Court of Appeal (WA)|2005-06-14|Before: Wheeler JA

Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2005] WASCA 109 (14 June 2005)

RE MacTIERNAN; EX PARTE COOGEE COASTAL ACTION COALITION INCORPORATED [2005] WASCA 109 (14 June 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE MacTIERNAN; EX PARTE COOGEE COASTAL ACTION COALITION INCORPORATED [2005] WASCA 109

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 - Return of order nisi for prerogative relief - Whether certiorari available - Amendment to Metropolitan Region Scheme - Scope of s 33 of Metropolitan Region Town Planning Scheme Act - Bias - Whether intended grant or transfer of land under Land Administration Act derogates from common law public rights of fishing and navigation - Whether application to prohibit or prevent issue of title premature

Western Australia Constitution Act 1890, 53 & 54 Vict Ch 26, s 3

Fifth Respondent : M C L Zelestis QC & Mr M J Feutrill

Applicant : Environmental Defender's Office (WA) Inc

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

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

Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411

Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334

Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247

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

Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102

Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 126

British Medical Association v The Commonwealth [1949] HCA 44; (1949) 79 CLR 201

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

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

Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119

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

Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96

Gumana v Northern Territory of Australia [2005] FCA 50

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

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

Hot Holdings Pty Ltd v Creasy (No 2) [2002] HCA 51; (2002) 210 CLR 438

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

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

Nicholls & Arrow Ltd v Tea Tree Gully City Council (1989) 69 LGRA 121

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328

R v Arnaud (1846) 9 QB 806

R v Corporation of the City of Whyalla; Ex parte Kittel (1979) 20 SASR 386

R v Sevenoaks District Council; Ex parte Terry [1985] 3 All ER 226

R v St Edmundsbury Borough Council; Ex parte Investors in Industry Commercial Properties Ltd [1985] 1 WLR 1168

Re Beggs; Ex parte Helena Valley/Boya Association (Inc); State Planning Commission (1990) 2 WAR 422

Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264

Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150

Real Estate Institute of New South Wales v Blair [1946] HCA 43; (1946) 73 CLR 213

Salomon v A Salomon & Co Ltd [1897] AC 22

Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552

Sidney Harrison Pty Ltd v City of Tea Tree Gulley [2001] SASC 27; (2001) 112 LGERA 320

State of South Australia v Clark [1997] SASC 6175; (1997) 68 SASR 327

Victorian Chamber of Manufacturers v The Commonwealth [1943] HCA 19; (1943) 67 CLR 335

WA Field & Game Association Inc v Minister for Conservation and Land Management and the Environment (1992) 8 WAR 64

Alfred F Beckett Ltd v Lyons [1967] 1 Ch 449

Arnhemland Aboriginal Land Trust v Director of Fisheries (Northern Territory) [2000] FCA 165; (2000) 170 ALR 1

Attorney-General (Southern Nigeria) v John Holt & Co (Liverpool) Ltd [1915] AC 599

Attorney-General v Wright [1897] 2 QB 318

Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524

Blount v Layard [1891] 2 Ch 681

Blundell v Catterall (1821) 5 B & Ald 268

Bodney v Westralia Airports Corp Pty Ltd [2000] FCA 1609; (2000) 109 FCR 178

Bonton v City of South Perth [1982] WAR 213

Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1980) 180 CLR 404

Brighton and Hove General Gas Co v Hove Bungalows Ltd [1942] 1 Ch 372

Brinckan v Matley [1904] 2 Ch 313

Builders' Registration Board of Queensland v Rauber (1983) 57 ALJR 376

Bycon Pty Ltd v Moira Shire Council [1998] VSC 25

Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314

Coastal Water Alliance of Western Australia Inc v Environmental Protection Authority (1996) 90 LGERA 136

Corporation of the City of Whyalla; Ex parte Kittel (1979) 20 SASR 386

Costa v Shire of Swan [1983] WAR 22

Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520

Day v Pinglen Pty ltd [1981] HCA 23; (1981) 148 CLR 289

Ferguson v Union Steamship Co of NZ Ltd (1884) 10 VLR 279

Hall v Development Assessment Commission (No 3) [2001] SASC 183; (2001) 113 LGERA 471

Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295

Ideal Laundry Ltd v Pentone Borough [1957] NZLR 1038

Jones v Shire of Perth [1971] WAR 56

Lord Fitzhardinge v Purcell [1908] 2 Ch 139

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

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

Minister for Immigration, Local Government & Ethnic Affairs v Mok (1994) 55 FCR 375

National Companies and Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296

New South Wales v The Commonwealth of Australia [1975] HCA 58; (1975) 135 CLR 337

Nicholas v Western Australia [1972] WAR 168

Peltier v Darwent (1870) 9 SCR (NSW) 133

Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328

R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177

R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100

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

R v Marion City Corp; Ex parte Independent Grocers' Cooperative Ltd (No 2) (1984) 37 SASR 436

R v Optical Board of Registration; Ex parte Qurban [1933] SASR 1

Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293

Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

Re Smith; Ex parte Rundle (1992) 5 WAR 295

Simpson v Attorney-General [1904] AC 476

South Australia v Clark [1997] SASC 6175; (1997) 68 SASR 327

Southern Centre of Theosophy Inc v South Australia [1982] AC 706

Steeples v Derbyshire CC [1985] 1 WLR 256

Union Steamship Company of New Zealand Limited v Ferguson [1969] HCA 73; (1969) 119 CLR 191

Williams v Wilcox (1838) 8 Ad & E 1314

York Brothers (Trading) Pty Ltd v Commissioner for Main Roads [1983] 1 NSWLR 391

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons, save for some reservations which I would express in relation to the question of standing.

2 So far as standing is concerned, this case raises once again the question of whether an incorporated association has standing in relation to a matter because it has taken actions and made submissions which may be relevant to that matter, or because it has members, some or all of whom would themselves have standing.

3 As to the first of those issues, I have already, in an earlier matter, expressed reservations about any test for standing which relies upon governmental funding or recognition of a body to confer standing upon it: Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102 at 114 - 115. Those reservations appear to have been shared by Murray J in Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 126 at 134, and by Anderson J in Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150 at [1]. Similar considerations would apply in relation to a group such as the present applicant, to the extent that it appears that the various activities which it has undertaken are pointed to as implying some recognition by relevant authorities of its status.

4 Alternatively, perhaps it is simply suggested that the expression of concern by the applicant in a variety of public forums would suffice to give it standing. Logically, however, if the holding of certain beliefs and concerns is not sufficient to confer standing upon a person or body, it is difficult to see how the mere expression of those beliefs and concerns (however frequently that may be done) would give rise to a relevant special interest.

5 The more difficult question, in my view, relates to the question of the interrelationship, if any, between the standing of, or possible standing of, individual members of an incorporated association, and the standing of the association itself. In very broad terms, one of the most fundamental characteristics of a body corporate is that it is an entity separate from those who are its members: R v Arnaud (1846) 9 QB 806; Salomon v A Salomon & Co Ltd [1897] AC 22. The Associations Incorporation Act 1987 (WA) is, as its name suggests, an Act "to provide for the incorporation of associations", and an association incorporated under it becomes a separate legal entity.

6 In my earlier decision of Bridgetown/Greenbushes Friends, I accepted that the interests of the members, at least when taken together with other circumstances, were capable of conferring standing upon an incorporated association of this type (at 114). There is certainly authority in this Court for that proposition; in addition to the two cases cited by McLure JA, I would add WA Field & Game Association Inc v Minister for Conservation and Land Management and the Environment (1992) 8 WAR 64 at 70 (per Malcolm CJ). Unless some challenge is made to the authority of those Full Court decisions, I would follow them. However, I think it is necessary to record my concern that in this respect the law in this State may have run ahead of both High Court authority, and of principle. My reasons for saying that are as follows.

7 In Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552, the High Court found that an association of shop assistants had standing to seek a declaration. Although when I earlier cited this case (in Bridgetown/Greenbushes Friends) I took it as authority for the proposition that at least an association of that kind - that is, a union of employees - might have standing because its members had standing, a closer reading of the decision suggests that it was founded, in that respect, upon a concession. The relevant passage is to be found at 557. It reads:

"The Minister ... submits that the union lacks the necessary interest to give it standing in the matter. In raising the question of standing the Minister does not rely on the fact that the union is an association. The submission is put on the basis that the union has the same interest as its members."

8 Dicta in earlier decisions of the High Court appear to be to the effect that a corporate body does not acquire standing because its members possess it. In Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493, Gibbs J said (at 531):

"If it is the fact that some members of the Foundation have a special interest ... it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it."

His Honour cited for that proposition Victorian Chamber of Manufacturers v The Commonwealth [1943] HCA 19; (1943) 67 CLR 335 at 343 per Starke J, Real Estate Institute of New South Wales v Blair [1946] HCA 43; (1946) 73 CLR 213, at 224 per Latham CJ, 226 per Starke J, 228 per Dixon J, and British Medical Association v The Commonwealth [1949] HCA 44; (1949) 79 CLR 201, at 257 per Dixon J. It appears that in none of those cases cited was it necessary to determine the question, either because no issue was taken in relation to standing, or because (as in British Medical Association) there were individual plaintiffs who did have standing. The British Medical Association case was cited in Croome v Tasmania [1997] HCA 5; (1997) 191 CLR 119, at 126 per Brennan CJ, Dawson and Toohey JJ and 137 per Gaudron, McHugh and Gummow JJ, but it was not in that case necessary for their Honours to consider the doubt expressed by Dixon J about the standing of the association, although that doubt was noted.

9 In Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247, the Court proceeded on the basis that the "sufficient material interest" test for standing to obtain an injunction persisted. There was some apparent divergence of view, in that case, as to the desirability of a less restrictive view. Gaudron, Gummow and Kirby JJ, who were concerned to ensure that public interest in due administration was not unduly constricted by such a requirement, expressed the view that it should be considered as "an enabling, not a restrictive, procedural stipulation" (at 267). McHugh J, while noting that a "flexible" approach to the identification of special interest had been adopted in recent decisions (at 283), nevertheless also considered that, given divergent opinions as to whether the public interest was best served by maintaining the Attorney-General as the primary protector of public rights, it was prudent for the Court to maintain current doctrine and to leave it to the legislature to alter that doctrine if it saw fit (at 280).

10 It seems to me that when considering questions of what is a sufficient interest for the purposes of conferring standing, and whether an associated incorporation should be held to have standing because some of its members may possess a sufficient interest, questions of public policy, particularly as costs may be concerned, arise. In the Batemans Bay case, one of the observations made by Gaudron, Gummow and Kirby JJ, in support of the proposition that a broader approach to standing may well be appropriate, was that "the plaintiff would be at peril of an adverse costs order if the action failed".

11 However, the practical reality of conferring standing upon an associated incorporation such as the present applicant, is that in the event of its action being unsuccessful, the associated incorporation is most unlikely to have funds available to satisfy any order for costs. Because of the separate legal personality of that association, the individual members,

whose interests and concerns have given rise to the action, will not be at risk of costs. The end result would be, in a case such as the present, that the whole body of taxpayers of Western Australia, who may or may not share the concerns of the members of the applicant, will meet the costs of the respondent. In the absence of statutory authority (cf Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 90), one might ask whether it is appropriate for the Court to fashion a principle of standing which has the result that one set of taxpayers can cause the funds of all to be expended without hope of recovery. Taxpayers' funds, of course, are often expended on projects with which some proportion of them may disagree, but that is generally done through the political process where there is political redress. Other considerations would arise where the respondent is a private individual or a corporation, which may or may not have significant funds.

12 It might, of course, be argued that in permitting the incorporation of associations for the purpose of, inter alia, "promoting the interests of a local community" (s 4(1)(d)) or "for political purposes" (s 4(1)(e)), the Associations Incorporation Act contemplates the results described above. It might also be argued that appropriate principles might exist or be developed in relation to security for costs in such cases. These are all questions which, it seems to me, do not directly arise in the present case.

13 The authority of the decisions of the Full Court relating to incorporated associations, to which McLure JA and I have referred, have not been put in issue in this case. In any event, I would discharge the order nisi for the other reasons given by McLure JA. However, I would add my voice to those of the many other Judges and commentators, who have suggested that the present state of the law of standing in relation to an application such as the present is highly unsatisfactory and that legislative direction is overdue.

14 MCLURE JA: This is the return of 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. I granted the order nisi on 10 December 2004 (Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264). In my reasons for granting the order nisi, I set out the relevant background, the statutory context and other relevant matters. For convenience, I propose to incorporate much of that material in these reasons.

15 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.

16 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. The issues that arise for determination are whether the Western Australian Planning Commission ("Commission") is disqualified from making decisions under s 33(2) of the Scheme Act because of a reasonable apprehension of bias and whether the Minister has power under the LAA to grant or transfer unencumbered title to the sea bed.

17 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.

18 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.

19 In March 1996 the 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.

20 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"). The development contemplated in the Agreement includes a marina and residential development on reclaimed "fingers" of the sea bed. Cabinet authorised the Commission to sign the Agreement on behalf of the Government.

21 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.

22 I infer the scheme amendment was submitted to the Minister for her consent to public submissions and she consented (in accordance with s 33(2)(a) and (b)). 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.

23 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. The Hearings Committee provided a report and made recommendations. The Commission accepted some but not all of the Hearings Committee's recommendations.

24 The Commission considered the submissions and submitted to the Minister 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 in its "Report on Submissions" dated June 2004 ("Report"). 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 number 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."

25 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.

26 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 the Commission had not made a decision to approve the City's Town Planning Scheme Amendment ("TPS3 amendment") and Structure Plan.

27 The applicant seeks certiorari to quash the Commission's recommendations in its Report, the approval of the scheme amendment and resulting rezoning and prohibition against the Minister preventing her from approving the TPS3 amendment, from causing deeds of title to issue for the Coogee beach and sea area and approving the transfer of those titles. The relevant terms of the grant of the order nisi are as follows:

"1. The Second Respondent show cause before the Full Court why a writ of certiorari should not be issued quashing the following decisions and recommendations in its report dated June 2004 into the Metropolitan Region Scheme Amendment No 1010/33: 'Port Catherine', Volume 1: Report on Submissions ('the Report'), purportedly made under section 33(2)(g) of the Metropolitan Region Town Planning Scheme Act 1959 (WA) ('the MRTPS'), namely that:

(a) the proposed Amendment No 1010/33 to the Metropolitan Region Scheme ('the Amendment') should proceed with determinations as shown in Adopted Figure 1 (at Attachment 4 of the Report);

(b) the Minister for Planning and Infrastructure consider Amendment No 1010/33 as shown on the Western Australian Planning Commission plan number 3.1236/6 and reported in the Report and forward the Amendment to His Excellency the Governor for approval in accordance with section 33(1) of the MRTPS;

upon the ground that the decisions and recommendations of the Second Respondent are affected by a reasonable apprehension of bias and prejudgement by reason of the WAPC having been a party to the Port Catherine Project Agreement No 2 dated 28 June 2000 ('Agreement No 2') and a party to the prior agreement between the same parties relating to the same project, namely the Port Catherine Project Agreement dated 7 May 1997 ('Agreement No 1').

2. The First Respondent, in her capacity as Minister for Planning and Infrastructure, show cause before the Full Court why a writ of certiorari should not be issued:

2.2 quashing the approval on 23 June 2004 of the Amendment by the Governor-in-Council ('the amendment approval'), purportedly pursuant to section 33(2)(l) of the said Act;

2.3 quashing the resultant rezoning purportedly effected by the publication of MRS Amendment no 1010/33 in the Government Gazette of 23 June 2004 and 26 October 2004 ('the rezoning')

upon the ground that the amendment approval and the rezoning were each premised upon the decisions and recommendations of the WAPC referred to in paragraph 1 above which are themselves invalid and of no force and effect upon the grounds set out in paragraph 1. above with the result that there was no compliance with s 33 of the MRTPS.

3. The First Respondent, in her capacity as Minister for Planning and Infrastructure, show cause before the Full Court why a writ of prohibition should not issue or alternatively an injunction be granted against her, prohibiting her from approving, pursuant to section 35A of the Metropolitan Region Scheme Town Planning Scheme Act 1959 (WA) or section 7 of the TPDA, the proposed Amendment No 3 to City of Cockburn Town Planning Scheme No 3, adopted by the City of Cockburn on or about 16 March 2004 ('the Cockburn scheme amendments'), upon the following grounds:

Grounds.

A. The Cockburn scheme amendments mirror the amendments of the MRS set out above and were adopted by the City of Cockburn to maintain consistency between its relevant town planning scheme and the MRS. The MRS amendments are invalid and of no force and effect on the ground set out in paragraph 2. above and the Cockburn scheme amendments premised upon them are accordingly themselves invalid and of no force and effect.

4. The Third Respondent show cause before the Full Court why a writ of certiorari should not issue quashing the Cockburn scheme amendments upon the grounds set out in paragraph 3A. above.

5. The First Respondent, in her capacity as Minister of Lands, show cause before the Full Court why a writ of prohibition should not issue or alternatively an injunction be granted against her, prohibiting her:

5.1 causing a deed or deeds of title to issue in respect of the Coogee beach and sea area;

5.2 approving the transfer and transferring, pursuant to s 75 of the LAA or otherwise, the Coogee beach and sea area to the WAPC for transfer to the developer, whether by Crown grant or otherwise, and taking any steps to implement the same, on the grounds set out below.

Grounds

A. In implementation of Agreement No 2 the First Respondent stands to transfer, purportedly under the LAA, the Coogee beach and sea area to the WAPC for transfer to the developer but she cannot lawfully do so in derogation of the following common law rights:

(a) the common law rights of the public including members of the applicant to access and use the Coogee beach and sea area in the exercise of their common law rights of fishing and navigation, and ancillary uses such as the anchoring, launching or beaching of fishing boats in the area, and the landing and processing of catch."

28 Grounds 2, 3 and 4 are derivative on the alleged invalidity of the decisions challenged in ground 1 and stand or fall on the outcome to ground 1.

29 Three discrete issues arise in the determination of whether the Commission's decisions and recommendations in the Report ("decisions") are affected by a reasonable apprehension of bias. The first is whether the challenged decisions involve the exercise of a statutory power which was a precondition to the approval of the scheme amendment. If the answer to that question is in the affirmative, the second and third issues arise which are whether the Commission's decisions are affected by a reasonable apprehension of bias and whether the necessity principle applies. I will start with the first issue which involves the construction of s 33(2) of the Scheme Act.

30 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).

31 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."

32 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)).

33 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)).

34 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)).

35 Paragraphs (f), (g), (gaa), (ga), (h), (i) (k), (ka), (l) and (m) 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.

(ga) If the report of the Commission, or, in the case of an amendment that would apply to land in the Swan Valley, a report of the Swan Valley Planning Committee under section 33AB(2), submitted with an amendment under paragraph (g) 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.

(h) Before presenting the amendment to the Governor for his consideration, if the Minister is of opinion that any modification made to the amendment by the Commission is of such a substantial nature as to warrant such action, he may direct the Commission to again deposit the amendment as so modified, or that portion of the Scheme which is so modified, for public inspection at such time and at such places as he directs.

(i) The Minister may direct the Commission to publish such notices in connection with the amendment as he deems appropriate.

(j) ...

(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.

(m) At any time before the amendment is published in the Gazette pursuant to subsection (3), the Governor may revoke the approval given under paragraph (l)."

36 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)).

37 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)).

38 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)).

39 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.

40 The fifth respondent contends there is no relevant act or decision of the Commission that is amenable to certiorari. The second and third respondents make a slightly different point. They say the decisions under challenge are surplusage that do not affect the validity of the Report.

41 Certiorari lies against acts and decisions that have legal effect. If there is no act or decision having any relevant legal effect on rights, there is nothing to quash: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 580, 595; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 158 - 159, 178. However, this formulation is narrower than the interests to which the rules of natural justice apply with the result that other forms of relief, such as an injunction or declaration, will be available where certiorari is not.

42 A preliminary decision or recommendation, if it is one which constitutes a condition precedent to an exercise of power that will affect legal rights, will have sufficient legal effect upon rights to attract certiorari: Hot Holdings at 164 - 165.

43 The Commission has a number of duties under s 33(2) of the Scheme Act. In this case, the primary focus is on the duties in s 33(2)(f) - (ga). The duties relevantly include a duty to consider all submissions that have been lodged; where a submission contains an objection to the amendment, a duty to uphold or dismiss the objection; a duty to prepare a report on submissions (or adopt a report by a committee established to conduct hearings); and a duty to submit the amendment with such modifications as it thinks fit, together with a copy of each of the submissions and the report on submissions to the Minister.

44 The Commission has no express duty or power to make a recommendation to the Minister on whether to proceed with the amendment. This is linked with the scope of the Minister's duty under s 33(2). If the report of the Commission recommends that the amendment should not be proceeded with, the Minister has a discretion to withdraw the amendment (s 33(2)(ga)). In the absence of a recommendation from the Commission that the amendment not be proceeded with, the Minister's discretion is circumscribed. If the Minister is of the opinion that any modification made to the amendment by the Commission is of such a substantial nature as to warrant the amendment or part of it being resubmitted for public inspection, she may direct the Commission to deposit the amendment as modified for public inspection. If the Minister does not take this course, she must present the amendment to the Governor. That is, if the Commission does not recommend that the amendment not be proceeded with and any modifications are not relevantly substantial, the Minister has no discretion. She is required to act. Further, she is not required to present the Commission's Report to the Governor. She is only required to submit the amendment to the Governor and it is the Governor who has the discretion to approve the amendment (s 33(2)(l)).

45 The challenged decisions identified in the order nisi are the two recommendations in the Report. The first recommendation is, in effect, that the scheme amendment as modified proceed. This recommendation rolls up two matters. It recommends modifications which the Minister must consider to determine whether they warrant depositing the amendment for further public inspection. This aspect cannot be described as outside the Commission's powers or duties. However, it also recommends proceeding with the scheme amendment as modified. The second recommendation is that the Minister consider the scheme amendment and forward it to the Governor for approval. This decision is surplusage in the sense that it is not a necessary step in the procedural chain.

46 A positive recommendation to the Minister from the Commission to proceed with the amendment is not a statutory precondition to the exercise of any Ministerial or other power under s 33(2)(ga) - (l). Further, the act of submitting the amendment (and the submissions and report) to the Minister is the performance of a mandatory statutory obligation which is not itself capable of being relevantly affected by apprehended bias. The bias rules only apply to discretionary or evaluative decisions or acts. However, it is clear the Commission does have an evaluative role under s 33(2)(f) and following, as illustrated by the duty to uphold or dismiss an objection to the amendment and the power to make modifications to the amendment. The latter power is linked with its duty to rule on objections. It seems the Commission has a further duty, being to decide whether or not to recommend that the amendment not be proceeded with. A decision on that question does not establish the positive, namely, a recommendation that it should be proceeded with. However, it may be implicit in the first of the challenged decisions that the Commission made a positive decision not to recommend that the scheme amendment should not be proceeded with and that decision has a relevant legal effect, being that the Minister's discretion to withdraw the amendment is not activated. However, it is unnecessary to further consider this matter as the applicant did not frame its case in that way before or at the hearing and it was not the subject of submission.

47 The applicant contended at the hearing that the Commission's decision under challenge was the proposed amendment or alternatively the exercise of an implied power to recommend that the amendment be proceeded with. Starting with the latter and assuming there is an implied power to recommend, that is of no consequence because, in the absence of a Commission recommendation that the amendment not be proceeded with, the Minister is obliged to act and only the amendment must be presented to the decision-maker, the Governor.

48 The identification of the impugned decision as the proposed amendment is vague. Firstly, it is unclear whether it encompasses the amendment with the modifications thereto recommended by the Commission. I take it to mean the latter. Secondly, the applicant does not identify the specific act or decision in question. It appears to be the Commission's decision in relation to the nature and extent of any modifications to the amendment.

49 The result in the certiorari claim turns on whether the amendment as modified by the Commission must be considered by the Governor under s 33(2)(l) or simply the amendment as submitted for public submissions. If the latter, nothing the Commission does thereafter (short of recommending that the amendment not proceed) has any relevant legal or practical effect on the operative decision made by the Governor. As already noted, there is no requirement for the Commission's Report to be provided to the Governor in Council. In my view, on a proper reading of subs (2)(h) and (l) the Governor is required to consider the amendment as modified by the Commission. If the amendment in those paragraphs was a reference to the amendment as submitted for public submissions, there would be no rational basis for the Minister having to assess whether the "modification made to the amendment by the Commission" is substantial before "presenting the amendment to the Governor for his consideration" under subs (2)(l). Accordingly, the Commission's decision as to modifications to the scheme is amenable to certiorari.

50 The next question is whether the Commission was disqualified from making the decision on the ground of a reasonable apprehension of bias. The applicant contends that a reasonable apprehension of bias arises from the Agreement and its predecessor, the first agreement. Nothing of significance turns on the detail of the first agreement and I will confine my consideration to the Agreement.

51 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.

52 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 2.1).

53 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."

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

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.

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.

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."

55 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."

56 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).

57 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. Under cl 23.2 the Commission represents and warrants that it is authorised to deal with the WAPC land save and except in the case of Crown land which is subject to LAA approvals. 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 discretion 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. ..."

58 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).

59 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).

60 Under cl 6, the Commission has to confirm that the WAPC land is available. The clause provides:

"6.1 Within one month from the Initial Approvals Date WAPC shall:

(a) use its reasonable endeavours to convert all WAPC land which is within the Development Plan Area (save and except the Sea Bed Land) to freehold within one month from the Initial Approvals Date; and

(b) inform PCD whether it is able to arrange for the transfer of any of the WAPC land within the Development Plan Area subject to the terms of this Agreement to PCD upon PCD exercising the Call Options. If WAPC gives notice ... that it is unable to arrange for the transfer of any part of the WAPC land ... which is not registered in the name of or vested in [the Commission] or is Crown land then either party may subject to the terms of this Agreement invoke variation provisions contained in clause 28 [which provides for a revised Development Plan deleting, inter alia, the sea bed land]."

Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2005] WASCA 109 (14 June 2005)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (257 paragraphs)

Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated [2005] WASCA 109 (14 June 2005)

RE MacTIERNAN; EX PARTE COOGEE COASTAL ACTION COALITION INCORPORATED [2005] WASCA 109 (14 June 2005)

Legislation Cited (8)

Cases Cited (49)