MATTER : An application for writs of certiorari and mandamus against the Minister for Local Government

Administrative law - Appeal against decision of Minister for Local Government to grant an Extractive Industry Licence - Whether jurisdictional error by Minister - Whether Minister took into account irrelevant considerations or failed to take account of relevant considerations - Turns on own facts

Extractive Industries Local Law (WA) (Gazetted 7 January 2000)

Local Government Act 1995 (WA), part 9

Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321

Baldwin & Francis Ltd v Patents Appeal Tribunal & Ors [1959] AC 663

Brodie & Anor v Singleton Shire Council [2001] HCA 29; (2001) 180 ALR 145

House v R [1936] HCA 40; (1936) 55 CLR 499

Re Coldham & Ors; Ex parte Brideson [No 2] [1990] HCA 36; (1990) 170 CLR 267

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

Re Smith; Minister for Local Government of WA; Ex parte Ransberg Pty Ltd (1992) 80 LGERA 401

Varney v Parole Board of Western Australia [2000] WASCA 393

1 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Templeman J. I agree with those reasons and there is nothing I wish to add.

2 STEYTLER J: I have had the advantage of reading, in draft, the reasons for decision of Templeman J. I agree with them and do not wish to add anything.

3 TEMPLEMAN J: The Buddhist Society of Western Australia (Inc) has applied for a writ of certiorari to quash the decision of the former Minister for Local Government who allowed an appeal pursuant to part 9 of the Local Government Act 1995. The appeal was brought by Bristile Ltd which had been refused an extension of an extractive industry licence by the Council of the Shire of Serpentine-Jarrahdale.

4 The Minister did not appear on the hearing of this application, having stated his intention to abide by the decision of the Court. The application was opposed only by Bristile.

5 It is necessary to say something of the background to the application in order to understand the grounds on which it is made.

6 The applicant has a Monastery in Kingsbury Drive in the Serpentine-Jarrahdale Shire, some 55 kms south of Perth. Kingsbury Drive, which joins the South West Highway, provides access to a clay pit in Firns Road from which Bristile has been extracting clay since 1998, pursuant to licences granted by the Council.

7 The first licence was for the period 29 October 1998 to 30 June 1999. The licence was renewed for a further period of 12 months ending on 30 June 2000, but only after a successful appeal to the Minister. The Council had declined to renew the licence because of road safety concerns: this despite some reservations about the propriety of taking such matters into account under the Extractive Industries Local Law as it then stood. The concerns had been raised in a road safety audit conducted for the Shire by Shawmac Pty Ltd.

8 Following the decision of the Minister to uphold Bristile's appeal for the 1999-2000 year, the Shire amended its Extractive Industries Local Law. The amendment empowered the Council to take into account issues relating to traffic movement and road safety in determining whether or not to renew an extractive industry licence.

9 Bristile wished to continue its operations beyond 30 June 2000 and made an application for a further renewal of the licence. The application was considered at a meeting of the Council on 31 July 2000 when it was resolved that the licence should not be renewed.

"1. The Local Laws require an applicant for an extractive industry licence to provide details of the proposed number and size of trucks entering and leaving the site each day and the route or routes to be taken by those vehicles.

2. It is considered that the number and size of trucks entering and leaving Lot 737 Firns Road each day and the route or routes to be taken by those vehicles, are relevant to the discretion of the Council in considering whether or not to approve an extractive industry licence renewal.

3. Council is aware that it is intended that trucks entering and leaving the site will use Kingsbury Drive. The size and number of trucks it is proposed will use Kingsbury Drive raise important traffic safety issues.

4. Kingsbury Drive is unsuitable for the change in traffic profile that will result from the extraction of clay on the subject land; in particular the following deficiencies were identified in the (Shawmac Report).

• the existing horizontal geometry is substandard in places and poses hazards particularly for opposing vehicles;

• existing sealed carriageway widths (in part) do not provide sufficient lane widths for two way heavy traffic as required by the recommendations of the Austroad Guidelines;

• the radii of some horizontal curves are inconsistent with the speed zoning and the gradients along the route;

• there is no line marking or pavement markers installed and where guide posts are installed these are in poor condition and do not conform to Australian Standard AS 1742;

• site distances around some curves are adversely affected by vegetation; and

• the intersection geometry at Kingsbury Drive and South Western Highway does not adequately accommodate some turning movements."

11 Bristile then appealed to the Minister. The appeal process involved the preparation of a report by a Principal Advisory Officer of the Department of Local Government, Mr Louis Naumovski. The report summarised the background to the appeal and the grounds. It then recited the Council's reasons for its decision, as set out above. It referred to various legal questions which the Department had asked of the Crown Solicitor and the answers to those questions. The report then summarised the objections raised by the present applicant to the renewal of the licence and the results of various site inspections carried out by Mr Naumovski and his colleague, Mr Darryl Schorer. This part of the report included summaries of meetings with representatives of Bristile, the applicant and the Shire. The report concluded with the Department's comments, a summary and a recommendation that the appeal be upheld, subject to a condition being imposed on the licence that the speed of trucks carting clay for Bristile from the extraction site be limited to 30 kilometres per hour on Kingsbury Drive. The Minister accepted that recommendation and allowed the appeal.

12 The Minister's decision was given in a letter dated 12 January 2001 from the Department of Local Government to Bristile's solicitors. The letter included the following:

"I advise that the Minister has upheld Bristile's appeal subject to the condition that trucks carting clay for Bristile from the site (Lot 737) be limited to a speed of 30 kilometres per hour on Kingsbury Drive.

The Minister, in making his decision considered the reasons why the Shire refused to renew the licence, Bristile's submission supporting the appeal and the objections of the Bodhinyana Buddhist Monastery.

The Minister upheld the appeal on the following grounds:

1. The existing approval for Lot 737 does not expire until September 2003.

2. Less material is to be transported in 2001 than in 2000, which is also less than the quantity for which planning approval was given.

3. Improvement to road safety has taken place with roadside clearing of vegetation and road marking.

4. There were no significant breaches to date of the conditions of planning approval or the Shire's local laws relating to extractive industries.

5. That a 30kph speed on Kingsbury Road be imposed on trucks carting clay from Lot 737."

13 The Minister's decision is attacked on four grounds.

14 The first ground was raised by amendment at the hearing. The Court allowed the amendment, pursuant to O 56 r 6, having been informed that the Minister, who had been given notice of the proposed amendment, neither objected nor consented to it and would continue to abide by the Court's decision.

"The Minister lacked jurisdiction to allow the appeal as the appeal was by way of rehearing and he failed to identify any error on the part of the Shire (sic Council) that would confer jurisdiction on him."

16 The remaining three grounds were articulated by counsel for the applicant more cogently than they are set out in the application itself and in some respects, differently, albeit without objection. It will be convenient to summarise counsel's submissions thus:

2. The Minister relied on a statement in a report relating to the previous appeal to the effect that road safety was not a concern, when that statement was no longer relevant, following a change in the Extractive Industries Local Law.

3. The Minister failed to take account of certain relevant matters, namely, four of the six crucial road safety concerns raised in the Shawmac Report.

4. The Minister took into account that certain works relating to road safety had been carried out, when there was no evidence this was so.

Did the Minister lack jurisdiction to allow the appeal?

18 By s 9.8(1) of the Local Government Act an appeal against a decision which (as here) adversely affects the appellant's business or livelihood may be taken to the local court or the Minister, at the appellant's election. That is subject to some limited exceptions, not applicable to this case.

"9.8 (3) A Local Court has jurisdiction to hear and determine the appeal and -

(a) the proceedings are to be conducted in such manner as may be prescribed by the rules of court in relation to appeals against the decision of a tribunal, or if in relation to any such matter no such rules of court are applicable, in such manner as may be directed by the court;

(b) unless the court otherwise orders, the appeal is to be in the nature of a rehearing; and

(c) the court may make such order, if any, as to costs as it sees fit.

(3a) When hearing and determining an appeal the Minister -

(a) is to conduct the proceedings in such manner as the Minister thinks fit; and

(b) may make such orders as to costs as the Minister thinks fit."

20 It will be apparent from s 9.8(3) that a distinction is drawn between the way in which the proceedings are to be conducted in a local court - in accordance with applicable rules - and the nature of the proceedings which are to be by way of a rehearing unless the court orders otherwise.

21 By contrast, the Minister may conduct the proceedings in such manner as the Minister thinks fit. However, no instruction is given to the Minister concerning the nature of the appeal itself.

22 Despite the absence of any guidance as to the nature of an appeal conducted by the Minister, the applicant submits that an appeal to the Minister is by way of rehearing and not a hearing de novo. In support of that submission, the applicant relies on the decision of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 174 ALR 585.

23 The question in that case was as to the nature of an appeal under s 45 of the Workplace Relations Act 1996 (Cth). In their majority judgment at par [11], Gleeson CJ, Gaudron and Hayne JJ cited earlier authority to the effect that the nature of an appeal must depend ultimately on the terms of the statute conferring the right of appeal. There is no definitive classification of appeals: there are merely descriptive phrases by which the nature of an appeal to one body may sometimes be distinguished from the nature of an appeal to another.

24 Their Honours went on to point out that it was common, and often convenient, to describe as an appeal "in the strict sense" an appeal to a court or tribunal whose function is to determine whether the decision in question was right or wrong on the evidence and the law as it stood when the decision was given. However, if the appellate tribunal may receive further evidence and is not restricted to making the decision which should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

"Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance."

26 As I understand the applicant's argument, it is that, on the authority of the passage cited above, there is a presumption that provisions conferring appellate powers are to be exercised for the correction of error unless the right of appeal is conferred by way of a hearing de novo. In that case, the appellate body is to exercise its powers whether or not there was an error at first instance.

27 I am unable to accept that there is any such presumption: although in the absence of any indication to the contrary, a right of appeal would ordinarily be exercised to correct error. However, in my view, the overriding principle is that the nature of the appeal will depend ultimately on the terms of the statute conferring the right.

28 In any event, in the present case, where there is a specific direction that an appeal to the local court is to be in the nature of a rehearing unless the court orders otherwise and no such direction is given in relation to appeals to the Minister, it seems clear that the Minister's powers are at large.

29 If that were not so, then the Minister's powers would be more confined than those of the local court which may conduct an appeal which is either in the nature of a rehearing or an appeal de novo.

30 Faced with this difficulty in the course of his argument, counsel for the applicant shifted his ground somewhat and submitted that the Minister had not in fact embarked upon a hearing de novo. Counsel submitted that the Minister had proceeded by way of a rehearing but that he had not identified any error, as he should have done, if pursuing that course.

31 I do not accept that submission. I think it inappropriate to describe the appeal procedure followed in this case as "a re-hearing". In the first place, there was no "hearing" which preceded the Council's decision not to renew Bristile's licence. An application was made which was considered at a meeting of Council when a resolution was passed to that effect.

32 Secondly, there was no hearing before the Minister. I have already summarised the procedures followed in the Department of Local Government which led to the production of the report on which the Minister acted. The officers concerned inquired generally into the matter: they did not confine themselves to a consideration of Bristile's application. The officers clearly approached the matter de novo, as did the Minister when he considered the report.

33 Counsel submitted also that the Minister should have elected whether to deal with the matter as a rehearing or as an appeal de novo and should have informed the parties which course he proposed to take.

34 Again, given that the Minister's powers are at large, I see no warrant for reading into the Act a requirement that the Minister either determine in advance how he will deal with the matter or inform the parties. That is, of course, subject to considerations of procedural fairness, about which no issue has been raised in this application.

35 I am not persuaded, therefore, that the Minister erred in failing to find error on the part of the Council, in dealing with the appeal de novo or (to deal with the later argument) in failing to specify the nature of the appeal in advance.

Did the Minister take account of an irrelevant road safety consideration?

36 The applicant contends that the Minister erred by taking into account a statement about road safety issues which had been made in the context of the previous appeal proceedings. That statement, it is said, no longer reflected the applicable law. Thus, it is submitted, the Minister took account of an irrelevant consideration.

37 In the summary of the report prepared by the Department of Local Government in relation to Bristile's appeal, the Minister was told:

"The Council's reasons for refusing the renewal of the licence are based on safety concerns arising from a road safety audit of Kingsbury Drive undertaken in November 1998. The same concerns formed the basis of the Council's refusal that gave rise (to) the previous appeal. In its report on the previous appeal, the Department advised you that it did not consider that those concerns warranted the refusal of the (licence). The Department still holds this view."

38 The reference to the report on the previous appeal is to the following passage:

"The Department is conscious of the Shire's reason for refusing to renew the licence and the road safety audit it has commissioned for Kingsbury Drive. However, the Department does not consider that they warrant refusing to renew the extractive industry licence."

39 Counsel for the applicant points out, correctly, that as the law stood when the previous appeal was determined, the Council was not entitled to condition the grant of an extractive industry licence so as to preserve the amenity of the surrounding area by directing the roads which were to be used for cartage purposes. The impact of the proposal upon the general amenity of the area was relevant only to the application for development approval: see Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Ors, unreported; FCt SCt of WA; Library No 990100; 4 March 1999.

40 However, on 7 January 2000, the Shire amended the Extractive Industries Local Law. Thereafter, the Council was entitled to take account of:

"The location of existing and proposed thoroughfares or other means of vehicle access to and egress from the (subject) land and to public thoroughfares in the vicinity of the land; .... a description of the means of access to the excavation site and the types of thoroughfares to be constructed; ....

Details of the proposed number and size of trucks entering and leaving the site each day and the route or routes to be taken by those vehicles."

41 The Council's entitlement to take account of these matters was addressed in a question asked of the Crown solicitor by the Department of Local Government. The question and answer were included in the Department's report to the Minister. They were as follows:

"Q. Does the local law making powers, in section 3.5 of the Local Government Act 1995, enable a local government to include in its extractive industry local laws provisions about vehicle movement in relation to traffic safety and amenity, or are these issues more appropriately dealt with under a town planning scheme.

A. The local government can make local laws with respect to the granting of licences for excavations on a very wide number of topics. Accordingly, it would appear that local governments may include in its extractive industries local law provisions about vehicle movement in relation to traffic safety and amenity."

42 The applicant submits that because the Council was entitled to take account of road safety issues in making the latest decision, no account should have been taken of a statement made in the context of the previous appeal (when the Council had no such entitlement) that road safety concerns did not warrant the refusal of the licence.

43 I am not persuaded that the Minister did take an irrelevant consideration into account. The statement that the Department still held the view that road safety concerns did not warrant the refusal of the licence is not explicable only on the basis that the Department had not taken account of the change in the law. It is explicable also on the basis that the road safety concerns, on their merits, did not warrant the refusal of the licence.

44 That was, in fact, the Department's view. This is clear from the following passage of the Report:

"The Shire's new Extractive Industries Local Laws have removed the doubt that previously existed about whether the Council could consider truck movements and road safety issues when deliberating on the grant or renewal of an EIL. However, irrespective of this, the reality is that there has been no significant change in the circumstances surrounding the operation of the clay pit and cartage of the material since the Minister's decision to uphold the appeal in January 2000." (my emphasis)

45 In short, it was the Department's view that although road safety issues could be taken into account, there had been no significant change in the operation of the clay pit and that the Council's concerns did not warrant the refusal of a licence. That was a consideration relevant to the Minister's deliberation.

Did the Minister fail to take account of substantial road safety issues?

46 The applicant submits that the Minister failed to consider a number of substantial road safety issues. These were the matters raised in the Shawmac Report. They formed the basis for the Council's refusal to grant the licence as given in its reasons which I have set out above.

47 In the Departmental report to the Minister, reference was made to a meeting with Mr Andrew Watson, who was then the Shire's manager of Planning and Development Services. Mr Watson is said to have informed the Departmental representative that trucks cart from the quarry for about 20 days during the year. The report then stated:

"Mr Watson advised that concerns raised in the Shawmac report about safety issues associated with haulage on Kingsbury Drive can be addressed by undertaking appropriate roadworks which might cost in the order of $200,000. He advised that it was unlikely that (Bristile) or the Council would be prepared to meet this cost."

48 It is the applicant's submission that the road safety matters raised in the Shawmac Report were the essence of the Council's refusal to renew the licence and that they must be taken into account. To ignore them completely, it is said, constitutes a failure to take into account relevant considerations.

49 In my view, there is no evidence that the Minister did not take into account road safety issues when considering the appeal. There is an inference to the contrary: that the Minister did consider the road safety issues because they were laid out for him in the report and in its attachments and because he referred to them in his reasons for allowing the appeal, which I have set out above.

50 As I understand the applicant's submission, it is that the Minister must have failed to take these relevant considerations into account because he imposed no conditions in relation to them. However, that is irrelevant for present purposes. The weight given by the Minister to road safety considerations was entirely a matter for him.

51 It cannot be emphasised too strongly that it is not for the court in cases such as this to substitute its own opinion or decision on matters which Parliament has left to a local government or a Minister. The court is required to decide only whether the decision-maker has acted in accordance with the relevant statutory provisions: see Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375.

52 The law is set out in the decision of the High Court in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24. There, (at p 41) Mason J said:

"It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power."

53 His Honour went on to note that in some circumstances a court may set aside an administrative decision when inadequate weight has been given to a relevant factor of great importance. However, the preferred ground on which the court then acts is that the decision is "manifestly unreasonable". That is to say, the decision was so unreasonable that no reasonable person could have made it. The applicant does not contend that to be the case here.

54 It may be accepted that road safety considerations were relevant to the Minister's decision. That is because they were matters which, under the Extractive Industries Local Law, Bristile was required to address: and they were matters which formed the basis of the Council's decision. However, the local law said nothing about the weight to be attributed to matters of road safety. It was therefore fully open to the Minister to decide that little or no weight should be given to the matters on which the Council relied.

55 I am not persuaded, therefore, that the Minister failed to take account of relevant road safety considerations in arriving at his decision.

Did the Minister make a decision without proper evidence?

56 The Departmental report to the Minister contained the following passage, under the heading of "Kingsbury Drive Access":

"Kingsbury Drive is paved and appears to be in a condition comparable to many similar roads in non metropolitan areas. It is considered that more signage and perhaps marked lines in some sections may improve road safety. To this end, Main Roads WA is prepared to erect signage to indicate that the road is used for heavy haulage and undertake some linemarking on the road. The Shire has indicated that it has undertaken clearing of verge vegetation to improve sight lines." (my emphasis)

57 Later, under the heading of "Department's Comments" the report contained the following statement:

"The Department understands that since the Shawmac report works have been undertaken on Kingsbury Drive to address some of the issues identified. The works include clearing of vegetation by the Council to improve lines of sight ...." (my emphasis)

58 The applicant submits that there was no evidence that the Shire has in fact undertaken any relevant verge clearing.

59 In par 2.1.1 of the Shawmac Report, it was stated that existing vegetation along both Kingsbury Drive and Scarp Road North obscured sight lines and reduced sight distance to substandard distances. Five locations on Kingsbury Drive were identified specifically. A recommendation was then made that trees and shrubs be pruned to ensure that they did not impact upon any sight lines.

60 In par 2.5 of the report it was noted that signs near a specific location were obscured by vegetation. It was then recommended that all vegetation be removed from the front of the signs to ensure clear visibility.

61 The papers filed in support of the present application include an affidavit of Mr Simon Dirk Kenworthy-Groen, a fully qualified civil engineer who, since September 1999, has held the office of design engineer at the Shire. Mr Kenworthy-Groen deposes to the fact that when he commenced that employment, the Shawmac Report had been provided to the Shire. Mr Kenworthy-Groen says he arranged for the Shire to implement the items recommended in the Shawmac Report which did not require major expense to the Shire. These were tree pruning "Items 2.1.1, 2.5.1".

62 On 30 January 2001, the Shire's Executive Manager, Asset Services wrote to Abbot Ajahn Brohmavamso of the applicant's Monastery. The letter, which was copied in the Departmental report to the Minister, was apparently written in response to the Abbot's letter in which he sought information about works undertaken by the Shire on Kingsbury Drive. The Executive Manager replied:

"In regard to vegetation management on the verges of the road I advise our records show that between 1 July 1999 and 30 June 2000 works were carried out over the following periods: 01/10/99 - 14/10/99, 12/11/99 - 25/11/99, 17/03/00 - 30/03/00, 09/06/00 - 22/06/00. These works were of a routine, periodic nature and could not be considered major works. The total costs of the works was $357.25."

63 The first period during which those works were carried out coincides with the commencement of Mr Kenworthy-Groen's employment with the Shire in September 1999. As noted above, Mr Kenworthy-Groen said he arranged for the Shire to implement the tree pruning recommended in the Shawmac Report because it did not require major expense.

64 In my view, the evidence to which I have referred above supports the statements made in the Departmental report to the Minister that the Shire had carried out verge clearing in Kingsbury Drive, to improve sight lines. Although it is not clear who provided that information to the author of the report, that is irrelevant for present purposes. The work had been carried out.

65 The applicant contends that the Minister has made one or more "jurisdictional errors" as that term was explained in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, at 179. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at 21, McHugh, Gummow and Hayne JJ, who formed part of the majority of the High Court said at par [82]:

" ... As was said in Craig v South Australia, if an administrative tribunal ... :

'... falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to relay on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'"

66 I am not persuaded that in the present case, the Minister fell into any of those errors.

67 The impression I have from the papers is that the report presented to the Minister was prepared with due care by the officers of the Department of Local Government after proper consultation with interested parties and that it presented a fair summary of the relevant facts. There is no reason to suppose that the Minister failed to give the report the consideration it required. Indeed, the letter dated 12 January 2001 from the Department of Local Government to Bristile's solicitors informing them of the outcome of the appeal makes it plain that the Minister did consider the matter in a proper manner. I have set out the relevant passage above, in explaining the background.

68 I am not persuaded therefore, that any ground has been made out for quashing the Minister's decision. The application should be dismissed.