Marshall & Anor v The Town Planning Appeal Tribunal of Western Australia & Anor [2006] WASCA 146

Court of Appeal (WA)|2006-07-26|Before: Malcolm CJ

Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147

Archer v Howell (1992) 7 WAR 33

Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300

Bonton Pty Ltd v City of South Perth [1982] WAR 213

Dousi v Colgate Palmolive Pty Ltd (1989) 9 NSWLR 374

Esber v The Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430

Helena Valley v State Planning Commission (1990) 2 WAR 422

Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326

Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291

Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

Marshall v Town Planning Appeal Tribunal of Western Australia [2003] WASC 175

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Minister of Health v The King; Ex parte Yaffe [1931] AC 494

Pearse v City of South Perth [1968] WAR 130

Public Trustee v Taylor [1978] VicRp 31; [1978] VR 289

R v Minister of Health; Ex parte David [1929] 1 KB 619

Re David Smith and The Western Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295

Re Finance Sector Union of Australia; Ex parte Illation Pty Ltd [1992] HCA 30; (1992) 66 ALJR 583

Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549

Talbot v Lane (1994) 14 WAR 120

Wing Luck Foods v Lay Choo Lim [1989] WAR 358

Yougarla v Western Australia [2001] HCA 47; (2001) 207 CLR 344

1 MALCOLM CJ: I have had the advantage of reading in draft the response to be published by McLure JA. I am in complete agreement with her Honour's reasons and the conclusion that the appellant's application should be dismissed.

2 McLURE JA: There are two matters before this Court. In FUL 148 of 2003 Mr and Mrs Marshall (who, for the sake of convenience, I will refer to as "the appellants") apply for a stay of the order dismissing, and leave to re-open, the appeal in Marshall v The Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202; (2004) 136 LGERA 276 ("Marshall v The Tribunal"). In FUL 176 of 2004 the appellants appeal from an order made by Master Sanderson on 17 November 2004 dismissing their application for an extension of time for an order nisi for a writ of certiorari and other relief.

3 On 8 September 2004 the Full Court delivered judgment in Marshall v The Tribunal and ordered that the appeals in FUL 147 of 2003 and FUL 148 of 2003 be dismissed. The appellants have discontinued their application for a stay of the order dismissing the appeal in FUL 147 of 2003.

4 In FUL 148 of 2003 the appellants challenged a decision of McKechnie J in CIV 1792 of 2003 refusing an order nisi for a writ of certiorari to quash a decision made by the Town Planning Appeal Tribunal ("Tribunal") dismissing the appellants' appeal to that Tribunal. The appeal to the Tribunal was from a decision of the Western Australian Planning Commission ("Commission") refusing the appellants' application to subdivide their land in Gwenyfred Road, Kensington ("the land"). The Tribunal's decision was made in November 1995. The appellants' application for a writ of certiorari was made many years later in July 2003.

5 There has been a long history of litigation commenced by the appellants in this Court and elsewhere relating to their so far entirely unsuccessful attempts to subdivide the land or develop it by constructing two buildings thereon. The history of the litigation is detailed in pars [8] - [17] of my reasons in Marshall v The Tribunal and discussed below. For present purposes it is sufficient to note that this is not the first occasion on which the appellants have sought a stay and leave to re-open an appeal following delivery of reasons: Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and

Infrastructure (2002) 124 LGERA 118; Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2003) 128 LGERA 231 ("First Stay Case").

6 The appeal in FUL 148 of 2003 was dismissed on two separate grounds being first, that the appellants had no arguable case and second, that regardless of the merits, there were compelling discretionary considerations for refusing relief. The discretionary considerations are detailed in pars [47] - [52] of my reasons in Marshall v The Tribunal and not repeated here.

7 By an amended notice of motion the appellants seek a stay of the order dismissing the appeal in FUL 148 of 2003, an order that the appeal be re-opened and that they have leave to rely on additional grounds. The additional grounds are detailed in seven pages. In essence the appellants now wish to contend in FUL 148 of 2003 that the City of South Perth Town Planning Schemes 5 ("TPS5") and 6 ("TPS6") are ultra vires and invalid. There is a considerable overlap between the grounds the appellants wish to pursue in this matter and the challenge the subject of FUL 176 of 2004. The merits of the challenge to the validity of TPS5 and TPS6 are discussed below. However, it is unnecessary to consider the merits in this application because the substantive and discretionary considerations that justified the dismissal of the appeal are unaffected by the grounds which the appellants now wish to pursue. The appellants also seek to re-argue matters already determined in Marshall v The Tribunal, such as the costs order.

8 Although the orders were not extracted at the time of the application, the jurisdiction to re-open is still only exercised in exceptional circumstances: First Stay Case at [31]. This reflects the strong public interest in the finality of litigation. There is no proper basis on which to re-open the decision in Marshall v The Tribunal. I would dismiss the application and order that the appellants pay the respondents' costs of the application.

9 The appellants filed a notice of motion dated 19 October 2004 for an extension of time for a writ of certiorari to quash the respondent's decision to approve TPS6. The appellants also seek a declaration that TPS5 is ultra vires or alternatively, that decisions made by the former Minister for Planning in respect of the development of the land while TPS5 was in operation be declared null and void. The grounds of the application are as follows:

TPS6 is purported to have been made in terms in which it was not made.
There is an error of law on the face of the record.
[TPS5] was ultra vires. Decisions made while TPS5 was in operation prejudice/eradicate the Applicants rights."

10 On 17 November 2004 Master Sanderson ordered that the application be dismissed with costs. After hearing oral submissions on behalf of the appellants as to the basis for the challenge to TPS5 and TPS6, the Master summarily dismissed the application as follows:

"THE MASTER: You have been to the Full Court four times on this matter, haven't you?

MARSHALL, MR: This matter hasn't been dealt with, Master.

THE MASTER: No, no, but the issue that you're litigating is the right to build two dwellings on your land, to subdivide the land.

MARSHALL, MR: We have a more general interest as well in respect too - and there is a public interest in respect to the scheme being carried out, the Region Scheme Act together with the region scheme being obeyed. There's an express provision and it sets out the procedure. Until the procedure is followed, then any inconsistency is not ironed out because it's the procedure that irons out the inconsistency.

THE MASTER: Let me tell you that I won't grant you the order nisi.

MARSHALL, MR: No, but we will be asking for an extension of time, Master, so that this can go to the - the Full Court has not considered whether the scheme is duly made and whether it's valid. We claim it's ultra vires.

...

THE MASTER: Well, I won't grant you the order nisi. Where you take it from there is a matter for you but in my view this matter is absolutely beyond doubt, there's nothing in your point and I won't grant the order nisi."

11 The appellants seek leave to appeal to this Court. They also sought leave to amend their proposed grounds of appeal and to adduce further evidence. Those applications were not opposed by the respondent. Leave is granted.

12 The appellants' grounds of appeal from the Master's decision include failure to give adequate reasons, apparent bias, lack of jurisdiction to determine the substantive matter and failure to properly consider the merits of the claim that TPS6 was invalid.

13 Before going further, it is appropriate to identify a number of relevant legal principles that arise for consideration. First, the application before the Master was for an extension of time for an order nisi for a writ of certiorari. The factors to be taken into account in determining whether an extension of time should be granted include the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516. An application for an extension of time must be refused unless the appellants demonstrate an arguable case. However, as this is a claim against the Minister (not the Tribunal) the six month limit in O 56 r 11 of the Rules of the Supreme Court 1971 (WA) does not apply. Even so, a writ of certiorari is a discretionary remedy and undue delay remains a relevant consideration: Re Smith & West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295 at 319. Further, the appellants must demonstrate that they have an arguable case before the Court can issue an order nisi for a writ of certiorari.

14 The appellants will be unable to establish they have an arguable case if the doctrines of res judicata, cause of action estoppel or "Anshun" estoppel apply. These doctrines are of particular relevance in this case because of the significant history of prior litigation and determinations.

15 The doctrine of res judicata provides that where an action has been brought and final judgment on the merits has been entered in that action, no other proceedings may be maintained on the same cause of action. To determine what is res judicata, only the record may be examined. Only the parties to the action and their privies are bound.

16 The doctrine of issue estoppel applies where there is a final judicial determination directly involving an issue of fact or law that disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 - 532 per Dixon J.

17 Anshun estoppel applies to matters which were not raised in prior proceedings but which could and should have been raised: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. The estoppel will apply where the matter relied on in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it in the first action. The principle is based on the policy that parties to litigation should bring forward their whole case and not seek to re-open issues in subsequent litigation, not only to avoid the possibility of inconsistent decisions but also to make efficient use of court resources and judicial time (see Halsburys Laws of Australia Vol 12 at [160] - [165]).

18 Turning to the grounds of appeal, there is merit in the appellants' claim that the Master failed to give adequate reasons for dismissing the application. Although the Master gave no express reasons, it can be inferred from the transcript of proceedings that the Master dismissed the application because he regarded the claim for the order nisi as being without merit having regard to the history of litigation relating to the appellants' land. However, there is nothing in the Master's reasons to indicate why and in what respect the history of litigation impacted on the merits of the application. Reasons will be sufficient if the reasoning process which led to the result is disclosed with sufficient certainty to enable a litigant to know why the result ensued and to secure the statutory right of appeal: Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 at 248 per Owen J. I am satisfied that the Master's reasons in this case are inadequate and give rise to an appealable error. However, an appealable error arising from inadequate reasons does not necessarily result in a new trial. The Court of Appeal is entitled to consider and, if it can do so, may decide the matter: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [29]. I agree with the respondent's submission that this Court has the necessary material to determine the application before the Master. I will proceed on the basis that an extension of time is not required.

19 In the circumstances it is unnecessary to determine whether the decision made by the Master should be set aside on the grounds of apprehended bias or excess of jurisdiction.

20 In considering the merits of the appellants' case, it is necessary to separately consider the grounds relating to TPS5 and TPS6. The appellants seek a declaration that TPS5 is ultra vires or alternatively, that decisions made by the Minister in respect of the development of the applicants' land while TPS5 was in operation, be declared null and void. They are identified as the Minister's Appeal Decisions dated 11 July 1997, 17 February 1999, 14 July 1999, 14 April 2000 and the Minister's Section 18 Inquiry decision dated 4 January 2000.

21 It is necessary to refer to the background. In November 1994 the appellants applied to subdivide the land into two lots of 530 square metres and 504 square metres. That application was made on the basis that the land was classified "Residential-R" with an R-Code Density of "R15" under TPS5. The Commission refused that subdivision application on the ground that it did not satisfy the minimum and average lot requirements of the R15 density code. The appellants appealed to the Tribunal from that decision. On 24 November 1995 the appellants' appeal to the Tribunal was dismissed. On 11 July 1997 the then Minister for Planning, Mr Kierath, dismissed an appeal against a subsequent subdivision application in the same form.

22 Following the failure of their subdivision applications, the appellants lodged a number of development applications seeking approval to construct a second dwelling on the land. These culminated in an application dated 5 August 1999 to the City of South Perth for approval to commence a duplex development on the land. The appellants appealed to the Minister for Planning against a deemed refusal of the development application. On 14 April 2000 the then Minister for Planning dismissed that appeal. The appellants applied for certiorari and mandamus in respect of the Minister's decision of 14 April 2000. On 13 March 2001 the Full Court discharged the order nisi: Marshall & Anor v The Honourable Graham Kierath MLA, Minister for Planning (2004) 136 LGERA 21 ("Marshall v Kierath"). The appellants appeared in person in that appeal as they have in all subsequent matters. The question in that case was whether the appellants had a right to have the then Minister for Planning consider an appeal which in turn depended on whether or not the development application was governed by TPS5. If it was governed by TPS5 there was no right of appeal to the Minister. The appellants did not challenge the validity of TPS5. Rather, they contended that the land had not been "zoned for some other use" within the meaning of cl 25 of the Metropolitan Region Scheme and that their right to develop the land by building a duplex on it still subsisted under the Uniform Building By-laws. The Full Court rejected the submission holding that the governing instrument was TPS5, relying on cl 21 of the Metropolitan Region Scheme.

23 The appellants then commenced fresh proceedings seeking a declaration that TPS5 was required by law to be consistent with, and complementary to, the Metropolitan Region Scheme. The matter was heard and determined at first instance by Master Sanderson: Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure (2001) LGERA 24. The Master noted that the appellants contended that TPS5 was invalid because it was inconsistent with the Metropolitan Region Scheme and the Uniform Building By-laws made under that scheme. The Master determined that there was no relevant conflict between the Metropolitan Region Scheme and TPS5 but concluded that even if there was, the TPS5 would prevail by reason of cl 21 of the Metropolitan Region Scheme.

24 The appellants also contended that the proper processes and procedures for the validity of TPS5 had not been followed. The Master considered the detail of this submission and concluded (at [6]) that there was no question but that TPS5 was properly adopted according to law. The Master dismissed the appellants' application with costs. The appellants appealed from that decision. Once again they were unsuccessful: Marshall & Anor v The Honourable Alannah MacTiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274; (2002) 124 LGERA 118. Before the Full Court the appellants challenged the validity of TPS5 on the basis that it was inconsistent with the Metropolitan Region Scheme and ought not to have been approved or was invalid to the extent of the inconsistency. The Full Court recognised (at [15]) that there may be issues of res judicata or issue estoppel as a result of Marshall v Kierath but proceeded to deal with the substantive issue. The Full Court concluded there was no relevant inconsistency between the Metropolitan Region Scheme and TPS5 but even if there was, TPS5 would prevail by virtue of cl 21 of the Metropolitan Region Scheme. The Court also noted that that was the result provided TPS5 had been duly made and approved and in that regard the Court noted (at [35]):

"Ground of appeal 3, which had asserted that it had not been established that TPS5 had been made, approved and gazetted as required by the Planning Act, has been abandoned."

25 The Full Court also considered the interaction between the Uniform Building By-laws, the Metropolitan Region Scheme and TPS5. It concluded that TPS5 was valid and effective and prevailed over the by-laws and the Metropolitan Region Scheme. The Full Court ordered that the appeal be dismissed.

26 After the Full Court order had been extracted, the appellants applied for a stay of the order dismissing the appeal and for leave to re-open the appeal to seek declarations that the land was not within a residential zone under TPS5, that the R15 density code did not apply and that the land was zoned "urban" under the Metropolitan Region Scheme. The Full Court considered and rejected the claim that the land was not zoned Residential-R with an R-Code density of R15 under TPS5: First Stay Case.

27 As already noted, the appellants then turned their litigious attention to challenging the Tribunal's decision made in 1995 and again contended that the land was not zoned Residential-R with an R-Code density of R15 under TPS5 (see Marshall v The Tribunal).

28 It is apparent from the appellants' oral and written submissions in relation to the validity of TPS5 that the issues they now raise (or their substance) have already been considered and determined against them in Marshall v Kierath and at first instance and on appeal in Marshall v MacTiernan. The doctrines of issue estoppel and res judicata prevent the appellants from re-issuing a challenge to the validity of TPS5. Further, even if the issues did not entirely overlap, they could and should have been raised in the previous litigation in this Court to which I have referred. The Master was correct to refuse to grant an order nisi for a writ of certiorari so far as TPS5 is concerned.

29 All the relevant decisions made to date in relation to the appellants' subdivision and development applications were made under TPS5. However, McKechnie J relied on the fact that TPS6 was (insofar as it related to the appellants' applications to subdivide and develop the land) in materially the same terms as TPS5 when refusing an order nisi and an extension of time to appeal the Tribunal's 1995 decision. In Marshall v The Tribunal the appellants unsuccessfully argued that TPS6 was an irrelevant consideration. Now they say for the first time that TPS6 is invalid because of substantive and procedural defects. I should make it clear that even if that is correct, it would not affect the outcome in Marshall v The Tribunal because the grounds that justified the disposal of the appeal would be unaffected. However, I will address the submissions because they have not been considered previously.

30 The appellants' substantive objections to TPS6 are the same as for TPS5 and do not require separate consideration. I see no justification for departing from the reasoning and conclusions of the Full Court in Marshall v Kierath and Marshall v MacTiernan as to the relationship and effect of the Metropolitan Region Scheme, the Uniform Building By-laws and TPS5 (which apply by analogy to TPS6).

31 As to the claimed procedural defects, the appellants bear the onus of adducing evidence in proper form to establish their assertion that TPS6 is invalid on the ground that the procedural steps were not properly taken.

32 Sections 7 and 7A of the Town Planning and Development Act 1928 (WA) ("Planning Act") set out the steps to be taken in adopting a town planning scheme. After a town planning scheme has been prepared or adopted by a local government authority (and subject to compliance with s 7A), it must be advertised for public inspection and then be submitted to the Minister for Planning for her approval.

33 Regulations 15 - 17 of the Town Planning Regulations 1967 (WA) ("Regulations") deal with advertising a scheme, making submissions on the scheme, consideration of the submissions by the local government authority and others, readvertising if necessary and then forwarding the scheme to the Minister for approval under s 7(2)(a) of the Planning Act.

34 There is evidence that the City of South Perth resolved to adopt the proposed TPS6. There is also evidence that the proposed TPS6 was advertised and submissions invited. The Council of the City recommended modifications to the proposed TPS6 in 1999 after considering public submissions. The amended scheme was then readvertised and further modifications were recommended by the Council in 2002. The Minutes of the Council meeting on 26 November 2002 record that there would be no further opportunity for the Council to modify, or make recommendations to modify, the scheme documents and therefore resolved:

"That the City of South Perth Town Planning Scheme No. 6 is hereby deemed to be finally adopted by this Council when it has been modified to the extent required by the Minister for Planning under Regulations 21(1) and 21(2) of the Town Planning Regulations, and the Council hereby authorises the affixing of the Common Seal of Council to three copies of the Scheme documents, as required by the Regulation 22(1)."

35 Regulation 20 of the Regulations provides for consideration of the scheme by the Minister. If the Minister approves the scheme (with or without amendments) the responsible authority is required to forward three copies of the scheme to the Commission for final approval. Regulation 22 then provides:

"(1) The 3 copies of the Scheme for final approval shall be executed by the responsible authority by the affixing of its seal to the documents comprising the Scheme, and be lodged with the Commission.

(2) The Commission shall further endorse one of the copies of the Scheme and submit that copy to the Minister for endorsement by him of his final approval.

(3) A person authorised in writing on that behalf by the Commission may certify that a copy of the Scheme is a true copy of that Scheme as approved by the Minister."

36 The execution page of TPS6 confirms the adoption of the proposed TPS6 by resolution of the Council, the adoption for final approval by resolution of the Council (the City's common seal is affixed), the recommendation and submission of TPS6 for final approval by the Commission which purports to be signed by a person delegated under s 20 of the Western Australian Planning Commission Act 1985 (WA) ("WAPC Act") and the grant of final approval by the Minister on 6 April 2003.

37 The appellants contend that there was no evidence that TPS6 was adopted or finally adopted by Council on the basis that "no signatures were affixed to the documents on the relevant dates" which is said to be the date on which the Council passed each resolution. It is the case that the resolutions pre-date the execution by Council of the scheme for final approval but that does not impact on the validity of either the resolutions or the subsequent execution by the City of the scheme document for final approval as required by reg 22.

38 The appellants also rely on the fact that the person executing on behalf of the Commission was not its chairman or secretary and cannot be identified from his or her signature. Section 20 of the WAPC Act empowers the Commission to delegate to an eligible person any of its functions under that Act or any other written law. The performance of a function by a delegate is deemed to be the performance of the function by the Commission (s 20(3)). Eligible person is widely defined to include persons or bodies outside the Commission.

39 Section 57 of the WAPC Act deals with the execution of documents by the Commission. Section 57(1)(b) provides that a document is duly executed by the Commission if it is signed on behalf of the Commission by the member or members or officer or officers of the Commission authorised by the Commission to do so. Under s 57(4) a document purporting to be executed in accordance with s 57 shall be presumed to be duly executed until the contrary is shown. My preliminary view is that an appropriately worded delegation under s 20 could empower a delegate to execute a document on behalf of the Commission even if the delegate is not a member or officer of the Commission; that is, s 20 is an independent source of power. However, it is unnecessary to determine the question because there is no evidence in this case that the person who executed the document on behalf of the Commission was not a duly authorised member or officer of the Commission or not duly delegated under s 20 of the Act.

40 In my view, the grounds on which the appellants seek an order nisi and a declaration do not raise an arguable case. Accordingly, the appellants' application must be dismissed. I would hear from the parties on costs.

41 MURRAY AJA: I agree with McLure JA that, for the reasons given by her Honour, to which there is nothing I could usefully add, the application for the stay of proceedings in FUL 148 of 2003 should be refused and the appeal FUL 176 of 2004 should be dismissed.

CITATION : MARSHALL & ANOR -v- THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ANOR [2006] WASCA 146 (S)

THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA

THE HONOURABLE ALANNAH MACTIERNAN, MLA, MINISTER FOR PLANNING AND INFRASTRUCTURE

Citation : MARSHALL - v - THE TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA [2004] WASCA 202

1 JUDGMENT OF THE COURT: These reasons concern the costs arising from this Court's decision in Marshall & Anor v The Town Planning Appeal Tribunal of Western Australia & Anor [2006] WASCA 146. There were two matters before the Court. In FUL 148 of 2003 Mr and Mrs Marshall ("the appellants") applied for a stay of an order dismissing, and leave to reopen, the appeal in Marshall v The Town Planning Appeal Tribunal of Western Australia [2004] WASCA 202; (2004) 136 LGERA 276. The Court dismissed that application with costs.

2 In FUL 176 of 2004 the appellants sought leave to appeal from a decision of Master Sanderson refusing an order nisi for a writ of certiorari. That application was also unsuccessful. On 26 July 2006, McLure JA handed down the reasons in both matters and made orders. In FUL 176 of 2004 her Honour made orders in terms of a minute handed up by the respondent. The minute (and thus the orders) were:

The appeal be dismissed.
The appellants pay the respondent's costs of the appeal, including reserved costs.

3 On 7 August 2006, before the orders were extracted, McLure JA recalled the costs order in FUL 176 of 2004 to give the appellants the opportunity to file written submissions on costs for determination by the coram.

4 In FUL 176 of 2004 the appellants challenged the decision of Master Sanderson dismissing their application for an extension of time for an order nisi for a writ of certiorari to quash the respondent's decision to approve City of South Perth Town Planning Scheme 6 ("TPS6") and a declaration that City of South Perth Town Planning Scheme 5 ("TPS5") was ultra vires. The Court concluded that Master Sanderson's reasons were inadequate so as to give rise to appealable error. However, the Court had the necessary material to determine the application which had been before the Master and did so. The Court concluded that the issues raised by the appellants concerning the validity of TPS5 had already been considered and determined against them in prior proceedings. The Court also concluded that the appellants' substantive objections to TPS6 were the same as TPS5 and that the reasoning and conclusions in the earlier decisions applied by analogy to TPS6. The only fresh matter raised in relation to TPS6 was a claim that it was invalid on the ground that statutory procedural steps had not been properly taken. The Court concluded that the grounds relied on by the appellants to challenge TPS5 and TPS6 did not raise an arguable case. Accordingly, the appeal was dismissed.

5 As we read the appellants' submissions on costs, they primarily concern matters going to the correctness of this Court's decision and the correctness of the earlier decisions of the Court. The costs must be determined on the basis that the decision of this Court and the earlier decisions relied on, are correct unless and until overturned on appeal. The matters relied on by the appellants do not provide any reason why the Court's discretion as to costs should not be exercised against them.

6 The appellants also contend that the respondent encouraged an appeal as of right from Master Sanderson's dismissal of the application. As appears from the respondent's submission, this may be a reference to the fact that counsel for the respondent informed Master Sanderson that the orders the subject of the appellants' application for leave were final orders for which leave was not required. As appears in [11] of McLure JA's reasons for judgment, the appellants' applications for leave were not opposed by the respondent and leave was granted. In the circumstances, it is of no consequence whether the appeal was as of right or by leave. We accept the respondent's submission that there is no evidence the respondent did anything to encourage the appellant to pursue FUL 176 of 2004 or otherwise acted unreasonably in causing the commencement or continuation of the matter or to increase the costs of either party.

7 The general rule is that the successful party to a matter is entitled to recover his or her costs. In this case, the appellants were entirely unsuccessful on all challenges to the validity of TPS5 and TPS6. They did not raise an arguable case. We have had regard to the fact that the Master failed to give adequate reasons for his decision but balanced against that is the fact the appellants were in large measure rearguing matters that had already been considered and determined against them in previous decisions. We are satisfied that the appropriate course is to order, as we hereby do, that the appellants pay the respondent's costs of the appeal, including reserved costs, to be taxed.

Planning and Development Act 1928

Planning Regulations 1967

Australian Planning Commission Act 1985

(2004) 136 LGERA 276

(2002) 124 LGERA 118

(2003) 128 LGERA 231

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