MATTER : Application for a Writ of Certiorari and a Writ of Mandamus against the Shire of Augusta-Margaret River and for Declarations to issue

Prerogative writs - Certiorari - Mandamus - Declaration - Whether orders absolute should be made in first instance - Town Planning Scheme - Whether decision based on error of law and unreasonable - Meaning of clause in Scheme - Whether reference to "lots" a reference only to residential lots - Turns on own facts

Town Planning and Development Act 1928 (WA)

Interpretation Act 1984 (WA), s 19

Declaration and orders absolute for Certiorari and Mandamus made in first instance

1 ROBERTS-SMITH J : This was an ex parte application by Gnarabup Beach Pty Ltd ("GBPL") initially for orders nisi for writs of certiorari and mandamus and for declarations.

2 The application was commenced by notice of motion dated 22 November 2000 and was directed to a decision of the Council of the Shire of Augusta-Margaret River ("the Council") made at a meeting on 16 October 2000.

3 I set out the terms of the notice of originating motion below.

"1. The Respondent does (sic) show cause before the Full Court why a Writ of Certiorari should not be issued removing into the Full Court and quashing the decision of the Respondent dated 16 October 2000 wherein it refused to advertise the Applicant's Structure Plan contrary to clause 3.3.5 of the Shire of Augusta-Margaret River Town Planning Scheme No. 18 - Prevelly Park ('the Scheme').

2. The Respondent does (sic) show cause before the Full Court why a Writ of Mandamus should not be issued against the Respondent requiring it to advertise the Structure Plan as required by and in accordance with the Scheme.

3. It be declared that the decision of the Respondent dated 16 October 2000 is null and void.

4. It be declared that the meaning of the phrase 'a maximum of 243 lots' in Clause 3.3.3.1(b) of the Scheme is 'a maximum of 243 residential lots'.

5. The costs of this application be the Applicant's in any event.

GROUNDS

The Grounds upon which the Orders Nisi and Declarations are sought are as follows:

1. The Applicant is the owner of Sussex Location 815 in Margaret River and has caused a Structure Plan to be prepared for the entirety of what is designated as the Development Zone in the Scheme.

2. The Structure Plan compiles (sic) with all of the requirements in the Scheme for the preparation of Structure Plans for the Development Zone.

3. On or about 7 August 2000, the Applicant lodged and the Respondent received the Structure Plan.

4. Clause 3.3.4 of the Scheme provides that upon receipt of a Structure Plan the Council shall follow the procedures in clause 7.2 of the Scheme that thereby requires the Structure Plan to be advertised.

5. At a meeting of the Council of 16 October 2000, it was resolved:

'The Council formally resolves to refuse the proponent's request to advertise the draft Structure Plan referred to in this report on the grounds that it is inconsistent with the requirements of Town Planning Scheme No. 18 and that he proponent be advised of the Council's decision accordingly.'

6. The decision was made in breach of clause 3.3.5 and is therefore an error of law and is, as well, unreasonable.

7. Further, the Structure Plan lodged by the Applicant shows 243 residential lots and 11 tourist lots. Clause 3.3.3.1(b) of the Scheme provides:

'The structure plan shall show an ultimate development that provides similar tourist opportunities and no more than the number of residential lots existing in the present Prevelly Park townsite as existing in its gazetted form at the time of the gazettal of this clause unless otherwise considered appropriate by Council in the light of social, environmental, topographical, servicing and visual impact considerations, up to a maximum of 243 lots inclusive of the R20 residential subdivision proposed at the northern end of Location 815.'

8. The reference to 243 lots in Clause 3.3.3.1(b) of the Scheme is, as a matter of interpretation of the Scheme, a reference to 243 residential lots."

4 Notwithstanding that the application was ex parte the notice and supporting affidavits were in fact served on the Shire and when the matter came on for hearing in chambers on 12 December 2000 Mr Myers appeared on behalf of the respondent. At the outset of the hearing he formally stated for the record that the Shire did not wish to participate in the proceedings but would simply abide the decision of the Court.

5 In the event, Mr Stein, counsel for the applicant, sought orders absolute in the first instance pursuant to O 56 r 1(6) of the Supreme Court Rules ("SCR").

6 At the conclusion of the hearing on 12 December I gave judgment for the applicant and made the declaration and orders sought, including the orders absolute. I indicated then that I would publish full reasons later should they be requested by either party.

7 Neither party has sought the publication of written reasons, but on 10 January 2001 Ms S Boulter, a solicitor of the Environmental Defenders Office of WA (Inc), a community law centre specialising in public interest and environmental law, wrote to the Court on behalf of the Rural and Remote Communities Outreach Project ("RRCOP") requesting a copy of the judgment and orders for the purpose of advising RRCOP on its prospects of being granted leave to appeal the decision notwithstanding it was not a party, and on the prospects of the appeal if leave be granted. It was foreshadowed that such leave might be sought in reliance on the inherent jurisdiction of the Court and O 63 r 3 SCR.

8 Whether RRCOP would have standing and whether such an application, if made, would be likely to be granted, are not matters which I think I should be concerned with here. Given the public interest considerations of the matter and at least the possible standing of the RRCOP I have acceded to the request and accordingly publish these full written reasons for my decision on 12 December 2000.

9 The applicant relied on the affidavit of Mark Ainsworth Hohnen sworn 28 November 2000 and the affidavit of Peter Gleed sworn on 20 November 2000. The latter affidavit together with attachments runs to some 675 pages.

10 The application concerns a town planning scheme for the Shire approved under the Town Planning and Development Act 1928 (WA) and described as "Town Planning Scheme 18 - Prevelly Park" ("the Prevelly Park Scheme") published in the West Australian Government Gazette of 30 June 1995.

11 Notwithstanding the volume of material the point which I am asked to decide is a short one: it is whether the words in cl 3.3.3.1(b) of the Prevelly Park Scheme:

" ... up to a maximum of 243 lots inclusive of the R20 residential subdivision proposed at the northern end of location 815"

means residential lots or all lots residential and otherwise.

12 The application has nothing to do with the merits of the development proposal nor anything else.

13 The background and general course of the development proposal being dealt with by the Shire was set out in Hohnen's affidavit.

14 He is Chairman and Managing Director of Cedarvale Investments Propriety Limited ("Cedarvale") and a Director of GBPL which is the owner of Sussex Location 815 which is just south of Prevelly Park in the Southwest of Western Australia.

15 Cedarvale is engaged by GBPL as the developer of the Gnarabup Beach Estate within Sussex location 815 ("the Estate") and has been so engaged since the inception of the Estate.

16 Hohnen attended a meeting of the Shire's Town Planning and Building and Health Committee ('the Committee") on 11 August 1992 with a Mr Chris West who was then Cedarvale's consultant planner. The purpose of their attendance was to inform the Committee of a proposal to purchase Sussex location 815 for the purpose of developing not less than 250 residential lots and to gauge the Committee's response to that proposal. The plan presented to the Committee on that occasion comprised a residential subdivision of 270 lots, a special rural subdivision of 15 lots and a tourist development zone consisting of a caravan park, chalet units and a 50 room lodge site.

17 According to Hohnen, at the meeting on 11 August he asked all members of the Committee if they would support the creation of 250 residential lots. They all responded that they would and based on that information GBPL finalised the purchase of Sussex location 815.

18 On 23 October 1992 Cedarvale lodged an application for development approval under the Shire's interim development order no 10. The application comprised 268 residential lots, 9 special rural lots, 1 tourist lodge site, 1 chalet park site, 1 caravan park site and 1 commercial/community purposes site.

19 The application for development approval was advertised by the Shire and was considered at its meeting on Monday 15 February 1993. Hohnen was present at that meeting and there was considerable debate about the number of residential lots. He states that he recalls a range of 140 lots through to 270 lots being discussed but does not recall there being any debate about any other aspects of the proposal, namely the 9 special rural lots, the tourist lodge site, the chalet park site, the caravan park or the commercial/community purposes site.

20 During the course of the meeting on 15 February 1993 Andrew Hewitt, a Director of GBPL served on the Shire planner, Mr Peter Gleed, a notice of appeal with respect to the application for development approval lodged on 23 October 1992. The basis of the appeal was that the Shire had failed to make a decision on the application within the required time frame which had the effect of there being a deemed refusal. As a result of the service of the notice of appeal the meeting was adjourned.

21 On 8 March 1993 Hohnen and West attended a meeting of the Shire at which a revised plan showing 225 residential lots was adopted subject to modifications by Gleed. At that meeting Gleed suggested that the density of the subdivision at the northern end of Sussex location 815 be increased via a "Green Street" (small lot subdivision) area, thus providing more affordable residential home sites. That was a suggestion that had previously been made by Gleed in a letter to Hohnen dated 26 February 1993.

22 Following the meeting of 8 March 1993 a revised subdivisional layout plan, based on "Green Street" principles as suggested by Gleed was prepared for the subdivision at the northern end of Sussex location 815. That had the effect of increasing the total number of residential lots in the estate from 225 to 243.

23 Hohnen attended a special Shire meeting on 14 April 1993 at which a plan with 243 residential lots, along with tourist related lots, was adopted.

24 On 7 August 2000 GBPL lodged with the Shire a structure plan proposing 243 residential lots and 11 tourist lots within the development.

25 Clause 3.3.5 of the Prevelly Park Scheme stipulates that on receipt of a Structure Plan prepared in accordance with the requirements of the Scheme the Shire shall thereafter follow the procedures outlined in cl 7.2 together with, notwithstanding cl 7.2.3, an advertising period of 60 days subsequent to which the Plan shall be forwarded to the State Planning Commission together with any modifications made to the Plan as a result of submissions, for the Commission's consideration and approval.

26 At an ordinary meeting on 16 October 2000 however, the Council refused to advertise the plan in terms of the resolution set out above.

27 The reason for the Council's decision was that it considered that cl 3.3.3.1(b) means all lots residential and tourist and so the Plan was not in accord with the limitation to 243 lots in total.

28 Hohnen subsequently signed and caused to be delivered to the Shire a "Notice of demand to advertise the Gnarabup Beach Estate Structure Plan for the development zone" dated 27 October 2000.

29 According to his affidavit (and of course there is no material to the contrary) GBPL is incurring substantial holding costs and opportunity costs with respect to proposed lot 226 which is west of Wallcliffe Road. The latest land tax assessment for the unsold portion of Sussex location 815 (that is the part still owned by GBPL) is $180,209. Proposed lot 226 represents at least 45 per cent of the value of the unsold portion of that location. Consequently, the monthly land tax bill for proposed lot 226 is approximately $6,750.

30 The lot has been valued at between $2.5 and $6 million by CB Richard Ellis. Assuming proposed lot 226 to be worth $2.5 million and the interest rate that could be earned from investing that amount to be 8 per cent per annum (which Hohnen considers to be a slightly conservative rate of interest) the opportunity cost per month as a result of the delay in the advertising of the structure plan he says is approximately $16,667.

31 The applicant puts its case on two bases. The first is that a plain interpretation of the words unaided by any of the history of the Prevelly Park Scheme clearly shows that the 243 lot restriction is confined to residential lots only as a matter of construction.

32 Secondly, and also in the alternative, the applicant relies on s 19 of the Interpretation Act 1984 (WA).

"The structure plan shall show an ultimate development that provides similar tourist opportunities and no more than the number of residential lots existing in the present Prevelly Park townsite as existing in its gazetted form at the time of the gazettal of this clause unless otherwise considered appropriate by Council in the light of social, environmental, topographical, servicing and visual impact considerations, up to a maximum of 243 lots inclusive of the R20 subdivision proposed at the northern end of location 815."

34 The applicant contends that the clause expresses an intention to limit the number of residential lots. That limitation arises by the words: "no more than the number of residential lots." The applicant then says the limit is made referable to either:

(a) the number of residential lots existing in the Prevelly Park townsite unless Council otherwise considers it appropriate;

35 It is contended that the words "the number of" are related expressly to "residential lots" and so express an intention to control a specific number of residential lots namely to a maximum of 243. The phrase "that provides similar tourist opportunities" is not a phrase of restriction or limitation and does not imply a constraint on the number of lots for tourism. This reinforces the contention that the limitation on the number of lots relates only to residential lots. The words "ultimate development" refer to the overall effect of the structure plan "that provides" for both tourist opportunities and up to 243 residential lots to be included.

36 I accept these submissions. In my view, on its plain grammatical construction the words "up to a maximum of 243 lots" are clearly a reference back to the words "the number of residential lots" previously set out in the clause.

37 I turn now to the additional and alternative submission that if the clause is ambiguous in regard to the meaning of the limitation of 243 lots then recourse extrinsic material showing the history of the evolution of the clause likewise leads to the conclusion that the term refers to "residential lots".

38 Reference to such materials may be made where the relevant provision is ambiguous. I do not consider it is. I consider it has the meaning I have just indicated, but if I am wrong about that then the provision would be ambiguous because it would certainly not be clear that it necessarily referred to all lots, residential or otherwise.

39 The types of materials to which recourse may be had for the purposes of this exercise are essentially those which in some tend to show the basis of the deliberations or intentions of the legislating authority - in this case the Council (see s 19(2) Interpretation Act).

40 The applicant provided a useful chronology of events which identifies the most significant events in the course of the evolution of the Prevelly Park Scheme.

41 The starting point was probably in July 1991. The precursor to the Prevelly Park Scheme was probably the requirement imposed and included in the Prevelly guidelines by the Council at a special meeting on 25 July that year and set out at par 10 of Gleed's affidavit -

"The development zone may provide a similar lot yield and similar tourist opportunities as the present Prevelly townsite and be located in those areas identified elsewhere in these guidelines as most suited to development."

42 This amendment appears to have been the result of some concern by the Council about how the area might be developed.

43 It appears from par 11 of Gleed's affidavit that at that time the Prevelly Park townsite consisted of approximately 140 residential allotments, a 7.6 hectare caravan park and a number of small scale holiday accommodation facilities, the last being within the 140 residential allotments, that is therefore essentially 140 residential allotments and 1 caravan park.

44 Mid-1992 was the start of the drafting of Town Planning Scheme 18 to incorporate those guidelines. On 11 August 1992 GBPL approached the Shire and sought an indication of the lot yield that could be expected if it was to exercise its option over the land. This was the meeting referred to by Hohnen earlier. It is apparent from the minutes of the meeting (exhibit PG1) that the discussion at that meeting canvassed the possibility of up to 270 residential lots in addition to tourist accommodation, shopping and recreational facilities.

45 There was a similar emphasis subsequently, for example at the special meeting of Council on 15 February 1992 (at 29 and 30 of Gleed's affidavit). The Shire planner was noted as referring to the origins of the clause as appearing in the Prevelly Scheme at that time and as saying that:

"While it does not specifically state a 140 lot maximum, it clearly links the size of any development on location 815 with a number of lots existing in the Prevelly townsite."

46 As I have just mentioned the 140 lots in the Prevelly townsite were residential lots (including the small scale holiday accommodation facilities).

47 I pause here to note there is a distinction between "lots" and "lot yield". There was some discussion about the developer's then proposal being inconsistent with the Prevelly Park Scheme in respect of lot yield but that does not go to the issue here because either way the question is whether it was residential only, or residential and all other lots, to which reference was being made.

48 The origin of the wording which found its way into the Prevelly Park Scheme and to which the number "243" was later added can be seen at par 25 of Gleed's affidavit. He presented a report to Council on 15 February 1993. At that time the Scheme contained the following clause:

"The structure plan shall show an ultimate development that is consistent with the lot yield and tourist opportunities as available in the present Prevelly Park townsite as is existing in its gazetted form at the time of the gazettal of this Scheme."

49 Gleed recommended in his report that the following clause be adopted -

"The structure plan shall show an ultimate development that provides similar tourist opportunities and no more than the number of residential lots existing in the Prevelly Park townsite at the time of the gazettal of this Scheme unless otherwise considered appropriate by Council in the light of social environmental, topographical servicing and visual impact considerations."

50 There was continuing debate over what the number of lots should be. At the 15 February meeting a motion was put and carried unanimously to the effect that the ultimate development should provide similar tourist opportunities and no more than the number of residential lots existing in the Prevelly Park townsite unless otherwise considered appropriate by Council up to a maximum of 225 lots.

51 A revised plan was put in by the developer and at a special meeting on 8 March 1993 it was resolved that Council accept the revised plan "... showing a total of 225 residential lots ...".

52 This decision was communicated by a letter from Gleed dated 17 March 1993 which again referred specifically to "a total of 225 residential lots" but added -

"With an understanding that the lot yield may be increased in respect of a potential 'Green Street' development at the northern end of location 815 ..."

53 Modifications were submitted based on that advice and they were considered at a meeting of Council on 14 April 1993. The minutes of that meeting note that the Shire planner advised that the applicants had submitted a subdivisional layout plan for the "Green Street" precinct which proposed 31 lots thereby effectively creating a total lot yield for the estate of 243 lots. Gleed recommended that Council accept the subdivision layout as submitted in principle subject to detailed vegetation, topographical and building design guidelines being submitted prior to a subdivision application being made. Council accepted the recommendation and resolved accordingly.

54 In accordance with the requirements of the Scheme the proposal as modified was sent by Council to the Department of Planning and Urban Development (now the Ministry for Planning or the WA Planning Commission). By letter dated 25 August 1993 the Southwest Region Planning Committee of the Department advised that it (acting under delegation of the Department) would be prepared to approve the Structure Plan subject to certain modifications being carried out. The Plan, of course, showed 243 lots. One of the modifications requested was that cl 3.3.3.1(b) be deleted and replaced with the following -

"The Structure Plan shall show an ultimate development that provides similar tourist opportunities and no more than the number of residential lots existing in the Prevelly Park townsite as existing in its gazetted form at the time of the gazettal of this clause unless otherwise considered appropriate by Council in the light of social, environmental, topographical, servicing and visual impact considerations, up to a maximum of 243 lots inclusive of the R20 residential subdivision proposed at the northern end of LOC 815."

55 I accept Mr Stein's submission that effectively what had happened here was that the Committee accepted 243 residential lots and then effectively required Council to incorporate the effect of that approval by adoption of the clause in the words proposed; in short the proposal was for a total of 243 residential lots, 243 residential lots is what the scheme contemplated and that was the proposal which was approved.

56 In this analysis I have not set out an exhaustive reference to the debates and documentation concerning the evolution of this clause but in my view an examination of them do support the applicant's contention that as a matter of construction having regard to the history of it, the second reference to "lots" in the clause is intended to be a reference back to the words "residential lots" first appearing.

58 Order 56 r 16 of the Supreme Court Rules empowers the Court to grant an order absolute in the first instance for a writ of mandamus or certiorari where that appears necessary for the advancement of justice. This is a matter of discretion.

59 The factors which seem to me to weigh here are first the fact that the respondent has chosen not to contest the application but has taken the position that it will abide the decision of the Court; secondly, that the point at issue is a short one and the answer to which I consider to be clear and in respect of which it seems to me it would not be in the proper interests of the administration of justice to require the applicant to incur the cost of engaging the Full Court to determine it; thirdly, the applicant is suffering ongoing substantial costs as a result of the Council's refusal to proceed with the advertising of the proposal.

60 I consider these factors weigh clearly in favour of granting the application for orders absolute in the first instance.