THE HONOURABLE JOHN DAY MLA THE MINISTER FOR PLANNING FOR THE STATE OF WESTERN AUSTRALIA

STEPHEN MAURICE ELLIOT-SHIRCORE and DARLINGHURST PTY LTD

MICHAEL FRANCIS AHERN, ADELE AHERN and CHERATING PTY LTD

Catchwords: Town Planning - Development and Assessment Panel - Application for development approval advertised - Amended plan - Whether amendment to application permissible - Whether approval of amended plan beyond jurisdiction - Responsible authority report - Whether report asked wrong question - Whether denial of procedural fairness in failure to advertise amendment - Validity of regulation permitting amendment to existing approval

City of Subiaco Town Planning Scheme No 4, cl 26, cl 27, cl 27(2), cl 27(4), cl 28, cl 28(3), cl 28(3)(a)

Interpretation Act 1984 (WA), s 43(2)

Planning and Development (Development Assessment Panels) Regulations 2011 (WA), reg 5, reg 5(c), reg 6, reg 10, reg 12, reg 13, reg 17, reg 17(3), reg 17(4)

Planning and Development Act 2005 (WA), s 3, s 162, s 164, s 171A(2), s 171D, s 263, s 263(1)

Town and Country Planning Act 1961 (Vic), s 18B, s 18B(3)

First Respondents : McLeods Barristers & Solicitors

Second Respondent : State Solicitor for Western Australia

1 CHANEY J: The applicant, Ms Angela Hamersley, is the registered proprietor of a two storey terrace house situated at 24 Catherine Street, Subiaco (the applicant's property). Her home is one of a number of terrace houses on the east side of Catherine Street which are of recognised heritage significance. On 8 March 2012 the Metro West Joint Development Assessment Panel (JDAP), which is made up of the first respondents, granted a conditional approval (8 March decision) for the construction of a new four storey office building on a property belonging to the fourth respondents located at No 19 and No 27 Catherine Street (the development site). The development site is on the western side of Catherine Street, and is immediately opposite the applicant's property.

2 On 15 August 2012, JDAP granted approval (15 August decision) for an amendment to the proposed development.

3 The applicant seeks the issue of a writ of certiorari against JDAP, declarations that the 8 March decision and the 15 August decision were invalid for various reasons, and a declaration that reg 17 of the Planning and Development (Development Assessment Panels) Regulations 2011 (WA) (DAP Regulations), under which the 15 August decision was made, is invalid.

4 The applicant also seeks the issue of a writ of prohibition preventing the first and third respondents from giving effect to the 8 March decision and the 15 August decision. The applicant contends that JDAP made jurisdictional errors on five grounds. The first and second of those concern an alleged failure to advertise amended plans prepared following initial advertising of the proposed development, which amended plans became the subject of the approval on 8 March 2012. The third ground concerns an allegation that the author of the responsible authority report provided to JDAP asked himself the wrong question in assessing whether the requirements of the relevant town planning scheme had been met, with the result that the 8 March decision was infected with the same error. The fourth concerns an alleged failure to accord Ms Hamersley procedural fairness by reason of the failure to advertise the amended plans. The fifth is an allegation that the 15 August decision which was made pursuant to reg 17 of the DAP Regulations, was invalid by reason that that regulation is itself invalid. The various grounds are more fully set out below.

5 Before turning to those grounds, it is convenient to outline the relevant facts, which were the subject of agreement between the parties.

6 The applicant's property and the development site fall within the area to which the City of Subiaco Town Planning Scheme No 4 (TPS 4) is applicable. The City of Subiaco (City) is the authority responsible for administering TPS 4.

7 Under TPS 4, the development site is zoned 'Town Centre'. Within that zone, an office development is an 'AA' use, that is, a use which is not permitted unless planning approval is granted.

8 On 7 December 2011, Meyer Shircore & Associates (Meyer Shircore), a firm of architects engaged by the fourth respondents, submitted an application for development approval to the City under TPS 4 for approval to demolish the existing buildings on the development site and develop a new four storey office building on that site (December 2011 application).

9 The December 2011 application was required to be determined by JDAP under reg 5(c) of the DAP Regulations.

10 Pursuant to cl 26(4) of TPS 4, notice of the application for development approval of an AA use may be given in accordance with cl 26(5). Clause 26(5) specifies three means by which notice may be given:

(a) notice of the proposed development to be given to the owners and occupiers who in the opinion of the City are likely to be affected by the granting of development approval;

(b) notice of the proposed development to be published in a newspaper circulated in the Scheme area; and

(c) one or more signs displaying notice of the proposed development to be erected on the land on which the development is proposed.

11 The City gave notice of the December 2011 application using each of the three methods provided by cl 26(5). The notice period was 50 days which commenced on 15 December 2011 and concluded on 3 February 2012. That period was 15 days in excess of the 35 days which is specified in the City's Local Planning Policy 2.2: Public Notification of Planning Approvals (Policy 2.2). The reason for the additional period was, according to Mr Hofland, the Manager Planning Services at the City, because a number of residents informed the City that they had not received notice of the proposed development.

12 On 21 December 2011, the City wrote to Meyer Shircore seeking further information to justify the non­compliance of the proposed development with certain development standards or requirements of TPS 4. The letter concluded by enquiring whether Meyer Shircore wished to proceed with the application as submitted, or submit modified plans.

13 On 8 January 2012, Ms Hamersley emailed a submission, dated 6 January 2012 to the City. The submission expressed strong objections to the proposed development which were particularised at some length. Ms Hamersley's was one of 14 submissions received in the public notice period.

14 On 10 February 2012, the City received revised plans for the proposed office building from Meyer Shircore (Revised Plans). The Revised Plans were not accompanied by an application for development approval and no application fee was sought by the City.

15 Mr Hofland described the differences in the plans submitted with the December 2011 application (Original Plans), and the Revised Plans, as follows:

(a) the revised plans incorporated laser cut stainless steel screens with a leaf pattern over a large portion of the Catherine Street façade;

(b) awnings to the majority of the ground floor were included on both street frontages (Catherine Street and Seddon Street) to provide weather protection for pedestrians;

(c) the size of the balcony to the second level of the Catherine Street façade was increased by 34.8 m².

(d) the size of the balcony to the third level of the Catherine Street façade was decreased by 16.9 m².

(e) the design of the pedestrian thoroughfare resulted in a triangular formation which merged into the awning at the entrance of the ground floor tenancy;

(f) the entry and tenancy 1 were modified to incorporate the altered design for the pedestrian thoroughfare and entry statement;

(g) the north eastern portion of the proposed development was altered so this corner of the building was set back approximately 3.6 m from the street boundary. The previous setback distance was nil;

(h) the male and female shower area within the undercroft level was altered to provide two additional showers; and

(i) 11 additional bicycle spaces were provided within the undercroft and ground floor levels.

16 Mr Hofland considered whether the differences between the Revised Plans and the Original Plans were such as to require a new development application to be submitted or further public notice to be given. He observed that neither TPS 4, nor Policy 2.2 provides any guidance about these matters. He considered whether the differences would significantly alter the development or result in additional adverse impacts on surrounding properties, but concluded that the modifications proposed would have neither outcome.

17 Mr Hofland assessed the difference of most planning significance to be the screening proposed to the Catherine Street façade of the proposed building. He was aware from public submissions that the appearance of the façade was of concern to the occupants of some nearby properties. Because he was aware of that concern, he did not consider it necessary to again consult with those occupants about that issue by giving public notice of the revised plans. Instead, he considered it necessary for a professional assessment to be made whether the screening proposed in the revised plans was an acceptable building façade in the context of Catherine Street. The application was referred to Griffiths Architects for assessment, which was provided on 16 February 2012.

18 A responsible authority report dated 14 February 2012 was prepared by the planning officers of the City and forwarded to JDAP on 22 February 2012.

19 The agenda for the meeting of JDAP to be held on 8 March 2012 was published on the City's website on 2 March 2012 at about 5.08 pm. The notice included the responsible authority report.

20 By email dated 5 March 2012, Ms Hamersley provided the Secretariat of JDAP with the text of a presentation which she proposed to make at the JDAP meeting on 8 March 2012. Her email attached a number of other documents. That presentation asserted that the proposed development was non­compliant in a number of respects with cl 28 of TPS 4. It also noted that the proposed development 'in its current form' had not been advertised. She referred to the objections taken in her letter of 6 January 2012 and complained that they had not been adequately dealt with in the responsible authority report.

21 JDAP met on 8 March 2012 to consider the December 2011 application including the revised plans. A number of individuals made presentations at that meeting, including Ms Hamersley, who also provided written submissions to JDAP at the meeting. At the meeting on 8 March 2012, JDAP granted approval subject to conditions, including a condition that the development was to be in accordance with the Revised Plans.

22 On 13 June 2012, Meyer Shircore submitted an application for amendment of a development assessment panel determination pursuant to reg 17 of the DAP Regulations (amendment application). Meyer Shircore provided additional plans relating to the amendment application to the City under cover of letters dated 2 and 3 July 2012.

23 The City provided public notice of the amendment application from 29 June to 23 July 2012 pursuant to cl 26 of TPS 4. Mr Hofland explained that there is nothing in TPS 4, Policy 2.2, the DAP Regulations or any publication about the DAP process, which addresses whether a public notice of amendment applications made under reg 17 should be given. He noted that TPS 4 does not provide for the amendment of previously approved developments. Mr Hofland said that, although he did not regard public notice of the amendment application as required, he decided that it should be undertaken. That was not because he regarded the proposed amendments as significant in planning terms, but because there had been a significant amount of concern expressed by local residents about the March approval, and in view of those concerns he decided to give public notice of the amendment application.

24 Fourteen submissions were received by the City in relation to the amendment application, including one provided by Ms Hamersley.

25 The City prepared and provided a responsible authority report in relation to the amendment application to JDAP. On 10 August 2012, the agenda for the 15 August 2012 JDAP meeting was published on the websites of the City and JDAP.

26 JDAP met on 15 August 2012, at which meeting presentations were made by Mr Glen McLeod, a lawyer and Mr Ian Hocking, an architect, on behalf of Ms Hamersley and others. At that meeting, JDAP granted planning approval for the amendment application.

Grounds 1 and 2 - failure to advertise revised plans

27 The first ground of review relied upon by the applicant was as follows:

2.1 That the 8 March decision was made in excess of the First Respondents' jurisdiction in that the First Respondents purported to determine an application which was not before them in that:

(a) The Fourth Respondents' application dated 7 December 2011 (Application) was deemed, on or about 12 December 2011, by the Third Respondent to warrant advertising pursuant to clause 26(1) of the City of Subiaco Town Planning Scheme No. 4 (Scheme);

(b) The Application was advertised, pursuant to clause 26(5) of the Scheme on or about 15 December 2011 between about 15 December 2011 and 3 February 2012;

(c) On 10 February 2012, the Fourth Respondents submitted a set of revised plans, together with a written submission and traffic report, to the Third Respondent by which the Fourth Respondents sought to vary the Application (Varied Application);

(e) On 8 March 2012, the First Respondents considered the Varied Application and determined to grant development approval of it, subject to conditions;

(f) The Application having been advertised pursuant to a determination under clause 26 of the Scheme, the First Respondents did not have jurisdiction to consider the Varied Application because it was not the application which had been advertised and was not the application about which written submissions had been lodged and to which the First Respondents were required to have regard.

2.2 That the 8 March decision was made in excess of the First Respondents' jurisdiction in that the First Respondents determination of the Varied Application was purportedly made pursuant to clause 28 of the Scheme in circumstances where advertising of the Varied Application had not occurred contrary to the requirements of clause 28 of the Scheme.

29 It is convenient to deal with those grounds together.

30 The applicant contends that, on a proper construction of cl 26 and cl 27 of TPS 4, JDAP, as the decision­maker under TPS 4, was entitled only to consider and determine the application that was advertised and nothing else. She submits that even minor alterations or variations to the advertised application may not be considered by the decision­maker if they were not advertised. In this case, the applicant says that JDAP exceeded its jurisdiction by considering, at the meeting on 8 March 2012, the application as amended by the revised plans.

31 It is necessary, therefore, to consider the terms of cl 26 and cl 27 of TPS 4.

32 Clause 26 requires advertising in relation to certain proposed uses, referred to in the zoning table as 'SA' uses. Where, as in this case, the proposed use is an 'AA' use, cl 26(4) provides that 'the Council may give notice of the application in accordance with the provisions of subclause (5)'. Clause 26(5) identifies the three forms of publication, identified earlier in these reasons, all of which were utilised in respect to the December 2011 application.

33 Clause 27(2) provides that, in assessing an application, the council (and, it follows, JDAP) is to have regard to any written submissions lodged with the City under cl 26. Clause 27(4) specifies matters to which regard is to be had in determining an application including 'any submission accompanying or relating to the application'.

34 The applicant places particular emphasis on the fact that cl 26(4) provides that when 'an application' is made, council may give notice of 'the application'. She points out that cl 26(7) requires the council to consider and determine 'the application' after the expiration of 21 days from serving of the relevant notices. She contends that what may be considered under cl 26(7) is 'the application' which was advertised in accordance with cl 26(5). The applicant notes that each of the ways in which advertising may occur under cl 26(5) involves 'notice of the proposed development' to be given in the ways specified. Thus she argues, any plan which departs, even in a minor way, from that which was the subject of 'the application' as advertised, cannot be considered and determined by council under cl 26(7).

35 That very narrow construction of TPS 4 cannot be accepted. As will be discussed below, I do not accept that 'the application' as used in cl 26 is limited to the strict form of the application and accompanying plans, rather than the substance of the proposed development. The applicant's construction would result in considerable unnecessary inconvenience in the planning process, and would be inconsistent with the long­held position in this State that it is open to a proponent to amend plans for a development after an application is lodged, but before a decision is made, provided that the amended plans do not constitute a different proposal in substance from the original application. The practice of amending plans to accommodate concerns of a planning authority, or of objectors, to a proposed development, is common place and entirely consistent with an efficient planning system designed to achieve an optimal planning outcome.

36 Putting aside advertising, there is no doubt that a proponent for planning approval may, in the absence of any provision in the relevant planning instrument to the contrary, amend an application for planning approval at any time up until the decision is made. That is a situation which routinely occurs in planning reviews in this State where the review body exercises all of the powers and functions of an original decision­maker. An example can be found in Prime Holdings v Cockburn City (1995) 14 SR (WA) 1 at 9 where the Town Planning Appeal Tribunal readily accepted that it was open to the original decision­maker to receive and consider amended plans, and also considered the capacity of the Tribunal to consider an amended plan. The Tribunal said:

Various courts and tribunals have considered whether a new plan presented on appeal is merely an amendment to the existing plan or is, in essence, a new proposal which requires a fresh application for permission. In an early decision of this Tribunal, Yaksich v Town Planning Board (unreported, Appeal No 15 of 1979), Mr Malcolm (as he then was) stated (at p 2):

'In our opinion it would be manifestly inconvenient if an appellant were unable to amend his application or plan in any respect in the course of or for the purposes of an appeal to the Tribunal. The question in any particular case must be whether the amendment if made will constitute a new proposal or whether the proposal as amended remains in substance the same proposal. This is a question of degree.'

The test is not whether the amendments constitute alterations of the original plan but rather do they change the essence of the original plan.

37 That passage was cited with approval by Murray J in Pacesetter Homes Pty Ltd v State Planning Commission (1993) 84 LGERA 71 at 85. The same approach is taken in planning review matters before the State Administrative Tribunal see for example Moore River Company Pty Ltd and Western Australian Planning Commission [2006] WASAT 269; Ridgecity Holdings Pty Ltd and City of Albany [2006] WASAT 97.

38 The same approach in relation to amendment of a proposal before a primary planning authority was expressed by King CJ, with whom Perry J concurred, in Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 63 SASR 318 at 326 (Independent Holdings) where he said:

... There does not appear to be any reason why the primary planning authority, be it Council or Commission in the particular case, should not have the power to permit amendment of the plans which form the basis of the application, before it makes its final decision. There is no provision in the Act which forbids such a course. There are no third party rights under the Act which could be adversely affected. It is manifestly convenient that such a power should exist. It is almost inevitable that when proposals for complex developments are examined by the planning authority's experts, some need for modification of plans will arise. It would be absurd to require a developer to lodge a new application notwithstanding that the desired modification might be of minor significance. I see no reason to interpret the Act in so rigid a manner.

39 King CJ acknowledged that the implied power was limited to the extent that amendments cannot be so extensive so as to change the character of the proposed development so that it is not, in essence, the same development as that for which approval was originally sought (at 326 327).

40 The limitation as to the extent of amendment, namely that amendment is not permissible if it changes the essential nature or character of the proposed development, is reflected in the limit as to the scope for imposing conditions on a development approval. In the context of the imposition of conditions on approval of a proposed structure plan, EM Heenan J, in Gnarabup Beach v Shire of Augusta­Margaret River [2004] WASCA 8; (2004) 137 LGERA 129 (Gnarabup) at [47] said, after considering a number of South Australian authorities to the effect that amendments to proposals could be made so long as they did not create, in effect, a new application:

... Although addressing different legislation, and dealing with a different process, these observations appear to me, with respect, to be applicable in the present situation. Here, a proposed structure plan, as received and considered by the Shire of Augusta-Margaret River, advertised and subject to public submissions, and then forwarded to the Commission for approval may, at each stage of the process, be subject to variations or modifications, perhaps even of an extensive kind. It may at the end of that process be validly approved by the Commission and by the Council subject to some or all of those variations, modifications or conditions, so long as the alterations, modifications or conditions do not so substantially change the nature and character of the structure plan and, in effect, make it an entirely new plan fundamentally different in character from that which was subjected to the process of consideration, evaluation and public comment for which the statute provides.

41 The capacity of a planning authority to consider amendments to a proposal for development, or to impose conditions on an approval of a development, is well accepted subject to the limitation that neither the amendment, nor the conditions, are permissible if the effect is to render the proposal a different proposal from that originally put forward. That statement is, of course, subject to any contrary provision found in any particular legislation pursuant to which a decision is to be made.

42 The question for present purposes is, therefore, whether that general proposition is inapplicable to a development proposal which the City has elected to advertise pursuant to cl 26(4) of TPS 4.

43 The applicant relies upon the decision in Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347 (Addicoat) for its contention that no amendment to an application is permissible, where it has been advertised pursuant to cl 26(4) of TPS 4, including even minor amendments. Addicoat concerned a planning decision under the Town and Country Planning Act 1961 (Vic) (TCP Act). Section 18B of the TCP Act required publication of a notice of an application for development 'where the responsible authority is of the opinion that the grant of a permit may cause a substantial detriment to any person other than the applicant'. The authority was prevented from further considering an application where it had determined that notice should be given until 14 days after the publication of the notice s 18B(3). Brooking J considered, but did not find it necessary to determine, the general question of the extent to which an applicant may vary an application by lodging amended plans. He continued:

Whatever may be the position where notice of an application is not given or published pursuant to s 18B(1), in my judgment where such notice is given or published the 'application', which the responsible authority may proceed to consider further only once it is satisfied as mentioned in s 18B(3), is the application as constituted at the latest at the date of the giving or publication of the notice the subject of s 18B. In my opinion, an applicant may not place on exhibition for the benefit of potential objectors one application for a permit and then proceed to ask the responsible authority to regard as his application, not that which was exhibited, but an application which differs from it in some respect or respects, even though minor. To say this is not, however, to say that the applicant may not, after the date of the giving or publication of notice under s 18B, furnish the responsible authority with some additional document, such as an amended plan, and invite the responsible authority to determine to grant a permit which is, for example, for a development in accordance with that amended plan. But he does this not by way of varying his original application, but by way of inviting the responsible authority to grant his original application subject to the condition that the original plan be amended in the respect concerned. In deciding whether it has power to accede to this invitation, the responsible authority will have to consider whether the effect of the amendment is such that the original use or development proposed is being permitted subject to a condition or, on the other hand, a different use or development is being permitted. ...

44 If the conclusion reached by Brooking J as to the inability of the responsible authority to consider any amendment to a proposal following advertising can be applied in the different legislative context of this matter I would not be inclined to follow Addicoat. The conclusion is inconsistent with the observations of EM Heenan J in Gnarabup, and leads to inconvenience, as well as potentially hindering the achievement of a good planning outcome. It is, with respect, an artificial construct to acknowledge that the responsible authority can be requested to consider approving the original application subject to a condition that it comply with an amended plan, but cannot be requested to consider an amendment to the original application represented by the amended plan.

45 I note in passing that, in any event, it may well be that JDAP dealt with the December 2011 application in the manner which Brooking J accepted as being permitted. The resolution was expressed, relevantly, as follows:

Approved DAP application reference DP/11/02650/1 and accompanying plans (Attachment 1) dated 10 February 2012 in accordance with the provisions of the City of Subiaco Town Planning Scheme No 4 and the Metropolitan Region Scheme, subject to the following conditions:

(a) The development is to be carried out in accordance with the plans and drawings dated 10 February 2012 included with the application for development approval.

46 The application number referred to in that resolution was the number given to the December 2011 application. The responsible authority report which was attached to the agenda for the meeting referred to that application number, and gave the application receipt date as 7 December 2011. The Revised Plans were submitted under cover of a letter dated 10 February 2012 which simply read '[f]urther to our recent application for planning approval for the above mentioned project we have enclosed the following revised drawings' and then set out the drawing descriptions. The covering letter did not, in terms, seek to amend the application.

47 The reference to 'accompanying plans (Attachment 1) dated 10 February 2012' in the resolution of 8 March 2012 is inaccurate if 'accompanying' is a reference to accompanying the application at the time it was made.

48 In substance, the resolution can be fairly read as an approval of the application made on 7 December 2011 subject to a condition that the development be carried out in accordance with the plans and drawings dated 10 February 2012. A resolution in those terms would appear to reflect the mechanism which Brooking J recognised as permissible, and which, in her submissions, the applicant accepted, was permissible.

49 Even if, however, the reference to the application and accompanying plans dated 10 February 2012 is, in substance, a reference to the application as amended by the 10 February 2012 plans, JDAP was, in my view, entitled to consider and determine the application on that basis. That is because the reference to 'the application' in cl 26 and cl 27 of TPS 4 should be read as a reference to the application for a development of the essential nature and character of the proposed development, rather than an application for development of a building precisely in accordance with the plans submitted with the application and which were the subject of advertising. That wider construction of the reference to 'the application' accords with the well accepted position referred to in the various cases referred to above which recognise as permissible an amendment to plans (subject to the amendment not changing the essential nature and character of the proposal) prior to consideration of the application by the decision­making authority. That position has been held to apply where the initial proposal has been the subject of advertising - see Gnarabup. Accordingly, it was open to JDAP to consider and determine the development as described in the Revised Plans at the meeting on 8 March 2012.

50 The narrow construction contended for by the applicant would result in the operation of the Scheme in a way which resulted, in many cases, in pointless delay and expense in the approval process for no good purpose. For example, internal changes proposed in an amended plan might be incapable of having any discernable impact on adjoining properties in any way, but on the applicant's case would require readvertising and attendant delay notwithstanding that the changes might be highly desirable in achieving a better functioning building. That cannot have been the intention of TPS 4.

51 In the context of the present case, there is a further difficulty which confronts the applicant's argument. The City was not obliged to advertise the December 2011 application at all. Advertising was a discretionary decision. Mr Hofland, on behalf of the City, chose to advertise the proposal. When the amendments were received, Mr Hofland considered whether there should be further advertising, but, for the reasons which he explained, exercised the discretion not to do so. There seems no reason to construe TPS 4 as creating an obligation to advertise the amended plans where an assessment is made that the amended plans do not give rise to any new issues upon which adjoining owners should be further heard.

52 Counsel for the applicant sought to distinguish the decision in Independent Holdings on the basis that King CJ had regard to the fact that 'there are no third party rights under the Act which could be adversely affected'. That may be a reference to the absence of third party rights of merits review, in which case it would reflect the position in this State. The applicant contends, however, that here, an election having been made to advertise the proposal, third parties had a right to have their submissions considered, and thus it could be said that third party rights could be adversely affected by the consideration of an amended plan. However, even if regard is had to the rights of parties to make submissions following advertising, it is clear that Mr Hofland formed the view, which is not capable of review in these proceedings, and it is not challenged by any contrary expert evidence in any event, that the amendments were not such as to alter the proposal in a way which raised issues which had not already been addressed by at least some of the objectors. There is nothing in the present case to render inapplicable to the construction of TPS 4 the observations made in Independent Holdings.

53 In summary, I find that the City, or JDAP as the relevant decision­maker, was not obliged to advertise the Revised Plans, and it was open to JDAP to consider and determine the Revised Plans at the meeting on 8 March 2012. That is because the Revised Plans did not, as Mr Hofland concluded, alter the essential nature and character of the proposed development from that described in the Original Plans. It follows that grounds 1 and 2 are not made out.

Ground 3 - The responsible authority report asked the wrong question

54 As mentioned above, a responsible authority report was prepared for JDAP in relation to its consideration of the December 2011 application.

55 The requirement to provide a responsible authority report is found in reg 12 of the DAP Regulations. Regulation 12(5) requires that the report must provide sufficient information to enable the JDAP to determine the application including a recommendation as to how the application should be determined. Regulation 12(6) requires that:

A DAP that receives a report under subregulation (2) must have regard to, but is not bound to give effect to, the recommendation included in the report.

56 Regulation 12(7) permits a DAP that is not given a report in accordance with the regulation, to determine the application in the absence of a report.

57 The third ground upon which the 8 March decision is attacked is based upon the proposition that the author of the responsible authority report dated 14 February 2012 asked the wrong question in relation to the requirements of cl 28 of TPS 4, and that the 8 March decision was made upon the same mistaken foundation.

58 Clause 28 of TPS 4 permits the council (and in turn the JDAP as the relevant decision­maker) to approve an application for planning approval which does not comply with a standard or requirement prescribed under TPS 4, which it calls a 'non­complying application'. Clause 28(3) provides:

(3) The Council cannot grant development approval for a noncomplying application unless, if so required by the Council under clause 26, the application has been advertised and the Council is satisfied that:

(a) if approval were to be granted, the development would be consistent with:

(i) the orderly and proper planning of the locality;

(ii) the preservation of the amenity of the locality; and

(iii) the planning objectives of the particular zone and relevant precinct planning policies; and

(b) non­compliance would not have any undue adverse effect on:

(ii) the property in, or the inhabitants of, the locality; or

(iii) the likely future development of the locality.

That the 8 March decision was made in excess of the First Respondents' jurisdiction in that:

(a) the author of the Responsible Authority Report (RAR), dated 14 February 2012, asked himself the wrong question in assessing whether or not the Varied Application satisfied the requirements of clause 28(3) in that:

(i) In considering whether the development described in the Varied Application would be consistent with the "orderly and proper planning of the locality" pursuant to clause 28(3)(a)(i), the RAR asked (at section 6.2.1) not whether the 'development' would be consistent with those matters but whether the 'non-compliance' (in this case plot ratio) 'would be consistent with the proper and orderly planning of the locality'; and

(ii) In considering whether the development described in the Varied Application would be consistent with the "preservation of the amenity of the locality" pursuant to clause 28(3)(a)(ii), the RAR asked (at sections 6.2.2 and 6.3.2) not whether the 'development' would be consistent with those matters but whether the 'non-compliance' (plot ratio and facade height respectively) is consistent with the amenity of the locality.

(b) The provision of the RAR was an incidental and necessary step to the making of a lawful determination by the First Respondent pursuant to Regulations 12(2)(5) and (6) of the Regulations;

(c) In the absence of anything to the contrary, in either the minutes of the First Respondent of its meeting of 8 March 2012 and in its notice of determination of the same day, the 8 March decision was made upon the same mistaken foundation as that of the author of the RAR as described in paragraph (a) above;

(d) In the alternative to paragraph (c) above, as a result of the mistakes described in paragraph (a) above, the RAR did not satisfy the requirements of what a lawful report must provide, contrary to Regulation 13(5) in that it failed to provide 'sufficient information to enable the First Respondent to determine the application' in a lawful manner, which was a necessary pre-condition to the jurisdiction of the First Respondent;

(e) In the alternative to paragraphs (c) and (d) above, to the extent that the jurisdiction of the First Respondent was not conditional upon an error free RAR, it was conditional upon being advised of any errors in the RAR to allow it to have proper regard to it pursuant to Regulation 12(6) of the Regulations.

60 It is not in issue that the December 2011 application, whether on the basis of the Original Plans or the Revised Plans, was a non­complying application for the purposes of cl 28 of TPS 4.

61 The applicant observes, correctly, that cl 28(3)(a) directs attention to whether the development as a whole would be consistent with the matters referred to in that subclause, whereas cl 28(3)(b) directs consideration as to the potential adverse effect of those aspects of the development which were non­compliant with the requirements or standards of TPS 4. The nub of the applicant's contention is that the author of the responsible authority report failed to acknowledge that distinction.

62 The particular areas of non­compliance concern plot ratio and height. The applicant contends that, at section 6.2.1 and section 6.3.1 of the responsible authority report, the author of the report asked not whether the 'development' would be consistent with the 'orderly and proper planning of the locality', but whether the 'non­compliance' (in this case plot ratio and height) would be consistent with the orderly and proper planning of the locality.

63 In my view, a fair reading of the responsible authority report does not support the conclusion that the author asked himself the wrong question.

64 Section 6.2 commences by setting out in full cl 28(3) of TPS 4. The clause is set out following a sentence which reads:

Clause 28(1) states that if development does not satisfy a particular requirement of the Scheme, Council may approve the application if it is satisfied that certain subclauses are met as follows:

65 It can thus be seen that the JDAP was directed correctly to the relevant provision of TPS 4 which set out the criteria for approval of a non­complying application.

66 Section 6.2.1, upon which the applicant places particular focus, commences as follows:

In assessing if the proposal would be consistent with the orderly and proper planning of the locality, the JDAP should have regard to existing development within the locality and that of their development potential into the future.

67 The report thus reaffirms that it is the proposal which must be consistent with orderly and proper planning as required by cl 28(3)(a).

68 Section 6.2.1 of the report then proceeds to discuss the nature of development in the immediate locality. It acknowledges that development within the immediate area is of smaller scale than that proposed and that the 'abutting land zoned residential R50 requires consideration in terms of its domestic scale'. A comment is then made that the amount of plot ratio proposed would not impact on the bulk and scale of the development and that 'this indicates that approval of the proposed plot ratio would be consistent with the orderly and proper planning of the locality'. It is that conclusion upon which the applicant focuses as suggesting that the wrong question was asked. That submission simply ignores the context of section 6.2.1 which is directed to the question of 'whether the proposal' would be consistent with orderly and proper planning.

69 Section 6.2.2 expresses the view that 'it is considered that the amenity of the locality could be improved as a result of the development'. The basis for that conclusion, which includes discussions as to 'the activation of the immediate locality through the act of ground floor level during office hours', the stepping back of the building affecting the perception as to its bulk, the effect of the façade on the streetscape and the effect of vertical elements of the façade, is a consideration of the proposed development as a whole, not merely the non­compliant aspects of it. The statement concludes:

In summary, it is considered that the measurable floor area (plot ratio) proposed would not reduce the amenity of the area as the bulk of the design scheme is not a direct result of the plot ratio proposed. Therefore, the proposal is supported as the floor area proposed would not reduce the amenity of the area.

70 The applicant also suggests that section 6.3.1 of the responsible authority report demonstrates the wrong question being asked. Again, that section opens with the words 'In assessing if the proposal would be consistent with the orderly and proper planning of the locality the JDAP should ... '. Section 6.3.2 contains an opinion that the amenity of the locality could be improved as a result of the development for reasons which are set out. It concludes:

In summary, it is considered that the amenity of the locality may be decreased as a consequence of the horizontal emphasis of the façade as the wider locality is more vertically aligned. However, as the wording of cl 54(4) relates specifically to height and not the rhythm of the streetscape it is considered that the proposed building complies with the intent of this Clause and the amenity of the locality would not be reduced as a consequence of the proposed height of the building.

71 It is hardly surprising that, in considering whether the development would be consistent with the orderly and proper planning and the preservation of amenity of the locality, the responsible authority report did not discuss the non­compliant aspects of the proposal. In the context of the responsible authority report as a whole, however, it simply cannot be said that the attention of JDAP was not drawn to the correct questions to be addressed under cl 28(3) of TPS 4. The text of the responsible authority report, which occupies 37 pages, examined the proposal in considerable detail. It set out in full the relevant provisions of TPS 4, and analysed the proposal against the relevant criteria. The provisions of cl 28(3) were set out in full in paragraph 6.2 and again in paragraph 6.3. The author of the report did not ask himself the wrong question, and the applicant's third ground is accordingly not made out.

72 The question of whether or not, if there were an error of the nature asserted by the applicant, JDAP's decision would necessarily be infected by the same error, and would be liable to be quashed, was an issue between the parties, but, in view of my conclusion that the applicant's essential premise is not made out, it is not necessary to deal with that question.

Ground 4 - failure to accord procedural fairness

73 Ground 4 falls away in the light of my conclusions in relation to grounds 1 and 2. Ground 4 asserts that, in making the 8 March decision, JDAP failed to accord the applicant procedural fairness in that the Revised Plans were not advertised in accordance with cl 26 of TPS 4. Having concluded that advertising was not required by the regulations, the claim of a right to be heard based on the necessity to advertise necessarily falls away. As it happens, Ms Hamersley was advised, through publication of the agenda and the Revised Plans through the City's website prior to the 8 March meeting, that Revised Plans were to be considered. She had access to those plans, and had an opportunity, albeit short, to review those plans and to address the meeting, as she did, on 8 March 2012 in relation to the Revised Plans.

74 As Mason J said in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584:

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v Federal Commissioner of Taxation (1) Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'.

75 In the absence of any obligation under TPS 4 for JDAP to give notice of the Revised Plans, Ms Hamersley had no right at common law to be heard in relation to the revised plans. As it happens, however, she was provided with an opportunity to, and did, address the meeting in relation to the Revised Plans, albeit with a relatively brief opportunity to thoroughly examine those plans.

77 The fifth ground attacks the validity of the August 2012 decision. It reads as follows:

That the 15 August decision was made in excess of the First Respondents' jurisdiction in that it was made pursuant to Regulation 17 of the Planning and Development (Development Assessment Panels) Regulations 2011, which is invalid in that it:

(a) has as its subject, matters that are not within the scope of the regulation making power provided in section 171A(2) of the Planning and Development Act 2005; and

(b) is repugnant to the Planning and Development Act 2005 in that it provides for an application and granting of an amendment to a development approval, in circumstances where the Act provides that a development approval is final and cannot be amended.

Amending or cancelling development approval

(1) An owner of land in respect of which a development approval has been granted by a DAP pursuant to a DAP application may apply for the DAP to do any or all of the following -

(a) to amend the approval so as to extend the period within which any development approved must be substantially commenced;

(b) to amend or delete any condition to which the approval is subject;

(c) to amend an aspect of the development approved which, if amended, would not substantially change the development approved;

(a) may be made during or after the period within which the development approved must be substantially commenced; and

(b) must be made in the form of Form 2 in Schedule 3; and

(c) must be accompanied by the relevant fee set out in Schedule 1; and

(d) must be lodged with the local government with which the DAP application was lodged.

(3) Unless otherwise provided in this regulation, regulations 10 to 13 apply to an application under subregulation (1) as if the application were a DAP application.

(4) The DAP may determine an application under subregulation (1) by -

(a) approving the application with or without conditions; or

(5) As soon as practicable after the application is determined, the presiding member must give the applicant, the relevant responsible authority and the administrative officer of the DAP written notification of the determination which must include the following

(c) the terms of any condition to which the approval is subject;

(e) unless the application is granted unconditionally, a statement of the effect of regulation 18.

(6) The administrative officer of the DAP must ensure that the notification is published on the DAP website.

(7) A development approval granted by a DAP pursuant to a DAP application cannot be amended or revoked by a local government.

79 A power to make regulations is found in several provisions of the Planning and Development Act 2005 (WA) (PD Act). Section 171A(2) relevantly provides:

(a) providing that, despite any other provision of this Act or a planning instrument, a development application of a class or kind prescribed for the purposes of this paragraph -

(i) must be determined by a DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and

(ii) cannot be determined by a local government or the Commission;

(ba) providing that, despite any other provision of this Act or a planning instrument, if -

(i) an applicant for approval of development elects in accordance with the prescribed procedure to have a development application determined by a DAP; and

(ii) the development application is of a class or kind prescribed by the regulations for the purposes of this paragraph,

(iii) must be determined by a DAP as if the DAP were the responsible authority under the relevant planning instrument in relation to the development; and

(iv) cannot be determined by a local government or the Commission;

(c) providing for the procedures for dealing with prescribed development applications;

(d) providing for the application of the provisions of this Act and planning instruments in relation to prescribed development applications;

(e) providing for the procedures to be followed by, and powers of, a DAP when determining a prescribed development application;

(f) providing for the effect of a determination of a prescribed development application;

80 Section 171D permits the Governor to make regulations 'that are necessary or convenient to be prescribed, for the establishment and functioning of DAPs'.

81 Section 263 of the PD Act provides that the Governor may make regulations prescribing all matters that are required or permitted by the PD Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of the PD Act.

82 The applicant's starting point is that there is no power under TPS 4 for the City, where it is the decision­maker, to vary or amend an approval once given see Aznavour v City of Mandurah [2002] WASCA 320; (2002) 124 LGERA 173 (Aznavour) at [25] Miller J and [38] Roberts­Smith J. It is common ground that TPS 4 does not contain any power of variation or amendment of a development approval once given.

83 Regulation 17 clearly permits a DAP to amend or cancel an approval in the ways described in reg 17(1). The question, is therefore, whether authority to make such a regulation can be found in the PD Act. In my view it can.

84 Regulation 5 and reg 6 prescribe the types of development applications which either must, or may at the option of the applicant, be determined by a DAP. Regulation 10 deals with the form of a DAP application and the fees payable on such an application. Regulation 13 enables the presiding member of a DAP to direct a responsible authority to provide certain advice, assistance or information in relation to a DAP application. Regulation 17(3) applies reg 10 and reg 13 to an application for amendment of an approval. Regulation 17(4) enables the DAP to approve an application for amendment of an approval with or without conditions, or to refuse that application.

85 In my view, reg 17 falls within the regulation­making power provided in s 171A(2)(c), (d) and (f) of the PD Act. Section 162 of the PD Act proscribes development other than in accordance with an approval under a planning scheme. Section 164 permits a responsible authority to grant approval in respect of a development already commenced or carried out. Clause 22 and cl 24 of TPS 4 reflect the provisions of s 162 and s 164 of the PD Act. Clause 32 of TPS 4 deals with the term of a development approval. Regulation 17 deals with the effect of a determination of a prescribed development application, namely that it is capable of amendment, and deals with the application of the provisions of the PD Act and TPS 4 dealing with the requirements for approval and the consequences of an approval. It provides the procedures to be undertaken in relation to an amendment to an approval, which can fairly be described as 'dealing with prescribed development applications'.

86 The power to make reg 17 can also be found in the general power contained in s 263(1) of the PD Act. No doubt the DAP Regulations, which came into force at the same time as the Approvals and Related Reforms (No 4) (Planning) Act 2010 which introduced Pt 11A containing s 171A, were made in reliance of the regulation­making power contained in s 171A, although they do not expressly recite that fact. That does not, however, prevent reliance upon other regulation­making powers found in the PD Act s 43(2) Interpretation Act 1984 (WA). Section 263 of the PD Act permits the making of regulations 'necessary or convenient to be prescribed for giving effect to the purposes' of the PD Act. The purposes of the PD Act are set out in s 3, and include providing 'for an efficient and effective land use planning system in the State'. A provision which enables amendment to an existing approval is clearly capable of assisting efficient and effective land use planning. Regulation 17 is supported by the power contained in s 263 of the PD Act.

87 The applicant argues that s 263 of the PD Act cannot be the source of power to make regulations concerning DAPs because a general power, not subject to limitations and qualifications, cannot be utilised to do what a special power, subject to limitations and qualifications, would not permit - see Leon Fink Pty Ltd v The Australian Film Commission (1979) 141 CLR 672 at 678; Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 7. That submission characterises s 171A of the PD Act as limiting or constraining the general regulation­making power found in s 263, alternatively depriving s 263 of any force or effect so far as DAPs are concerned. In my view, s 171A facilitates the making of regulations which identify the class of development applications that might be dealt with by DAPs and the matters concerning the operations of DAPs. Regulations were necessary to provide a mechanism by which the types of applications that might be dealt with by a DAP were identifiable. DAPs thus became an element of the planning system in Western Australia. There is no reason to conclude that a regulation made in order to provide for an efficient and effective land use planning system in the context of the operation of DAPs could not be made pursuant to the general power found in s 263. In any event, as I have concluded, power to make reg 17 is found in s 171A, so recourse to s 263 is not strictly necessary.

88 The applicant argues that the power contained in reg 17 is repugnant to the PD Act. That is said to be so 'in circumstances where the Act provides that a development approval is final and cannot be amended'. There is no provision in the PD Act to that effect. What cases like Aznavour make clear is that, in the absence of a power to amend or vary, no such power exists. There is nothing in the PD Act which would be inconsistent with a provision of a planning scheme or regulations which permit amendment or variation of an existing approval. There is nothing in reg 17 which is inconsistent with, or repugnant to, the PD Act or TPS 4.

89 It follows that the applicant has not made out any of the grounds upon which it seeks relief.

90 The amended originating motion seeks an order nisi for a writ of certiorari against the first respondent, an order nisi for a writ of prohibition against the first and third respondents, declarations of invalidity of the 8 March decision, the 15 August decision and reg 17 and such other orders as the Court thinks fit. The question of the issue of orders nisi was deferred to be dealt with at the hearing along with the substantive questions for determination. I would grant the order nisi, but for the reasons given above, would discharge those orders and dismiss the application for declarations. I will hear the parties as to the precise orders which should be made.