NAIRN -v- METRO-CENTRAL JOINT DEVELOPMENT ASSESSMENT PANEL [2016] WASC 56 (25 February 2016)

Supreme Court of WA|2016-02-25|Before: Chaney J

1 CHANEY J: On 25 May 2015, the Metro-Central Joint Development Assessment Panel (JDAP) approved an application by the second respondent, Edge Visionary Living Pty Ltd (Edge), for the development of the building comprising 29 storeys plus two basements (proposed development) on land known as Lots 720 (No 74) Mill Point Road (development site), within the City of South Perth (City). The approval was granted pursuant to the City's Town Planning Scheme No 6 (TPS6), being the Local Planning Scheme applicable to the development site. The applicants, Ms Karyl Anne Nairn and Mr Richard Radcliffe Hawley, each own apartments across the road from the development site. Ms Nairn is the registered proprietor of Apartment 5a, 73 Mill Point Road, and Mr Hawley is the owner and occupier of Unit 9, 75 Mill Point Road. The applicants contend that, in making the decision to grant approval of the proposed development, the JDAP exceeded its jurisdiction in a number of ways. In these proceedings they seek relief by the issue of a writ of certiorari to quash the approval or by way of a declaration that the decision of the JDAP is invalid.

2 The total area of the lots upon which the proposed development is to be constructed is 1,427 sqm. It is a mixed use development comprising 91 residential apartments, 18 commercial tenancies including a café, and various residents' amenities. The building height of the proposed development is 97 m. The ground floor consists of a café, lobbies and other facilities including parking. There are six residential units on levels 1 to 3, 17 commercial tenancies on levels 4 to 7 in which office use is proposed, various tenants' amenities on level 8, and a further 85 residential units from levels 9 to 29.

3 The residential plot ratio is 6.4. The nonresidential plot ratio is 1.5.

4 The development site is located on a relatively narrow promontory on the Swan River. The promontory, often referred to as the peninsular, extends roughly speaking in a northerly direction. Buildings of sufficient height are capable of commanding views to the northeast across the Swan River towards the city of Perth, to the north and northwest across the river to Kings Park, to the southwest towards Crawley, and to the south and south east across the river to suburbs located south of the river.

5 Clause 1.6 of TPS6 identifies the scheme objectives. It relevantly provides:

(1) The overriding objective of the Scheme is to require and encourage performancebased development in each of the 15 precincts of the City in a manner which retains and enhances the attributes of the City and recognises individual precinct objectives and desired future character as specified in the Precinct Plan for each precinct.

(2) The general objectives of the Scheme are to:

...

(b) Introduce performancebased controls supported by planning policies and Precinct Plans;

(c) Facilitate a diversity of dwelling styles and densities in appropriate locations on the basis of achieving performancebased objectives which retain the desired streetscape character and, in the older areas of the district, the existing built form character;

...

(f) Safeguard and enhance the amenity of residential areas and ensure that new development is in harmony with the character and scale of existing residential development;

(g) Protect residential areas from the encroachment of inappropriate uses;

...

(i) Create a hierarchy of commercial centres according to their respective designated functions, so as to meet the various shopping and other commercial needs of the community;

(j) In all commercial centres, promote an appropriate range of land uses consistent with:

(i) the designated function of each centre as set out in the Local Commercial Strategy; and

(ii) the preservation of the amenity of the locality.

6 Clause 7.5 of TPS6 identifies matters to be considered by council when considering an application for planning approval. Clause 7.5 is drawn in mandatory terms, namely that 'council shall have due regard to ... such of the following matters, as are, in the opinion of the council, relevant to the proposed use or development'. Those matters include, relevantly to these proceedings:

(a) the objectives and provisions of this Scheme, including the objectives and provisions of a Precinct Plan and the Metropolitan Region Scheme;

(b) the requirements of orderly and proper planning including any relevant proposed new town planning scheme or amendment which has been granted consent for public submissions to be sought;

...

(i) the preservation of the amenity of the locality;

(j) all aspects of design of any proposed development, including but not limited to, height, bulk, orientation, construction materials and general appearance;

...

(n) the extent to which a proposed building is visually in harmony with neighbouring existing buildings within the focus area, in terms of its scale, form or shape, rhythm, colour, construction materials, orientation, setbacks from the street and side boundaries, landscaping visible from the street, and architectural details;

...

(t) the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety.

...

7 By virtue of cl 7.8(2) of TPS6 the general discretion to approve developments that do not comply with site requirements with respect to, inter alia, minimum lot area and plot ratio is not available with respect to the provisions contained in Schedule 9 applicable to comprehensive new development within SCA1, being the area referred to below.

8 Clause 3.2 of TPS6 creates 15 precincts within the Scheme area. The precincts are designated in the Scheme maps. The development site is located in Precinct 15 known as 'South Perth Station' which is also designated a special control area, referred to as SCA1, under TPS6. Precinct 15 is found within the boundaries of the larger Precinct 1, known as Mill Point.

9 Schedule 9 divides Precinct 15 into four subprecincts. The development site is found within the Mends subprecinct. To the immediate east of the development site is the South Perth Esplanade subprecinct. On the opposite side of Mill Point Road extending from Scott Street to Richardson Street is the Scott Richardson subprecinct. The fourth subprecinct is in the north western corner of Precinct 15, and is known as the StoneMelville subprecinct.

10 The introductory paragraph of Schedule 9 describes the purpose of SCA1 as being:

To introduce very specific development requirements relating to comprehensive new development within the Special Control Area for South Perth Station Precinct which will encourage future development in the area to focus on a more intensive and mixed use form where a variety of daily activities are closely integrated with substantial growth for an increasingly dense commercial centre.

11 Schedule 9 specifies that all development which is determined to be a minor alteration, addition or extension to an existing development is not subject to the provisions of Schedule 9, but is subject to the other provisions of TPS6. It continues:

All comprehensive new development within the development area requires planning approval and shall comply with the provisions of this Schedule.

12 It is common ground in these proceedings that the proposed development is a 'comprehensive new development' and is governed by the provisions of Schedule 9.

Table A: Development Controls;
Table B: Performance Criteria;
Plan 1 SubPrecincts;
Plan 2 Special Design Area; and
Plan 3 Building Heights.

Plan 2 of Schedule 9 designates a special design area (SDA).

14 The development site is included within the area shown as the SDA. The SDA is located entirely within either the Mends subprecinct or the ScottRichardson subprecinct, and comprises lots fronting the more significant roads within the precinct. It includes those lots on the western side of Mill Point Road opposite the development site.

15 Table A is divided into three columns headed 'Element', 'Guidance Statements' and 'Development Requirements' respectively.

16 Element 1(c) of the development controls found in Table A deals with the Mends subprecinct. It provides the following guidance statement:

For the Mends subprecinct, small scale commercial/retail uses are encouraged to retain Mends Street's traditional function as the main retail and lifestyle area in South Perth. Land uses of higher intensity visitation should be located on the ground floor, with nonresidential land uses encouraged on the lower floors and residential on the upper floors.

17 Table A, development requirement 1.1, deals with the preferred or discretionary land uses in the Mends subprecinct. That part of Table A reads:

1.1.1 preferred land uses for the Mends subprecinct are:

Café/Restaurant, Cinema/Theatre, Convenient Store, Hotel, Local Shop, Mixed Development, Office, Tourist Accommodation, Specialty Retail, Multiple Dwelling, Group Dwelling, Aged or Dependent Persons Dwelling, Single Bedroom Dwelling and Residential Building.

1.1.2 discretionary land uses for the Mends subprecinct are:

Consulting Rooms, Educational Establishments and Public Parking Stations.

18 Element 13 of Table A deals with the SDA. The guidance statements in relation to the SDA read:

The lots comprising the Special Design Area front onto streets which have a high degree of visibility, either by virtue of their aspect or proximity to high volumes of movement. As such, these lots offer the potential to establish buildings with a strong visual presence and landmark qualities.
Subject to satisfying Performance Criteria relating to exceptional design quality, sustainability and community benefit, the properties within the Special Design Area are provided with the potential to achieve greater development yields than permissible by the requirements of Table A of this schedule.

19 The development requirements specified in Element 13 of Table A for the SDA reads as follows:

13.1 For sites within the Special Design Area comprising lots depicted on Plan 2 Special Design Area, the requirements of Element 3 'Plot Ratio and Land Use Proportions' and Element 5 'Building Height' of this Table A may be varied where it can be demonstrated to the satisfaction of the Council that the development

is consistent with the Guidance Statements applicable to those Elements; and
specifically meets all the relevant Performance Criteria in Table B of this Schedule.

20 The performance criteria are found in Table B of Schedule 9. That table identifies performance criteria in relation to minimum lot area and frontage, design quality, overshadowing, dwelling density and type, vehicle management, car parking, additional community benefits and resource efficiency. The table contains two introductory paragraphs that read as follows:

For properties that are contained within the Special Design Area as identified in Plan 2 'Special Design Area' of Schedule 9, the Council may permit a variation from the development requirements of Element 3 'Plot Ratio and Land Use Proportions' and Element 5 'Building Height' of Table A of this Schedule, where every relevant Performance Criterion in Table B is met to the Council's satisfaction.

Applicants seeking variation of the development requirements of Elements 3 and 5 are required to submit a report demonstrating how the relevant guidance statements and performance criteria are met. A variation of those development requirements will not be permitted unless the proposed development satisfies every performance criterion which applies to the proposed development.

21 Design consideration 1 in Table B relates to minimum lot area and frontage. The performance criterion in relation to that consideration is that:

The development site is to have a minimum area of 1700 m2 and a minimum lot frontage of 25 metres unless otherwise approved by council as a minor variation.

22 It will be recalled that the development site has an area of 1,427 sqm.

23 Element 3 of Table A deals with 'Plot Ratio and Land Use Proportions'. In relation to the Mends subprecinct, the guidance statement provides that 'any comprehensive new development should consist of predominantly nonresidential uses to ensure the precinct consolidates its role as an employment destination'. The development requirements in relation to plot ratio read as follows:

3.1 There is no maximum plot ratio within the precinct.

3.2 All comprehensive new development to have a nonresidential component with a minimum plot ratio of 1.0.

3.3 Where the total plot ratio is 3.0 or less, the residential plot ratio area is not to exceed 50% of the total plot ratio area of the development; and

3.4 Where the total plot ratio exceeds 3.0, the residential plot ratio is not to exceed 1.5 unless the council approves a higher plot ratio under Table B of this schedule.

3.5 The provisions of the Codes relating to dwelling size in activity centres shall apply.

3.5 For comprehensive new development that includes residential dwellings, the provisions of the Codes relating to essential facilities in activity centres shall apply.

24 The scheme maps include maps depicting building height limits. By virtue of cl 4.3(n) of TPS6, the heights shown on the scheme maps are the maximum permissible height of any building. The building height limit scheme map for Precinct 15 shows the limit for the development site as 24.5 m. The lots on the opposite side of Mill Point Road in the vicinity of the development site show a building height limit of 28 m. The residential lots to the east and south of the development site have a building height limit of 13 m. As already noted, the proposed development has a building height of 97 m.

25 The building height limit scheme map for Precinct 15 contains notes which read:

(1) The Building Height Limits shown on this Scheme Map apply only to development determined by the Council to be a minor alteration, addition or extension to an existing development.

(2) For all comprehensive new development in Precinct 15 South Perth Station, refer to requirements in Schedule 9 of the Scheme Text.

26 Plan 3 in Schedule 9 specifies a building height limit for the subject site of 25 m, measured to the finished floor level of the uppermost storey. The lots upon which the plaintiffs' properties are located have the same building height limit.

27 Element 5 of Table A deals with building height. The guidance statement provides that allowable building height limits are shown on Plan 3 of Schedule 9 but that:

For sites identified in Plan 2 as being in the Special Design Area, variations from the height limits may be approved where the performance criteria in Table B of Schedule 9 are met.

28 The development requirements in relation to Element 5 repeat that height limits may be varied subject to all of the relevant performance criteria in Table B being met.

29 The application for approval of the proposed development (application) was initially lodged around November 2014. It was originally scheduled to be determined by the JDAP at its meeting of 16 March 2015.

30 Regulation 12 of the Planning and Development (Development Assessment Panels) Regulations 2011 (DAP Regulations) requires that a responsible authority, in this case the City, provide to a development assessment panel (DAP) a report in an approved form. Regulation 12(5) provides that the report must provide sufficient information to enable the DAP to determine the application including:

(a) a recommendation as to how the application should be determined; and

(b) copies of any advice received by the responsible authority from any other statutory or public authority consulted by the responsible authority in respect of the application; and

(c) any other information that the responsible authority considers is relevant to determining the application.

31 Regulation 12(6) requires a DAP that receives a report to have regard to, but not be bound by, the recommendation included in the report.

32 In accordance with reg 12, the City provided a responsible authority report dated 27 February 2015 (first RAR) to the JDAP. The first RAR contained a recommendation that conditional approval be granted to the proposed development. I will return to relevant passages in the first RAR in the context of consideration of the grounds of review.

33 Prior to and at the JDAP meeting of 16 March 2015, a number of submissions were made to the JDAP objecting to the proposed development, including submissions made on behalf of the first applicant. Oral presentations supporting the proposed development were also made at that meeting on behalf of Edge. The meeting concluded with a procedural resolution expressed in the following terms:

That the application at Item 8.1 be deferred until no later than 30 April 2015 to allow time for information to be gathered and presented to the DAP, so a determination can be reached based on planning merit. Specifically, the performance of the building against the criteria of Table B of the Town Planning Scheme No 6 and a report being provided that details the background of the Mill Point Road design and planning requirements and reasons for including the area as a special design precinct.

34 The next JDAP meeting to consider the application was subsequently postponed with the agreement of the developers to 25 May 2015. A second responsible authority report dated 12 May 2015 (second RAR) was prepared and formed part of the agenda of the JDAP meeting of 25 May 2015. The second RAR contained the same recommendation for approval as was contained in the first RAR.

35 The second RAR recited that, in accordance with the procedural resolution at the 16 March 2015 meeting, the City had organised two further reports. The first was a report prepared by the City into the history and reasoning for inclusion of the development site within the South Perth station precinct and special design area. The second was a report by the Office of the Government Architect (OGA) on the evaluation of the proposed development against the performance criteria in Table B of Schedule 9 of TPS6 (OGA report). Those reports comprised attachments to the second RAR.

36 Also attached to the second RAR were a revised development application report and amended development plans prepared by Edge, and an evaluation by the City's design advisory consultants of the amendments proposed by Edge in response to the recommendation of the OGA. The City's design advisory consultants supported the proposed changes.

37 The second RAR also attached the minutes of a special electors' meeting which had been held by the City on 6 May 2015 to discuss development issues concerning the Mill Point Peninsular in response to a petition that had been received by the City dated 15 April 2015.

38 Also attached to the second RAR was a copy of the first RAR, and a submission dated 21 April 2015 made by a planner on behalf of a company, Red Rover Corporation Pty Ltd, of which Mr Hawley is a director and the sole shareholder.

39 I will return to the relevant contents of the second RAR in the context of consideration of the grounds of review.

40 At the JDAP meeting on 25 May 2015, a number of deputations were made orally accompanied by written presentations. A presentation was made by Ms Margie Tannock, a partner of the solicitors for the applicants, on behalf of Ms Nairn.

41 On 25 May 2015, JDAP resolved to approve the development application as amended subject to 32 conditions which are not relevant for present purposes other than to note that they were substantially in the terms of the recommendation in the second RAR report.

42 The minutes of the JDAP meeting of 25 May 2015 do not contain anything in the nature of reasons for the JDAP's decision beyond a declaration that all members had duly considered the documents, presumably being a reference to the documents attached to the agenda of the meeting including the RARs and their attachments.

43 The applicants' amended grounds of application contain 12 grounds which, with particulars, extend to 15 pages. There is significant overlap in the different grounds.

44 Many of the grounds are encapsulated in the broad overview of the applicants' characterisation of the decision in question, contained in their written outline of submissions, in the following terms:

[t]he decision in question was to approve a development that is almost four times the permitted building height and over four times the permitted residential plot ratio (an overwhelmingly residential use), under the guise of a discretion to 'vary' those prescribed limits, despite the fact that any discretion was conditional upon the development being for predominantly non-residential uses, on land that fell 16% short of the minimum lot size required before any discretion to vary those limits at all could even be enlivened.

45 In summary, the applicants' case is that the JDAP acted outside of its jurisdiction in respect to its approach to the questions of plot ratio, building height, the characterisation of the shortfall in lots size as a minor variation, the requirements of cl 7.5 of TPS6 and the discretion to vary the minimum setback.

46 More particularly, the applicants contend that the JDAP acted outside its jurisdiction by:

(i) failing to address the question as to whether the development was consistent with the Guidance Statement of Element 3, which required any comprehensive new development to consist of predominantly nonresidential uses - ground 1(a),

(ii) asking itself the wrong question, namely whether the development merely provided a non-residential plot ratio of at least 1.5 - ground 3',

(iii) making a decision not properly or reasonably open to it because no reasonable or rational decision maker could have been satisfied that the development consists of predominantly non-residential uses - ground 4,

(iv) failing to consider whether it was satisfied that the proposed development met the relevant performance criterion in Table B grounds 1(b) and 2(a),

(v) failing to consider whether it was satisfied that there was a 'minor variation' under performance criterion 1 of Table B which required the development site have a minimum area of 1700 m² - grounds 1(c) and 2(b),

(vi) alternatively asking itself the wrong question, namely whether the proposed development makes a contribution to the amenity of the locality and was considered to provide significant public amenity benefit and that the reduced lot size was not seen to have compromised the proposed development, rather than whether the shortfall in lot size was a minor variation - grounds 6 and 7 or,

(vii) alternatively, making a decision which was not reasonably open to it because no reasonable decision maker could be satisfied that a shortfall of 273 m² should be approved as a minor variation to the minimum lot area requirement of 1700 m² - ground 8,

(viii) failing to have regard to the relevant considerations of which it was required to have due regard by cl 7.5 of TPS6 ground 11.

(ix) making a decision which exceeded the true scope, extent and limit of the discretion and which was unreasonable having regard to the scope and purpose of TPS6 and Schedule 9 grounds 5 and 9,

(x) asking itself the wrong question or alternatively failing to take into account relevant considerations or taking into account irrelevant considerations in that, having acknowledged that the building height of 97 m would be considered 'out of context', it was said to be deemed consistent with the intended future built form of the SCA1 and that the development was comparable to other future or potential developments within the SDA of SCA1 ground 10.

(xi) failing to give proper, genuine and realistic consideration to whether there was a reason to exercise its discretion to vary the setback to Mill Point Road to preserve the principal visual amenity feature of the Peninsular locality, namely its avenue of London Plane trees ground 12.

47 The second respondent did not advance any argument that the applicants lacked standing to bring these proceedings. It simply noted that it is for the court to make findings as to whether the requirements for standing are satisfied.

48 I am satisfied that the applicants have standing to bring the application for relief both by way of a writ of certiorari and by way of declaration.

49 The requirements regarding standing in relation to prerogative writs, and certiorari in particular, are accepted as being more liberal than the requirements of standing to obtain a declaration or an injunction - Re Smith; Ex Parte Rundle (1991) 5 WAR 295, 305. The relevant question for the purposes of declaratory relief is whether the applicant has a special interest in the subject matter of the action which is greater than other members of the public - Australian Conservation Foundation Inc v The Commonwealth [1980] HCA 53; (1980) 146 CLR 493, 526 530. Chief Justice Malcolm in Re Smith; Ex Parte Rundle described the requirement for standing to apply for a declaration or an injunction as being 'a particular grievance beyond that which he may have suffered in common with the rest of the public' (305). An example given was 'a neighbour who objects to a grant of planning permission'.

50 In Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289 the court accepted that the appellant had standing to maintain proceedings for an injunction to restrain a development which would significantly interfere with the appellant's views from her property. Standing existed notwithstanding that a lawful development of the site could also cause a comparable interference with the view. The court also accepted that a statutory right to object to the grant of approval is relevant to standing in that it identified the appellant as a member of the category of persons who were, at least potentially, specially affected by the proposed development (300).

51 Ms Nairn is the registered proprietor of an apartment across the road from the proposed development. Although she lives in London and rents her apartment, she occupies it when she is in Perth and it is available. It is clear that the proposed development will block out or obscure views from Ms Nairn's apartment which is designed to take advantage of existing views.

52 Mr Hawley's apartment is also opposite the proposed development, and views from his apartment will similarly be affected. Mr Hawley annexed to his affidavit of 3 September 2015 a valuation obtained in relation to the units at 75 Mill Point Road which were developed by Mr Hawley's company. That valuation was relied upon to support the position, which can be readily accepted, that there is value attributable to views, with the higher apartments considered to have better views. I accept that the impact on the views to both Ms Nairn's and Mr Hawley's properties will have a possible impact on the value of their properties.

53 In the circumstances, I consider that the applicants have an interest over and above any interests of a member of the general public such as to confer on them standing to bring the present application.

54 As already noted, the minutes of the JDAP's meeting of 25 May 2015 did not contain reasons for the JDAP's decision, nor were the JDAP's reasons otherwise provided.

55 It was common ground in these proceedings that there is no obligation on JDAP to give reasons for its decision - Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656, 662 (Gibbs CJ). Chief Justice Gibbs also observed that the fact that no reasons are given for a decision does not mean that it cannot be questioned and that, if no reasons are given, the court may be able to infer that the decisionmaker had no good reasons (663 664). Whether or not such an inference should be drawn requires an examination of all of the material before the decisionmaker. In Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, Dixon J said:

Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law (360).

56 The JDAP had before it, at its meeting of 25 May 2015, the first and second RARs. By virtue of reg 12(6) of the DAP Regulations, the JDAP was required to have regard to the recommendation included in the report. It does not follow that it should be taken that the JDAP adopted the first and second RARs such that they should generally be taken to reflect its reasons. There was considerable other material before the JDAP, including the report of the OGA, the report by the City's design advisory consultants, the written and oral submissions made at each of the two meetings which considered the proposed development and the contents of the application and amended application submitted by Edge. It is appropriate to proceed on the assumption that JDAP had regard to all of that material. The decision to approve the proposed development was not unanimous, but was made by a majority of three to two. In the absence of recorded reasons, the reasons for which the majority reached its conclusion, which may conceivably have differed amongst the members of the majority, cannot be reliably identified.

57 I agree with the observation of Lord Neuberger P in Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822; [2014] 2 All ER 622 where he said:

It should be added that I am very dubious about the notion that it would always be safe to assume that the reasons given by planning officers for recommending that planning permission be granted were the actual reasons which the planning authority had in mind when granting planning permission. While the planning officers' reasons would normally feature large in the minds of members of the planning committee, it would be little short of naïve to assume that even the majority of those members who were in favour of granting permission agreed with all those reasons, or had no other reasons [98].

58 Lord Neuberger went on to recognise that there may be some ground for making the assumption where a planning authority is defending a public law attack on the grant of planning permission, as distinct from the private law proceedings with which he was dealing. The JDAP is a respondent in these proceedings and it has, appropriately, filed a notice of intention to abide the court's decision. It has not, therefore, provided any indication of its reasons for decision. In view of the volume of material before the JDAP, some of which was specifically requested by it after receipt of the first RAR, and in view of the lack of unanimity in the decision, any assumption that the JDAP's reasons can be found in the whole or any part of any particular documents should, in my view, only be made where adoption of reasoning set out in the first RAR or the second RAR is the only apparent basis upon which the JDAP must have acted.

59 Subject to that observation, I approach this case on the basis that, unless there is reason to conclude to the contrary, the necessary prerequisites to the exercise of the power to approve, such as the satisfaction as to certain matters, have been fulfilled. As McHugh JA observed in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164:

Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office: M'Gahey v Alston [1836] EngR 150; (1836) 2 M & W 206 at 211; [1836] EngR 150; 150 ER 731 at 733; R v Brewer [1942] HCA 33; (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VicLawRp 46; [1953] VLR 315 at 318-319. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VicRp 56; [1973] VR 583.

60 The essence of this case is, therefore, whether that presumption of regularity is displaced, having regard to all of the materials before the JDAP and the proper construction of TPS6, by reason of any of the grounds of review identified by the applicants.

61 It is plain that the proposed development is for predominantly residential use. The dominant residential use is demonstrated by the relative plot ratio of residential development compared to the plot ratio of nonresidential development, being 6.4 as against 1.5. The proposed development comprises 91 residential apartments but only 18 commercial tenancies. Apart from the café on the ground level, commercial tenancies occupy only four of the 29 levels.

62 The applicants contend that, because variation was required to comply with the stipulation in development requirement 3.4 of Table A, namely that residential plot ratio is not to exceed 1.5 where total plot ratio exceeds 3.0, the proposed development was incapable of approval unless JDAP was satisfied that the development is consistent with the guidance statements applicable to Element 3. That is because, they contend, that is the effect of development requirement 13.1 of Table A, which is the source of the power to vary plot ratio or height requirements within the SDA. Thus, they argue, guidance statement 3(a), which requires that comprehensive new development should consist of predominantly nonresidential uses, was not, and was not capable of being, satisfied in relation to the proposed development.

63 Edge contends that it is sufficient to enliven the discretion that the decisionmaker is satisfied that every relevant performance criterion in Table B is met. It makes that contention on the basis that development requirement 3.4 of Table A, read with Table B, is a source of power to permit a variation to residential plot ratio independently of development requirement 13.1, and neither development requirement 3.4 nor Table B imposes any requirement for consistency with guidance statements.

64 There are two reasons why Edge's submission on this point should be rejected. The first is that it ignores Element 13, which specifically relates to the SDA. The contention that, in the context of a development within the SDA, development requirement 3.4 and the introductory words of Table B can be read independently of development requirement 13.1, effectively deprives development requirement 13.1 of any efficacy. It is necessary to construe Schedule 9 as a whole. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals - Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432, 440 (Gibbs J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70] (McHugh, Gummow, Kirby & Hayne JJ). There is no reason why development requirement 3.4, development requirement 13.1 and Table B should not be read together. There is no reason not to apply the prerequisites to the discretion to vary found in development requirement 13.1 to the references to variations in each of development requirement 3.4 and Table B in relation to properties within the SDA.

65 The second reason is that the second introductory paragraph of Table B requires the submission of a report 'demonstrating how the relevant guidance statements and performance criteria are met'. That requirement is consistent with the existence of the requirement for satisfaction as to the matters referred to in development requirement 13.1.

66 The sentence which immediately follows the requirement to submit a report provides:

A variation to those development requirements will not be permitted unless the proposed development satisfies every performance criterion which applies to the proposed development.

67 It can be noted that that sentence does not impose a requirement for compliance with, or satisfaction of, the relevant guidance statements. In my view that cannot be construed as an indication that consistency with the applicable guidance statement is not required. The requirement for the submission of the report demonstrating how the relevant guidance statements 'are met' must be read with development requirement 13.1 and is complementary to it.

68 Given that Element 13 of Table A deals specifically with the SDA, within which the proposed development lies, the source of the power to vary the requirements of Element 3 for developments within the SDA is found in development requirement 13.1 of Table A. The power to vary the requirements as to plot ratio is thus conditional upon the satisfaction of the Council, or in this case the JDAP, that the development is consistent with the applicable guidance statements.

69 Having reached that conclusion, I turn to the question of the proper construction of Table A so far as it concerns Element 3.

70 Edge contended that, where development requirement 3.4 is invoked, that is where the total plot ratio of a proposed development exceeds 3.0, the requirement that comprehensive new development should consist predominantly of nonresidential uses has no application. That contention is based on the proposition that, if the drafters of the scheme intended that any development within SCA1 must comprise predominantly nonresidential use, there would be no need to have separate development requirements in development requirement 3.3 and development requirement 3.4 in Table A. Instead, it was submitted, there would simply be a single development requirement that residential plot ratio is not to exceed 50% of the total plot ratio. I do not accept that submission.

71 Development requirements 3.2, 3.3 and 3.4 provide a quantitative application of the requirement for predominantly nonresidential uses. Development requirement 3.2 provides the minimum nonresidential component plot ratio of 1.0. That means that for a development with a plot ratio of anything up to 1.0, the whole development would be required to be used for nonresidential purposes. Development requirement 3.3 deals with the requirement, in effect, for developments with a plot ratio ranging from 1.0 to 3.0. Its effect is that for developments with a plot ratio between 1.0 and 2.0, the minimum plot ratio of 1.0 required by development requirement 3.2 for nonresidential component would apply, but the balance of the development could be for residential purposes, that balance always being a plot ratio less than, or in the case of a development with a total plot ratio of 2.0 less than or equal to, 50% of the total plot ratio. For developments with a plot ratio between 2.0 and 3.0, the minimum plot ratio for the nonresidential component is required to be 50% of the total plot ratio, so that a proposed development with a plot ratio of 3.0 is required to have a nonresidential component with a minimum plot ratio of 1.5. Conversely, the maximum residential plot ratio in a building with a total plot ratio of 3.0 is 1.5.

72 Development requirement 3.4 then imposes that maximum residential plot ratio of 1.5 to all developments where the total plot ratio exceeds 3.0, subject to the possibility of a higher plot ratio for the residential component being approved by council. The effect of the default provision under development requirement 3.4 is therefore to reinforce guidance statement 3(a). In a building of the size of the proposed development, with a total plot ratio of 7.9, development requirement 3.4 would, in the absence of any approved variation, require that the nonresidential component be at least a plot ratio of 6.4.

73 Development requirement 3.4 can have application within the constraints of the guidance statement 3(a). In a building with a plot ratio exceeding 3.0, predominantly nonresidential use could be maintained notwithstanding that approval is given for a residential plot ratio in excess of 1.5. Taking 'predominantly' as meaning constituting the main or strongest element (Shorter Oxford English Dictionary (5th ed)), an increase in the residential component of a development exceeding a plot ratio of 3.0 would be consistent with guidance statement 3(a) up to any point beyond which it might be said that the development was no longer mainly or for the most part to be used for nonresidential purposes.

74 Edge submits that that construction renders development requirement 3.4 unnecessary because the same outcome could be achieved by simply providing that 'residential plot ratio is not to exceed 50% of the total plot ratio'. I do not agree. The requirement that residential plot ratio not exceed 50% in all cases above a total plot ratio exceeding 3.0 would be a less constrictive requirement than development requirement 3.4. Development requirement 3.4 limits the residential plot ratio to a maximum of 1.5 (being less than 50%) absent council's approval. That more restrictive approach is consistent with the guidance statement requiring predominantly nonresidential uses to ensure that the precinct consolidates its role as an employment destination.

75 Edge drew support for its construction of Element 3 from the fact that:

the preferred uses in Table A for the Mends Sub-Precinct included various forms of dwellings, including multiple dwellings;
Element 2, which concerns 'Ground Floor Uses', provides for commercial uses at ground floor level within the Mends SubPrecinct; and
Guidance statements for Element 1 (in relation to Land Use) provide that nonresidential uses are encouraged on the lower floor and residential uses on the upper floors.

76 Edge contended that those requirements support a construction of Element 3 which renders guidance statement 3(a) inapplicable to developments with a total plot ratio in excess of 3.0.

77 I do not accept that submission. There is nothing inconsistent between the application of guidance statement 3(a) and the various provisions identified by Edge. Some residential use is obviously contemplated within SCA1 and SDA. Listing residential uses as one of the preferred uses is consistent with that contemplation. Providing for nonresidential uses on lower floors and residential uses on upper floors says nothing inconsistent with predominant nonresidential use.

78 For properties within the SDA, the first precondition to the exercise of the discretion to vary the requirements of Element 3 is that it can be demonstrated that the development 'is consistent with the guidance statements applicable'. In its ordinary meaning, 'consistent' means accordant or compatible (Macquarie Dictionary (4th ed)) or 'agreeing in substance or form; congruous, compatible ..., not contradictory' (Shorter Oxford English Dictionary (5th ed)). There is no basis upon which the proposed development could be said to be consistent with a requirement that the development consist of predominantly nonresidential uses.

79 Guidance statement 3(a) uses the expression 'should consist', and not the expression 'must consist'. Edge contends that the word 'should' in guidance statement 3(a) is used in an advisory rather than obligatory sense. It contends that it would be open for a decisionmaker to determine that compliance with guidance statement 3(a) is not necessary, or not appropriate, in a particular case, or that development requirement 13.1 is satisfied on the basis that the proposed development is consistent with the remaining guidance statements.

80 Edge noted, in support of its submission that the word 'should' does not import a mandatory obligation, the analysis of cases dealing with the meaning and effect of the word 'should' undertaken by Schoombee DCJ in Njegovan v Nayshon Pty Ltd [2014] WADC 111. That analysis was undertaken for the purposes of construing the WorkCover WA Guides (3rd ed) issued under the Workers' Compensation and Injury Management Act 1981 (WA). As her Honour acknowledged, the context in which the word 'should' was used in the cases to which she had reference was different from the context with which she was presented (137). Her Honour noted that the Macquarie Australian Dictionary (6th ed) provided a number of definitions which demonstrated that the word 'should' may either indicate obligation or advisability [125]. In essence, her Honour's decision was concerned with which of the alternative senses the word 'should' was used in the particular passage of the document she was construing. I accept that the word 'should' can be construed as an obligation or as indicating advisability. What is necessary, particularly in the context of determining the validity of an act done in breach of a statutory provision, is to have regard to the language and purpose of all of the provisions of the statute in the context in which the language is used - Project Blue Sky [69]. While, with respect, I agree with the approach and analysis undertaken by Schoombee DCJ, her Honour's conclusion that 'should' ought be construed in an advisory sense in the provision of the instrument she was construing is of no assistance to the proper construction of the guidance statements in Element 3 of Table A.

81 My attention is also drawn by the parties to other decisions in dealing with the meaning to be attributed to 'should'. Those decisions include Marion City Council v Kerta Weeta Construction Pty Ltd (1993) 81 LGERA 392, 394; South Australian Housing Trust v Development Assessment Commission (1994) 63 SASR 35, 38; R v Cooke [2003] SASC 403 [31]; and BHP Billiton Ltd v Parker [2012] SASCFC 73; (2012) 113 SASR 206, 259 [229] [231], [412]. Those cases are useful only to the extent that they confirm that the interpretation to be applied to the word is dependent upon the context and purpose of the statute under consideration.

82 There are a number of reasons why I consider that the stipulation, that any comprehensive new development consist of predominantly nonresidential uses, must be met in order to enliven the discretion to vary the requirements of plot ratio and height.

83 The first is that the stipulation is coupled with an express purpose, namely 'to ensure the precinct consolidates its role as an employment destination'. That purpose is not served by a predominantly residential use. A comprehensive new development which is overwhelmingly residential, as is the proposed development, is inconsistent with that stated purpose.

84 Secondly, as noted above, the purpose of SCA1 is set out in the introductory paragraph of Schedule 9. That purpose includes '[t]o introduce very specific development requirements relating to comprehensive new development' and seeks to encourage 'focus on a more intensive and mixed use form where a variety of daily activities are closely integrated with substantial growth for an increasingly dense commercial centre'. Guidance statement 3(a) should be read as directed to that purpose. Reading guidance statement 3(a) as a mandatory requirement, in relation to developments within the SDA, more readily addresses the stated purpose of the SCA1.

85 Thirdly, the word 'should' in guidance statement 3(a) should be construed having regard to development requirement 13.1(a), which enables variation where 'it can be demonstrated' that a proposed development is consistent with the guidance statements. That requirement in my view reinforces the construction of 'should' as importing an obligatory requirement. If development requirement 13.1(a) was not intended to apply to guidance statement 3(a), that could easily have been expressly stated.

86 For those reasons, in order to vary the requirements of Element 3 in relation to plot ratio and building height, it must be demonstrated to the satisfaction of the council, or in this case the JDAP, that the development consists of predominantly nonresidential uses before the discretion in development requirement 13.1 is enlivened.

87 Against that conclusion, I turn to the grounds of appeal in relation to compliance with guidance statement 3(a).

88 Ground 1(a) asserts that the JDAP failed to address the question of whether it was satisfied that the proposed development should consist of predominantly nonresidential uses. I do not consider that ground to be made out.

89 The first RAR contained a segment dealing with the Schedule 9 requirements, including Element 3. In relation to Element 3 the first RAR said:

Inherently, and as is the position of The City's Planning directorate, any development exceeding a total plot ratio of 3.0 is to provide a minimum nonresidential plot ratio of 1.5 in order to achieve the associated guidance statement:

'Any comprehensive new development should consist of predominantly nonresidential uses to ensure the precinct consolidates its role as an employment destination.'

It is the City's position that where a proposed development seeks plot ratio variations via Table B and a residential plot ratio of greater than 1.5 is proposed, the development must provide at least a nonresidential plot ratio of 1.5. The proposed development achieves the required minimum nonresidential plot ratio of 1.5, demonstrating a nonresidential plot ratio are of 2,136m2. Furthermore, as is demonstrated above, the proposed development satisfies all Table B performance criteria and therefore such variations to the residential and nonresidential plot ratios are considered appropriate.

90 The requirement for predominantly nonresidential use does not otherwise appear to have been addressed in the second RAR, or in the amended application which was the subject of the approval on 25 May 2015. In the commercial summary found at pt 1.4 of the amended application for development, Edge notes that 'the commercial plot ratio of the development is 1.5 which meets the minimum requirement outlined in Element 3 of Schedule 9'. The justification of the increases in plot ratio and building height were focussed on in both the application and in the first and second RARs on the question of compliance with the performance criteria in Table B.

91 The attention of the JDAP having been drawn to the requirement of guidance statement 3(a), I do not consider that it could be said that JDAP failed to address that question, notwithstanding that, as will be seen, I do not consider that it was reasonably open to the JDAP to conclude that the proposed development was consistent with guidance statement 3(a). Ground 1(a) therefore is not made out.

92 Ground 3 asserts, in the alternative, that the JDAP addressed itself to the wrong question, namely whether the development merely provided a nonresidential plot ratio of at least 1.5. That contention draws upon the reference in the first RAR which I have set out above. The same approach to the question was taken by Edge in its reference to commercial plot ratio in the commercial summary to which I referred above.

93 To construe development requirement 3.4 as a provision which imposes a minimum nonresidential plot ratio of 1.5 is to misconstrue development requirement 3.4. Development requirement 3.4 provides for a maximum residential plot ratio not to be exceeded without council approval. To construe development requirement 3.4 as simply imposing a minimum nonresidential plot ratio requirement is to invert the operation of the clause and to ignore the context of guidance statements and other development requirements in relation to Element 3. Even if the construction of development requirement 3.4 adopted by the City's officer in the first RAR and by Edge in its development application were correct, the provision of a minimum nonresidential plot ratio of 1.5 would not address the question which development requirement 13.1(a) requires to be answered, namely whether the proposed development is consistent with the guidance statements. To the extent that the JDAP concluded that development requirement 13.1 was satisfied on the basis of the City's officers' construction of development requirement 3.4, it addressed the wrong question.

94 In relation to this issue, I do consider that it is reasonable to assume, on the balance of probabilities, that the JDAP adopted the erroneous reasoning contained in the first RAR and the development application and relied upon that reasoning in order to satisfy itself as to compliance with development requirement 13.1. The reasons for that conclusion are as follows:

(i) The proposed development is patently not predominantly for nonresidential uses; and

(ii) there is no other basis apparent from any of the papers for any conclusion that development requirement 13.1 had been satisfied or could have been satisfied.

95 It follows that, in my view, the JDAP asked itself the wrong question in relation to the requirement that it be satisfied that the proposed development was consistent with the guidance statements applicable to Element 3, and in doing so, it acted outside its jurisdiction. Ground 3 is made out.

96 Ground 4 is that the JDAP made a decision not properly or reasonably open to it because no reasonable or rational decision-maker could have been satisfied that the development consists of predominantly nonresidential uses. For reasons which I have outlined, that ground is made out.

97 It was common ground in these proceedings that by reason of the introductory paragraphs in Table B (which are set out at [20] above), a variation from the development requirements relating to plot ratio and land use proportion and building height is only permissible where every relevant performance criterion in Table B is met. The first design consideration in Table B is the minimum lot area and frontage. The performance criteria require that the development site have a minimum area of 1,700 sqm and a minimum lot frontage of 25 m, unless otherwise approved by council as a minor variation. The development site falls short of the minimum area requirement by 273 sqm, or approximately 16%. A number of the grounds of appeal turn on the proposition that a shortfall of that amount cannot reasonably be considered 'a minor variation' and that, in reaching its satisfaction as to that requirement, the JDAP made various jurisdictional errors. In order to deal with those grounds, it is necessary first to have regard to the materials before the JDAP in relation to that issue.

98 The first RAR specifically dealt with the requirements of Table B in relation to minimum lot area and frontage. At page 24 of the first RAR, the City's officer said:

Minimum Lot Area and Frontage:

Design consideration 1 of Table B prescribes that development sites within the special design area are to have a minimum area of 1700m2 and a minimum lot frontage of 25m unless otherwise approved by the Council as a minor variation. The proposed development achieves the required minimum frontage in excess with a 33.1 metre frontage to Mill Point Road yet demonstrates a 273m2 or 16% shortfall from the required minimum lot size. While the City is able to approve variations to the minimum lot size there are a number of issues to evaluate whether such a variation is appropriate.

While the development site does not specifically meet the site area requirement under Table B of Schedule 9, it is considered to meet the intent of the provision in terms of ensuring lots are of sufficient size to facilitate appropriate design outcomes.

The proposed development provides a 33.1m frontage, 8.1 metres in excess of the prescribed minimum. This extensive frontage provides the opportunity to provide a large activated ground floor street frontage (see discussion in section 4.1 of attachment 2 as well as Attachments 3(b), (d) & (e)) to benefit the public amenity and the 33.1m street frontage podium length along Mill Point Road is to give the impression of a much larger block from the public realm and streetscape than is actually proposed.

It is clear the proposed lot size is sufficient to accommodate the desired development outcome with the proposal achieving all desired design requirements, with the exception of a minor rear setback variation, providing a range of dwelling types and sizes as well as sizeable commercial tenancies with the lot size seemingly not having compromised these outcomes.

Without specific guidance as to what is considered a 'minor' variation, consideration should be given to the contribution and improvement a proposed development makes to the amenity of a locality. The applicant, following a further information request, produced discussion relating specifically to the community amenity benefits the proposed development is to deliver, detailed in item 3 of Attachment 3(c).

Given the above, the proposed development is considered to provide significant public amenity benefit via the highly activated ground level street frontage, community meeting rooms and upgrade to pedestrian areas and access ways. The reduced lot size is not seen to have compromised the proposed development which is considered of exceptional design quality by the City's Design Advisory Consultants who also advised they were not critical of the reduced lot size (see comment above). (original emphasis)

99 It will be recalled that, at its initial meeting on 16 March 2015, the JDAP deferred consideration of the application until further information was obtained, including, in particular, information as to 'the performance of the building against the criteria of Table B'. The second RAR referred to the terms of the resolution deferring consideration of the application and identified the City's response as being the preparation of the two reports attached to the second RAR. The second of those reports was the OGA report, which was said to address the evaluation of the proposed development against the performance criteria of Table B.

100 The OGA report did not, in its text, deal with the minimum lot area and frontage criteria of Table B. Rather, in a summary table at the conclusion of the OGA report, the OGA's comment in relation to minimum lot area and frontage was:

This criterion is prescriptive, rather than performancebased, and does not directly impact upon design quality; it is considered that this is beyond our scope for comment.

101 The second RAR largely comprised of an analysis of the issues of design raised in the OGA report, and Edge's response and amendments to the proposed development resulting from the recommendations of the OGA. It did not further address the shortfall in the minimum lot area.

102 The revised development application which went before the JDAP at its meeting on 25 May 2015 dealt with the minimum lot area and frontage requirement of Table B. At page 11 of the revised development application, the following appears:

3.1 MINIMUM LOT AREA & FRONTAGE

The development site is to have a minimum area of 1700m2 and a minimum lot frontage of 25 metres unless otherwise approved by the Council as a minor variation.

Amendment 25 to Town Planning Scheme No 6 specifically promotes lively street frontages and an enhanced pedestrian environment. The proposed development at Lot 74 has amazing potential to activate its street frontage along Mill Point Road with a width of 33.1m. This frontage exceeds the requirements outlined in Table B by 32% which allows for both commercial and residential entries along with extensive landscaping and amenity that would be compromised without the extra width.

This wide frontage has enabled the design of integrated hard and soft landscaping, end of trip facilities, public art, a water feature, both lobby entries and a generous café. All of the above have contributed to significant street activation in what is currently an overlooked pedestrian way. We believe activating the Mill Point Road frontage is not only critical to the success of the project but will also be value the South Perth community for years to come.

With regard to the lot area of 1427m2, the performance criteria suggests a minor variation can be approved at the discretion of the Council. Considering the especially wide frontage of Lot 74 and the quality of the development we request that council apply their discretion. Diagram 3.1 compares Lot 74 to a site compliant with the parameters outlined under the Performance Criteria. The extra 8.1m of frontage contributes to the street activation while the slightly reduced site area has little relevance to any community or streetscape benefits. (original emphasis)

103 Grounds 1(b), 1(c), 2(a) and 2(b) all assert that the JDAP exceeded its jurisdiction to approve the development with a residential plot ratio of 6.4, or alternatively a building height of 97 m, by failing to address the question of whether the shortfall in lot area of the development site was a minor variation. I do not consider there is merit in any of those grounds. The issue was squarely addressed in the documents to which I have referred above. The terms of the motion of 16 March 2015 deferring consideration of the application demonstrate that the JDAP specifically addressed compliance of the proposed development with the performance criteria of Table B.

104 Grounds 6 and 7 assert that the JDAP exceeded its jurisdiction in approving the proposed development with a residential plot ratio of 6.4 and a building height of 97 m by asking whether the development would contribute to and improve the amenity of the locality and by failing to ask itself whether it was satisfied that there was a 'minor variation'. Ground 8 asserts that the JDAP exceeded its jurisdiction in approving a proposed development when it could not properly or reasonably have been satisfied that a shortfall of 273 sqm should be approved as a minor variation to a minimum lot area requirement of 1,700 sqm, and that no reasonable decision maker in the first respondent's position could properly have been so satisfied.

105 It is convenient first to consider the issue raised by ground 8, namely whether a shortfall of 273 sqm in the context of a requirement of 1,700 sqm could reasonably be considered a minor variation.

106 The applicants point to the Australian Oxford Concise Dictionary meaning of 'minor' as being comparatively unimportant and of 'variation' as meaning 'change or slight difference ... typically within certain limits'. They contend that a shortfall of 16% cannot be described as 'comparatively unimportant' or a slight difference. The Shorter Oxford English Dictionary (5th ed) also defines minor as 'comparatively unimportant or insignificant'.

107 In its submissions, Edge drew attention to definitions found in the Macquarie Dictionary of the word 'minor' as meaning 'of or relating to the minority, and of the word 'minority' as being 'a number forming less than half of the whole'. The Shorter Oxford English Dictionary contains a similar definition of the word 'minority'.

108 Having regard to the context and purpose of TPS6, I do not find reference to the definition of 'minority' helpful in the context of ascertainment of the meaning of the word 'minor' where it is used as a qualification of 'variation' in relation to minimum lot area frontage. The definition of 'comparatively unimportant or insignificant' better suits the context in which the word is used.

109 The expression 'minor variation' must be construed having regard to the context and to the objects and purposes of TPS6, and in particular Schedule 9. What is an unimportant or insignificant variation must be measured against the purpose for prescribing minimum lot areas and frontage requirements in respect of developments which vary the development controls relating to plot ratio and height. It is not possible to specify a specific lot area shortfall figure as the limit of what might be considered a minor variation. I do not accept that a shortfall of 253 m, or 16%, is incapable of amounting to a minor variation simply because of the size of the shortfall. Rather, the determination of whether the shortfall is a minor variation, in the sense of being unimportant or insignificant, requires an analysis of the impact of the shortfall on the planning objectives inherent in Schedule 9.

110 The purpose of SCA1, as explained in the introductory words of Schedule 9 is 'to introduce very specific development requirements ... which will encourage future development in the area to focus on a more intensive and mixed use form where a variety of daily activities are closely integrated with substantial growth for an increasingly dense commercial centre'. Clearly, plot ratio and height requirements are designed to control bulk and scale, which inevitably influence the streetscape and amenity, and potentially impact on desired design requirements. In my view, it was open to the JDAP to assess the significance of the variation in the context of the specific design considerations enumerated in Table B including item 7, which deals with additional community benefits.

111 It is those matters to which the first RAR was directed in the section dealing with minimum lot area and frontage, which I have set out above at [98]. Another matter referred to in the first RAR, and in the revised development application, was the fact that, whilst there was a shortfall in the minimum lot area, the proposed development involved a street frontage well in excess of the minimum requirement. That was, in my view, a relevant consideration in the determination of the significance of the proposed variation to minimum lot ratio.

112 The applicants contend that the significance of the variation in minimum lot area must be measured having regard to the extent of the increases in height and plot ratio, which gave rise to the need to satisfy the requirements of Table B. I accept that judgment of the significance and importance of a variation must properly involve an examination of the particular development proposed so as to understand the impact of the variation on the relevant planning objectives. That is not to say, however, that the shortfall in this case was empirically too great to be a minor variation having regard to the extent of the increases in height and plot ratio.

113 In this case, the first RAR and the revised development application addressed the planning impacts of the lot area and frontage having regard to desired design requirements, public amenity effects and streetscape. They were matters to which the JDAP was entitled to have regard in assessing whether the shortfall in lot area was important or significant and thus was capable of being accepted as a minor variation. That was a matter which fell in its discretion, and I do not consider that the conclusion which it reached is one which no reasonable decisionmaker could properly have reached.

114 Ground 6 asserts that the JDAP failed to ask itself whether it was satisfied that there was a minor variation, and whether the extent of the shortfall was sufficiently small to be approved as a minor variation. As I have said above, I do not consider that the JDAP was required simply to ask whether, empirically, the shortfall was 'sufficiently small' to be approved as a minor variation. It was required to assess the importance or significance of the shortfall in lot area in the way I have described. Nor can it be said that the JDAP failed to ask the relevant question. I am satisfied that the JDAP addressed the individual requirements of Table B and considered the documents which I have identified above in relation to the question of minor variation.

115 Ground 7 asserts that the JDAP wrongly assumed that the only consideration was whether it believed the development would 'make a contribution and improvement to the amenity of the locality'. The evidence does not support the proposition that underlies that complaint. It is correct that the first RAR suggested that consideration should be given to the contribution and improvement that a proposed development makes to the amenity of a locality. In the context of the overall assessment of the significance of the variation, it was, in my view, open to the JDAP to have regard to those matters. It is not correct to conclude, however, that the JDAP considered that that was the only consideration which it needed to take into account in order to make that determination. The first RAR addressed questions of desired design requirements, the street frontage well in excess of the minimum requirement and the impacts of the proposed development from the public realm and streetscape. They were all matters relevant to the significance and importance of the deficiency in lot size. Ground 7 is not made out.

116 Ground 11 asserts that the JDAP failed to have due regard to any of the following considerations, each of which it was required to have due regard to by cl 7.5 of TPS6:

(a) that the overriding objective of TPS6 as a whole is to require and encourage performance-based development in each of the 15 precincts (including SCA1) in a manner which, inter alia, recognises individual precinct objectives and desired future character as specified in the precinct plan for each precinct, and that the precinct objectives and desired future character for SCA1 are for a more intensive and mixed use form for an increasingly dense commercial centre and to consolidate its role as an employment destination;

(b) that the general objectives of TPS6 include to safeguard and enhance the amenity of residential areas and to ensure that new development is in harmony with the character and scale of existing residential development;

(c) the preservation of the amenity of the locality;

(d) the height and bulk of the development;

(e) the extent to which the proposed building is visually in harmony with neighbouring existing buildings within the focus area, in terms of its scale, form or shape, setbacks from the street, landscaping visible from the street and architectural details; and

(f) the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety.

117 The applicants contend that that failure can be inferred from the respondents' failure to give reasons for its decision and from the fact that, to the extent that it is to be inferred that the respondent relied on the first and second RARs, those reports failed to address or have due regard to any of those matters.

118 Ground 10 reflects a more particular complaint of taking into account an irrelevant consideration, namely that, having acknowledged that the building height would be considered 'out of context', it was said to be deemed consistent with the intended future built form of SCA1 and that the development was comparable to other future or potential developments within the SDA of SCA1.

119 The matters to which it is said due regard was required, which are set out above, have been extracted by the applicants from a combination of the provisions of cl 1.6, which deals with scheme objectives, cl 7.5, which deals with matters to be considered in relation to applications for planning approval, and Schedule 9. The applicants' contention that the JDAP failed to have regard to those matters is, in the absence of reasons being given by the JDAP, based on the proposition that those matters were not addressed in the first or second RARs. In my view that contention is without substance. Although no specific reference was made in the first or second RARs to cl 7.5, the first RAR in particular, and the development application, clearly addressed matters of amenity, height and bulk, impact on neighbouring existing buildings, the scale, form and shape of the proposed developments, setbacks, landscaping and architectural details. Traffic reports were annexed to the development application and vehicle management was specifically dealt with in the first RAR's assessment of compliance with Table B criteria. The more general objectives extracted from cl 1.6 and Schedule 9 were all inherently incorporated into the overall detailed assessment of the proposal. There is no basis for contending that the JDAP failed to address the relevant questions, and therefore ground 11 is not made out.

120 Nor do I consider that the JDAP exceeded its jurisdiction by taking into account an irrelevant consideration, being consistency with the intended future built form of SCA1. A decision maker exceeds its jurisdiction when it takes into account a consideration which it is not permitted to take into account. Development within an area, and development proposed in the near term for an area, are matters which are capable of informing orderly and proper planning and questions of amenity. I do not accept that it was not open to the JDAP to have regard to the references to future development contained in the first RAR, if indeed it did. Ground 10 is not made out.

True scope, extent and limit of the discretion to vary

121 Ground 9 of the amended ground of application reads:

Further and alternatively, the respondent exceeded its jurisdiction in approving or purporting to approve the development with a building height of 97m, as it exceeded the true scope, extent and limit of the discretion and its decision was unreasonable and otherwise one which no reasonable decisionmaker in the respondent's position could properly have made.

Particulars

(i) The applicants repeat the matters particularised in subparagraphs (i) to (iv) of Ground 5.

(ii) The general objectives of TPS6 also include to safeguard and enhance the amenity of residential areas and to ensure that new development is in harmony with the character and scale of existing residential development (clause 1.6(2)(f)).

(iii) Although the subject property is within SCA1, it is on the very northern boundary of SCA1 and is located in a residential area characterised by residential apartments below a height of 25m.

(iv) The building height of 97m is approximately 4 times the prescribed maximum building height of 25m and approximately 4 times the maximum height of existing residential development surrounding the subject property.

(v) The respondent approved the building height of 97m for the purpose of allowing the development of what is fundamentally a highrise residential development, contrary to the purpose and scope of TPS6 including Schedule 9.

(vi) The applicants repeat the matters particularised in Ground 4.

(b) The decision to approve a building height of 97m, being almost 4 times the prescribed maximum building height of 25m, is not properly or reasonably capable of being characterised as a 'variation' or a decision to 'vary' the maximum building height of 25m within the meaning of Schedule 9 but, rather, was a decision to approve something of a different kind or character than that contemplated or permitted by TPS6 including Schedule 9.

122 Ground 5 essentially goes to the same contention although it is particularised differently. Ground 5 provides:

Further and alternatively, the respondent exceeded its jurisdiction in approving or purporting to approve the development with a residential plot ratio of 6.4, as it exceeded the true scope, extent and limit of the discretion and therefore its decision was unreasonable and otherwise one which no reasonable decisionmaker in the respondent's position could properly have made.

Particulars

(i) The stated purpose of Schedule 9 was to introduce very specific development requirements within SCA1 to encourage development to focus on a more intensive and mixed use form for an increasingly dense commercial centre.

(ii) The Guidance Statement in Element 1(a) of Table A provides that it is intended that the development area SCA1 is to consolidate its role as an employment destination.

(iii) The overriding objective of TPS6 as a whole is to require and encourage performancebased development in each of the 15 precincts (including SCA1) in a manner which, inter alia, recognises individual precinct objectives and desired future character as specified in the precinct plan for each precinct (clause 1.6(1)).

(iv) The subject land is also within the Mends Sub-Precinct of SCA1. The stated land use objective within the subprecinct, pursuant to the Guidance Statement in Element 1(c) of Table A, is that smallscale commercial/retail uses are encouraged to retain Mends Street's traditional function as the main retail and lifestyle area in South Perth, and land uses with higher intensity visitation should be located on the ground floor, with nonresidential land uses encouraged on the lower floors and residential on the upper floors.

(v) The applicants repeat the matters particularised in Ground 4.

(vi) The approved residential plot ratio of 6.4 was more than a fourfold increase on the maximum residential plot ratio of 1.5. The decision is not properly or reasonably capable of being characterised as a 'variation' or a decision to 'vary' the maximum residential plot ratio of 1.5 within the meaning of Schedule 9 but, rather, was a decision to approve something of a different kind or character than that contemplated or permitted by TPS6 including Schedule 9.

123 Particulars to ground 5 incorporate the matters particularised in ground 4. The matters particularised in ground 4 comprise the details of the height, proposed uses and plot ratio, all of which are set out earlier in these reasons.

124 Grounds 9 and 5 rely on the proposition that the subject matter, scope and purpose of TPS6 will inform the limits of the possible exercise of the discretion for the purpose of establishing an unreasonable exercise of discretion Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [23] [31] (French CJ); [63] - [67] (Hayne, Kiefel & Bell JJ); [90] (Gageler J). The applicants argue that the words 'vary' and 'variation' connote 'a change or slight difference ...typically within certain limits', an expression drawn from the definition of the word 'vary' found in the Australian Oxford Concise Dictionary. They contend that a building of the height and plot ratio of the proposed development is so great a disparity from a development which complies with the prescribed limits for developments within the SDA and the existing developments in the location, that it is of a different character and kind, or in a different general class, from any development contemplated for this location by TPS6 and Schedule 9. They note that cl 7.5(b) of TPS6 requires the JDAP to have regard to the requirements of orderly and proper planning and argue that that requirement demands that decision making be disciplined, methodical, logical and systematic, not haphazard or capricious.

125 There can be no doubt that, as the passages referred to above from Minister for Immigration v Li demonstrate, an otherwise unlimited statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. As French CJ said in Minister for Immigration v Li:

Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider 'they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it'. In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense [28].

126 The question is whether it can be said that, having regard to all of the terms of TPS6, and Schedule 9 in particular, those responsible for the enactment of TPS6 could never have intended that a building of the size and scale of the proposed development could be approved within the SDA. In asserting that the decision to approve the proposed development went beyond the scope and purpose of TPS6 and Schedule 9, the applicants rely on the various matters identified in the particulars to grounds 5 and 9.

127 I have already concluded that the decision made by the JDAP was not properly or reasonably open to them by reason of the fact that the proposed development does not consist of predominantly nonresidential uses. I have upheld ground 4 for that reason. I therefore put aside, for the purpose of considering grounds 5 and 9, the question of the impact of the proposed use on the existence of the discretion. Rather, I take grounds 5 and 9 as turning on whether a development of the size and scale of the proposed development was capable of falling within the available discretion under TPS6 independently of its proposed use.

128 Central to the applicants' contentions is the meaning which they attribute to the words 'vary' and 'variation'. They contend that the discretion to 'vary' does not encompass a discretion to remove or disregard the relevant limits.

129 In my view, that constrained definition of the words 'vary' and 'variation' does not properly reflect the meaning to be attributed to them in the context of the relevant portions of Schedule 9. The Macquarie Dictionary (4th ed) definition of 'vary' includes 'to change or alter, as in form, appearance, character, substance, degree etc'. 'Variation' is described as 'the act or process of varying; change in condition, character, degree etc' and 'a different form of something'. In my view, those more expansive meanings are applicable to those words where they appear in Schedule 9.

130 The discretion to vary the requirements of plot ratio in Element 3, which is found in development requirement 13.1 of Schedule 9, must be read with Element 3. The development requirements in Element 3 specify that 'there is no maximum plot ratio within the precinct'. Because plot ratio is unlimited, it follows that height is similarly unlimited. That is an important factor in considering whether, simply by reason of its height, and consequently plot ratio, the proposed development could be said to be beyond anything contemplated by Schedule 9.

131 Putting aside proposed use, there is nothing inconsistent between approval of a building of a height four times the maximum building height of 25 m and:

the stated purpose of encouragement of a more intensive mixed use form for an increasingly dense commercial centre;
consolidation of the development area in its role as an employment destination;
the encouragement of performance based development which recognises individual precinct objectives and desired future character; or
the objective of higher intensity visitation being located on the ground floor with residential uses in the upper floors.

132 The encouragement of performance based development in each of the 15 precincts of the City is described by cl 1.6(1) of TPS6 as 'the overriding objective of the Scheme'. Table B of Schedule 9 reflects that overall objective. The scope for variations in height limit and maximum plot ratio, the latter being unlimited, is conditioned by satisfaction of the specified performance criteria. The JDAP clearly had regard to the required performance criteria in reaching its decision.

133 The applicants contend that the disparity in scale of the proposed development and existing developments is inconsistent with the general scheme objective found in cl 1.6(2)(f). That general objective is concerned with the amenity of residential areas. Although residential uses are permitted and presently exist in the Mends Street precinct, it is essentially dealt with as a commercial precinct. The objective of the special control area is to facilitate growth for an increasingly dense commercial centre. Clause 1.6(2)(f) does not limit the scope of the discretion exercised under Schedule 9 to vary height.

135 Ground 12 is that the JDAP exceeded its jurisdiction by failing to give proper, genuine and realistic consideration to whether there was a reason to exercise its discretion to vary the setback to Mill Point Road to preserve the principal visual amenity feature of the peninsular locality, namely its avenue of London plane trees.

136 There is no merit in this ground. At the hearing of the matter, senior counsel for the applicants simply relied upon the applicants' written submissions on this ground. The written submissions, whilst couched in terms of jurisdictional error by failing to give proper, genuine and realistic consideration to the question of variation of street back, are in substance no more than arguments as to the merits of the decision.

137 Element 6 of Table A of Schedule 9 deals with the relationship of a development to the street. Guidance statement 6(a) provides that 'to achieve a high degree of continuity of the street edge, the podium is to be constructed with a nil set back to the street'. Development requirement 6.6.1 provides that the street setback to the podium shall be zero for a minimum of 60% of the street frontage unless otherwise approved by council, where the development meets the intent of the guidance statement. The proposed development has a nil setback on 100% of the Mill Point Road frontage. Therefore there was no need, and accordingly no request by Edge, to exercise a discretion to permit the setback of the building to be nil over only less than 60% of the Mill Point Road street frontage. In substance, the applicants' complaint would appear to be that the JDAP should have required noncompliance with the nil setback requirement in order to protect the plane trees or the existing streetscape.

138 In fact, the question of the protection of trees was addressed by the conditions imposed by the JDAP. Condition 6 specified that no street trees shall be removed, pruned or disturbed without approval from the City's relevant officers, and required a significant tree protection bond to a value of $336,669.70. Condition 7 required that a tree protection zone be ascertained, and that there be an assessment by a qualified arborist in order to record tree details and health, determine the required tree protection zone and tree management plan, and to provide advice regarding the canopy.

140 Grounds 3 and 4 are made out, and the decision of the JDAP should be set aside on that basis. The remaining grounds of review are not made out, and should be dismissed. I will hear the parties as to the appropriate orders to be made.

Development (Development Assessment Panels) Regulations 2011

Compensation and Injury Management Act 1981

At a glance

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Judgment (191 paragraphs)

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