Supreme Court of WA|2004-12-10|Before: Dr J, Mr J, McLure J

Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 (10 December 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE MacTIERNAN; EX PARTE COOGEE COASTAL ACTION COALITION INCORPORATED [2004] WASC 264

MATTER : An application for writs of certiorari and prohibition, and for declarations and related relief against the Honourable ALANNAH MacTIERNAN MLA, Minister for Planning & Infrastructure, Minister for Lands

THE HONOURABLE ALANNAH MacTIERNAN MLA, MINISTER FOR PLANNING & INFRASTRUCTURE, MINISTER FOR LANDS

CONSOLIDATED MARINE DEVELOPMENTS (AUSTRALIA) PTY LTD (ACN 008 755 084)

PORT CATHERINE DEVELOPMENTS PTY LTD (ACN 070 096 927)

Administrative law - Application for order nisi for prerogative relief - Improper purpose - Relevant considerations - Bias - Ultra vires - Amendment to Metropolitan Region Scheme and Town Planning Scheme - Turns on own facts

Constitution (Parliamentary Privileges) Amendment Act 2004 (WA)

Applicant : Environmental Defender's Office (WA) Inc

Amman Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223

Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153

Blue Mountains City Council v Prospect County Council (1992) 74 LGRA 129

Bridgetown-Greenbushes Friends of the Forest Inc v Department of Conservation & Land Management (1997) 18 WAR 126

Century Metals & Mining NL v Yeomans [1989] FCA 273; (1989) 100 ALR 383

Commonwealth v Yarmirr [2001] HCA 56; (2001) 208 CLR 1

CREEDNZ Inc v Governor-General [1981] 1 NZLR 172

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 205 CLR 337

FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342

Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522

General Steel Industries Inc v Commissioner for Railways of New South Wales [1964] HCA 69; (1964) 112 CLR 125

Harper v Minister for Sea Fisheries [1989] HCA 47; (1989) 168 CLR 314

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Khan v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Fed Ct (Gummow J); December 1987

Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

Lower Hutt City Council v Bank [1974] 1 NZLR 545

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

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

Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196

Prebble v Television New Zealand Ltd [1994] UKPC 4; [1994] 3 WLR 970

Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609

R v Secretary of State for Trade; Ex parte Anderson Strathclyde PLC (1983) 2 All ER 233

R v Sevenoaks District Council; Ex parte Terry (1985) 3 All ER 226

Re Anastas; Ex parte Welsby [2001] WASC 178

Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 29

Re Real Estate and Business Agent Supervisory Board; Ex parte Cohen [1999] WASCA 47; (1999) 21 WAR 158

Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286

Re Smith; Ex parte Rundle (1991) 5 WAR 295

Steeples v Derbyshire County Council [1985] 1 WLR 256

Temwood Holdings Pty Ltd v Western Australian Planning Commission [2002] WASCA 10

Thompson v Randwick Municipal Council [1950] HCA 33; (1950) 81 CLR 87

Attorney-General (NT) v Kearney and Northern Land Council [1985] HCA 60; (1985) 158 CLR 500

Bodney v Trustees of the Museum, unreported; SCt of WA (Franklyn J); Library No 7959; 23 November 1989

Bonton v City of South Perth [1982] WAR 213

Costa v Shire of Swan [1983] WAR 22

Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310

Gavranich v Shire of Wanneroo, unreported; SCt of WA (Miller J); Library No 980473; 25 August 1998

Ingram v Western Australian Planning Commission [2003] WASCA 77

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

Mayor and Corporation of Carlisle v Graham (1869) LR 4 Exch 361

Murcia Holdings Pty Ltd v City of Nedlands [1999] WASC 241

Packham v Minister for the Environment (1993) 31 NSWLR 65

R v City of Marion; Ex parte Independent Grocers Co-op (No 1) (1984) 37 SASR 415

R v Home Department State Secretary; Ex parte Frie Brigades Union [1995] UKHL 3; [1995] 2 AC 513

R v Secretary of State for Education and Science [1991] 1 QB 558

R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170

Re City of Perth; Ex parte Lord [2002] WASCA 254

Ross v State Rail Authority of NSW (1987) 70 LGRA 91

Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASCA 24

Uniting Subiaco (Inc) v Lewis (1996) 93 LGERA 92

Van Leeuwin v Dallhold Investments Pty Ltd (1990) 71 LGRA 348

Williams v Minister for the Environment and Heritage (2003) 199 ALR 352

1 MCLURE J: The applicant applies for an order nisi for writs of certiorari and prohibition and related relief against the Minister for Planning and Infrastructure and for Lands (first respondent), the Western Australian Planning Commission (second respondent) and the City of Cockburn (third respondent) relating to decisions made, and to be made, concerning the development of land in South Coogee. The application primarily relates to Amendment No 1010/33 to the Metropolitan Region Scheme ("scheme amendment"), which amendment is made pursuant to s 33 of the Metropolitan Region Town Planning Scheme Act 1959 (WA) ("Scheme Act"). The effect of the scheme amendment is to change the zoning of the land in question.

2 The land the subject of the scheme amendment ("development area") is located at South Coogee and is known as Port Catherine, parts of which are contaminated. The majority of the development area is Crown land or owned by Crown agencies, including the Commission. The development area includes foreshore and seabed ("the Coogee beach and sea area"), which is unallocated Crown land under the control of the Minister under the Land Administration Act 1997 (WA) ("LAA"). The seabed has been rezoned from a waterways reservation to urban under the Metropolitan Region Scheme ("MRS"). It is the Coogee beach and sea area that is the focus of this application.

3 The Coogee area (north and south) was a site for noxious industries. The desire of successive State and local governments has been to relocate the noxious industries from South Coogee and to redevelop that area, which has been the subject of numerous planning studies and reports in the last 20 years.

4 A residential development at Port Catherine was first proposed in the mid-1980's and the notion of creating a residential marina development gained official recognition in 1992 when the then State government accepted a proposal from Consolidated Marine Developments (Australia) Pty Ltd (the fourth respondent) contingent upon obtaining environmental and planning approval. The Port Catherine development was embodied in a Master Plan released in February 1993, the essential elements of which were covered in Improvement Plan No 26 gazetted in June 1994 pursuant to s 37A of the Scheme Act.

5 In March 1996 the Western Australian Planning Commission ("Commission") entered into a heads of agreement with the fourth respondent and the fifth respondent, Port Catherine Developments Pty Ltd ("PCD"). The heads of agreement outlined the principles and commitments between the Commission, Consolidated Marine Developments and PCD.

6 Consolidated Marine Developments, PCD and the sixth respondent, Anchorage Industries Pty Ltd, entered into an agreement in writing with the Commission dated 7 May 1997 ("first agreement") which superseded the heads of agreement. The first agreement was superseded by the Port Catherine Project Agreement No 2 between the same parties dated 28 June 2000 ("Agreement").

7 In February 1999, the Perth Region Planning Committee, acting under delegated authority from the Commission, resolved to proceed with Amendment 1010/33 in accordance with s 33 of the Scheme Act. The amendment was referred to the Environmental Protection Authority ("EPA") for advice as to whether environmental assessment of the amendment was required. The EPA advised that formal assessment was required and an environmental review (which included a concept plan outlining proposed land uses) was prepared and advertised for public submission. In August 2002 the EPA advised that the implementation of the proposed amendment would not compromise environmental objectives provided specified environmental conditions were included. Environmental conditions were included, which conditions required the preparation and implementation of a series of management programmes and plans to be implemented at different stages of the planning process, including a waterways environmental management programme prior to the approval of the local town planning scheme amendment.

8 The scheme amendment was advertised (with the Environment Review) for public submissions from 22 November 2001 to 1 March 2002. Over 500 submissions were received, the majority of which supported the scheme amendment.

9 The Perth Region Planning Committee, acting under delegated authority from the Commission, and following preliminary consideration of the matters raised in the submissions, resolved to form a Hearings Committee which comprised three members, one of which was Dr Avril O'Brien. The Hearings Committee provided a report and made recommendations. The Commission accepted some but not all of the Hearings Committee's recommendations.

10 The Commission considered the submissions and submitted the amendment to which the submissions relate, with such modifications as it thought fit to make, together with a copy of the submissions and a report by the Commission on those submissions, to the Minister in its "Report on Submissions" dated June 2004. In that report the Commission recommended that:

"The proposed Amendment No 1010/33 to the Metropolitan Region Scheme should proceed with Determinations as shown in Adopted Figure 1. The Determinations to the amendment are not considered to be of such a substantial nature as to warrant re-advertising.

That the Minister for Planning and Infrastructure consider Amendment No 1010/33 as shown on the Western Australian Planning Commission Plan No 3.1236/6 and reported in the Commission's report on submissions and forward the amendment to His Excellency the Governor for approval in accordance with section 33(1) of the Metropolitan Region Town Planning Scheme Act."

11 On 2 June 2004 Cabinet resolved to support the presentation of the modified amendment to the Governor in Council for his approval and endorsement. On or about 22 June 2004 the Minister presented the scheme amendment for approval by the Governor in Council. On the same day the Governor in Council approved the scheme amendment which was published in the Government Gazette on 23 June 2004 and 26 October 2004.

12 On 21 January 2003 the City of Cockburn initiated an amendment to its Town Planning Scheme No 3 to rezone the development area to a Development zone and to provide a detailed local structure plan for the development proposal. Advertising of the amendment and structure plan closed on 24 December 2003. On 16 March 2004 Council resolved to adopt the amendment, subject to modifications and adopt a modified structure plan to that advertised. The main modifications included the creation of a public beach within the marina, the reduction of residential marina lots and an increase in the number of public boat pens. At the time of the hearing of this application the Commission had not made a decision to approve the City's Town Planning Scheme Amendment ("TPS3 amendment") and Structure Plan.

13 The decisions the subject of challenge in this application include the Hearings Committee recommendations to the Commission, the Commission's recommendations to the Minister, the Minister's alleged decision to seek approval of the Governor to the scheme amendment, the City of Cockburn's approval of the TPS3 Amendment and prohibition preventing the Minister approving the TPS3 Amendment and the Minister and the Commission from giving and acquiring, respectively, title to land the subject of the scheme amendment.

The Scheme Act

14 Under s 33E of the Scheme Act, when the Commission resolves to formulate an amendment to the MRS, it is required to forthwith refer that amendment to the EPA. When the EPA has acted under the Environmental Protection Act 1986 (WA) in relation to a proposed amendment, the Commission, if it wishes to proceed with the amendment, must undertake an environmental review of that amendment and is not permitted to submit the amendment to the Minister for her consent to public submissions being sought until certain conditions are satisfied (s 33F).

15 Section 33 of the Scheme Act provides the procedure for making substantial alterations to the MRS. Section 33(1) provides:

"The Scheme may be varied or amplified by an amendment to the Scheme ... formulated by the Commission submitted and approved in accordance with this section."

16 Section 33(2) identifies the procedure the Commission is required to follow to amend the MRS. The amendment, when formulated by the Commission, shall (after ss 33E and 33F have been complied with) be submitted, together with such reports, surveys and other material as the Commission considers desirable, to the Minister for her consent to public submissions being sought (s 33(2)(a)).

17 If the Minister consents to public submissions being sought, the Commission is required to deposit copies of the amendment for public inspection at nominated places (s 33(2)(b)).

18 As soon as practicable after the deposit of copies of the amendment, the Commission is required to publish a notice of, inter alia, where the amendment may be inspected and notify all persons who desire to make submissions that they may be made to the Commission in writing (s 33(2)(c)).

19 Paragraphs (f), (g), (gaa), (k), (ka) and (l) of s 33(2) are of particular relevance and provide:

"(f) (i) The Commission shall consider all submissions that have been duly lodged and where a submission contains an objection to the amendment the Commission shall not dismiss the objection until the person making the submission or his agent has been given the opportunity of being heard on the objection by the Commission or by a committee of the Commission established under section 19 of the Western Australian Planning Commission Act 1985.

(ii) The Commission shall not uphold an objection to the amendment until it has given every person who has duly lodged a submission supporting the provision to which the objection relates, or his agent, the opportunity of being heard in support of that provision by the Commission or by a committee of the Commission established under section 19 of the Western Australian Planning Commission Act 1985.

(iii) Where a submission is made by a group of persons, the group shall appoint one person to represent the group and only he shall be heard under subparagraph (i) or (ii).

(g) Subject to section 33AB, after sections 33G(1) and 33H have been complied with in relation to the amendment and after considering all submissions that have been duly lodged, the Commission shall submit the amendment to which those submissions relate, with such modifications, if any, as it thinks fit to make, together with a copy of each of those submissions and a report by the Commission on those submissions, to the Minister.

(gaa) For the purposes of paragraph (g) the Commission may adopt a report by a committee referred to in paragraph (f) and submit it as, or include it in, the report of the Commission.

(k) A person who desires to make any submissions on any modifications so made by the Commission may notify the Minister in writing in the form prescribed by the Commission in any notice of the modification published pursuant to paragraph (i), and the Minister shall direct the Commission to consider and report on the submission to the Minister in accordance with the procedure set out in paragraphs (f) and (g).

(ka) If the report submitted with an amendment under paragraph (g) as read with paragraph (k) recommends that the amendment should not be proceeded with, the Minister may, instead of presenting the amendment to the Governor for his consideration, withdraw the amendment.

(l) The Minister shall then, if he has not withdrawn the amendment under paragraph (ka), present the amendment to the Governor who may approve the amendment with or without such modifications as he deems necessary to make and which he is hereby authorised to make."

20 When the Governor has approved the amendment (and has not revoked it), the amendment must be published in the Gazette and a copy of the amendment, together with a copy of the report of the Commission on the submissions made on the Scheme be laid before each House of Parliament (s 33(3)).

21 Either House may, by resolution of which notice has been given at any time within 12 sitting days of such House after a copy of the amendment has been laid before it, pass a resolution disallowing the amendment (s 33(4)).

22 As soon as the amendment is no longer subject to disallowance, the amendment "shall have effect as though its provisions were enacted by this Act" (s 33(5)).

23 Notice of a disallowance motion was given in relation to the scheme amendment. Debate on the motion took place in September 2004. The resolution was not passed.

24 The applicant does not contend that the Commission failed to comply with the statutory procedural requirements or that the Agreement is invalid as beyond the Commission's power. Rather, the applicant challenges the validity of the decisions and proposed decisions on grounds including improper purpose, failure to take into account relevant considerations, fettering of discretion and bias.

25 In order to properly consider the challenges, it is necessary to refer to the nature and terms of the Agreement.

26 The development area is comprised of land variously owned by the fourth and sixth respondents, the State, the Commission and other Crown agencies. The recitals acknowledge that the Commission has been authorised to coordinate negotiations for the sale of the land owned by the State and its agencies (referred to in the Agreement collectively as the "WAPC Land") to PCD to enable PCD to carry out the Project, defined as the subdivision and development of the development area as outlined in the Development Plan annexed to the Agreement as amended from time to time in accordance with the Agreement. The Development Plan is in broad terms and provides for a residential development (including a canal development on reclaimed "fingers" of the seabed), a marina, commercial development (including office, hotel and retail facilities) and community facilities (including public access to the foreshore). The Agreement provides for the reclaimed seabed land to be sold to PCD.

27 It is a condition precedent to the Agreement that PCD obtain, at its cost, amendments to the MRS and to the town planning scheme of the City of Cockburn for the implementation of the Project ("initial approvals"); in the event the initial approvals are obtained, and subject to the terms of the Agreement, PCD covenants to complete the Project in accordance with the Development Plan (cl 6.2).

28 By cl 2.4 the parties acknowledge that the Project overall needs to be commercially viable and the Development Plan will take into account the need for commercial viability and will include the elements to which I earlier referred. Commercially viable and commercial viability are defined to mean:

"PCD being able subject to good and appropriate management and corporate practices to complete the Project in accordance with the Development Plan and the standards required by WAPC having regard to the planning objectives and responsibilities of WAPC and in accordance with good land development and management practices without prejudicing the ongoing solvency and reasonable profit expectations of PCD and without exposing WAPC to obligations, expenditure or risk in excess of the obligations of WAPC pursuant to this Agreement."

29 Clauses 2.12, 2.13, 2.14 and 3.2 are of particular relevance and materially provide:

"Amendment to the Metropolitan Region Scheme (MRS)

2.12 PCD has applied for an amendment to be made to the Metropolitan Region Scheme to allow for the implementation of the Project and WAPC shall assist PCD in pursuing such application.

Re-zoning

2.13 PCD and WAPC agree to use their respective best endeavours to pursue the amendment to the Metropolitan Region Scheme and the City of Cockburn's Town Planning Scheme necessary for the Project without in any way fettering the statutory discretion of either WAPC or the City of Cockburn.

WAPC to Act Reasonably

2.14 WAPC agrees that in circumstances where PCD is required to obtain WAPC's approval or consent for the purposes of clause 2.12, WAPC will not unreasonably withhold its approval or consent in circumstances where the granting of such approval or consent does not involve the exercise by WAPC of any of its statutory obligations relating to planning or discretions vested in WAPC.

...

3.2 The obligations, powers and discretions of WAPC as a statutory planning authority or any other Authority in considering any application by PCD for any approval or authorisation required from WAPC or any other Authority in relation to or incidental to the Project shall not be limited or restricted by this Agreement."

30 Best endeavours or reasonable endeavours is defined to mean:

"(a) in respect of WAPC all reasonable efforts within the Party's statutory or corporate powers to obtain or facilitate the required result including in the case of Crown land where WAPC is obliged under this Agreement to obtain LAA Approvals, the obtaining of the LAA approvals; and

(b) ...

without in any way limiting or restricting the obligations, powers and discretions of any Party in accordance with any of the duties, responsibilities and objectives vested in such Party."

31 PCD can request variations to the Development Plan and in certain circumstances the Commission must give reasonable consideration to granting the request and in additional circumstances is obliged to approve the variation (cl 3.3). It will be obliged to approve the variation if, inter alia, there are changed circumstances that materially impact upon the commercial viability of the Project and it materially improves the quality of the Project (cl 3.3).

32 Under cl 5.2 the Commission authorises PCD to apply for the "Approvals" (defined to mean all rezoning, approvals, authorisations, etcetera, required to enable PCD to carry out the Project) in relation to the WAPC land as if it were the registered proprietor of the WAPC land. Clause 5.3 materially provides:

"WAPC agrees to provide such assistance to PCD in applying for and seeking the Approvals as PCD shall reasonably require. Nothing in this Agreement contained or implied shall limit the powers or discretions of WAPC or any Relevant Approving Authority (defined to include the first and third respondents) in considering and making its determination in respect of any application for an Approval. ..."

33 If any application for an Approval relating to the WAPC land is refused or granted on unacceptable conditions to PCD, the Commission authorises PCD to pursue any appeal available (cl 5.4).

34 If PCD is unable to obtain any initial approval or obtains an initial approval on conditions unacceptable to it, PCD can, if certain conditions are met, terminate the Agreement (cl 5.8). Further, the Agreement will be terminated if PCD fails to give notice that it wishes to proceed with the Project within three months from the later of the dates on which the amendments to the MRS and TPS3 are published in the Government Gazette.

35 If PCD elects to proceed with the Project, the Agreement provides for call and put options for the purchase by PCD of the WAPC land. It also expressly provides for what is to occur in the event the Commission is unable to transfer an estate in fee simple to any of the WAPC land. The purchase price for the WAPC land is the subject of cl 8 which materially provides:

"PURCHASE PRICE FOR WAPC LAND

Determination of Purchase Price

8.1 The Purchase Price payable by PCD for each part of the WAPC Land other than Sea Bed Land the subject of an exercise of a Call Option or Put Option under clause 7 will be the Purchase Price determined by applying the rate of $293,424.00 per hectare to the area of land identified in the Development Plan as subject to the Call Option and the Put Option with compound interest at the rate of five point seven per centum (5.7%) per annum calculated from 7 May 1997 to the date of completion of the purchase by PCD.

Sea Bed Land

8.2 The parties acknowledge that the Purchase Price payable by PCD for each part of the WAPC Land is the total amount payable by PCD for all land to be purchased or other wise [sic] acquired or created under this agreement and no further consideration is payable by PCD to WAPC or the State (including without limiting the generality of the foregoing words, the Minister for Lands) or any other party in respect of the Sea Bed Land."

36 The understanding of the parties is that the Crown land will be transferred by the Minister to the Commission and the Commission will transfer it to PCD. I will assume that to be so.

37 Under the first agreement, a purchase price is allocated to the seabed land. However, I am unable to identify from the material the amount of the purchase price (in the event the option is exercised).

38 The parties objected to the admissibility of parts of the affidavits filed in the application. As the time set aside for the hearing was limited, I proposed, and the parties agreed, that I only rule on objections to evidence in the event that evidence was material to my determination of the matters in issue. As it transpired, most of the submissions were made by reference to contemporaneous documents annexed to the affidavits to which no objection was taken. With one exception, I have not had to rule on any of the objections.

39 The exception is the transcript of evidence of Mr Brian Curtis, the then Director, Rehabilitation Projects, of the Department for Planning and Infrastructure to the Public Accounts Committee of the Parliament of Western Australia. Mr Curtis gave limited evidence on how and why the Agreement differed from the first agreement.

40 The first and second respondents objected to the evidence on the basis of Parliamentary privilege. The Constitution (Parliamentary Privileges) Amendment Act 2004 (WA) amends the Constitution Act 1889 (WA) and the Parliamentary Privileges Act 1891 (WA). Section 1 of the Parliamentary Privileges Act now provides:

"The Legislative Council and Legislative Assembly of Western Australia, and their members and committees, have and may exercise -

(a) the privileges, immunities and powers set out in this Act; and

(b) to the extent that they are not inconsistent with this Act, the privileges, immunities and powers by custom, statute or otherwise of the Commons House of Parliament of the United Kingdom and its members and committees as at 1 January 1989."

41 It is accepted that Article 9 of the Bill of Rights 1689 (Imp) continues to apply (see Pepper v Hart [1992] UKHL 3; [1993] AC 593 at 638). Article 9 provides:

"That freedom of speech in debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament."

42 The only statutory definition of "proceedings in Parliament" is in the Commonwealth Parliamentary Privileges Act 1987 which is said to be declaratory of the common law (see Prebble v Television New Zealand Ltd [1994] UKPC 4; [1994] 3 WLR 970; Amman Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 231, 233. Section 16(2) of that Act defines the term to include the giving of evidence before a House or committee, and the evidence so given. That is wide enough to cover evidence given by all witnesses to a Parliamentary Committee.

43 The Commonwealth Parliament has adopted the position that relying on the truth of a statement to Parliament in court proceedings amounts to a breach of the privileges of Parliament (s 16(3)). The applicant in this case relies on the truth of Mr Curtis's statements to the Public Accounts Committee and inferences which this Court is asked to draw from those statements. The evidence is not relied on as the equivalent to the Commission's reasons for decision, but rather goes to the issue of whether there is an evidentiary foundation to support a claim that the Commission's decision was made for an improper purpose.

44 The applicant relies on Pepper v Hart (supra). That was a case in which the House of Lords decided that the use of clear ministerial statements as an aid to construction of ambiguous legislation did not amount to questioning or impeaching proceedings in Parliament and did not contravene Article 9 of the Bill of Rights. In this jurisdiction the position is governed by the Interpretation Act 1984 (WA), s 19(2). Lord Browne-Wilkinson in Pepper expressed the view that R v Secretary of State for Trade; Ex parte Anderson Strathclyde PLC (1983) 2 All ER 233 was wrongly decided. In Anderson Strathclyde, a Divisional Court refused to allow a Hansard report of proceedings in Parliament to be tendered in support of a ground for judicial review of a decision made outside Parliament. In that case the Crown did not object to the Court looking at the materials, but the Court itself refused to do so. Lord Browne-Wilkinson relied in part on the Crown's concession to conclude that the case was wrongly decided on this point. However, Pepper v Hart is not authority for the general proposition that a proceeding in Parliament tendered to support a ground for judicial review cannot involve a breach of Article 9 of the Bill of Rights.

45 Gray J in Mees v Roads Corp [2003] FCA 306; (2003) 128 FCR 418 at 443 - 445 provides a detailed analysis of the principle and authorities, including the English authorities, on whether s 16(3) merely codified or effected a change in the law by enlarging the privileges of Parliament. I agree with Gray J that the proposition that a statement made to Parliament can be tendered to a court to prove the truth of its contents but the truth of its contents cannot be the subject of any contest in a Court, is fraught with difficulty. For example, inferences to be drawn from evidence in isolation may be rebutted or significantly modified in the context of the evidence as a whole. I am satisfied that the evidence of Mr Curtis is not admissible for the purpose for which it is tendered.

46 The other preliminary matter relates to the standing of the applicant. The applicant is a local community organisation that has had close involvement in the planning process relating to the development area. A number of members live in the locality and use the Coogee beach and sea area for fishing, bathing and other incidental recreational activities. On the basis of that evidence I am satisfied that the applicant has standing to bring this application (see Bridgetown-Greenbushes Friends of the Forest Inc v Department of Conservation & Land Management (1997) 18 WAR 126 at 159 - 165; Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 29 at [16].

47 The applicant must establish an arguable case. On any view that requirement will not be satisfied if the case is so clearly untenable that it cannot succeed (being the test in General Steel Industries Inc v Commissioner for Railways of New South Wales [1964] HCA 69; (1964) 112 CLR 125 at 130). I do not propose to reconsider the different formulations of the test applied in this Court to which I referred in Re Anastas; Ex parte Welsby [2001] WASC 178. I will apply the General Steel test suitably adapted to reflect the fact that there must be evidence to support the factual findings for which the applicant contends.

48 I propose to address each of the grounds of review (which commence at number 3) in the consolidated notice of originating motion. A number of the grounds are in narrative form and do not clearly identify the alleged error contended for. In that event, I obtained clarification from the applicant's counsel. Grounds 3, 4, 6, 7 and 8 concern the Commission's recommendations in its Report on Submissions to the Minister. I deal, firstly, with those matters.

Commission Recommendations - Improper Purpose (Ground 3)

49 The applicant contends that the Commission made the recommendations in its Report on Submissions for the improper purpose of benefiting the private commercial interests of, and to provide a particular level of profit to, the developer.

50 As the Commission's Report on Submissions is in fulfilment of a statutory precondition under s 33(g) of the Scheme Act, that report can be the subject of a writ of certiorari: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149. Further, it is arguable that, given the fulfilment of a statutory precondition to rezoning is in issue, entitlement to relief is not materially affected by s 33(5) (which provides that the amendment have effect as though its provisions were enacted by the Scheme Act) or by the defeat of the disallowance motion: Re Smith; Ex parte Rundle (1991) 5 WAR 295 at 308 - 309.

51 There is also no dispute as to the test of improper purpose. The applicant must establish that the improper purpose is a substantial purpose in the sense that the power would not have been exercised but for the desire to achieve the improper purpose: Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 196; Thompson v Randwick Municipal Council [1950] HCA 33; (1950) 81 CLR 87 at 106. Thus, the improper purpose must be the operative subjective purpose of the decision-maker. However, an inference of purpose may be drawn from the surrounding circumstances, including, in appropriate cases, the nature and effect of any agreement.

52 The Commission must have the relevant purpose at or before the making of the decision the subject of challenge, in this instance, the issue of the Report on Submissions and its recommendations. Although it is the case that the recommendation relates to the scheme amendment which only (materially) changes the zoning, it is arguable that an improper purpose can invalidate a necessary step that is part of a larger exercise which, if concluded, will produce the intended effect. I adopt this approach to all relevant grounds of review.

53 Although the third respondent contended to the contrary, I propose to apply the law contained in Perpetual Trustees that the exercise of a statutory power under the Scheme Act for the substantial purpose of benefiting a private interest would be invalid as being for an improper purpose. These are the principles applied to all the improper purpose grounds of review.

54 This ground concerns the Commission's purpose, not the developers' purpose. Further, there is nothing in the Report on Submissions on which the applicant sought to, or could properly, rely to support an inference of improper purpose.

55 The applicant contends that in considering purpose the focus should be restricted to that part of the development area comprising the Coogee beach and sea area, in relation to which, it is said, no rehabilitation was required and the sea-bed land was to be transferred to PCD under the Agreement for no consideration.

56 I see no arguable justification for considering the Coogee beach and sea area in isolation from the balance of the development area. The applicant's case is that the negotiations and/or agreements relating to the sea-bed land establish, or is capable of establishing, that the Commission had the alleged improper purposes in recommending approval of the scheme amendment. The applicant's submission that the sea-bed land is to be transferred without consideration to PCD under the Agreement is not technically correct. In addition to cl 8.2 which provides that the total purchase price is for all of the WAPC land, the consideration from PCD includes the obligation to carry out the Project (which under cl 6.3 requires expenditure of $12,000,000 in 90 months) and some responsibility for remediation of contaminated land. However, it is the case that the purchase price specifically allocated to the sea-bed land in the first agreement is deleted in the Agreement. Although there is no analysis of all the changes effected by the Agreement or any evidence as to whether, and if so by how much, the changes resulted in a net financial shift in favour of the developer, I will assume in the applicant's favour that the total consideration payable under the Agreement was reduced by the amount of the purchase price payable by PCD for the sea-bed land under the first agreement.

57 Having regard to the history and background which culminated in the Agreement and the provisions in both agreements concerning the need for commercial viability, I am not satisfied that the financial effect of the changes incorporated into the Agreement are capable of supporting an inference of improper purpose. The strong inference is that at all material times the Commission's operative purpose has been to transform this area of South Coogee from a contaminated industrial site to a residential area, which requires remediation of contaminated land. In order to achieve that purpose, the Commission negotiated with, and eventually entered into various agreements with the developers. Those negotiations clearly included the scope of the development area which eventually came to include the Coogee beach and sea area. There is no suggestion that the Commission controls the developers or can otherwise dictate or force them to proceed with the Project in a particular form, or at all, or that the Commission has not negotiated with the developers at arm's length. In short, there is no evidentiary foundation for attributing the developer's purpose to the Commission. In the circumstances of this case, the objective effect of the contractual arrangements and whether or not the private parties in fact negotiated a commercially advantageous deal (in particular in relation to the Coogee beach and sea are) does not advance the applicant's improper purpose case. I see no proper basis for an inference that the Commission entered into the Agreement for the substantial purpose of financially benefiting the developers or that that was the Commission's purpose in making its recommendations to approve the scheme amendment. The evidence is to the contrary.

58 I am satisfied that it is not open on the evidence to find that the Commission acted for the alleged improper purpose. The applicant has not established an arguable case.

Commission Recommendations - Improper Purpose (Ground 4)

59 As orally formulated by counsel, this ground of review is that the Commission acted for the improper purpose of nullifying or materially curtailing the common law rights of the public to access and use the Coogee Beach and sea area, firstly, for fishing and navigation and, secondly, for personal and recreational purposes. As far as I am able to tell, the applicant relies solely on the effect of the Agreement and the implementation of the Project in support of its improper purpose claim. The history and background are inconsistent with the claimed improper purpose. In the circumstances of the case, the effect of the Agreement and the Project is incapable of establishing that the Commission acted for the alleged improper purpose. The applicant has not established an arguable case.

Commission Recommendations - Relevant Consideration (Ground 6)

60 As orally formulated by counsel, the applicant contends that the Commission failed to take into account a relevant consideration, being the State Coastal Planning Policy No 2.6 (the "Coastal Policy").

61 This ground of review only applies where the decision-maker is bound to take the factor into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. Although not entirely clear, I will assume that the Commission is bound to consider the Coastal Policy which it prepared under s 5AA of the Town Planning and Development Act 1928 (WA) ("Planning Act").

62 There are divergent authorities on the question of what is required to satisfy the duty to take into account relevant considerations. One view is that it requires proper, genuine and realistic consideration: Khan v Minister for Immigration, Local Government and Ethnic Affairs, unreported, Fed Ct (Gummow J); December 1987. The alternative view is that this ground merely requires that the matter be given some consideration, not adequate consideration: Peko-Wallsend (supra) at 40 - 41. For the purposes of this application, I assume in the applicant's favour that the approach in Khan should be applied.

63 The Coastal Policy distinguishes between coastal foreshore reserves and development setbacks for physical (coastal) processes. Total setbacks provide for the protection of development from physical processes, as well as other factors such as ecological values and public access to a coastal foreshore reserve. As a general guide, a total setback in the order of 100 metres from the "horizontal setback datum" is to be expected (cl 2.3). In relation to the coastal foreshore reserve, the decision-maker is to ensure the identification of land to be set aside for public ownership for conservation, management, public access and recreation is undertaken during the planning process and generally, land from the total setback line seaward should be given up free of cost at the time of development over and above the required provision of public open space (cl 5.1(vi)).

64 In relation to development, the decision-maker is to ensure that, when identifying areas suitable for development, consideration is given to strategic sites for coastal access and commercial development that is demonstrably dependent on a foreshore location, including ports, boat harbours and regional boat ramps (cl 5.1(xvi)).

65 The Coastal Policy expressly provides that, given the variation of coastal environments and the range of development and use contexts that can be presented, the Policy and setback guidelines are to be applied to each case on its merits using the best available information, commonsense and a precautionary approach (cl 6).

66 The Coastal Development Processes Setback Guidelines are contained in Schedule 1 and apply to all coastal development except, inter alia, to the following:

"G (c) Industrial and commercial development that is demonstrably dependent on a foreshore location. Such development may include, for example, marinas, cage based aquaculture operations, port facilities and associated infrastructure.

...

(e) The need for the provision of development nodes on the coast is recognised and should provide for a range of facilities to benefit the broader public. Such nodes may be developed within the setback but should only be located where necessary ancillary coastal protection structures would not result in erosion or destabilisation of adjacent coast. Nodes should be located on stable areas and should avoid areas of high natural landscape or resource value."

Development that falls within the above general possible exemption types will be assessed on a case-by-case basis against the policy measures in section 5 and in consultation with other relevant agencies and community as considered appropriate."

67 A "development node" is defined as a distinct and discrete built area that may be located within the total setback, it may vary in size from a grouping of recreational facilities to an urban area.

68 The Commission in its Report on Submissions expressly states that it "has had due regard for the Policy when making its final decision on the Amendment". The Report refers in detail to the terms and effect of the Policy and the Commission modified the very southern coastal section of the development area to comply with the Coastal Policy.

69 The Commission notes that the Coastal Policy does not exclude development without a setback and continues:

"Overall, the WAPC considers that the proposal represents a coastal development node in accordance with the State Coastal Planning Policy. ...

The EPA has assessed the proposal and has determined that because of the stable coastline the proposal is unlikely to cause any significant unexpected erosion.

The public benefits of the project are numerous in that it represents an urban renewal project, rehabilitating significantly contaminated soils and the removal of dilapidated buildings of a former industrial zone and providing for multiple-use. The development makes available to the public a coastal foreshore that has been severely degraded and publicly inaccessible.

The future coastal foreshore of this area will offer a diverse range of coastal experiences from a marina and commercial node, boardwalks directly overlooking the ocean and beach, to open sandy beaches along with urban development."

70 The Commission is not bound to apply the Policy and would have been in error if it so regarded itself: Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522; Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [26] - [28]. It was open to the Commission to conclude that overall the scheme amendment was consistent with the Coastal Policy or not to apply the Coastal Policy on strategic and public interest grounds. On any view, the Commission gave proper, genuine and realistic consideration to the Coastal Policy. I am satisfied that this ground does not raise an arguable case.

Commission Recommendations - Fettered Discretion (Ground 7)

71 The applicant contends that the Commission did not exercise its discretion under s 33 of the Scheme Act to make, or refuse to make, recommendations for rezoning properly or at all as it acted "at all material times with fettered discretion to promote the Port Catherine project and the relevant rezoning pursuant to its obligations under" the Agreement.

72 It is arguable the Commission has a discretion under s 33(g) to recommend that the amendment, with modifications, be proceeded with, and I will proceed on that basis. The applicant must establish the actual fettering of a relevant discretion. As emerges from the cases, this is in substance and effect a claim of actual bias (see R v Sevenoaks District Council; Ex parte Terry (1985) 3 All ER 226, per Glidewell J, at 229).

73 The applicant relies on the Agreement. There is nothing in the express or implied terms of the Agreement that requires or authorises such a fetter. To the contrary, the Agreement repeatedly states that any obligation of the Commission under the Agreement is subject to the due and proper performance of its statutory duties and powers. Further, the Agreement makes express provision for what is to occur in the event that relevant approvals are not obtained. The applicant does not identify any other evidence in support of this ground. The Commission's Report on Submissions provides no support. I am satisfied that this ground of review is not arguable.

Commission Recommendations - Bias (Ground 8)

74 The applicant contends that the Commission's recommendations are invalid because of a reasonable apprehension of bias by virtue of a conflict of interest and prejudgment. The applicant relies on corporate bias and not the bias of any individual involved in the decision.

75 The general test of bias is whether the relevant circumstances are such as would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the decision-maker: Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41. This test is applicable to judicial proceedings.

76 There is a question whether that test applies to decisions made by policy bodies such as planning authorities that exercise numerous statutory functions. There is authority that the test applicable to judicial proceedings is not usually appropriate for administrative decisions of the type in question in this case: Century Metals & Mining NL v Yeomans [1989] FCA 273; (1989) 100 ALR 383 at 417. It has been suggested that corporate disqualification only occurs where there is a probability or real likelihood of bias or where the authority so conducts itself that it gives the appearance to members of the public that it has such an interest in the outcome of its determination that its objectivity is skewed if not obliterated: Blue Mountains City Council v Prospect County Council (1992) 74 LGRA 129 per Cripps J at 133. In an English case the test applied was whether the discretion was actually fettered rather than whether there was a reasonable apprehension of fettering: R v Sevenoaks District Council; Ex parte Terry (supra). In other cases the test of reasonable apprehension of bias has been applied: Lower Hutt City Council v Bank [1974] 1 NZLR 545; Steeples v Derbyshire County Council [1985] 1 WLR 256.

77 In this jurisdiction, the test in relation to prejudgment is clear. Where Ministers and planning authorities are concerned, it must be shown that the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532, 564. This formulation is similar to a requirement of proof of an actual fetter rather than an apprehension of fettering. The statement in Jia Legeng that the nature of the decision-making process and the position of the person making the decision may be of critical importance in deciding whether the conduct of the decision-maker indicates bias is not in terms limited to bias on the ground of prejudgment. However, although there are strong policy considerations for having, or alternatively applying, a different test where Ministers and planning authorities are concerned, there is no clear authority on the test or how to apply it where an alleged conflict of interest is involved (whether alone or in combination with prejudgment).

78 The discussion thus far has concerned whether conduct is capable of amounting to bias. If the answer is in the affirmative, the next question is whether the necessity exception applies. The scope of the necessity exception is unclear. In particular, it is uncertain whether the exception applies to the exercise of a power that in terms enables a decision-maker to act in a number of ways, not all of which would bring bias considerations into play; that is, whether the statute must mandate unavoidable bias: see Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2001) 205 CLR 337. In this case it is necessary to consider the relevant statutory scheme, which requires reference to the Scheme Act, the Planning Act and the Western Australian Planning Commission Act 1985 (WA) ("Commission Act"). The arguable issues on necessity are whether there is a conflict of duty and duty or power and duty and, if the latter, whether necessity applies.

79 The applicant does not rely solely on prejudgment. If it did, the claim must fail. The Agreement, which concerns the possible sale and development of land owned, alternatively, vested in or controlled by the Commission, some of which is contaminated, arguably gives rise to a conflict of interest that is relevant to, but goes beyond prejudgment. Further, although the Agreement does not actually fetter the statutory discretion, the Commission has a real and tangible practical interest in facilitating the Project. In light of the combination of factors and the divergent approaches in the authorities, I am satisfied this ground of appeal is arguable.

Hearings Committee - Relevant Consideration (Ground 5)

80 The applicant contends the Hearings Committee erred in failing to take into account the Coastal Policy and that the failure invalidates its report and the subsequent statutory steps for the finalisation of the scheme amendment.

81 The first and second respondents contend that unless the Commission adopted the report of the Hearings Committee as its own, as it is empowered to do under s 33(2)(gaa) of the Scheme Act, the report is not a statutory precondition to the exercise of the amendment power in s 33 and is not amenable to certiorari. In this case the Commission did not adopt the Hearings Committee report as the Commission's report under s 33(2)(g). However, the Commission did include it in its report to the Minister. Further, the Commission considered and supported the majority of the Hearings Committee's recommendations, although not the Hearings Committee's stated view (referred to below) that the Coastal Policy did not have retrospective effect. As s 33(2)(gaa) expressly empowers the Commission to include the report of the Hearing Committee, it is arguable that the principle in Hot Holdings Pty Ltd v Creasy (supra) applies. Accordingly, it is necessary to consider the substantive merits of this ground.

82 The Hearings Committee report expressly deals with the Policy. Notwithstanding reference to a longstanding Commission practice of not applying newly gazetted policies retrospectively, the Hearings Committee considered the Coastal Policy and concluded that the development node exception applied to the residential and related development but that the Coastal Policy otherwise applied to the very southern coastal section of the development area and recommended consequential amendments. Even if the test for taking into account a relevant consideration is that the decision-maker must give proper, genuine and realistic consideration to the matter, that test is satisfied on the evidence. Accordingly, this ground is not arguable.

83 The applicant contends that there is a reasonable apprehension that Ms Avril O'Brien, the Chairman of the Hearings Committee, was biased by reason of the publication of a paper co-written by her entitled "The Good, the Bad and the Ugly. Challenges to Western Australia for Coastal Management". The paper was delivered at a conference held on 4 - 8 November 2002 at which time the scheme amendment was being processed by the Commission.

84 Ms O'Brien referred to the gradual extension of the industrial zone to the South Coogee area which she said "in hindsight, stands out as a clear example of bad planning". She then referred to the government's plan for removing industry from the area laid down in the 1980's which is now approaching "a complete turnaround in the proposed Port Catherine marina and residential development. While the result is expected to be an example [of] GOOD coastal planning and management, it nonetheless first leads to an example of what is UGLY about our coast." She went on to say that the development of industry along the Cockburn Sound was an example of what is ugly. Reference also was made to the significant public opposition to the Hillary's boat harbour development and that none of the predicted disasters had come to pass. The paper continues:

"We now have the ironic situation where people living in the south metropolitan area are asking why they don't have a public facility like Hillarys. Port Catherine is being touted as the answer. It seems that, politically unpalatable as it may be, sometimes decisions do need to be made that appear out of step with community opinion."

85 The claim of a reasonable apprehension of bias is based on alleged prejudgment. In my view, the claim is not arguable. At the time Ms O'Brien made the statement she was an officer of the Commission. As is clear from the background, the Commission (and its officers) must have had very lengthy involvement in the planning issues relating to the area in question. By 1999 the Commission had formulated the proposed scheme amendment (as required by s 33) on which it must have formed a preliminary view. This is a situation where administrators would have had a continuing relationship with a particular issue and would have, and be expected to have, views on the merits of the issues. The statements in question were of a general nature and were made in November 2002. The report of the Hearings Committee was handed down in June 2004. There is nothing in the evidence to sustain a finding that Ms O'Brien was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.

Prohibition Against the Commission - Acquisition of Sea-bed Land (Ground 9A)

86 The applicant contends that the Minister has no power to transfer the Coogee beach and sea area under the LAA and the Commission does not have the power to acquire or transfer to PCD any part of the Coogee beach and sea area, the transfer being contrary to Improvement Plan No 26. I deal with the Minister's power to transfer the land below. This section is confined to a consideration of the challenge to the Commission's power. This is a stand-alone challenge; it is not derivative on the validity of the scheme amendment or the TPS3 amendment.

87 The applicant's contention is that the Commission does not have the power to engage in property development which is how it characterises the acquisition of the Coogee beach and sea area and its transfer to PCD pursuant to the Agreement. The applicant submits that the Commission has limited property development powers which are to be found solely in s 37A of the Scheme Act which deals with the creation and implementation of improvement plans. The applicant contends that Improvement Plan 26 does not cover or extend to the Coogee beach and sea area. That plan was based on the Master Plan which provided for a marina and residential development, but did not include the seabed in the development area. However, the evidence is that in early December 2004 a delegated committee of the Commission will consider a proposal to amend Improvement Plan 26 to incorporate the seabed area the subject of the scheme amendment. Section 37A(2a) of the Scheme Act empowers amendment of an improvement plan.

88 Under s 37A of the Scheme Act the Commission is authorised to certify and recommend to the Minister that an improvement plan be prepared for the purpose of advancing the planning, development and use of any land within the metropolitan region. If the Minister accepts the recommendation, he or she is required to forward it as soon as practicable to the Governor. If the Governor accepts the recommendation, the Commission may proceed with the implementation of the Improvement Plan and may purchase any land in the area by agreement or compulsorily. Having acquired the land, the Commission may sell or otherwise dispose of it to any person on such terms as the Commission, with the approval of the Governor, thinks fit. As an alternative to acquisition, in respect of land included in the Improvement Plan area but not acquired or held by the Commission, the Commission may enter into an agreement with the owner to implement the Improvement Plan.

89 The first and second respondents contend that there are a number of options for the Commission to acquire the Coogee beach and sea area, including s 13(1)(a) of the Planning Act; amendment of Improvement Plan 26 to extend the area the subject of the plan to include all of the development area; or it could accept all or part of the land under cl 40 of the MRS, which relates to land reserved under Pt II of the MRS. Section 13 of the Planning Act and cl 40 of the MRS confer power on the Commission to acquire land, by purchase or compulsorily.

90 Without intending to reflect on the strength of the applicant's case, I am satisfied that the nature and extent of the Commission's activities may be such as to depend for their validity on s 37A of the Scheme Act. However, the application is premature. The Commission is yet to resolve whether to amend Improvement Plan 26 in order to deal with the whole of the development area. On that basis, I would decline to make an order nisi on this ground of review.

91 The applicant seeks to quash the decision made on or about 23 June 2004 purportedly under s 33(2)(l) of the Scheme Act to present the scheme amendment for approval by the Governor in Council. Based on the alleged invalidity of that decision, the applicant also seeks to quash the approval of the scheme amendment by the Governor in Council and the resulting rezoning effected by the scheme amendment. The grounds of review largely mirror the grounds on which the Commission's recommendations are challenged. In particular, the applicant says the Minister acted for improper purposes, failed to have regard to a relevant consideration, fettered her discretion and was biased.

92 The applicant also relies upon derivative invalidity on the ground that the Minister's decision was premised upon the decisions and recommendations of the Commission which are said to be invalid on the grounds already referred to below (Ground 11).

93 Firstly, it is necessary to identify the nature of the Minister's role under s 33(2) of the Scheme Act. The applicant's challenge is based on the premise that the Minister had a statutory discretion as to whether or not to submit the scheme amendment to the Governor. In my view, that construction is not open.

94 Section 33(2)(ga) and (ka) of the Scheme Act provide that, where the Commission recommends the amendment not be proceeded with, the Minister has a discretion to withdraw the amendment instead of presenting it to the Governor for his consideration. In this case nothing activated the power of the Minister to withdraw the amendment. In those circumstances, the Minister is obliged to present the amendment to the Governor and has no relevant discretion in the matter. However, it is accepted that the Governor acts in conformity with the advice given by the Executive Council. As stated by Mason J in FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 (at 366):

"As the Governor ultimately acts in accordance with advice tendered to him, the final decision is not a decision for which he has to account. The effective decision is that of the Executive Council or the Minister. It is the Government and the Minister who are responsible for that decision to the Parliament and to the electorate."

95 Winneke establishes that a decision of the Governor in Council is amenable to challenge and that can be achieved by imputing to the Governor the conduct of the effective decision-maker. In this case Cabinet resolved to support the presentation of the scheme amendment to the Governor for his approval and endorsement. The Executive Council minute, signed by the Minister and the Premier, notes that the Council advised the Governor to approve the scheme amendment. Thus, although the Minister did not have a discretion to present the scheme amendment to the Governor, the Executive Council, in accordance with the Cabinet resolution, advised the Governor to approve it. Notwithstanding my conclusion, I propose to consider the independent challenges on the assumption the Minister exercised a relevant statutory discretion.

96 The applicant contends that the Minister made the decision for the improper purpose of benefiting the private commercial interests of, and to provide a particular level of profit to, the developer. The particulars are as follows:

"(1) On or about 16 February 2004 and as reported in The West Australian of that date, the Minister said that she supported the concept of a marina in the area but would weigh up whether the project could be viable with less residential development over the water.

(2) During 2004, the Minister suggested to the developer that residential lots to be created on peninsulas within the reclaimed seabed area should be reduced to create more open space. The developer raised the issue that such a reduction would render the project uneconomic. The Minister called for verification of this claim and the developer then produced a report by the accounting firm Ernst and Young ("the Ernst & Young report"). As reflected in comments made by the Minister on or about 18 March 2004 and reported in The West Australian of that date, the Minister then stated that she accepted that no reduction in the residential lot number was required because inclusion of such lots would produce an internal rate of return for the developer of 21.6%, compared to 16.1% with the reduction."

Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 (10 December 2004)

At a glance

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Judgment (253 paragraphs)

Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 (10 December 2004)

Legislation Cited (11)

Cases Cited (28)