BETWEEN : GULL PETROLEUM (WA) PTY LTD (ACN 009 801 378)

K & W SALES AND DISTRIBUTION PTY LTD (ACN 009 229 832)

Local government - Powers, functions and duties of councils - Town planning - Appeal - Two uses on one site - Whether combination such as to give rise to third and distinct use - Whether Council had regard to relevant considerations required to be taken into account under Town Planning Scheme - Policy published in Information Statement under Freedom of Information Act 1992 - Whether sufficient to give rise to legitimate expectation that adjoining landowners would be consulted in relation to proposed development - Council's practice not reflected in published document

Freedom of Information Act 1992

First Appellant (First Defendant) : Mr W S Martin QC & Mr A G Castledine

Second Appellants (Second Defendants) : Mr W S Martin QC & Mr A G Castledine

First Respondent (Plaintiff) : Mr M J McCusker QC & Dr J T Schoombee

Second Respondent (Third Defendant) : Mr A J McLean

Second Appellants (Second Defendants) : Minter Ellison

Second Respondent (Third Defendant) : Corrs Chambers Westgarth

Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349

Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] UKPC 2; [1983] 2 AC 629

Auckland LAI v Warringah Shire Council (1985) 58 LGRA 276

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Barnam v City of Wanneroo, unreported; Town Planning Appeal Tribunal; No 34 of 1995; 30 August 1996

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

Buckinghamshire County Council v Trigg [1963] 1 All ER 403

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Darling Casino Ltd v Minister for Planning (1995) 86 LGERA 186

Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446

Ecclesiastical Commissioner for England's Conveyance and the Law of Property Act 1925; In re [1936] 1 Ch 430

Elliot v Southwark London Borough Council [1976] 2 All ER 781

Erceg v Metropolitan Region Planning Authority, unreported; Town Planning Appeal Tribunal; No 28 of 1983; 29 October 1984

Ertan v Hurford (1986) 72 ALR 695

Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157

Hale v Parramatta City Council (1982) 47 LGRA 269

Harman v Shire of Denmark, unreported; SCt of WA (Ipp J); Library No 950443; 21 August 1995

Independent FM Radio Pty Ltd v Australian Broadcasting Tribunal (1989) 3 BR 458

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408

Kahn v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Londish v Knox Grammar School (1997) 97 LGERA 1

Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273

Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996] NSWSC 348; (1996) 91 LGERA 31

Nashville Investments Pty Ltd v Gull Petroleum (WA) Pty Ltd & Ors, unreported; SCt of WA (Parker J); Library No 980363; 24 June 1998

Parramatta City Council v Hale (1981) 47 LGRA 319

Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632

R v Marshall, ex parte Baranor Nominees Pty Ltd [1986] VicRp 2; [1986] VR 19

R v Moore; ex parte Peko Exploration Ltd v GHK Mining Pty Ltd, unreported; FCt SCt of WA; Library No 970613; 14 November 1997

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363

Sommerville v Dalby (1990) 69 LGRA 422

Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404

Tippet v Harness Racing Authority of NSW, unreported; SCt of NSW (Spender J); No 30013 of 1994; 16 June 1995

Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 55 FLR 180

University of Western Australia v City of Subiaco (1980) 52 LGRA 360

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Steytler J, with which I am in agreement. I agree with the orders which his Honour proposes.

2 IPP J: I have read the reasons to be published by Steytler J. I agree with them and his Honour's conclusions. I have nothing further to add.

3 STEYTLER J: This is an appeal against the decision of a Judge of this Court whereby his Honour set aside the decision of the second respondent to grant planning approval to the first appellant for the development by it of a service station, shop and car wash facility on land owned by the second appellants.

4 The second respondent ("the Town") is the statutory body having responsibility for local government within the district of Victoria Park. That responsibility encompasses town planning matters such as the administration and enforcement of the Town of Victoria Park Town Planning Scheme ("the Scheme").

5 The first appellant ("Gull Petroleum") operates a number of service stations in and around the Perth metropolitan area. The proposed development was to be effected on land situated at 265 Great Eastern Highway, Burswood. Directly opposite that land is a delicatessen known as "Anytime Deli" situated on land at 279 Great Eastern Highway, Burswood. Both properties are on the same side of Great Eastern Highway but they are separated by Griffiths Street which leads into Great Eastern Highway. Both properties fall within the Victoria Park area and the development application was consequently regulated by the Scheme.

6 The application was lodged on 18 April 1997. It described the proposed development as "service station with shop, car wash and canopy". It was accompanied by a letter from a project manager, Roy Barker. That letter recorded that Gull Petroleum was upgrading its service stations to a higher standard of building and facilities and that this site was seen as one which would become a "flag ship" for Gull Petroleum. It said also that the site was required to be a 24-hour site and that permission was requested "for these opening hours for both service station and convenience store".

7 The application was accompanied by two drawings. The first of these (Plan S1) provided a site plan for the proposed development. That plan showed that the development would encompass a "sales" area of 200m2 and an adjacent "shop" area of 252m2 with both of these being fronted by carparking bays and then a canopy under which would be a number of petrol bowsers.

8 The second plan (Plan S2) provided additional detail in respect of the "sales" and "shop" area on Plan S1. It is apparent from Plan S2 that the "shop" area encompassed both a shop and a store on the right hand side of the building (looked at from Griffiths Street) with the back and left hand side of the shop being surrounded by the store. Adjacent to the store, on its left hand side, was a bins area, an office and toilets. The sales area showed a cashier's desk on its left hand side adjacent to a fast foods area in the rear left hand corner of the building. On the right hand side of the fast foods area is depicted a freezer and coolroom. On the right hand side of the sales area there is shown a store, office and toilets.

9 Plan S1 also shows two crossovers. The first of these is on Great Eastern Highway at the Causeway end of the development and appears as an ingress and egress point. It is shown as being 11 metres wide. The second crossover is shown on Griffiths Street and this, too, has both ingress and egress points.

10 The development site is north of the railway overpass on Great Eastern Highway but south of the Orrong Road traffic lights. Traffic flowing from Orrong Road towards the city enters Great Eastern Highway by way of an on-ramp which feeds into that highway southwest of the Griffiths Street traffic lights. Traffic proceeding in a westerly direction down Orrong Road is able to cross Great Eastern Highway at the lights into Griffiths Street and to proceed, from there, in a westerly direction towards the river. Griffiths Street itself travels only a short distance before joining Goodwood Parade which is the main road leading to the Belmont Race Course.

11 The point at which Orrong Road presently joins Great Eastern Highway is shortly to become the crossover point of the Graham Farmer Freeway, presently under construction, which will become a major freeway into the city.

12 When the application was received by the Town its planning services manager, Ms Christine Catchpole, assigned the task of evaluating it to a planning officer, Mr Victor Marcelino.

13 Mr Marcelino prepared, under Ms Catchpole's supervision, a report for a meeting of the Town's Council to be held on 10 June 1997.

14 In deciding what should be the recommendations in the report it was necessary for some assessment of traffic flows to be made, most particularly as regards the Griffiths Street crossover. Ms Catchpole said that she considered that the development proposal would be looked at, in this respect, both by the Town's Engineering Department and by Main Roads Western Australia ("Main Roads").

15 Mr Marcelino consequently sent copies of the plans to Main Roads where they were received by Mr Peter O'Loughlin, a planning enquiries officer. He considered that the Griffiths Street crossover did not fall within the jurisdiction of Main Roads and that it was a matter for consideration by the Town. However, he said, his principal concern was with the access arrangements to Great Eastern Highway so as to ensure that there was sufficient room between the access point and the Griffiths Street traffic lights. He regarded those requirements as having been met and saw no need to pursue the matter further. He said that the reason that he did not consider that Griffiths Street came under the jurisdiction of Main Roads was that it was a minor road and he did not expect great volumes of traffic from that area. He said that he saw the proposed service station as being no different from any other which abutted a major regional road and, because it met Main Roads' requirements in respect of access, he saw no reason to pursue the matter further.

16 On 5 June 1997 Main Roads wrote to Mr Marcelino saying that the proposed development was acceptable to it subject to three conditions. These related to stormwater discharge, the fact that only one driveway would be permitted onto Great Eastern Highway and the retention of a small piece of land for future "intersection improvements".

17 The Town has since been told by Main Roads (by letter dated 5 September 1997, after the development had been approved) that it had not earlier commented on the Griffiths Street crossover for two reasons which it expressed as follows:

"* Main Roads' jurisdiction in Great Eastern Highway extends into Griffiths Street only to the end of the corner standard truncation. That is, it does not extend to the section of Griffiths Street containing the proposed crossover. Therefore Main Roads' comment, if any, on the Griffiths Street crossover would be limited to its effect on the efficiency of the operation of signal control at the intersection.

* Main Roads' 'Interim Policy Manual for Driveways in Urban Areas' is a guideline only. The policy manual states that at signal controlled intersections, crossovers shall be at least 25 metres clear of the corner kerb. While this is appropriate for high volume roads it is not necessarily appropriate for low volume roads such as Griffith Street. In this instance Main Roads from the point of view of signal operation efficiency considered the proposed location of the crossover acceptable. Therefore as Main Roads did not have any conditions to impose on the Griffith Street crossover, our June 5 1997 letter did not mention the Griffith Street crossover."

18 The Town, in considering an application for town planning approval in a General Commercial Zone, is required by cl 82(d) of the Scheme to have regard to the need to secure the safe movement of vehicular and pedestrian traffic. It consequently arranged for Mr Terence McCarthy, a contractor to the Town, to make an evaluation of traffic flow considerations on behalf of its Engineering Department. He visited the site, taking with him the plans. He had been Deputy City Engineer with the City of Bayswater and had been working in its Engineering Services Department for some 10 years prior to performing contracting services for the Town of Victoria Park. He said in evidence that he understood that it was his responsibility to perform an "assessment of the crossovers" and that he determined how the plans of the proposed development "would fit in with the adjoining road network".

19 He said that he understood that the plans would also be forwarded on to Main Roads which had under its control access onto Great Eastern Highway. He said that he believed that Main Roads would look at other aspects which affected it including both crossovers in relation to the traffic signals which were situated there. However, he said, traffic safety issues relating to the Griffiths Street crossover were to be the responsibility of the Town. He said that he formed the view that the location of the proposed development was "satisfactory" and that, based upon his experience, no traffic impact study was necessary. There was, he said, "a clear view in all directions and I just considered it was satisfactory". He said that the presence of a give way sign at the point at which Great Eastern Highway turns left into Griffiths Street was such that it would require vehicles turning left into that street to take heed of it and slow down, thereby providing "additional visibility because of their reduced speed". He said that his own observations led him to believe that Griffiths Street had a very much lower traffic volume than Great Eastern Highway.

20 It was common ground at the trial that Ms Catchpole and Mr Marcelino assessed the development proposal as being one for two uses, being "service station AA" and "shop AA". The Scheme makes provision for zoning classification and use classes. Table 1 thereof provides for the use classes of "shop" and "service station" with each of those uses being categorised as "AA" uses meaning (by virtue of cl 25(d)) that the land is "not to be used for the purpose indicated unless the Council has first approved of that use".

21 By cl 10(1) of the Scheme "service station" is defined as meaning:

(a) the supply of petroleum products and automotive accessories; or

(b) those purposes and the provision of lubrication and greasing services, tyre repairs and minor mechanical repairs."

22 The word "shop" is defined as meaning, insofar as is relevant:

"Any building wherein goods are offered for sale by retail ... but the word does not include a ... fast food outlet ... [or] service station ... ."

23 I should say, in this respect, that no part of the premises could be categorised as a "fast food outlet" because no food was to be prepared on the premises and, by the definition of "fast food outlet" in cl 10(1) of the Scheme, such an outlet is one in which "food is prepared and sold".

24 Clause 26(1) of the Scheme provided that if a use of land for a particular purpose was not mentioned in Table 1 (dealing with suburban area use classes) or Table 2 (dealing with central area use classes) then land within the Scheme area should not be used for that purpose unless it is permitted by another provision of the Scheme or unless the requirements of cl 37 thereof had first been complied with and the Council had approved of that use. The effect of cl 37 is that an applicant for development in respect of a use of that kind would have to give notice of the proposed development, inter alia, by way of newspaper advertisements.

25 The learned trial Judge summarised Mr Marcelino's evidence in respect of his approach to classification of the uses as follows:

"He considered the area shown as 'sales', within the service station precincts, as part of the service station and he evaluated the proposal on that basis. It was clear from Marcelino's evidence that the sales area included within the service station section was assessed by him as part of the service station within the 'AA' classification. The area shown as 'shop' on the north eastern end of the proposal was classified separately as a 'shop AA' use. That assessment, however, had nothing to do with the service station proposal. So far as Marcelino was concerned, he saw nothing unusual about the ... application and in relation to the sales area in the service station he was of the view that there would be no cooking done on the premises and pre-cooked fast food such as hot dogs and pies would be available.

Marcelino repeated in his evidence that so far as he was concerned, any products sold from the areas indicated as fast food, freezer and coolroom were part of the service station."

26 In his report to the Town's Council for the meeting to be held on 10 June 1997 Mr Marcelino said, inter alia, the following:

"An application has been received seeking approval for a service station and associated shop (convenience store) and car wash at No 265 (Lot 67) Great Eastern Highway, Burswood.

The proposal involves the demolition of the existing building on site ... and the development of a service station (sales area of 200m2), an associated convenience shop of 391m2 [this seemingly being a reference to the area marked "Shop" on Plan S1, albeit the area thereof is 252m2], a one bay car wash, and a provision of a canopy covering 6 petrol bowsers.

The shop (convenience store) is located in the north eastern section of the site with a parapet wall to the right of way. The service station shop comprises 391 square metres of floor space, requiring the provision of one on-site car parking bay for each 15 square metres of gross retail floor space. The office and store component comprises of 61 square metres of floor space, requiring the provision of one on-site car parking bay for each 50 square metres of gross floor area. Overall the proposal requires 26 car parking bays to service the shop facility, and 2 bays to accommodate the office facility, therefore a total of 28 on site car parking bays are required and have been indicated on the proposed plans. The proposal also includes 12 bowser parking bays and a car wash bay."

27 Later in the report, under the heading of "Comment", Mr Marcelino wrote the following:

"The site is zoned General Commercial C1 under the Town of Victoria Park Town Planning Scheme. A 'Shop' and a 'Service Station' are both classified as 'AA' uses which require Council to exercise its discretion in determining the application. The car wash is considered incidental to the functions of the Service Station as it does not operate independently of the Service Station."

28 The report, which was delivered together with the two plans, concludes with the recommendation that the application be approved subject to specified conditions.

Adoption of the recommendation and approval of the development

29 That recommendation was adopted by the Council at its ordinary meeting held on 10 June 1997 and on 25 June 1997 an approval was issued to commence development in accordance with the application and the attached approved plans.

30 Against this background the learned trial Judge made a number of findings which are central to this appeal.

31 He found, firstly, that the reference to "convenience store" in the letter from Roy Barker dated 18 April 1997 was one to the "shop area on the north eastern side of the proposal" and that it had no reference to the sales area shown in the service station. He said that the evidence did not support a contention by counsel for Gull Petroleum that the application was for two separate uses in the service station area.

32 His Honour next found that Mr Marcelino considered the proposal as "a routine application for a service station which did not require any special consideration". He said that Mr Marcelino saw no need to put the proposal on the elected members' briefing session agenda and saw no need to raise the matter in any special way with the Town's Council. He said that Mr Marcelino considered the sales area within the service station to be part of the service station use and within the service station definition. However, his Honour said, Mr Marcelino and Ms Catchpole were clearly in error in reaching that conclusion because "the sale of the food products in a substantial area of the service station section of the proposal, was not within the 'service station' definition".

33 His Honour next said that it was common ground that, had the application for the service station use been considered as one for a convenience store use (being a use which appeared in a later Town Planning Scheme and which was defined as one in which land and buildings are used for the retail sale of convenience goods "being those goods commonly sold in supermarkets, delicatessens and newsagents but including the sale of petrol ... "), then a different procedure would have been required, encompassing newspaper advertisements, by virtue of cls 26(1) and 37 of the Scheme.

"That error in the ... [Town's] decision making process in my opinion was fundamental to ... [Gull Petroleum's] application. Having taken into account the evidence of Marcelino and Catchpole, in my opinion it was apparent that neither of them fully appreciated the limited nature of the definition of 'service station' within the ... [Town's] City Planning Scheme and neither of them appreciated the extent to which the sales area within the service station fell outside the definition. Neither of those two officers of the ... [Town] considered it necessary to bring the matter to the attention either of the elected members at their briefing session, or Council."

35 His Honour next said that there was "a fundamental error" in the report which had been prepared by Mr Marcelino. He said, in that respect:

"In my view, ... [Gull Petroleum's] proposal for the service station sales area was not within the definition of 'service station' in the ... Scheme and so could not properly be described as an 'AA' use. It was this fundamental error which led to the application being treated as a routine application and led to it passing through the Council of the ... [City] without attracting any attention. It was ... the wrong classification of the service station proposal as an 'AA' use that brought about this error."

36 His Honour went on to consider a number of authorities dealing with what he referred to as the appropriate test to be applied in evaluating the City's decision to allow Gull Petroleum's application. Having done so he expressed the opinion that the decision to classify the proposed development as "AA" within the Scheme, was both manifestly unreasonable as that term is explained in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 and "devoid of plausible justification" within the test in Mittagong Mushrooms Pty Ltd v Narrambulla Action Group Inc (1998) 97 LGERA 333. His Honour said that on either test the development approval by the Town should be set aside.

37 Although that conclusion rendered it unnecessary for the learned trial Judge to deal with contentions advanced by the first respondent which bore upon the alleged inadequacy of the Town's investigations in respect of the securing of the safe movement of vehicular traffic his Honour went on to reach a number of conclusions in that regard.

38 He considered, in that respect, the evidence of Ms Catchpole, Mr Marcelino and Mr O'Loughlin to which I have, to some extent, referred above. His Honour also considered expert evidence which was given in this respect on behalf of the first respondent (by Mr Benham Bordbar) and on behalf of Gull Petroleum (by Mr Kenneth Adam).

39 His Honour said that in evaluating all of that evidence it was important to return to the principles involved in the judicial assessment of administrative decision making and that it was not for the court to replace the decision maker when a matter of this kind came up for review. Rather, he said, the question for the court was that of whether the Town's decision was "manifestly unreasonable" in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. Having reviewed all of the relevant evidence, he said, he was not persuaded that the first respondent had made out its case on that aspect of its claim. He said, in this respect:

"The evidence on the issue is, in my opinion, fairly evenly balanced and I am unable to conclude that the decision of the ... [Town] on this aspect of the proposal can be said to be 'manifestly unreasonable' in all the circumstances of the case."

40 Finally, his Honour referred to a contention which had been advanced on behalf of the first respondent to the effect that it had had, as his Honour put it, a "reasonable expectation that it would have been consulted before the ... [Town] made its decision in relation to ... [Gull Petroleum's] proposal". However, his Honour said, in view of the conclusion that the Town had erred in classifying Gull Petroleum's proposal as an "AA" use it was unnecessary to decide the point.

41 Before turning to the grounds of appeal I should also mention that his Honour, in the course of the trial, admitted, in the face of objections made on behalf of Gull Petroleum, evidence of a second development application which had been lodged by Gull Petroleum on 10 November 1997 (and which was ultimately refused by the Town) which evidence was put forward for the purpose of showing what steps might have been taken by the Town in relation to the first application had the error to which his Honour referred not been made by it.

42 The appellants' grounds of appeal read as follows:

"1. The learned trial judge's finding (at p8 of his reasons for judgment) that the reference to 'convenience store' in the letter from Roy Barker to the Second Respondent (Third Defendant) dated 18 April 1997, is a reference to the area designated 'Shop' on the north-eastern end of Plans S1 and S2 of the First Appellant's (First Defendant's) development application and has no reference to the 'Sales' area shown on Plans S1 and S2, was against the weight of the evidence and wrong in fact.

The learned trial judge should have found that, under the applicable town planning scheme and having regard to the development application, the Plans S1 and S2 which accompanied the development application and the accompanying letter from Roy Barker dated 18 April 1997, either -

(1) the development proposed by the First Appellant (First Defendant) was as follows -

(a) for a 'Shop' use class in the area designated 'Shop' on the north-eastern end of Plans S1 and S2; and

(b) for the use classes 'Service Station' and 'Shop' on the remainder of the development site, including within the area marked 'Sales' on Plans S1 and S2; or alternatively,

(2) it was not clear on which portion of the development site the 'convenience store' referred to, was intended to operate.

2. The learned trial judge erred in law in finding (at p.15-16) that, because the planning officers of the Second Respondent (Third Defendant), Marcelino and Catchpole, were in error in considering the use class 'Service Station' under the applicable town planning scheme permitted sales of convenience goods and take-away foods within the area marked 'Sales' on Plans S1 and S2 -

(a) the proposed use of the 'Sales' area could not be described as an 'AA' use under the scheme and the appropriate designation would have been to classify the proposal as an 'SA' use [one which required notice by way of newspaper advertisements]; and

(b) the approval granted by the Council of the Second Respondent (Third Defendant) to carry on the use classes 'Service Station' and 'Shop' on the development site was invalid.

(1) the subjective views of Marcelino and Catchpole were irrelevant to the question of the validity of the decision of the Council of the Second Respondent (Third Defendant) to grant approval to the use classes 'Service Station' and 'Shop' or 'Service Station' within the 'Sales' area;

(2) it was open to the Second Respondent (Third Defendant) to treat the application either as one involving the use classes 'Shop' on the area designated 'Shop' on Plans S1 and S2 and 'Service Station' and 'Shop' on the remainder of the development site, or as one involving the 'Shop' use class on the area designated 'Shop' on Plans S1 and S2 and 'Service Station' use class on the remainder of the development site;

(3) on an objective assessment of the development application, Plans S1 and S2 lodged with the development application, and the decision of the Council of the Second Respondent (Third Defendant) to approve the application, the Council approved either the carrying on of the use classes 'Shop' on the area designated 'Shop' on Plans S1 and S2 and 'Service Station' and 'Shop' on the remainder of the development site, or alternatively, approved the use class 'Service Station' on the development site, save for the area designated 'Shop' on Plans S1 and S2 on which it approved the use class 'Shop';

3. The learned trial judge erred in law in finding that the decision of the Second Respondent (Third Defendant) to classify the service station area as 'AA' within the applicable town planning scheme was both 'manifestly unreasonable' as that term is explained in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 or [sic] 'devoid of plausible justification' within the test in Mittagong Mushrooms Pty Ltd v Narambulla Action Group Inc (1988) 97 LGERA 333.

The learned trial judge should have made the findings set out in ground 2 above.

4. The learned judge erred in law in holding that evidence of a second application lodged by the First Appellant (First Defendant) on 10 November 1997 (including the contested documents admitted into evidence under His Honour's ruling in Schedule A of the Reasons for Decision) was admissible to show what steps could have been taken by the Second Respondent (Third Defendant) in relation to the first application.

The learned trial judge should have ruled that evidence concerning the second application is irrelevant to the question of the validity of the approval granted by the Second Respondent (Third Defendant) on the first application and accordingly should not have been admitted into evidence in the proceedings."

The notice of contention and conditional cross-appeal

43 The first respondent has, in turn, filed a notice of contention and conditional cross-appeal. The material part of that document reads as follows:

1.1 the First Appellant's (First Defendant's) proposal for the service station sales area was not within the definition of 'service station' in the Second Respondent's (Third Defendant's) planning scheme (the 'Scheme') and so could not properly be described as an 'AA' use (at pages 20 and 21 Reasons for Judgment);

1.2 the sale of food products in a substantial area of the service station component of the First Appellant's (First Defendant's) proposal for development on the property situated at No. 265 (Lot 67) Great Eastern Highway, Burswood (the 'Development Proposal') was not within the 'service station' definition as set out in the Scheme (at page 15);

1.3 the 'service station' definition in the Scheme permitted the sale of petroleum products and automotive accessories, it did not permit the sale of convenience goods and take-away foods (at page 16);

1.4 the planning officers of the Second Respondent (Third Defendant), Victor Marcelino ('Marcelino') and Christine Catchpole ('Catchpole'), were in error in considering the sales area within the service station to be part of the service station use and within the 'service station' definition (at page 15);

1.5 on any proper construction of the Scheme, goods of the type described in the Development Proposal application would not come within service station use (at page 16);

1.6 on the evidence of Marcelino and Catchpole neither of them fully appreciated the limited nature of the definition of 'service station' within the Scheme and neither of them appreciated the extent to which the sales area within the service station fell outside the definition (at page 17); and

1.7 there was a fundamental error in the report written by Marcelino and supervised and approved by Catchpole which went to the Council of the Second Respondent (Third Defendant), namely, the First Appellant's (First Defendant's) proposal for service station sales area was not within the definition of 'service station' in the Scheme and so could not properly be described as an 'AA' use (at page 18),

the learned trial judge should also have found that the Second Respondent (Third Defendant) made a jurisdictional error of law which invalidated the approval for the Development Proposal when it decided, in granting the approval, that the use classification 'service station' under the Scheme covered and included the 200m2 area designated 'Sales' on the relevant plans.

2. The learned trial judge erred in law in deciding that the sole issue for the Court to determine in relation to the consideration of the traffic issues, and notably the Griffith Street crossover, was whether the Second Respondent's (Third Defendant's) decision was manifestly unreasonable in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (at page 26).

3. The learned trial judge should have addressed but failed to address the issue of whether the Second Respondent (Third Defendant) took into account the mandatory relevant considerations provided in clauses 40(1), 82(d) and 82(e) of the Scheme concerning vehicular and pedestrian safety and should have held that:

3.1 given the scope and content of the obligations imposed upon the Second Respondent (Third Defendant) under those clauses, the Second Respondent (Third Defendant) failed to give proper, genuine, and realistic consideration to the requirements of clauses 40(1), 82(d) and 82(e) of the Scheme; and

3.2 the approval for the Development Proposal was thereby invalid.

4. The finding in 3 should be made by this Court on the basis of the following factual findings made at first instance, namely that:

4.1 Catchpole, the manager of Planning Services of the Second Respondent (Third Defendant) who oversaw the processing of the application, was of the view that there was no need for a traffic impact study although it was a matter for the Second Respondent's (Third Defendant's) engineering department to determine whether or not resources would be made available for such a study to be undertaken (at page 22);

4.2 Marcelino, the planning officer of the Second Respondent (Third Defendant) processing the application, sent the plans of the Development Proposal to the Second Respondent's (Third Defendant's) own engineering department and the Department of Main Roads ('Main Roads') and therefore did not regard the question of the crossovers as being something that required assessment by the Second Respondent's (Third Defendant's) Planning Service Department (page 22);

4.3 Peter Joseph O'Loughlin ('O'Loughlin') from Main Roads considered that the Griffith Street crossover did not fall within the jurisdiction of Main Roads and that it was not within his purview to comment on the crossover (at page 22).

5. The finding in 3 should further be made by this Court on the basis of the following factual matters that appear from the record but were not addressed by the findings at first instance:

5.1 the only 'assessment' of the Griffith Street cross-over by the Second Respondent (Third Defendant) was undertaken by Terence McCarthy ('McCarthy') who undertook only a cursory inspection and did no traffic count, or sight line and stopping distance calculations;

5.2 McCarthy was unaware of the Second Respondent's (Third Defendant's) Vehicle Cross-overs Specification Policy No 106 and no-one did the assessment required by its clause (ix);

5.3 the Second Respondent (Third Defendant) placed reliance on the fact that Main Roads would assess the traffic impact of the Griffith Street cross-over but that was never done; and

5.4 neither the Second Respondent (Third Defendant) nor Main Roads considered or assessed, in relation to the Development Proposal, the impact of the development of the Graham Farmer Freeway on traffic safety.

6. The learned trial judge erred in law in not addressing himself to the issue of the Second Respondent's (Third Defendant's) breach of procedural fairness:

6.1 the issue of breach of procedural fairness was not an issue which fell away by virtue of the learned trial judge's decisions regarding the other issues;

6.2 the issue of breach of procedural fairness was inextricably linked with other issues considered.

7. The learned trial judge should have found that:

7.1 a policy of consultation with affected persons had been adopted by the Second Respondent (Third Defendant) and made available to the public;

7.2 the policy created a legitimate expectation that the First Respondent (Plaintiff) should have been notified of and consulted in relation to the Development Proposal;

7.3 the failure to notify and consult with the First Respondent (Plaintiff) and other affected persons resulted in a breach of procedural fairness and a denial of natural justice; and

7.4 the approval for the Development Proposal was thereby invalid.

8. The learned trial judge's order that the First and Second Defendants (First and Second Appellants) pay 75% of the Plaintiff's (First Respondents) costs of the action should be varied to such greater proportion (up to 100%) as may be just in light of any Full Court finding in favour of the First Respondent (Plaintiff) on any issues that were found to be against the First Respondent (Plaintiff) at first instance, or not decided at first instance."

Grounds 1 to 3 of the grounds of appeal and ground 1 of the notice of contention - classification of use

44 I will first deal together with grounds 1 to 3 of the grounds of appeal and ground 1 of the notice of contention.

45 The competing contentions of the parties, as regards these grounds, can be stated quite shortly.

46 Senior counsel for Gull Petroleum contended essentially that the learned trial Judge erred in finding that there was any error on the part of the Town's Council which was sufficient to justify the setting aside of its grant of approval. It knew, from the materials submitted to it, what were the components of the proposed development, being a service station, fast food sales area and shop. It was, he submitted, open to it to approve the development upon the basis that there were two AA uses within the definitions in Table 1 of the Scheme, being "shop", in the case of each of the fast food sales area and the area shown as "shop" on the plans, and "service station". That, he submitted, is effectively what it did.

47 Senior counsel for the first respondent contended, on the other hand, that the learned trial Judge was correct in his findings and that it was not open to him to find that the application could be approved upon the basis that it encompassed two separate uses in the form of "service station" and "shop". Rather, he submitted, it was apparent from the definitions of those uses that they were mutually exclusive. The definition, in the Scheme, of a "shop" specifically excludes a service station and a service station use could not encompass the sale of products other than those referred to in the definition. That being so, he submitted, the only appropriate classification of the use was one which categorised it as being some form of hybrid not covered by any of the existing categories in the Scheme as, for example, that of a convenience store, which classification would have required compliance with cl 37 of the Scheme. Instead, in categorising the sales area, encompassing the fast food outlet, as involving only a "service station" use, and thereby not requiring Gull Petroleum to advertise, the Town made a jurisdictional error.

48 It is, I think, at once apparent from these competing contentions that central to each is the question whether it was open to the Town's Council to categorise the application as one for approval of a dual use of the site in the form of "shop" (in the case of each of the fast food sales area and the area marked "shop" on the plans) and "service station" or whether the combination of these uses on the one site were such as to require that combination to be categorised as a third and hybrid use not mentioned in Tables 1 and 2 (there having then been no definition of "convenience store" in the Scheme). I should mention that there was no contest as to the proposition that a single development application might properly propose concurrent but distinct uses on the one site (see Re Minister for Planning; Ex parte City of Canning, unreported; FCt SCt of WA; Library No 980736; 18 December 1998, per Anderson J at 4; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 410 and Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206).

49 Senior counsel for the first respondent sought to draw support for his contentions from the decision of the Town Planning Appeal Tribunal of Western Australia in Food Plus Pty Ltd v City of Perth [No 2] (1982) 5 APA 414. The Tribunal there considered two appeals against the refusal, by the City of Perth, to approve two applications by the appellant for development of what were referred to as "convenience" stores. In each case the appellant wanted to build a store which would sell "convenience foods" and other goods as well as petrol. Both sites had been service station sites and one of them continued to be operated as such at the time of the appeal. The stores proposed to be built could reasonably be described, the Tribunal said, as "small, compact, selfservice [Stores] open during convenient hours and featuring a limited line of brands and sizes of convenience goods at competitive prices and including a petrol sales and drive-up convenience".

50 The Tribunal said (at 417) that it did not consider that the sale of petrol in the manner proposed was "that of a service station, either conceptually or for zoning purposes". It went on to consider whether the proposed developments constituted shops within the meaning of the Scheme which was to be implemented by the City, which defined a "shop" (as this Scheme does) as being a building "wherein goods are offered for sale by retail". It said (at 419-420):

"Counsel for the appellant argued that it was the outside sales of petrol that distinguished the convenience store from a 'shop'. Although petrol and petroleum products when sold are sold by retail, they are not offered for sale in the building, although they may be paid for in the building, particularly in a selfservice situation. A 'service station' is expressly excluded from the definition of 'shop' and is defined to mean land and buildings 'designed or adapted for use for the supply of petroleum products and automotive accessories and the provision of greasing services'. In the model scheme text in the Town Planning Regulations, 1967 the ancillary services are expressed in the alternative. There is also a reference to 'petrol filling station' in the regulations which does not appear in the proposed scheme. Further, the definition of 'shop' in the regulations specifically excludes both a service station and a petrol filling station. In our opinion, the proposed convenience stores do not constitute a 'shop' as defined in the proposed scheme and do not constitute a use of a kind mentioned in the zoning table. ...

We have already indicated our conclusion that the proposed development is to be considered as something akin to a shop. The scheme text definitions of 'shop' and 'service station' do not appear to take account of the combination of petrol retailing and shop functions. ... The use of land as a 'shop' is in terms of its definition in the proposed scheme text. That definition includes references to the nature of the business carried on, buildings and the maximum area of the buildings. In our opinion, unless a development fulfils all the requirements of the definition, it is not a 'use' which is a 'shop' within the proposed scheme. Therefore, notwithstanding our view of the similarities between a convenience store and a corner shop or selfservice store, a convenience store is not a shop 'use' under the proposed scheme. Neither is it a service station and, therefore, we are of the view that it is a use not included in the scheme text's table 1. The kind of use envisaged does not appear to have been envisaged by the draftsman."

51 That reasoning has since been applied in other cases. So, for example, in BP Australia Ltd v City of Stirling, unreported; Town Planning Appeal Tribunal; Nos 27, 28 of 1982, the proposed use was expressed to be that of a convenience store with petrol pumps. The Tribunal found that the integration of the retail selling of petrol with that of other goods was intrinsic to the proposal and that the combined use consequently represented an activity which did not fall within the definition of "service station" or that of "shop". Similarly, in BP Australia Ltd v City of Nedlands, unreported; Town Planning Appeal Tribunal; No 34 of 1982, the Tribunal considered that the combination of the retailing of petrol and other convenience goods in the manner there proposed could not appropriately be categorised as falling within any combination of use classes referred to in the Town Planning Scheme. (See also the discussion in BP Australia Pty Ltd v City of Perth (1994) 10 SR (WA) 110 at 112-114 and cases there cited.)

52 However it seems to me that each proposal must be looked at on its own merits. The classification of the proposed uses should not be carried out either in a mechanical or in an arbitrary way. If, in a particular case, the manner in which two uses are to be combined on a particular site makes it inappropriate to categorise the resulting use as a dual use with each use falling within a definition in the Scheme, perhaps because the proposed manner of combining the two uses so changes the character of one or both of them that it or they can no longer sensibly be taken to fall within the definition or definitions in the Scheme, then there should be no such categorisation. Where, on the other hand, the character of each use remains unaffected by the fact that one site is shared between them there is no reason why the categorisation of each use should be any different than if each had been effected from its own site. If either use is unacceptable within the particular location it would not be approved. That consequence would not be altered by the fact that another, permitted, use would be effected from the same site.

53 This kind of approach appears to have been adopted by the Tribunal in BP Australia Pty Ltd v City of Perth, supra. The Tribunal had there to consider an application to develop a BP service station, a BP convenience store, a McDonalds fast food store and another undetermined fast food restaurant on one site. It said (at 114):

"This is not a case in which there is a convenience store selling petrol or a petrol station selling convenience goods. There are four uses in this development including two fast food outlets. This is, apparently, the first development of its type in Western Australia. There was evidence that there are similar operations in New South Wales. It was not put to us, nor were we forced to conclude, that the convenience store was integrally bound with the service station and must be considered an adjunct or incidental use and not one of the primary uses.

A single development application can be considered for different and distinct uses on the one site and it is important not to lump independent uses into one dominant use for the purpose of classification. The law is stated by Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161 (cited with approval by Gibbs CJ in Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 at 217):

'Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to enquire which of the multiple purposes is dominant.'

It is the conclusion of the Tribunal that the convenience store is a use that is independent of the other uses proposed and has, as its primary purpose, the selling of retail goods. It therefore falls squarely within the definition of 'shop' in cl 10 of the Scheme and, as such, is an AA use in a General Commercial Zone."

54 In that case there was evidence that only one in four customers who bought petrol would make a purchase in the convenience store and the convenience store use was presented to the Tribunal as an independent use which would take advantage of the trade in petrol purchases.

55 While there was no such evidence in this case it seems to me that the development application should appropriately be classified as one for distinct uses on the same site, being "shop" in the area marked as such on the plans and in the fast food sales area and "service station" in that part of the site to be used as such.

56 There was no objection to the classification of the "shop" area as such and nor was there any objection to the classification of the service station area as such if the fast food sales area was not lumped in with it. Moreover there could not, I think, have been any objection to the fast foods sales area being classified as giving rise to a "shop" use if it had operated from separate, but adjacent premises. The sole problem consequently centred around the fact that the fast food outlet shared a room and cashier's desk with the area used to operate the service station. That fact cannot, in my opinion, have the result that the fast food sales use which, had it been carried out from separate premises, would have been classified as a "shop" use should no longer be classified as such. Nor can it have the result that the service station use has been so altered as to mean that it should no longer be categorised as such. The fact that the fast food outlet and service station share a cashier does nothing to alter the character of the fast food outlet as that of a shop or that of the service station as a service station. Nor does the fact that fast food is sold from a site used also for a service station alter the character of either the fast food outlet or the service station. There remain, in my opinion, two distinct uses, each maintaining its essential characteristics and neither of which subserves the other (cf Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 at 217).

57 Also, the fact that the definition of a shop excludes a service station has only the purpose of narrowing the very wide definition of a "shop" and was not intended to preclude that use being conducted as such on the same site as a service station where no hybrid and distinct use results.

58 I am consequently not persuaded that there was any jurisdictional error on the part of the Town's Council. It was open to it to approve the development on the grounds that each of the proposed uses was an AA use under the Scheme and that there was no third and distinct use falling outside the definitions of "shop" and "service station".

59 I am also satisfied, for the same reasons, that the learned trial Judge erred in finding that the Town's approval of the proposed development was either manifestly unreasonable or devoid of plausible justification. That conclusion is not altered by the fact that Ms Catchpole and Mr Marcelino may have been mistaken in considering that the fast food sales use fell within the "service station" use as defined in the Scheme in making their recommendation to the Town's Council, which recommendation was accepted by the Council. The fact remains that the members of the Council knew what was proposed to be sold on the site and from where it was, in each case, proposed to be sold. It was, as I have said, open to the Council to approve the proposed development as comprising dual "AA" uses and that is what it did. There was nothing manifestly unreasonable in its doing so and nor, as I have said, was that decision devoid of plausible justification.

60 There was, as counsel for the appellants conceded, nothing in the trial Judge's decision which suggested that his ultimate finding was in any way influenced by the evidence tendered by the first respondent which concerned a second application for development approval lodged by Gull Petroleum. That being so it was unnecessary for the appellant to pursue this ground in the context of the appeal. Because none of the documents referred to in ground 4 of the grounds of appeal is determinative of anything raised in the notice of contention or cross-appeal it is unnecessary to consider this ground further.

Grounds 2, 3, 4 and 5 of the notice of contention - relevant considerations

61 That brings me, next, to those grounds of the cross-appeal which suggest that the learned trial Judge erred in law in deciding that the sole issue for the court to determine in relation to the consideration of the traffic issues was that of whether the Town's decision was manifestly unreasonable in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, supra, when his Honour should have, but did not, address the issue of whether the Town took into account mandatory considerations which it was required to take into account. Had he done so, senior counsel for the first respondent submitted, he would have found that, given the scope and content of the obligations imposed upon the Town by cls 40(1), 82(d) and 82(e) of the Scheme, the Town failed to give proper, genuine and realistic consideration to the requirements of those clauses thereby resulting in its approval of the proposal being invalid.

62 I have earlier referred to the provisions of cl 82(d) of the Scheme.

"The Council, having regard to any matter which it is required by the Scheme to consider, to the purpose for which the land is zoned or approved for use under the Scheme, to the purpose for which land in the locality is used, zoned or may be approved for use under the Scheme, to the orderly and proper planning of the locality and the preservation of the amenities of the locality, may refuse to approve any application for town planning approval or may grant its approval unconditionally or subject to such conditions as it may deem fit."

64 Clause 82(e) thereof provides that in considering an application for town planning approval in any General Commercial Zone the Council, in addition to any other matter it is required or permitted to consider, shall have regard to the protection of the amenities of areas adjacent to General Commercial Zones.

65 The first respondent relied, in support of the grounds of appeal to which I have referred (and that relating to cl 82(e) was not separately pressed), on the findings by the learned trial Judge that Ms Catchpole saw no need for a traffic impact study and that Mr Marcelino, although he sent the plans of the proposed development to the Town's Engineering Department and also to Main Roads, did not regard the question of crossovers as being something that required assessment by the Council's planners. It relies also upon the finding that Mr O'Loughlin considered that the Griffiths Street crossover did not fall within the jurisdiction of Main Roads and that it was not within his purview to make any comment with respect to that crossover.

66 The first respondent, by its counsel, contended that the evidence established that Mr McCarthy undertook only a cursory inspection without performing any traffic count or sight line and stopping distance calculations. Senior counsel for the first respondent also mentioned the Town's Policy No 106 dealing with "vehicle crossover specification" which contained a paragraph (para (ix)) to the effect that crossovers to be constructed within close proximity of a signalised intersection were to be individually assessed in accordance with the requirements of Main Roads. Mr McCarthy was unaware of that requirement and senior counsel for the first respondent submitted that no one did the assessment required by cl (ix) notwithstanding that the report to this Council said that Council Policy No 106 had been complied with generally.

67 Reliance was also placed upon the fact that neither the Town nor Main Roads considered or assessed, in relation to the development proposal, the impact of the development of the Graham Farmer Freeway on traffic safety.

68 Finally, senior counsel for the first respondent relied upon the evidence of Mr Bordbar which, as he correctly pointed out, was accepted by the learned trial Judge and which was broadly to the effect that the Town did not have sufficient information properly to assess the impact of the proposed development on a number of important traffic features.

69 It seems to me, when all of the evidence is considered, that it is difficult to contend that the Town failed to have regard to the objectives relied upon by the first respondent. As will be apparent from what I have already said, these essentially amounted to the need to secure the safe movement of vehicular and pedestrian traffic. The proposed development had, as I have made plain, been referred to Main Roads and Mr McCarthy had himself had regard to the need to secure the safe movement of traffic in his assessment of the proposed development. He did not rely upon what had been done by Main Roads but formed his own impressions in that respect. He said in evidence that he had regard to the question of the levels of the street alignment of driveways, stormwater discharge, the location and height of walls and fences or other structures, the ability of vehicles to manoeuvre appropriately in order to get in and out of the site, the safety of people who might be walking around the development site and whether the proposed location of the crossover into Griffiths Street was appropriate in traffic engineering terms. He said also that he performed an assessment whether the crossover was safely located in terms of traffic coming from Great Eastern Highway into Griffiths Street and traffic coming out of the service station into Griffiths Street. He said that he did form the view that the location was satisfactory. That assessment was made on the strength of his experience and he did not consider that a traffic impact study was needed.

70 I have already mentioned that Mr O'Loughlin considered this application to be a routine application. He said in evidence that if he had considered that there was any significant issue concerning the location of the Griffiths Street crossover, even though in a strict sense it was beyond his jurisdiction, he "suspected" that he would have brought it to the attention of the Town. He did not consider that the crossover produced any significant problems. He said that he focused on the Griffith Street crossover in terms of the circulation through the service station and whether the ingress and egress arrangements met Main Roads' policy on access to a service station.

71 I have also mentioned that Main Roads, in its letter to the Town dated 5 June 1997, said only that the proposed development was acceptable to it subject to the three conditions to which it referred.

72 As to cl (ix) of the Town's Policy No 106 Mr Marcelino said in evidence that he ascertained that the development did comply with the policies mentioned in his report, including Policy No 106. While he did not say how he did this it is apparent, from the evidence as a whole, that this was done by way of the reference to Main Roads and, on the evidence of Mr O'Loughlin, the crossover was looked at in the light of Main Roads' requirements with respect to signalised intersections. This was confirmed by Main Roads' later letter dated 5 September 1997 which recorded, as I have said, that it considered that the proposed location of the crossover was acceptable "from the point of view of signal operation efficiency".

73 I have mentioned, also, that Mr McCarthy, in his evidence, said that it was the Town which would look at traffic safety issues and that if Main Roads considered that there was an issue in relation to the signals it would notify the Town of that fact. He formed the view, as I have said, that the location was satisfactory and that, having regard for his prior experience in dealing with crossovers on similar roads, there was no need to obtain a traffic impact study. As to line of sight calculations he said that on the basis of his visit he considered that there was a clear view in all directions which, he said, was "satisfactory". I have earlier mentioned that he said also that there was a give way sign where Great Eastern Highway turns left into Griffiths Street and that its presence would require vehicles turning into that street to take heed of it and slow down and that this provided additional visibility because of the reduced speed.

74 Mr O'Loughlin, too, said that each application had to be assessed on its merits and that he made a judgment that no traffic impact study was necessary.

75 There was nothing in the evidence to suggest that any of these witnesses overlooked the impact of the development of the Graham Farmer Freeway on traffic safety in the area. Nor did the evidence establish that anything was left undone by Main Roads which the Town had assumed to have been done by it.

76 It seems to me inescapably to follow, from all of this evidence, that the Council did give consideration to the objectives to which I have referred. While it might be debated whether or not that consideration descended to a sufficient level of detail and, indeed, whether it led to the most desirable result, it cannot, in my opinion, be said that the failure to make more detailed enquiries was such as should lead to the conclusion that what was done was not a genuine attempt to have regard for the considerations required to be taken into account by the Town or that what was done was so inadequate as to lead to the conclusion that it was insufficient to meet the requirements of the Scheme.

77 I should mention, in this respect, that the expert called on behalf of Gull Petroleum at the trial, Mr Adam, suggested that the project would be "self-limiting" because if queues developed in relation to the egress from the service station into Griffiths Street the inconvenience itself would be a factor that would be likely to decrease patronage of the service station. He said that there was nothing about the system which had lack of safety "built into" it and that this was why the "numbers themselves" were not that important. He said also that the project was not one of the kind that would generate its own traffic flow and he saw no need for a traffic impact study to be done. He also said in that respect that where the traffic impact of a particular development "contains unknowns ... you can make an assessment in less than 20 minutes by a study of the plans and on site of a development of this kind to know whether ... to call up a need for a traffic impact statement or not". He went on to say, a little later in his evidence, that service stations are "a common experience on highways" and that it is "known empirically how they perform and what the traffic issues are". He said that "if you get a service station application which is very like all the others ... you have to look at the particular details of crossover locations ... but you don't have to reinvent the wheel in terms of calculating the likely traffic generation and the precise numbers of vehicles that would pass through a crossover".

78 The learned trial Judge accepted that Mr Adam was an experienced architect and town planner and that, as such, he had knowledge of service stations in busy areas. His Honour found that the evidence was, as a whole, "fairly evenly balanced" and he was unable to conclude that the decision of the Town on this aspect of the proposal could be said to be manifestly unreasonable in all the circumstances of the case.

79 It is also noteworthy, in this respect, that Mr Van den Dries, an experienced town planner who gave evidence on behalf of the first respondent, conceded that it was a "judgment call" for the Town's officers whether or not they should call for more detailed traffic information.

80 It follows, in my opinion, that not only is there no basis for interfering with the learned trial Judge's conclusion that the Town's decision on this aspect of the proposal could not be said to be manifestly unreasonable but it cannot be said, in the light of all of the evidence, that the Town failed to do what was required of it by cls 40(1), 82(d) and 82(e) of the Scheme.

Procedural fairness - grounds 6 and 7 of the notice of contention

81 Next, senior counsel for the first respondent contended that the learned trial Judge erred in law in not addressing himself to the issue of the alleged breach of procedural fairness which, he submitted, was inextricably linked with the other issues considered.

82 That issue had been raised by para 19 of the first respondents statement of claim which read as follows:

"At all material times when the Proposed Development was being considered by the Third Defendant, the Third Defendant had in place a published policy relating to public participation in development applications that:

(a) required an applicant for development approval like the First Defendant to advise the adjoining owners by certified mail that the plans for the proposal were available for inspection at the offices of the Council of the Third Defendant during normal office hours;

(b) provided further that in special circumstances the Council may additionally require the applicant to give further notice of the development application, inter alia by requiring the applicant to erect a sign on the site of the development or to give written notice of the proposal to affected owners or occupiers.

The policy was contained in the Freedom of Information Statement of the Third Defendant published under Part 5 of the Freedom of Information Act 1982 [sic] (WA), that was available to the public inter alia at the Victoria Park Public Library."

83 The Town, in para 13 of its defence, admitted that at all material times a Freedom of Information Statement published by it under Part 5 of the Freedom of Information Act 1992 was available to the public but otherwise denied each and every allegation pleaded in para 19 of the statement of claim.

84 The first respondent administered interrogatories for answer by the Town. Interrogatory 5.1 asked whether the Council of the Town adopted the document relied upon as a Freedom of Information Statement under Part 5 of the Freedom of Information Act 1992 (WA) and if so when. The answer was that it adopted that document as a Freedom of Information Statement on 9 July 1996.

85 The Information Statement dealt with public participation in the Town's activities. That document, under the heading "Development Application Advertising", provided as follows:

"Apart from a single storey dwelling or extensions thereto, the applicant is required to advise the adjoining owners by certified mail that the plans for the proposal are available for inspection at the Council office during normal office hours. In special instances Council may require the applicant to:

1. erect a sign in a position that is visible and readable from the street; and/or

2. place a notice one or more times in the local newspaper circulating within the district;

3. use any other methods or media to ensure widespread notice of the proposal; or

4. give written notice to affected owners or occupiers of the proposal."

86 The first respondent submits that this policy created a legitimate expectation that the first respondent, as an "adjoining owner" (which expression, it contends, encompasses owners who are directly opposite the site of the proposed development), should have been notified of and consulted in relation to the development proposal and that there had been a failure to notify and consult with the first respondent and other affected persons resulting in a breach of procedural fairness with the consequence that the approval of the development proposal was invalid.

87 It was never put to any of the persons who gave evidence on behalf of the Town that what was said in the Information Statement accurately reflected the Town's policy at material times. Instead, the evidence of those witnesses who gave evidence on behalf of the Town was to different effect. Evidence was given of a review of the consultation procedures adopted by the Town in respect of planning applications which took place on 12 August 1997. A draft report had been prepared for that purpose on about 5 August 1997 which set out what was the existing consultation procedure. It recorded that, in the case of residential development proposals, the Council's Planning and Building Department was required to consult adjoining land owners and occupiers but that, in the case of applications for non-residential developments, "consultation generally only occurs as prescribed under the provisions of ... [the Scheme]". It recorded also that the "other circumstances where consultation generally occurs is [sic] where developments involving commercial uses abut residential areas and there is a potential conflict which may impact on the amenity of the residential area". The author of the report recommended that the Council "not modify the current procedures in place in relation to public consultation".

88 The minutes of the Council meeting at which the report was considered record that, in the case of applications for non-residential development, "consultation generally only occurs as prescribed under the provisions of ... [the Scheme]". The Council resolved that adjoining land owners and occupiers should henceforth be consulted "when a planning application is received for a commercial development with a value equal to or greater than $500,000".

89 It consequently appeared that what was said in the Information Statement did not accord with the practice mentioned in the later documents to which I have referred.

90 It is also important to note, in this context, that Ms Catchpole, who was called as a witness by the first respondent, had her attention directed to the report (with which she was not herself familiar) which had been prepared for the 12 August 1997 meeting and was asked whether the "general practice of consultation in certain circumstances there stated ... was in operation" during her time at the Council. Her answer was, "Yes, there may have been cases where we would have consulted with land owners adjoining commercial areas." She added that this "would be a matter that we would discuss within the Planning Department depending upon the application".

91 Ms Catchpole was asked, in the course of cross-examination, whether it was correct to say that, in the case of commercial developments abutting residential areas where there was the potential for conflict, the planning officers would, on an ad hoc basis, ask themselves whether some form of notification might be required. She answered that that was correct and that each application was looked at individually.

92 Next, Mr Marcelino was asked in cross-examination whether, because the adjacent land was zoned for industrial use, he did not consider that there was any need to consult. His answer was, "No, it's not a residential use land."

93 The first respondent also led evidence from Ms Rowena Skinner, one of the Town's councillors. The contents of the 5 August 1997 report were put to her and she was asked whether her understanding "at the time" was that "you only got what you might call full-blown public consultation when an application had to undergo the clause 37 procedure". Her answer was, "Yes".

94 It seems to me, in the light of the aforegoing, that there was no sufficient evidence to found any legitimate expectation that adjoining land owners (assuming that the first respondent could be said to fall within this category) would be consulted before approval to a development of this kind was given. The existence of the Information Statement cannot overcome the fact, established by the evidence, that there was no general practice of consultation in the case of developments of this kind. Nor could it, in those circumstances, amount to a promise or undertaking to found a legitimate expectation that there would be consultation with adjoining land owners (see Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 659-660, per Dawson J, and 682, per McHugh J). The Town's practice, as established by the evidence, negated any such promise.

95 Because the various grounds raised in the notice of contention and cross-appeal have not been made out it follows that ground 8 thereof (which contends that a greater proportion of costs should have been awarded in favour of the first respondent) has likewise not been made out, that ground having been contingent upon success, by the first respondent, in one or more of the grounds in the notice of contention.

96 It follows, in my opinion, that the appeal should succeed, that the various matters raised in the notice of contention and cross-appeal should be dismissed and that the orders made by the learned trial Judge should be set aside and, in lieu thereof, an order made that the first respondent's action should be dismissed.