outside the City of Perth and the estimated cost of the development exceeded $10 million.[24]
52 On 11 February 2021, the JDAP met to determine the development application. The JDAP was constituted by three specialist members and two local government members. An agenda for the meeting had been prepared and was circulated in advance together with the materials to be considered at the meeting. Subsequently, minutes of the meeting were prepared which recorded that the members of the JDAP had 'duly considered' the materials provided to it.[25]
53 The materials provided to the JDAP included a written submission prepared by the applicant's sole director, Mr Bradley Maguire, a written submission prepared by the applicant's solicitor, Ms Margie Tannock, and a letter from Mr Steve Allerding of Allerding & Associates (the applicant's planning consultants) to Mr Maguire setting out Mr Allerding's views on the planning merits of the proposed development and whether the development conformed to the requirements of the R‑Codes and other planning policies.
54 Mr Maguire's submissions were based on three primary contentions: first, the development could not be approved because the requirement for a Local Development Plan could not be waived and no such plan had been approved; secondly, the proposed development was contrary to orderly and proper planning; and thirdly, the development was not in keeping with heritage character of the area. I interpolate that Mr Maguire controls a company that owns three units in a nearby block of housing units and is the appointor of a trust that owns a fourth unit.[26] He has been a determined opponent of the proposed development.
4. Departure from R-Codes Volume 2 4.1
- In the absence of an approved LDP, there is no scope for the Applicant nor the City to depart from the requirements of State Planning Policy 7.3 - Residential Design Codes Volume 2 (Volume 2).
- DA20/1841 has been classified by the City of Stirling as a major residential development application. It is zoned Residential R60 under LPS3 and is therefore required to be assessed in accordance with Volume 2.
- Section 1.2.2 of Volume 2 provides that (where consistent with the Element Objectives of Volume 2), local governments may prepare and adopt a local development plan that amends or replaces the Acceptable Outcomes of Part 2 of Volume 2, which in turn prescribe primary controls relating to R-Coding.
- In the absence of an approved local development plan, local planning policy, structure plan or activity centre plan, a decision maker is prohibited from amending or modifying the primary controls that relate to R-Codes prescribed by Volume 2 in areas zoned R-40 and above.
- The JDAP should refuse DA20/1841. (emphasis added)
56 In the letter from Mr Allerding to Mr Maguire, which was provided to the JDAP to support the applicant's opposition to the development, Mr Allerding commented in detail on the development and its alleged non-conformity with the R-Codes and other planning policies. I will refer to the content of Mr Allerding's letter in greater detail later in these reasons.
57 At the meeting Mr Maguire, Ms Tannock and Mr Tom Hockley of Allerding & Associates spoke in opposition to the approval of the development.
58 The materials provided to the JDAP on behalf of the Developer included submissions by Mr Tim Willing, the Developer's sole director, Mr Paul McQueen of Lavan Legal, the Developer's solicitor, Mr Felipe Soto and Mr Phillip Griffins of Hillam Architects, the Developer's architects, and Mr Ben Doyle and Mr Trent Will of Planning Solutions, the Developer's planning consultants. Each of them spoke in favour of approval of the development.
59 The materials provided to the JDAP included the RAR.[29] The RAR recorded the City's recommendation that the JDAP approve the Development subject to conditions.[30] Among the attachments to the RAR was a 'cover letter' (apparently prepared by the Developer's planning consultants) which referred to the application of the R-Codes to the proposed development. I will refer to the content of the cover letter in greater detail later in these reasons.
(a) recorded that volumes 1 and 2 of the R-Codes were among the state planning policies that applied to the development;
(b) referred to the advice of the Design Review Panel following its review of the proposed development and noted that the 'key elements of the commentary of the Design Review Panel related to building height, 'bulk and scale' and heritage;[31]
(c) included a section entitled 'Residential Design Codes Volume 2 - Apartments' which discussed whether the development achieved the 'element objectives' of vol 2 of the R-Codes and in respect of 'street setbacks' stated:[32]
The subject site is surrounded by street frontages on all sides, being Field Street to the south-east, Rookwood Street to the north-east, Masel Lane to the north-west and Memorial Lane to the south-west. The proposed development satisfies the required 2m setback distance specified in Table 2.1 Primary Controls Table of State Planning Policy 7.3 - Residential Design Codes Volume 2- Apartments.
Notwithstanding this, the City's Local Planning Policy 6.5 - Developments and Subdivisions Abutting Rights-of‑Ways (LPP6.5) provides requirements for development to be setback from adjoining rights-of-ways. Clause 7.1.4.5 of LPP6.5, provides that where a development abuts more than one right‑of‑way, the secondary street setbacks of the R-codes applies to the right-of-way where access is not proposed. In this case this right-of-way is Masel Lane, and satisfies the required 2m setback.
The applicable setbacks in LPP 6.5 to Memorial Lane are 2m for the ground floor and 3m for upper floors. A compliant 2m setback is provided to the ground floor of the development abutting Memorial Lane. Setbacks for the upper floors to Memorial Lane do not comply with LPP6.5, and are as follows:
It is considered that the proposed development satisfies the element objectives, as discussed below.
The setback of the development from the street reinforces and/or complements the existing or proposed landscape character of the street.
The setbacks of existing development to Memorial Lane opposite the development site range from approximately nil setback to approximately 3m. In this regard, the proposed setbacks are consistent with the setback of existing development along Memorial Lane.
The street setback provides a clear transition between the public and private realm.
The development provides a clear transition to the public realm, with balustrading and landscaping to Memorial Lane providing a clear demarcation between the private spaces of the apartments and the right-of-way.
The street setback assists in achieving visual privacy to apartments from the street.
The setback of the development enables passive surveillance and outlook to the street.
The proposed setback enables for the active and passive surveillance of Memorial Lane through major openings to habitable rooms address Memorial Lane. These openings allow for an element of outlook to the proposed dwellings.
(d) included a section addressing the heritage issues raised by the application in which the following observations were made:[33]
The overall Mount Lawley [Heritage Protection Special Control Area] is identified in the LPP3.1 as being identified as an area of 'exceptional' heritage significance. The HIS [(Heritage Impact Statement)] produced by Griffiths Architects identifies that, while the broader Mount Lawley Heritage Protection Area is of 'exceptional' heritage significance, the immediate heritage character of the locality is not. It is considered that the proposed development is consistent with the objectives of the City's Heritage Protection Special Control Area (HPA), in the following ways:
The proposed development is considered to appropriately respond to the heritage and character of the local area through balancing the planning framework applicable to the site, and the various heritage requirements. The proposed development strikes an appropriate balance between the built form requirements of SPP7.3- Volume 2 and the traditional built form style and material palettes without the use of imitation to detract from original heritage. This is identified in both the commentary from the City's DRP and the Griffith HIS. A condition requiring the materials palate to be implemented has been recommended.
61 At the conclusion of the meeting, by a majority of 4 to 1 (the dissenting member was one of the two local government members), the JDAP decided to approve the development subject to conditions. The minutes of the meeting included an item entitled 'Reason' as follows:[34]
The majority of panel members agreed that the application could be determined by the JDAP, which chose to support the proposal on the grounds that it will result in a high quality, appropriate residential development that is respectful of the surrounding locality and the current Mount Lawley Design Heritage Guidelines.
The use of particular materials, textures and architectural elements found in the heritage areas of Mount Lawley are considered to have been applied carefully to create a contemporary, attractive residential form providing a range of accommodation. The corner pocket park will provide a significant area of landscaping and facilitate the location of the higher levels of the development to the rear of the land, adjoining two existing ROW.
The size of the land and its street and ROW frontage makes this a unique site within the locality whilst its position close to Walcott/Beaufort Streets commercial areas reinforces its appropriateness for higher density residential development
62 On 10 August 2021, the applicant applied for judicial review.
63 The general principles applicable to judicial review are not in dispute. The court is concerned with the power to make a decision - its legality - not its merits.
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
65 The following observations are derived from Archer J's summary of the applicable principles, as established by decisions of the High Court, in East Metropolitan Health Service v Lee.[37]
66 Determining the limits of a decision-maker's functions and powers is a question of statutory construction.[38] First, it is necessary to identify 'the preconditions which the statute requires to exist for the decision-maker to embark on the decision-making process'. It is also necessary to identify the conditions which the statute requires to be observed in order for the decision-maker to make a decision of that kind. Identifying the preconditions and conditions is a question of statutory construction.[39]
68 Second, if the decision-maker has failed to comply with a precondition or a condition, it is necessary to determine whether the extent of the non-compliance resulted in the purported decision 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it'. If so, the purported decision will involve 'jurisdictional error'; that is, the purported decision will have been made outside jurisdiction. Determining the extent of non-compliance which will have this result is also a question of statutory construction.[42]
69 Ordinarily, statutes conferring decision-making authority are interpreted as incorporating a threshold of materiality in the event of non-compliance.[43] Therefore, to succeed, an applicant needs to prove that an error was material. That is, an applicant needs to prove that there is a realistic possibility that, if the decision-maker had not erred, a different decision could have been made.[44]
Was the JDAP required to have regard to vol 1 or vol 2 or both volumes of the R-Codes? Overview
70 Before the JDAP, Mr Allerding, the Developer and its planning consultants, Planning Solutions, each expressed the view that vol 1 and vol 2 applied to the development. This was also the position taken by the City in the RAR. As recorded earlier, Ms Tannock, the applicant's solicitor, contended that vol 2 applied. Before this court, the applicant contended that vol 1 applied to the townhouses and vol 2 to the apartments whereas the Developer contended that vol 2 applied to the whole development.
71 The change in views is of no dispositive significance and, perhaps, reflects no more than the inherent difficulty in applying planning policies (the provisions are not always expressed in precise terms) to developments which may not always fit readily into the specified categories of 'single house', 'grouped dwelling' or 'multiple dwelling' and may combine a range of different design elements, and occupy a lot in a manner that has some features of an apartment development and some features of a townhouse development.
72 The difference in views arises from different approaches to the interpretation of the terms 'grouped dwelling' and 'multiple dwelling', specifically whether the proposed townhouses are 'grouped dwellings' to which vol 1 applies. The definitions are as follows:
A dwelling that is one of a group of two or more dwellings on the same lot such that no dwelling is placed wholly or partly vertically above or below another, except where special conditions of landscape or topography dictate otherwise, and includes a dwelling on a survey strata with common property.
A dwelling in a group of more than one dwelling on a lot where any part of the plot ratio area of a dwelling is vertically above any part of the plot ratio area of any other but:
• includes any dwellings above the ground floor in a mixed-use development.
73 The Developer contended that the reference in the definition of 'grouped dwelling' to 'no dwelling [being] placed wholly or partly vertically above or below another' is significant and argued the reference to 'no dwelling' relates to the 'group' of two or more dwellings on the parent lot of which the dwelling is a part of. The Developer contended that if a townhouse forms part of a 'group' of dwellings on the parent lot, at least one of which is a multiple dwelling, then the townhouse will not be a grouped dwelling but a multiple dwelling.[47] The whole development will necessarily be governed by vol 2, not vol 1 of the R‑Codes and avoid the application of two different planning regimes.
74 The Developer contended that whether a townhouse forms part of the same 'group' of dwellings on the parent lot as multiple dwellings, such that it is to be treated as a multiple dwelling rather than a grouped dwelling, is a matter of fact and degree. In this respect the Developer relied on the following observation made in Ellis v City of Stirling:[48]
In many cases, it is readily clear whether a development proposal contemplates one or more groups of dwellings. However, it seems to me that there may be cases where the nature and appearance of what, at first glance, appears to be a single group of dwellings may be such that, in fact, there is more than one group of dwellings that are adjacent to, or adjoining each other because one or more of the dwellings are not related to the others in any meaningful way. It will be a question of fact and degree in every case as to whether there is more than one group of dwellings and, if there is more than one group, what is the nature of each of those groups of dwellings.
75 The Developer pointed to various features of the development that supported the conclusion that the townhouses and the apartments were all part of the same group of dwellings. My understanding of the broad point being made by the Developer was that the townhouses and the apartments occupy the Lot communally such that they should be considered to be part of the same group of dwellings.
76 The applicant submitted that it would be antithetical to the 'the whole purpose, the whole premise on [which] the R-Codes is based' if 'grouped dwellings' are capable of being considered as 'multiple dwellings',[49] and that it would be unthinkable that such an approach [contended for by the Developer] could occur without the R‑Codes discussing that possibility. The applicant contended, by reference to the description of the development in the RAR as one that involved '24 multiple dwellings and six grouped dwellings',[50] that the JDAP had started from the proposition that the townhouses were 'grouped dwellings' to which vol 1 applied and the apartments were 'multiple dwellings' to which vol 2 applied.
77 Questions of construction must be resolved by reference to the text, context and purpose of the instrument under consideration. Planning schemes are not usually drafted by Parliamentary counsel and should be construed broadly rather than pedantically and with a sensible, practical approach.[51] The same approach should be taken to planning policies. It is well-established that definitions do not usually have operative effect and are to be construed within the context of the provisions in which they are to operate.
78 There is no direct authority on the issue to be decided in this case. In Filton v Town of Vincent,[52] the State Administrative Tribunal was called on to consider whether units within a development were 'grouped dwellings' or 'multiple dwellings'. The issue was whether 'minor or contrived projections of areas of units over garage areas of other units' meant the units should be considered to be multiple dwellings rather than grouped dwellings.[53] The Tribunal rejected a literal interpretation and, in keeping with the principles to which I have just referred, adopted a purposive approach to the meaning of the terms and held that 'any part of a dwelling' meant 'any substantial part of a dwelling'.[54]
79 In my judgment, the definition of grouped dwelling makes it clear that a dwelling is not capable of falling within the definition of grouped dwelling if any other dwelling on the lot is placed wholly or partly vertically above or below another dwelling. The exclusionary element of the definition is the existence on the lot of a dwelling that is placed wholly or vertically above or below another rather than the existence of a dwelling within a group of dwellings which is above or below another in that group. It follows from this construction of the definition of grouped dwelling that if there is any dwelling on a lot that has one or more dwellings vertically above or below it, all dwellings will be multiple dwellings, even if some of the dwellings occupy separate and distinct parts of the lot exclusively. Contrary to the Developer's contention, in my judgment, no question of fact or degree arises - if a proposed development on land zoned R40 or above includes any multiple dwellings, vol 1 of the R-Codes has no application.
80 I have reached this conclusion as to the construction of the term grouped dwelling for the following reasons:
(a) The construction adheres closely to the text of the definition of grouped dwelling.
(b) The construction is consistent with the statement contained in vol 1 of the R-Codes as to its application, that is, vol 1 applies to the development of, 'all single houses', 'all grouped dwellings', and 'multiple dwellings [with a coding of less than R40]'. Volume 1 is not expressed to apply to a development proposal that includes grouped dwellings and multiple dwellings.
(c) The point in (b) is reinforced by the absence of any provision in vol 1 that applies to a development of one lot comprising both grouped dwellings and multiple dwellings.
(d) The difficulties created by the absence in vol 1 of any provision that contemplates the construction of grouped dwellings and multiple dwellings on the same lot is exemplified by the deemed-to-comply provision applicable to the minimum site area of multiple dwellings. This deemed-to-comply provision specified that the minimum site area 'in the case of multiple dwellings in areas with a coding of less than R40, [is] the total area of the lot divided by the number of dwellings'[55] (emphasis added). The 'lot' is the 'parent lot' that is, the lot to which the strata scheme relates.[56] The application of the minimum site area deemed-to-comply provision could never be applied if grouped dwellings and multiple dwellings were to be constructed on the same lot. Neither the deemed-to-comply provisions nor the design principles address how the minimum site area of multiple dwellings is to be calculated if a proposed development of a single lot includes grouped dwellings and multiple dwellings.
(e) It results in one set of design requirements being applied to a development on a single lot and avoids the uncertainties inherent in attempting to apply different design requirements to different elements of a development.
81 I do not accept that the constructional choice I prefer is antithetical to the purpose of the R-Codes or that it would mean that 'grouped dwellings' would be considered 'multiple dwellings'. That the applicant's solicitor argued before the JDAP that vol 2 of the R-Codes applied (implicitly on the basis that the proposed development comprised multiple dwellings) gives rise to an immediate reservation about accepting such a proposition. Further this proposition assumes that which it seeks to establish, that is, that the townhouses are 'grouped dwellings'. More fundamentally, however, in my view, the proposition does not attach sufficient weight to the text of the definition or the broader contextual considerations to which I have referred to in the preceding paragraph.
82 On my construction of the meaning of the term 'grouped dwelling' the dwellings within the proposed development are multiple dwellings and the JDAP was required to have regard to vol 2 of the R-Codes and not vol 1. On this basis the error asserted by the applicant is not made out.
83 As mentioned in the introduction, in case I have erred in my construction, and in deference to the submissions of counsel, I will address the issue of whether the JDAP failed to have due regard to vol 1 of the R-Codes. For the limited purpose of addressing this issue, I will assume that vol 1 of the R-Codes applies to the proposed townhouses.
Did the JDAP have due regard to vol 1 of the R Codes? Relevant legal principles
84 The applicant accepted that the following principles identified by the Developer in its written submissions were applicable:[57]
(a) The applicant has the burden of proving jurisdictional error including the burden of proving, on the balance of probabilities, all of the facts on which the allegation of jurisdictional error is founded.[58]
(b) In the case of an allegation that the decision-maker failed to have due regard to a relevant (in the sense of mandatory) consideration, the burden of proof on the applicant clearly includes the burden of proving that the decision-maker did not in fact have due regard to that consideration.[59]
(c) There is no burden on the Developer to prove, affirmatively, that the JDAP had due regard to vol 1 of the R-Codes.[60] Indeed, the Developer was not the decision-maker, and has no advantage over the applicant that might justify imposing any relevant onus, evidentiary or otherwise, on the Developer rather than the applicant.[61]
(d) The applicant also bears the burden of rebutting or displacing the presumption of regularity, namely where a public official or authority purports to exercise a power or to do an act in the course of its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.[62]
(e) The presumption of regularity does more than identify where the onus of proof lies.[63] The presumption of regularity entails that where an opinion was open to be held by the decision-maker, it is presumed, in default of reasons (or proof) to the contrary, that the opinion was duly formed and regularly made.[64]
85 The requirement to give 'due regard to' in a planning context requires that a decision-maker must give 'active or positive consideration to the matters listed, to the extent that they apply in any particular case', whilst retaining a discretion to give such weight to those considerations as it considers appropriate in the circumstances. It is something less than a requirement that a decision-maker must apply or act in compliance with the matters listed.[65]
86 In City of South Perth v ALH Group Property Holdings Pty Ltd[66] Martino J preferred the phrase 'proper, genuine and realistic consideration' to the phrase 'active and positive consideration' because the words 'positive consideration' might suggest that the scheme created an obligation to reach a decision that was consistent with the relevant state policy. I do not understand Martino J's linguistic refinement to suggest a substantively different approach from that connoted by the phrase 'active and positive consideration'.
87 In DVO16 v Minister for Immigration and Border Protection[67] the plurality of the High Court described an obligation to 'have regard to' information as an obligation to engage in an active intellectual process directed at the information. In my understanding the concepts of 'proper, genuine and realistic consideration' and 'active or positive consideration' are subsumed in the concept of 'an active intellectual process ...'
88 In the absence of any statutory indication of the weight to be given to relevant considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to those matters, and the decision-maker will not err in law merely because it fails to place 'adequate weight' upon a consideration which it is bound to take into account.[68]
89 As Professors Aronson, Groves and Weeks observed in Judicial Review of Administrative Action and Government Liability, there can be significant evidentiary problems in proving a failure to consider a mandatory factor.[69] The evidentiary difficulties are acute when the decision-maker is not required to provide reasons or when summary reasons are provided.
90 In Parramatta City Council v Hale,[70] Moffitt P observed that before drawing an inference that a decision-maker had failed to take into consideration a mandatory relevant factor, it was necessary to displace the inference that the decision - even if it was an unwise one - was reached after taking into account all relevant considerations.[71] In the same decision Moffit P emphasised that when assessing whether a particular inference should be drawn as to the decision-maker's state of mind reference must be made to all of the relevant events and circumstances and that they should not be considered separately.[72]
91 The applicant's primary contentions may be summarised as follows:
(a) There was no evidence that the JDAP had an intellectual engagement with vol 1 of the R-Codes, that is, that there is no evidence that it understood the rules and assessed the proposed development against those rules.[73]
(b) The RAR contained only a passing reference to vol 1 of the R‑Codes but contained a more detailed assessment of various features of the decision-maker against vol 2. The absence of a more detailed consideration of vol 1 in the RAR was sufficient to conclude that the JDAP did not have due regard to vol 1 and this conclusion was reinforced by the absence of any reference to vol 1 in the 'reasons' (being the 'Reason' section of the JDAP's minutes).[74]
(c) The RAR and the other materials before the JDAP did not 'contain the tools to allow the JDAP to carry out its task'.[75] Those tools were vol 1 and an assessment of the proposal against the requirements of vol 1.[76]
(d) The presumption of regularity was displaced by the matters referred to in (a), (b) and (c).[77]
(f) Even if it was accepted that the JDAP had regard to all of the materials before it, the proper inference is that there was a failure to have due regard to a material consideration. If there had been a consideration of vol 1, non-compliance with the volume would have been identified, which then would have led the JDAP to determine that an assessment against the relevant design principles would have been needed.[78]
(g) The Developer's contention that the obligation to have due regard to the R‑Codes did not require the JDAP to follow or apply R‑Codes or reach a decision consistent with them was wrong because cl 5.2.2 of the Stirling Scheme provided:
5.2.2 Unless otherwise provided for in the Scheme, the development of land for any of the residential purposes dealt with by the Residential Design Codes is to conform with the provisions of those Codes.
Further, the discretion reserved by cl 5.5 of the Stirling Scheme to approve a development application that did not comply with a standard or requirement of the Scheme did not apply to non‑conformance with the R‑Codes.[79]
92 The Developer's primary contentions may be summarised as follows:
(a) The applicant has not displaced the presumption of regularity. That the JDAP's 'reasons' do not refer to vol 1 of the R‑Codes does not support the inference that some, but not other, considerations were taken into account by the JDAP in reaching its decision. The reasons are expressed at far too high a level of generality to permit any conclusion to be drawn as to whether the JDAP considered the issue of street setbacks by reference to vol 2 rather than vol 1 of the R‑Codes.
(b) Nor can it be inferred that the JDAP adopted the reasoning and approach in the RAR. The JDAP was not limited to a binary choice between the adoption or rejection of the RAR recommendation.
(c) To have 'due regard' to a particular matter in accordance with cl 67(2) of sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) does not require the decision-maker to follow or apply that matter or to reach a decision consistent with it,[80] and the weight to be attached to it is a matter for the decision-maker alone.[81] Due regard for a relevant consideration is a matter of substance over form.
93 The following observations may be made about the circumstances of the JDAP's decision.
94 Firstly, it was common ground between the parties that because the application for development approval was approved with conditions the JDAP was not obliged to provide reasons for its decision.[82] Nevertheless, as recorded earlier, the minutes of the meeting held on 11 February 2021 under the heading 'Reason' record four points by way of an explanation for the decision. The points may be summarised as follows:[83]
(a) the JDAP could determine the application;
(b) the proposed development was respectful of the surrounding locality and the Mount Lawley Design Heritage Guidelines;
(c) the materials, textures and architectural elements found in the heritage areas of Mount Lawley have been applied carefully to create a contemporary, attractive residential form; and
(d) the size and location of the land makes it a unique lot suitable for higher density residential development.
95 Those four points must be viewed in the context of the arguments put to the JDAP by the applicant as to why the application should be refused. To recap - in the submissions made in Mr Maguire's presentation to the JDAP three primary contentions were advanced: first, the development could not be approved because the requirement for a Local Development Plan could not be waived and no such plan had been approved; secondly, the proposed development was contrary to orderly and proper planning; and thirdly, the development was not in keeping with the heritage character of the area. It is apparent that the points made by the JDAP in the Reason addressed, in a summary manner, the applicant's primary contentions. Understood in that context, the basis for inferring that those four points were the only issues considered by the JDAP and that it did not have due regard to other matters, in particular, vol 1 of the R‑Codes, is diminished.
96 Further, the four points constituting the reason given by the JDAP for its decision summarise the ultimate conclusions of the JDAP but provide no insight into either, the intermediate conclusions reached by it in the process of evaluating the application, or the process of reasoning adopted by it. It cannot be inferred, however, that because no such intermediate conclusions are exposed in the 'Reason' that JDAP did not approach its task by reaching views on the range of issues presented by the materials put before it. Again, specifically, it is not possible to infer from the Reason that the JDAP did not have due regard to vol 1 of the R‑Codes.
97 Secondly, it may be accepted there are circumstances in which it may be inferred that a decision-maker has adopted the process of reasoning in a report provided for its assistance. It is necessary to consider whether such an inference can be drawn in this case.
I agree with the observation of Lord Neuberger P in Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822; [2014] 2 All ER 622 where he said:
'It should be added that I am very dubious about the notion that it would always be safe to assume that the reasons given by planning officers for recommending that planning permission be granted were the actual reasons which the planning authority had in mind when granting planning permission. While the planning officers' reasons would normally feature large in the minds of members of the planning committee, it would be little short of naïve to assume that even the majority of those members who were in favour of granting permission agreed with all those reasons, or had no other reasons [98].'
Lord Neuberger went on to recognise that there may be some ground for making the assumption where a planning authority is defending a public law attack on the grant of planning permission, as distinct from the private law proceedings with which he was dealing. The JDAP is a respondent in these proceedings and it has, appropriately, filed a notice of intention to abide the court's decision. It has not, therefore, provided any indication of its reasons for decision. In view of the volume of material before the JDAP, some of which was specifically requested by it after receipt of the first RAR, and in view of the lack of unanimity in the decision, any assumption that the JDAP's reasons can be found in the whole or any part of any particular documents should, in my view, only be made where adoption of reasoning set out in the first RAR or the second RAR is the only apparent basis upon which the JDAP must have acted. (emphasis added)
99 The JDAP did not mention the RAR in its Reason for the decision but the RAR was only one of several assessments of the development provided to the JDAP.
100 In addition to the RAR, the JDAP had the assistance of detailed and reasoned written commentaries on the proposed development from Mr Maguire, Ms Tannock, Allerding & Associates as well as the considerable body of material compiled by the Developer.
101 Only one of the many documents provided to the JDAP was mentioned in its reason - the Mount Lawley Heritage Guidelines (LPP 3.1) - but that cannot be taken to suggest that the Guidelines were the only document considered by it.
102 In my assessment, the scope of the materials provided to the JDAP and the articulation of the opposing arguments contained in those materials means that the inference that the JDAP adopted the reasoning or approach contained in the RAR should not be drawn.
103 Thirdly, two related points may be noted about the concept of 'having due regard'. First, the concept is embedded in cl 67(2) which is a deemed provision. As noted earlier, if a deemed provision is inconsistent with another scheme provision, the deemed provision prevails and the other provision is, to the extent of the inconsistency, of no effect.[86]
104 The requirement to have 'due regard to [the R-Codes] to the extent that in the opinion of [the JDAP], those matters are relevant to the development ...', is inconsistent with, and prevails over, the requirement of cl 5.2.2 of the Stirling Scheme that a development must conform to the R‑Codes. Thus, I do not accept the applicant's contention that cl 5.2.2 of the Stirling Scheme required the JDAP to assess the proposed development against vol 1 of R‑Codes.
105 Further, as explained in the authorities, the requirement to have due regard is a flexible concept, and a requirement to have due regard to vol 1 of the R-Codes did not impose a requirement that each element of the proposed development be assessed against vol 1. The JDAP was not free to ignore vol 1 of the R‑Codes and was required to actively engage with it intellectually. The product of such engagement might be the formation by the JDAP of the view that the application of one or more, or all, of its provisions, did not constitute the most suitable criteria for the assessment of the development and the nature of the development was such that some or all of the preferred planning criteria were to be found in vol 2 of the R‑Codes.
A JDAP is to be constituted by two local government members and three persons appointed as 'specialist members'. To be eligible to be a 'specialist member', a person must:
(a) have experience in one or more of the following areas of expertise -
(b) have -
(i) a tertiary qualification relevant to their area of expertise and experience practising or working in their area of expertise that is, in the opinion of the Minister, sufficient to allow them to perform the duties of a specialist member; or
(ii) extensive experience practising or working in their area of expertise that is, in the opinion of the Minister, sufficient to allow them to perform the duties of a specialist member.
At least two of the specialist members must have experience, and a tertiary qualification, in town planning.
It can be seen, therefore, that three members of a JDAP must have specialist qualifications in one or more of the listed specialist areas. At least two must have experience and qualifications in town planning. The Panel Regulations do not, however, require that a panel have a member with experience and qualifications in traffic engineering. (footnotes omitted)
107 The observations of Beach J in in Kew v Director of Professional Services Review[89] in respect of the Professional Services Review Committee established under the Health Insurance Act 1973 (Cth) are apposite:[90]
The committee is not a lay tribunal that is necessarily reliant on the independent expert opinion of others in order to make findings of fact calling for expertise. It is constituted as a group of professional peers, charged with investigating whether there has been inappropriate practice and then making consequential findings against specified criteria. Each member of the committee brings to the deliberations their own knowledge and experience that qualified them for appointment. And in that context the committee was entitled to reach its own views on the basis of the professional training, knowledge and experience of its members, as to whether it would be reasonable to conclude that the relevant conduct would be unacceptable to the general body of specialists in this case.
108 The R-Codes are a State Planning Policy that provide 'a comprehensive basis for the control of residential development in Western Australia'.[91] To adopt the expression used in the Developer's written submissions, the R-Codes are the 'bread and butter' of any planning tribunal.[92] I infer that the specialist members of the JDAP had a working knowledge of the R-Codes and further that they were able to assess for themselves (and assist the non-specialist members to assess) a development, including the proposed development, against the deemed-to-comply provisions and design principles of vol 1.
109 Fifthly, in their report set out below, the applicant's planning consultants, Allerding & Associates, raised both the applicability of vol 1 and vol 2 of the R-Codes to the proposed development and identified what they contended to be non-conforming features of it. The relevant extracts of the report are as follows:[93]
Local Planning Framework
The Lot is zoned Residential R60 under the City of Stirling's Local Planning Scheme No 3. Therefore, development is to be assessed in accordance with the Residential Design Codes (RDC's).
...
State Strategic Considerations
Residential Design Codes
The development is subject to the Residential Design Codes Volume 1 and Volume 2 (RDC's). Volume 1 provides Residential Development Standards for single and grouped dwellings whilst Volume 2 provides standards for apartment development.
With respect to Volume 1, the standards provide a Deemed to Comply pathway where standards and requirements are met and Design Principles to be assessed against when the standards and requirements are not met.
For Volume 2, whilst it lists Acceptable Outcomes for developments, there is a requirement for all developments to be considered against the Element Objectives. Therefore, notwithstanding a development may meet an Acceptable Outcome, its suitability is nevertheless subject to the exercise of discretion based upon whether or not it has sufficiently met the Element Objectives under each of the Design Elements.
...
Specific design elements of interest for this proposal as provided by yourself along with the Standards for land coded R60 is provided below:
These standards provide an expectation for the form of development that is likely to occur on the Lot and the development can be assessed against these and other elements under the RDC's. The provisional findings against the R-codes is considered below.
...
Provisional Findings
Subject to the Local Planning Framework requirements discussed further below, the following provisional findings are made:
...
Deemed Provisions of the Planning Development Act (Local Planning Scheme) Regulations
In addition to the discretion provided under the RDC's, all applications for development must also be considered pursuant to Clause 67 of the Planning Regulations. Provisional findings in relation to those matters are listed in Table 1 below.
Table 1: Clause 67 Considerations
The RDC's (Volume 1 and 2) have application to consideration of this matter. There are a number of variations to deemed it to comply/acceptable outcomes relating to plot ratio, height and setbacks where the Applicant has heavily relied on the refused LDP. For the reasons expressed above, there is little to no weight that can be applied to the LDP.
110 The extracts from Allerding & Associates' report directed the JDAP's attention to vol 1 of the R-Codes. There is no basis for inferring that the JDAP did not consider the matters raised in the extracts and engage with the application of vol 1 of the R-Codes in respect of the development.
111 Sixthly, the RAR attached [the Developer's] 'cover letter'. The cover letter included the following assessment of the grouped dwellings against vol 1 of the R-Codes:[94]
4.3.1 State Planning Policy 7.3 - R-Codes Volume 1
State Planning Policy 7.3: Residential Design Codes Volume 1 (R-Codes Volume 1) provides design guidance and 'deemed-to-comply' approval pathways for single houses and grouped dwellings, and applies to development in areas coded R40 and below. This application involves six townhouses, which are defined as grouped dwellings, with no plot ratio area of another dwelling above or below.
An assessment against the R-Codes Volume 1 is provided in Table 4 below. For brevity and to avoid duplication, this report assesses the key items in the R-Codes Volume 1 only. Recognising this is one coordinated development with the majority of dwellings being apartments, matters such as solar access, landscaping, visual privacy, parking, vehicular access, communal open space are assessed holistically as part of the R-Codes Volume 2 assessment (refer Appendix 1).
Table 4: Assessment of the proposal against R-Codes Volume 1
Refer to 7-9 Field Street LDP assessment in section 4.3.4 below.
Refer to 7-9 Field Street LDP assessment in section 4.3.4 below.
Refer to 7-9 Field Street LDP assessment in section 4.3.4 below.
Refer to 7-9 Field Street LDP assessment in section 4.3.4 below.
All dwellings have entry points visible from the street.
At least one major opening from a habitable room faces the street and the pedestrian or vehicular approach to the dwelling.
All dwellings have major openings facing the street or communal accessway.
Minimum two-thirds of the required area without permanent roof cover (10.67m²)
Refer to Local Planning Policy 3.1 assessment in section 4.4.1 below.
Enclosed lockable storage area, accessible from outside the dwelling with a minimum dimension of 1.5m and internal area of 4m2.
All townhouse units: Area of 4m2. Minimum dimension of 1.5m and located in basement.
112 The cover letter was prepared before the Developer's Local Development Plan was rejected and it was clearly prepared in the expectation that it would be accepted. One consequence of this is that in the cover letter the proposed street setbacks were assessed by reference to the street setbacks required by the (as yet unapproved) Local Development Plan and not by the R-Codes. The applicant contended, in effect, that this eroded any weight that might be otherwise attached to what was said about setbacks in the cover letter.
113 That the cover letter did not contain an assessment of the primary and secondary street setbacks against the requirements of vol 1 of the R‑Codes (as varied by LPP 3.1 and LPP 6.5) does not compel the inference that the JDAP did not appreciate that was so, or that it did not consider, independently of the analysis in the cover letter, whether the street setbacks conformed to the R-Codes. As noted earlier, the RAR contained an assessment of the secondary street setbacks against the provisions of LPP 6.5. And, so far as the primary street setbacks are concerned, the RAR contained an analysis of whether the proposed development was consistent with the objectives of LPP 3.1 and, in summary concluded that the development minimised the impact of building massing.[95] The avoidance of building massing being one of the objectives of the provisions of pt 4 of LPP 3.1 governing infill development (even though the term building massing is not used in LPP 3.1, that is one of the underlying planning objectives of the policy). Within pt 4 are the street setback requirements. The point to be made is that the RAR directed the JDAP's attention to the provisions of LPP 3.1 in respect of one of the issues - building massing - which the street setback requirements addressed. That being so, albeit that the RAR does not refer to the particular provisions of LPP 3.1 governing primary street setbacks, it is difficult to infer that the JDAP did not have regard to the provisions.
114 The applicant's focus on the absence of any discussion of the application of the vol 1 in the RAR and the absence of any reference to vol 1 in the Reason is too narrow. As the authorities make clear, all the circumstances must be taken into account. In the preceding paragraphs, I have commented on relevant circumstances individually and have explained why in my view they do not yield an inference that the JDAP did not have due regard to vol 1 of the R‑Codes. When viewed in combination, the circumstances undermine rather than support the drawing of that inference. Thus, in my judgment the applicant has not discharged the burden of proving that the JDAP did not have due regard to vol 1 of the R‑Codes and the jurisdictional error alleged by it has not been made out.
115 The observations that follow are made on the hypothesis (contrary to the conclusions I have reached) that the JDAP was required to have due regard to vol 1 of the R‑Codes (as amended by LPP 3.1 and LPP 6.5) and failed to do so.
116 An error that is not material is not a jurisdictional error, that is, it does not result in the invalidity of the impugned decision.[96] The test for materiality is whether the decision that was in fact made could have been different had there been compliance with the conditions governing the exercise of the statutory power.[97] In MZAPC v Minister for Immigration and Border Protection[98] the plurality expressed the relevant counterfactual inquiry in these terms:[99]
And like other counterfactual questions in civil proceedings as to what could have occurred - as distinct from what would have occurred - had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities. (footnote omitted)
117 The applicant for judicial review bears the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture.[100]
118 The applicant contended that had the JDAP turned its mind to vol 1 of the R‑Codes (as varied by LPP 3.1 and LPP 6.5), the JDAP would have found non-compliance with the deemed-to-comply provisions, which would have resulted in a consideration of the relevant design principles, which the JDAP did not consider.[101] The applicant contended that it is not for the court to inquire whether or not the proposed development satisfied the design principles because to do so would impermissibly trespass into the merits of the decision. The applicant reinforced this contention by arguing that the court should not go 'down the rabbit hole' of comparing vol 1 with vol 2, as that too would be crossing into merits review.[102]
119 The difficulty the applicant faces in proving that the (hypothetical) error was material is that requirements in respect of which it contends there was non-compliance - the primary and secondary street setbacks - were the same whichever volume of the R-Codes to which the JDAP was required to have due regard to. As such, both LPP 3.1 and LPP 6.5 varied the setback provisions of each volume of the R-Codes. Added to this, as is shown in tabular form below and as argued by the Developer,[103] there is a substantial degree of overlap between the design principles applicable to street setbacks in vol 1 and the Element Objectives in vol 2.
Buildings set back from street boundaries an appropriate distance to ensure they:
O 2.3.1 The setback of the development from the street reinforces and/or complements the existing or proposed landscape character of the street.
O 2.3.2 The street setback provides a clear transition between the public and private realm.
O 2.3.3 The street setback assists in achieving visual privacy to apartments from the street.
O 2.3.4 The setback of the development enables passive surveillance and outlook to the street.
120 Taken together the matters referred to in the preceding paragraph persuade me that the proposition that there could have been a different outcome if the JDAP had regard to vol 1 as opposed to vol 2 could not be sustained as a reasonable conjecture.
Should relief be refused on discretionary grounds? The events between the decision and the making of the application
121 Soon after the decision, the applicant's solicitor, Ms Tannock, was instructed to prepare a brief to counsel and engage a planning expert. Ms Tannock was unable to provide a brief to senior counsel (because of the unavailability of preferred senior counsel) until 16 April 2021.
122 On 21 April 2021 Ms Tannock sent a letter to the Developer's solicitors, Lavan Legal. In that letter Ms Tannock stated:[104]
1.1 We refer to the decision of the Metro Inner-North Development Assessment Panel to approve development of the property located at 7-9 Field Street Mt Lawley on 11 February 2021, DAP/20/01884 (Decision)
1.2 We act for the owners of Units 1, 2, and 4, 94 Walcott Street Mt Lawley.
1.3 We understand from the deputations made to the JDAP on the day of the Decision that you act for the owner and developer of the property the subject of the Decision. Please let us know if this is not the case.
1.4 Our client is seeking the advice of senior counsel in regard to the validity of the Decision. We are instructed to write in order to ensure your client has notice of this process and will advise you at the earliest opportunity in the event we receive instructions to commence action.
1.5 Our clients reserve all their rights in respect of this matter.
123 Ms Tannock received no reply to her letter of 21 April 2021 though it may be observed that the letter did not require a response.
124 In the meantime, the Developer engaged a team of consultants to complete working drawings and apply for a building permit.
125 In addition, the Developer obtained approval to demolish the existing building on the Lot and arranged for it to be demolished.
126 Mr Willing deposed that the Developer has incurred costs of over $2 million in respect of consultants since the decision was made.[105] Mr Willing was challenged in cross-examination about this evidence and the evidence was undermined to an extent because it transpired that some of the costs included in the $2 million related to work done before the decision.[106] Mr Willing explained that the consultants worked as part of a team and carry some of the risk of the project not going ahead,[107] and this was why invoices rendered by consultants following the decision included fees for work done before the decision that would not have been invoiced had the development not received conditional approval. I accept Mr Willing's explanation. I find the Developer incurred substantial fees in respect of work done by consultants after the decision and in reliance on the development having received conditional approval. The evidence does not permit a precise finding to be made as to the quantum of these fees but a precise finding is not necessary.
127 The Developer also took steps to market the townhouses and apartments. On 22 May 2021, the Developer entered into its first contract for the sale of one of the properties within the proposed development. Mr Willing was cross-examined about the Developer's decision to 'go to market'. He did not agree with the proposition put to him that if the application had been brought earlier, the Developer would have marketed in the same way. Mr Willing's evidence was to the effect that had the proceedings been commenced earlier, the Developer would not have gone to market.[108] He explained that the Developer owned 'the land cash' - which I infer meant that it was not incurring any financing costs in respect of the Lot itself - and that there was no benefit in going to the market if there was uncertainty caused by proceedings and the Developer would not have started marketing.[109] While evidence about what a party would have done in a counterfactual situation must be assessed carefully, I accept Mr Willing's evidence. From a commercial perspective it would not have made sense to incur liabilities to third parties and be exposed to the risk of reputational damage if the development was delayed by a judicial review application if that could have been avoided. I find that had the Developer been informed by the applicant that it was going to commence an application for judicial review of the decision at an earlier date, the Developer would not have 'gone to market' when it did but would have waited until the outcome of the challenge to the decision was known.
128 On 23 June 2021, Ms Tannock sent a further letter to Lavan Legal. The material parts of the letter were as follows:[110]
1.1 I refer to my letter of 14 April sent by email to you. I note I have not yet received a response to the letter. I reattach for your reference
1.2 I am instructed to write again to you in regard to the purported approval of the Metro Inner-North Development Assessment Panel in relation to the property located at 7-9 Field Street Mt Lawley on 11 February 2021, DAP/20/01884 (Decision)
1.3 We now write specifically in relation to any proposed purchasers for the development of 7-9 Field Street Mt Lawley. Please provide us with details of those parties, so that we can put them on direct notice of our clients' consideration of the validity of the Decision. Alternatively, please provide them with copies of our letters of 14 April and 23 June 2021.
Our clients continue to reserve all their rights in respect of this matter.
129 By 28 June 2021, the Developer had entered into six sale contracts for properties in the development.
130 On 28 July 2021, Mr McQueen of Lavan Legal replied to Ms Tannock's letter of 23 June 2021 as follows:[111]
1 I write as a courtesy to acknowledge receipt of your letters dated 21 April 2021 and 23 June 2021.
2 As requested, I confirm that Lavan acts for the developer of the above property.
3 No response was provided to your 21 April 2021 letter as it did not appear to request a response in relation to anything of substance and its purpose rather appeared to be to advise that your clients were seeking a Senior Counsel opinion (I have not heard further from you on that note).
4 In relation to your letter of 23 June 2021, the requests as outlined in the final paragraph are respectfully declined.
131 On 10 August 2021, the applicant applied for judicial review. There had been a number of meetings between counsel, Ms Tannock, Mr Maguire and Mr Allerding before proceedings were commenced which informed counsel's advice and Ms Tannock's instructions to make the application for judicial review. The evidence does not permit any findings to be made as to when these meetings occurred. Ms Tannock provided this explanation:[112]
In my opinion, the matter was complex in a number of respects. It required meeting with Mr Allerding and senior counsel on a number of occasions, and detailed analysis of the underlying framework of the decision. It is the Applicant's case that the First Respondent failed to consider the relevant material in any respect. This required detailed technical analysis, from scratch, of the planning hierarchy and relevant considerations. It was not straightforward at all. My instructions to advance the case for the Application were informed by the complexity of the matter. I wrote to the solicitors of the First Other Party on two occasions to keep them informed of the consideration of the matter.
132 By 12 August 2021, the Developer had entered into 11 sale contracts for properties in the development.
133 On 6 September 2021, the Developer entered into a finance facility for a substantial sum to fund the construction of the development and has since that date incurred significant costs on a monthly basis in respect of interest and other fees.[113]
134 On 29 September 2021, the Developer entered into a building contract in respect of the development.
135 It follows from my finding that had the Developer not marketed the development when it did but simply held the Lot pending the outcome of a challenge to the decision it would not have entered into the finance facility or the building contract.
136 By 3 October 2021, the Developer had entered into two further sale contracts for properties on the development and by 11 October 2021, the Developer had entered into 13 sale contracts in total.[114]
137 The applicant acknowledged that the discretionary nature of the relief sought by it and that delay was a factor to be taken into account but only when it is unwarrantable or undue. The applicant contended that the six-month limitation period represents 'an appropriate time limit having regard to the public interest and having regard to the interests of individuals who have an interest in the particular case that arises'.[115] The applicant contended that its conduct did not constitute unwarrantable or undue delay and emphasised that the issues it was required to consider before making a decision to commence proceedings were complex and that it had put the Developer on notice of the possibility of proceedings. The applicant reinforced this contention by pointing out that Ms Tannock was not cross-examined, and her evidence was not challenged.[116] The applicant further contended that in making an assessment of prejudice, only prejudice suffered as a result of the delay in the period between the date on which proceedings ought to have been commenced and the date on which they were commenced was relevant. The applicant argued that the fact that the Developer had entered into a finance facility and building contract after the proceedings had been commenced meant that those matters could not give rise to relevant prejudice.
138 The Developer contended that the court should exercise its discretion to refuse relief because the delay was 'unwarrantable' or 'undue'. The six‑month limitation period for an application for judicial review is a maximum rather than a 'yardstick' by which delay is to be measured. The Developer contested the proposition that the issues raised by the application were so complicated that they justified the delay. It pointed out that Mr Maguire and Ms Tannock attended the JDAP meeting and were familiar with the issues and that the ground of review raised an issue of a broad nature that had not been raised before the JDAP. The Developer relied also on the fact that the applicant had not articulated the ground of review ultimately relied on at any time prior to the commencement of the application. The Developer relied on Mr Willing's evidence as demonstrating the prejudice it has suffered by reason of the delay.[117] It also pointed to the potential for prejudice to be suffered by third parties being those who had agreed to purchase properties in the development.
139 The policy of ensuring that challenges to administrative decisions are made promptly is reflected in the limitation periods applicable to applications for judicial review made under the Rules of the Supreme Court 1971 (WA) (the RSC). Order 56 r 2 of the RSC governs the making of an application for judicial review. It provides:
(1) To make an application, a person must file an application in Form No. 67A.
(2) In one application a person may apply for any or a combination of these remedies -
(a) one or more writs;
(b) either a declaration or an injunction or both;
(c) an order having the same effect as a remedy that could be provided by means of a writ.
(3A) An application must, in accordance with Order 71A, state -
(a) the applicant's geographical address; and
(b) the applicant's service details.
(3) An application must state the grounds on which it is made.
(4) If an application is made outside the limitation period for the application -
(a) the application must include an application for leave to proceed with the application; and
(b) the applicant must file an affidavit explaining why the application was not made within the limitation period.
140 Order 56 r 1(1) of the RSC defines 'limitation period' as follows:
(a) for an application for judicial review of a reviewable decision, means 6 months after the later of -
(ii) the date on which the applicant became aware of it;
(b) for an application for judicial review of reviewable conduct, other than a failure to make a decision, means 6 months after the later of -
(ii) the date on which an applicant became aware of it.
141 In R v O'Sullivan,[118] the Full Court of the Supreme Court of Western Australia (Wolff CJ, Jackson and Negus JJ) was concerned with an appeal against a decision of a public service appeal board by an employee who contended that the appeal board had failed to exercise its jurisdiction in accordance with the law, and as a consequence, had failed to appoint him to a position. Wolff CJ was of the view that the appeal board had not exceeded its powers but observed that the grant of a writ of certiorari was a discretionary remedy and the 'lapse of time' (three months) combined with the lack of real merit in the claim was sufficient to deny the applicant the remedy, 'even although it might have been argued successfully that he should legally have been appointed'.[119] Jackson and Negus JJ held that the board had acted beyond its statutory powers. In relation to delay, Jackson J observed that the delay 'while not inordinate, [was] substantial' and certiorari was a discretionary remedy and that having regard to the delay and to the absence of 'any real merit', certiorari should be refused.[120] Relevantly, Negus J agreed with the reasons of Jackson J for refusing to exercise the discretion in the applicant's favour.[121]
143 The decision of the Full Federal Court of Australia in Ansell v Wells,[124] also involved an application to review a decision of a public service appeal board. The application was made over three years after the impugned decision. A judge of the Supreme Court of the Australian Capital Territory discharged an order nisi and dismissed the application. The applicant appealed to the Full Court of the Federal Court. Franki J said that 'undue delay' may be a ground for refusing certiorari in certain circumstances and, after citing R v O'Sullivan, held that the delay of over three years was fatal to the grant of relief.[125] Davies J agreed that the delay was fatal to the application.[126] Lockhart J agreed also and said:[127]
Mere delay generally will not debar a plaintiff from obtaining discretionary relief ... Delay, coupled with prejudice to the defendant or a third party, may debar a plaintiff from obtaining discretionary relief.
The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.
That is material to the exercise of the discretion in the Court: R v O'Sullivan (supra); Aston (supra at 559. Where the delay is mere and not undue it is relevant to consider whether it is coupled with prejudice: Ansell v Wells [1982] FCA 186; (1982) 63 FLR 127 at 136-7, 143, 155-6.
Delay on the part of an applicant for certiorari is a substantive ground for the refusal of relief in the exercise of discretion: de Smith's, Judicial Review of Administrative Action (4th Edn) 579-580. Where there has been inordinate delay it would clearly be appropriate to refuse an order nisi as occurred in this case. Relief should be refused when the court is satisfied that to grant the relief would cause substantial hardship to others or prejudice their rights.
147 When considered in the light of the authorities generally I do not understand Malcolm CJ to have been suggesting that relief can only be refused on the discretionary grounds if there is 'inordinate' delay and the court is satisfied that to grant the relief would cause substantial hardship to others or prejudice their rights.
[I]nvolves inviting the court to decline to intervene as a matter of discretion, notwithstanding that it has found an action to be unlawful or invalid. As H WR Wade, Administrative Law, says (at p 709):
'Such a discretionary power may make inroads upon the rule of law and must therefore be exercised with the greatest care. In any normal case the remedy accompanies the right. But the fact that a person aggrieved is entitled to certiorari ex debito justitiae does not alter the fact that the court has power to exercise its discretion against him ...
Nevertheless distinctions may have to be drawn according to the nature of the remedy sought, and according to the differences between public and private law remedies. Certiorari and prohibition have as their primary purpose the preservation of order in the legal system by preventing excess and abuse of power, rather than the final determination of private rights ...'
His Honour went to cite the observation made by him in Savage v Teck Explorations Ltd which is quoted earlier in these reasons.
149 In Re City of Perth; Ex parte Lord,[137] Templeman J, with whom Parker and Hasluck JJ agreed, described a submission that the relief should be refused (when a case for its grant had been otherwise made out) on the ground of delay as 'a somewhat bold one' and that 'a compelling case' needed to be made out to justify the refusal of relief in those circumstances.[138]
As McHugh J said in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553, the six-month limitation period is 'the general rule'. It is not 'an arbitrary cut off point'. The six-month limit represents a judgment as to an appropriate time limit having regard to the public interest and having regard to the interest of individuals who have an interest in the particular case that arises. A limitation period is imposed, and the length of the period is determined, recognising that the limitation period may result in a cause of action being defeated.
A six-month time limit for proceedings by way of judicial review is common in Australia, and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administration Action (3rd ed, Lawbook Co, 2004), pp 718-719.
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision-making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision-making process is a reason why there should be a relatively short period within which any such attack should be mounted.
151 The discretion to refuse relief on the ground of delay must be exercised having regard to all the circumstances of the impugned decision and the challenge to it. Without being exhaustive, those circumstances include: the nature of the decision and the activities regulated or affected by it, any factual or legal complexities associated with the decision, the length of the delay, any explanation offered for the delay, the effect of the decision on the personal and commercial interests of those affected by it (including prejudice to proponents or opponents of the decision and prejudice to third parties), and the existence of other methods of challenging the decision. Each case must be determined on its own facts - a delay of three months in one case may be decisive but in another it may be of no significance.
152 The exercise of the discretion is not confined by the application of verbal formulae such as 'inordinate delay', 'unwarrantable delay' or 'undue delay' whether on their own or in combination with a requirement for 'prejudice'. Such expressions are essentially conclusionary in nature and convey that, in the circumstances of the case under consideration, the elapse of time between the making of the decision and the making of the challenge to it justifies the refusal of relief.
153 It may be acknowledged that where a decision has been made which is beyond power, great care is required before discretion to refuse relief is exercised but that acknowledgement is made in the context of the long‑established principle that those seeking relief must act promptly. A principle reinforced by the requirement of O 56 r 2 of the RSC that an application must be made within the (extendable) six-month limitation period.
154 When it comes to assessing prejudice, it is important to appreciate that challenges to many statutory decisions will occasion prejudice even if they are made promptly. The assessment that is required when considering the exercise of the discretion not to grant relief on the ground of delay is an assessment of the prejudice caused by the delay. Distinguishing between prejudice occasioned by the making of an application and prejudice caused by delay in making the application is a difficult exercise - it is rare that a challenge to a statutory decision will not cause some prejudice.
155 Whether an applicant for judicial review has acted reasonably will usually be an important factor in deciding whether to exercise the discretion to grant or refuse relief. The reasonableness of the applicant's conduct is not to be assessed in isolation. It must be assessed in the context of all the relevant circumstances, particularly, the nature of the decision and its effect on third parties.
156 The decision to grant conditional approval for the development was an important decision not only for the parties who were immediately concerned with it - the applicant, the Developer and the City - but also for the local community. The Lot is a significant development site in an inner suburban area and if developed has the capacity to increase the available stock of housing for the local community.
157 The planning framework within which the decision was made is complicated for anyone without some familiarity with town planning and property development. The applicant, its solicitor and planning advisers were familiar with the proposed development and the planning issues to which it gave rise, and, in particular, the planning issues that the grounds upon which the applicant objected to the development application gave rise. Thus, when they came to consider the decision, they did so with the considerable advantage of their familiarity with the development and the planning process. Accepting that the relatively confined and straightforward nature of the applicant's case as presented in this court was the result of the analysis and distillation of issues undertaken before the application was made, I am not persuaded that the complexity of the issues provides a satisfactory explanation for the time taken by the applicant to commence the application.
158 Property developments of the scale of the proposed development require substantial capital investment and consequently are time sensitive. Delays, especially unexpected delays, can make the difference between success and failure. In that context, it is incumbent on anyone contemplating a challenge to a development approval to act expeditiously. The applicant did not do so. I am not satisfied that the applicant's approach to its challenge to the decision manifested any real concern for the prejudice that delay in making a challenge might have on the Developer.
159 Of course, the applicant was entitled to brief senior counsel and its preferred senior counsel. Nevertheless, there is no evidence to suggest that competent alternate counsel were not available. It is the applicant who must bear the consequences flowing from the delay (approximately two months) in briefing its preferred counsel, and not third parties who were proceeding on the basis that the decision was valid.
160 Further, there is no satisfactory explanation as to why it took over three months for the basis of the application to be formulated once senior counsel was briefed. This is not a case in which the applicant did not have access to all the relevant materials or where its solicitors or planning consultants were coming to the matter without any knowledge of the background.
161 In making these observations I do not suggest that viewed in isolation the conduct of the applicant and those advising it was unreasonable. The point is that their conduct cannot be viewed in isolation. It cannot be divorced from the fact that the decision granted conditional approval for a property development in circumstances in which the Developer could not simply put the development on 'hold' for six months in case a challenge to the decision was made.
162 For its part the applicant appears to have proceeded on the basis that the only time pressure with which it needed to be concerned was the pressure created by the six-month limitation period.
163 The applicant's solicitor's letters of 21 April and 23 June 2021 provide the applicant with no assistance. Neither letter articulated any basis for a challenge to the decision when, given that two and close to four months respectively had expired since the decision was made, it was reasonable to expect a serious prospective applicant to foreshadow grounds with some level of cogency.
164 The Developer suffered prejudice in that, had an application for judicial review been made promptly, it could and would have delayed marketing the development. It would have avoided contractual commitments to third parties (being the purchasers of properties of the development) and would not have entered into the finance facility and the building contract.
165 In my judgment, in the circumstances of this case, the delay on the applicant's part in making the application would have justified a refusal to grant a writ of certiorari.
166 The application will be dismissed and I will hear the parties in relation to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[1] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: p 137.
[2] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: p 393.
[3] Application for judicial review filed 10 August 2021.
[4] Further and better particulars filed 1 November 2021.
[6] Western Australia, Government Gazette, No 152 (6 August 2010) 3657.
[7] City of Stirling Local Planning Scheme No 3, 6 August 2010 cl 1.5(d) and cl 1.5(e).
[10] Prevailing over the City of Stirling Local Planning Scheme No 3, 6 August 2010 cl 10.2.
[11] Planning and Development Act 2005 (WA) s 4 and s 29.
[12] Planning and Development Act 2005 (WA) s 171A(3); Planning and Development (Development Assessment Panels) Regulations 2011 (WA) reg 8(1)(a) and reg 16. See Milem v Metro Central Joint Development Assessment Panel [2018] WASC 371 [97] (Archer J).
[13] State Planning Policy 7.3: Residential Design Codes - Volume 1, cl 1.4.
[14] State Planning Policy 7.3: Residential Design Codes - Volume 2, cl 1.1.
[15] State Planning Policy 7.3: Residential Design Codes - Volume 1, cl 2.1.1.
[16] State Planning Policy 7.3: Residential Design Codes - Volume 1, p 48.
[17] State Planning Policy 7.3: Residential Design Codes - Volume 1, p 48.
[18] State Planning Policy 7.3: Residential Design Codes Volume 2, p iv.
[22] Affidavit of Timothy Oscar Willing, sworn on 11 October 2021; affidavit of Margaret Mary Joy Tannock, sworn on 12 October 2021; affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021; affidavit of Bradley John Maguire, sworn on 1 November 2021; affidavit of Timothy Oscar Willing, sworn on 8 November 2021; affidavit of Margaret Mary Joy Tannock, sworn on 17 November 2021.
[23] City of Stirling Local Planning Scheme No 3, 6 August 2010 cl 1.2 and cl 10.3.
[25] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT4: p 15.
[27] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: p 24.
[28] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: pp 24, 26.
[29] Planning and Development (Development Assessment Panel) Regulations 2011 (WA) reg 12.
[30] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: pp 98 - 103.
[31] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: p 117.
[32] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: pp 130 - 131.
[33] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: p 133.
[34] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT4: p 21.
[35] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.
[36] Re Refugee Review Tribunal; Ex parte Aala [163] applied in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] - [88] (Murphy, Mitchell & Beech JJA).
[37] East Metropolitan Health Service v Lee [2022] WASC 54 [46] - [52].
[38] East Metropolitan Health Service v Lee [48] citing Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
[39] Hossain [23], [27] (Kiefel CJ, Gageler & Keane JJ).
[40] Hossain [29] (Kiefel CJ, Gageler & Keane JJ) quoting Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 [78].
[41] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle & Gordon JJ), [134] (Edelman J). See also ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 [19] (Kiefel CJ, Bell, Gageler & Keane JJ).
[42] Hossain [24], [27] (Kiefel CJ, Gageler & Keane JJ).
[43] Hossain [29] - [30] (Kiefel CJ, Gageler & Keane JJ). See also Minister for Immigration v SZMTA [2019] HCA 3; (2019) 264 CLR 421 [44] (Bell, Gageler & Keane JJ); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 [31] - [33] (Kiefel CJ, Gageler, Keane & Gleeson JJ).
[44] MZAPC [39] (Kiefel CJ, Gageler, Keane & Gleeson JJ).
[45] State Planning Policy 7.3: Residential Design Codes - Volume 1, p 48; State Planning Policy 7.3: Residential Design Codes - Volume 2, p 134.
[46] State Planning Policy 7.3: Residential Design Codes - Volume 1, p 50; State Planning Policy 7.3: Residential Design Codes - Volume 2, p 135.
[47] Ellis v City of Stirling [2014] WASAT 172 [26] - [32].
[50] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: p 104.
[51] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [77] - [85] (Buss P, Murphy & Mitchell JJA).
[52] Filton v Town of Vincent [2006] WASAT 70.
[54] Filton v Town of Vincent [67], [98].
[55] State Planning Policy 7.3: Residential Design Codes - Volume 1, cl 5.1.1, C1.2.
[56] State Planning Policy 7.3: Residential Design Codes - Volume 1, p 50.
[58] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2016) 258 CLR 173 [24] (French CJ, Bell, Keane & Gordon JJ); BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle & Gordon JJ); MZAPC [39].
[59] Parramatta City Council v Hale (1982) 47 LGRA 319, 335 (Street CJ), 345 (Moffit P).
[60] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 [67] (Gummow J).
[62] Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164 (McHugh JA); Re City of Joondalup; Ex Parte Mullaloo Progress Association Inc [2003] WASCA 293; (2003) 132 LGERA 243 [76] - [80] (Pullin J); Nairn v Metro-Central Joint Development Assessment Panel [2016] WASC 56 [59] - [60] (Chaney J). See also Darley Australia Pty Ltd v Walferton Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26 [111] - [120] (McColl JA), [123] (Macfarlan JA), [124] (Whealy JA).
[63] Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 [53] (Hodgson JA), [62] (Ipp JA), [63] (Davies AJA).
[64] Re City of Joondalup; Ex Parte Mullaloo Progress Association Inc [78].
[65] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [111] - [115] (Pritchard J).
[66] City of South Perth v ALH Group Property Holdings Pty Ltd [2016] WASC 141; (2016) 216 LGERA 96 [46].
[67] DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 [12] (Kiefel CJ, Gageler, Gordon & Steward JJ).
[68] Marshall v Metropolitan Redevelopment Authority [117].
[69] Aronson M, Groves M & Weeks G, Judicial Review of Administrative Action and Government Liability (7th ed, 2022) [6.150].
[71] Parramatta City Council v Hale (339 - 340).
[72] Parramatta City Council v Hale (345 - 346).
[77] Applicant's amended outline of submissions filed 18 November 2021 [20] - [33].
[80] Parramatta City Council v Hale (340); City of South Perth v ALH Group Property Holdings Pty Ltd [46], [59], [61]; Milem v Metro Central Joint Development Assessment Panel [74]; Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 [162] (Quinlan CJ).
[81] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41 (Mason J); A v Corruption and Crime Commissioner [2013] WASCA 288 [91], [95] (Martin CJ & Murphy JA); City of South Perth v ALH Group Property Holdings Pty Ltd [57].
[82] ts 55; First Other Party's outline of submissions filed 1 December 2021 [22].
[83] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT4: p 21.
[84] Nairn v Metro-Central Joint Development Assessment Panel.
[85] Nairn v Metro-Central Joint Development Assessment Panel [57] - [58].
[87] Milem v Metro Central Joint Development Assessment Panel.
[88] Milem v Metro Central Joint Development Assessment Panel [48] - [50].
[89] Kew v Director of Professional Services Review [2021] FCA 1607.
[90] Kew v Director of Professional Services Review [55].
[91] State Planning Policy 7.3: Residential Design Codes - Volume 1, cl 1.2.
[92] First Other Party's outline of submissions filed 1 December 2021 [59].
[93] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: pp 30 - 32, 37. Although the report was provided to the JDAP it was dated 11 December 2020 and addressed to Mr Maguire.
[94] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: pp 251 - 252.
[95] Affidavit of Margaret Mary Joy Tannock, sworn on 1 November 2021, Attachment MMJT3: p 117.
[101] Applicant's amended outline of submissions filed 18 November 2021 [41], [43].
[104] Affidavit of Margaret Mary Joy Tannock, sworn 12 October 2021, Attachment MMJT2: p 6.
[105] Affidavit of Timothy Oscar Willing, sworn on 11 October 2021, 5.
[110] Affidavit of Margaret Mary Joy Tannock, sworn 12 October 2021, 3, Attachment MMJT3: p 7.
[111] Affidavit of Margaret Mary Joy Tannock, sworn 12 October 2021, 3, Attachment MMJT4: p 8.
[112] Affidavit of Margaret Mary Joy Tannock, sworn 12 October 2021, 4.
[113] Affidavit of Timothy Willing, sworn 11 October 2021, 4.
[114] Affidavit of Timothy Willing sworn 11 October 2021, 4.
[115] Applicant's amended outline of submissions filed 18 November 2021 [52] citing Hall v City of Burnside [2006] SASC 283; (2006) 102 SASR 298 [48] - [49] (Doyle CJ).
[117] Affidavit of Timothy Oscar Willing, sworn on 11 October 2021; affidavit of Timothy Oscar Willing, sworn on 8 November 2021.
[118] R v O'Sullivan; Ex parte Clarke [1967] WAR 168.
[119] R v O'Sullivan; Ex parte Clarke (171).
[120] R v O'Sullivan; Ex parte Clarke (173).
[121] R v O'Sullivan; Ex parte Clarke (174).
[122] R v Liquor Commission of the Northern Territory; Ex parte Pitjantjatjara Council Inc (1984) 73 FLR 193.
[123] R v Liquor Commission of the Northern Territory; Ex parte Pitjantjatjara Council Inc (203).
[124] Ansell v Wells [1982] FCA 186; (1982) 63 FLR 127.
[128] O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237.
[130] Ex parte Savage and Savage [1989] WAR 46.
[131] Ex parte Savage and Savage (52); see Re Monger; Ex Parte Dutch [2001] WASCA 220; (2001) 25 WAR 96 [68] (Malcolm CJ).
[132] Ex parte Savage and Savage (53).
[133] Savage v Teck Explorations Ltd (Unreported, WASC, Library No 7285, 16 September 1988).
[134] Savage v Teck Explorations Ltd (9).
[135] Re Smith and the West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 315.
[136] Re Smith and the West Australian Development Corporation; Ex parte Rundle (320) (Malcolm CJ), (322) (Pidgeon J), (322) (Walsh J).
[137] Re City of Perth; Ex parte Lord [2002] WASCA 254.
[138] Re City of Perth; Ex parte Lord [104] - [106] (Templeman J), [1] (Parker J), [126] (Hasluck J).
[140] Hall v City of Burnside [47] - [49].
(1982) 63 FLR 127
(2000) 204 CLR 82
(2018) 264 CLR 541
(2016) 258 CLR 173
(2003) 132 LGERA 243
(2012) 188 LGERA 26
(2016) 216 LGERA 96
(2010) 243 CLR 319
(2003) 127 LGERA 7
(1986) 162 CLR 24
(2006) 102 SASR 298
(1984) 73 FLR 193
(1991) 5 WAR 315
(2017) 51 WAR 425
(2018) 264 CLR 123
(2019) 264 CLR 421
(2019) 268 CLR 29
(2011) 241 CLR 594
(2001) 25 WAR 96
(1996) 186 CLR 541
(2020) 269 CLR 439
(1987) 9 NSWLR 154