S & L LENZ PTY LTD -v- THE SHIRE OF SERPENTINE JARRAHDALE [2017] WASC 191 (14 July 2017)

4 Having regard to the written and oral submissions advanced by counsel, the applicant's case, in summary, is that:

(i) By the June Decision, the Council of the Shire approved the development of the Land for a supermarket pursuant to the Serpentine Jarrahdale Town Planning Scheme No 2 (TPS). The applicant says that the November Decision merely amended one aspect of the approval given by the June Decision.

(ii) The June Decision was invalid because the use of the Land for a supermarket was not permitted by the TPS.

(iii) The Shire reached the June Decision because it treated the Byford Town Centre Local Structure Plan (BTC Structure Plan) as altering the zoning of the Land under the TPS. Under the BTC Structure Plan, specific provision was made for the development of land zoned 'Urban Development' under the TPS. In the BTC Structure Plan, the Land was designated as 'Town Centre' (which corresponded to a zone under the TPS) and the TPS permitted the land zoned 'Town Centre' to be used for a 'Shop'.

(iv) To the extent that the TPS purported to permit the BTC Structure Plan to alter the zoning of the Land, those clauses in the TPS (namely clauses 5.6.18.2 and 5.6.18.3) were invalid, and should be the subject of a declaration to that effect.

5 The second respondent did not participate in the application for judicial review, but the Shire appeared and was represented by counsel.

6 For the reasons set out below, I have concluded that:

(i) The June Decision was a decision by the Shire to approve the Development Application pursuant to the TPS. However, that decision had no practical effect (that is, the development could not proceed solely on the basis of that approval) because the second respondent also required approval under the Metropolitan Region Scheme (MRS) to undertake the development, and that approval could not be given by the Shire at that stage;

(ii) In the November Decision, the Council of the Shire approved an amended application for approval for the proposed development, pursuant to the TPS. (That Decision also constituted an approval for the development under the MRS.) The November Decision superseded the June Decision in granting authority, pursuant to the TPS, for the proposed development to be undertaken;

(iii) The applicant has not demonstrated that the November Decision was invalid, in that it has not demonstrated that the Council failed to act in accordance with the requirements of the TPS in force at that time;

(iv) Even if the validity of the June Decision arises for determination, the applicant has not demonstrated that the June Decision was invalid in that it has not demonstrated that the Council failed to act in accordance with the requirements of the TPS in force at that time;

(v) It is not necessary to determine the validity of clauses 5.18.6.2 or 5.18.6.3 of the TPS.

7 In these reasons, I deal with the following matters:

1. The applicant's standing to seek the relief sought in the application for judicial review;
2. The requirement for planning approval for developments on the Land pursuant to the TPS and the MRS;
3. The factual background, and findings as to the nature and effect of the June Decision and the November Decision;
4. The grounds for the relief sought, and an overview of the applicant's contentions;
5. Why the applicant's contentions as to the invalidity of the June Decision must be rejected;
6. Why the applicant's contentions as to the invalidity of the November Decision must be rejected.

1. The applicant's standing to seek the relief sought in the application for judicial review

8 It is convenient to begin by briefly addressing the question of standing, which was not the subject of any dispute. The applicant's case was that it apprehended 'injury to its proprietary and/or economic rights' if the proposed development were to proceed, and that it therefore had standing. The Shire did not contend otherwise.

9 In Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs[1] I considered the authorities that in my view establish that an applicant for a writ of certiorari does not need to establish standing to bring the application for the writ. For those reasons, the applicant does not need to establish standing to pursue the application for certiorari in this case.

10 However, in so far as the applicant seeks the grant of declaratory relief, it must demonstrate its standing to do so. A party seeking equitable relief to prevent or correct the violation of a public right, or to compel the performance of a public duty, must have standing to do so. Absent a statutory right of action, a plaintiff will have no standing to bring an action for such relief if he or she has no interest in the subject matter of the action beyond that of any other member of the public.[2] If no private right of the plaintiff is interfered with, the plaintiff must have a 'special interest' in the subject matter of the action.[3] It is not necessary that that interest be unique to the plaintiff.[4]

11 The requirement for a 'special interest' is a flexible one.[5] It is a matter of fact and degree, and will depend on the nature and subject matter of the litigation,[6] including the legislation relevant to the decision. It will involve an assessment of the importance of the concern held by the plaintiff with regard to a particular subject matter and the closeness of the plaintiff's relationship to that subject matter.[7] Consequently, what is a sufficient interest in one case may be less than sufficient in another.[8]

12 I do not accept that the grant of approval for the Development Application affects the applicant's proprietary or economic 'rights'. The applicant has no right to the maintenance of the present position in which it is not faced with competition from another supermarket in nearby proximity to its IGA supermarket in Byford.

13 However, a person who can show apprehended injury or damage to his economic interests may have standing to challenge an administrative decision, including by seeking declaratory relief.[9] The difficulty here is that no evidence was placed before the Court to indicate that the applicant apprehended that it would suffer damage to its economic interests if the June Decision and the November Decision are not set aside, or the basis for any apprehended damage to its economic interests. However in this case, as the applicant does not need to establish that it has to bring its application for certiorari, and as I have concluded that it is unnecessary to deal with its application for declaratory relief, it is unnecessary to express any concluded view about its standing to seek that relief.

2. The requirement for planning approval for developments on the Land pursuant to the TPS and the MRS

14 Although the application for judicial review is directed to the validity of the June Decision and the November Decision, in so far as those decisions were decisions made pursuant to the TPS, it is also necessary to bear in mind the requirements for development approval under the MRS and under the TPS. That is because the requirements of both schemes inform the conclusions which can be drawn about the nature and effect of the June Decision and the November Decision. Accordingly, in these reasons, I discuss the requirements of both the TPS and the MRS for planning approval for the development of the Land.

15 The Land is located within the metropolitan region of Perth, which is covered by the MRS. The MRS is in force as a region planning scheme under the Planning and Development Act 2005 (WA) (PD Act). The development of land the subject of the MRS without approval is prohibited, and constitutes an offence.[10]

16 The Western Australian Planning Commission (WAPC) is the responsible authority for the purposes of the grant of approval for development under the MRS, although the WAPC may delegate its role to another authority.[11] In the present case, the Council had delegated authority from the WAPC to grant approval for the development of land pursuant to the MRS, in certain circumstances. A copy of that delegation (Instrument of Delegation) was in evidence.[12]

17 Under the MRS, either the WAPC, or a local authority exercising delegated authority, may refuse approval, or grant its approval for the development subject to such conditions (if any) as it deems fit.[13]

18 The Land is also within the area subject to the TPS (Scheme Area). A copy of the TPS was in evidence.[14]

19 I note for completeness that although the TPS was made prior to the enactment of the PD Act it was continued in force as a 'local planning scheme' under the PD Act, and 'has effect as if it were enacted by' the PD Act.[15] Further, since 19 October 2015 (which was the 'commencement day' for the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (the 2015 PD Regulations)), the TPS has been continued in force as if it were a local planning scheme made under the PD Act in accordance with the 2015 PD Regulations.[16] (For convenience, I will refer to it as the TPS, rather than as a local planning scheme.)

20 Save in cases which are not presently relevant, a person is prohibited from carrying out the development of land within the Scheme Area unless the person has first applied for and obtained the planning consent of the Council under the TPS.[17] It is an offence to fail to comply with the provisions of the TPS.[18]

21 Under the TPS, the Council may refuse consent for the development of land, or grant its consent subject to any conditions it deems fit.[19] (Later in these reasons, I deal with the matters the Council is required to consider in determining whether to grant its consent under the TPS, both at the time of the June Decision, and at the time of the November Decision.)

3. The factual background, and findings as to the nature of the June Decision and the November Decision

22 The Council did not provide written reasons for the June Decision or the November Decision. This Court does not have statutory power to require the provision of reasons by a decision maker.[20] However, the documents in evidence identified the Council's decision making process, and permit inferences to be drawn about the matters which it took into account in reaching the June Decision and the November Decision.[21]

23 The facts are outlined in the affidavits of Mr Stephen Lenz, a director of the applicant company, sworn 11 December 2015 (the Lenz affidavit), and in the affidavit of Mr Deon van der Linde, the Manager Planning at the Shire, sworn on 26 February 2016 (the VDLinde affidavit). Neither the applicant nor the Shire took issue with the facts set out in the affidavits each relied upon. Regrettably, the evidence gave rise to some ambiguity as to the legal status of the decisions which were made.

24 Where the writ of certiorari is sought on the basis that the decision maker has made a jurisdictional error, the court entertaining the application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it.[22] For that reason, the material which was before the Council, which is disclosed by the Minutes of the meetings of the Council on 29 June 2015 and 23 November 2015, together with evidence of what occurred in the intervening period, was properly placed before the Court in the Lenz affidavit and the VDLinde affidavit. That affidavit material identified the decision making process adopted by the Council, the material to which it had regard in reaching the June Decision and the November Decision, and permits findings to be made as to what was, in fact, the subject of each Decision.

25 Having regard to the evidence, considered in light of the statutory framework set out above, I make the findings set out below.

26 On 18 March 2015, the Shire received an application from Hindley and Associates Pty Ltd, on behalf of the second respondent, dated 16 March 2015. That application sought approval to commence development of a Farmer Jack's supermarket and associated parking on the Land.[23] At that stage, the Land was being used by the second respondent as the Byford Country and Bowling Club.

27 The Development Application was submitted on a form headed 'Form No. 1 Town Planning Scheme No. 2 Application for Approval to Commence Development'. I note that an application for planning consent under the TPS is to be made generally in the form set out in Appendix 7 to the TPS. Appendix 7 is a form headed 'Application for Approval to Commence Development Shire of Serpentine Jarrahdale Town Planning Scheme No. 2'.

28 Clearly, the Development Application was an application for development approval pursuant to the TPS.

29 I note at this point that the MRS provides that the approval of the 'responsible authority' under the MRS (that is, the WAPC or its delegate) is required for the development of land within areas zoned under pt III of the MRS.[24] (The Land is zoned 'Urban' under pt III of the MRS.) In the event that approval under the MRS is sought, an application for approval must be made in the form set out in Form 1 of the MRS and is required to be submitted to the local authority where the land is situated, together with the plans and other information relevant to the development.[25] In the case of an application for the development of land zoned under pt III of the Scheme (and not otherwise required by the MRS to be determined by the WAPC), the local authority is required to determine the application in accordance with any power which may be delegated to it by the WAPC pursuant to the PD Act.[26]

30 An approval given by a local authority to develop land covered by a town planning scheme, where the land has also been zoned under pt III of the MRS, will be deemed to be an approval under the MRS.[27]

31 Accordingly, a person wishing to develop land within metropolitan Perth which is subject to the MRS, and which is also the subject of a TPS, would need to submit to the local authority (that is, the relevant Shire) both an application for approval under the MRS (in the form set out in Form 1 to the MRS[28]) and an application for approval under the relevant TPS (in the form required under that TPS). Thereafter, the approval of the local authority for the development under the TPS will be deemed to be an approval under the MRS, unless either the provisions of the MRS require that the local authority refer the application to the WAPC,[29] or unless any delegation of decision making power by the WAPC to the local authority does not permit the local authority to make the decision to approve the development under the MRS. In either of those circumstances, the local authority will be required to forward the application for development made pursuant to the MRS (that is, the Form 1 which the local authority should have received in duplicate) to the WAPC.[30] Where a local authority forwards an application to the WAPC, the local authority may make recommendations for consideration by the WAPC in respect of the application.[31]

32 There is no evidence to suggest that in March 2015, Hindley and Associates, or the land owner, also made an application for approval of the development pursuant to the MRS. There was no evidence of any form of application for approval under the MRS having been submitted to the Shire at that stage. However, there is no doubt that approval under the MRS was required.

Consultation with MRWA in relation to the Development Application

33 On 12 May 2015, the Shire's officers referred the Development Application to Main Roads Western Australia (MRWA) for its comments.[32]

34 It is not entirely clear why the Development Application was referred to MRWA. The most likely possibility is that the Shire's officers considered that it was appropriate to consult with the MRWA, for the purposes of the TPS. In determining an application for planning consent under the TPS, the Council may consult with any authority which, in the circumstances, it thinks appropriate.[33] Another possibility, however, is that the consultation was undertaken because the Shire's officers were aware of the need to consult the MRWA, if the Council's approval for the development under the MRS was ultimately to be sought. (Under the MRS, either the WAPC, or a local authority exercising delegated authority, may consult with any authority that in the circumstances it thinks appropriate.[34] In this case, because of the Land's proximity to the South Western Highway, which is identified as a Primary Regional Road in the MRS, one of the conditions of the WAPC's delegation to the Council of its power to approve the development of land required that the Council refer the Development Application to MRWA for its comments and recommendations.[35]) In any event, for present purposes, it is not necessary to determine precisely why the Development Application was referred to MRWA.

35 MRWA's views were provided in a letter dated 8 June 2015 from Mr Lindsay Broadhurst, Manager Road Planning.[36] Mr Broadhurst advised that:

Main Roads will not support this proposal in its current form as this application is impacted by land required for future widening of South Western Highway... Whilst this requirement is not gazetted in the Metropolitan Region Scheme, an application has been made to the Western Australian Planning Committee to initiate the amendment. In addition, the application intends to construct 90 degree angle car parking along George Street. The provision of car parking as indicated will prevent the ability of Public Transport to access their reservation for the provision of a new bus transfer station.

Main Roads would support this development application if this land requirement is taken into consideration and sufficient space is provided for PTA requirements to access their reservation ... .

36 Mr van der Linde deposed that because MRWA did not support the Development Application, it was necessary not only for the Council to give its approval as the responsible authority under the TPS but also for the WAPC to give its approval as the responsible authority under the MRS.[37] That conclusion is consistent with the conditions of the Instrument of Delegation from the WAPC, which provided that if a recommendation by a public authority was not acceptable to a local government, the application for development approval under the MRS was required to be referred to the WAPC for its determination.

37 The Council of the Shire considered the Development Application at its meeting on 29 June 2015.

38 The Minutes of that meeting were in evidence.[38] They incorporate a report by Shire officers setting out their assessment of the Development Application, and their recommendations (the first Officers' Report). (The contents of the first Officers' Report are discussed further below at [144] [152].)

39 The Minutes set out the decision of the Shire, which was:

That Council:

Approves the application from Hindley and Associates on behalf of the landowners ... to develop a Shop at [the Land] subject to the following conditions:

...

Forward the application to the Department of Planning for consideration noting Council's approval and conditions for the development.

40 Having regard to the evidence, and to the terms of the MRS and the TPS, it is clear that the June Decision was a decision by the Council to approve the Development Application pursuant to the TPS. For the reasons set out below, however, the June Decision was superseded by the November Decision.

41 I note that the June Decision does not appear to have been the subject of a formal notice to the second respondent, as required by the TPS. Under the TPS, the Council is required to issue its decision in respect of an application for planning consent in the form prescribed in Appendix 9 to the TPS. In addition, the TPS requires that where the Council grants planning approval, the development is to be substantially commenced within two years, or such other period as specified in the approval.[39] That time period could not reasonably be construed as commencing until such time as the land owner is notified of the Council's decision. For that reason, there may be a question whether the June Decision had any legal effect if the second respondent was not notified of that Decision in accordance with the form in Appendix 9 to the Scheme.[40] For present purposes, it is not necessary to decide that point. I have proceeded on the assumption that the June Decision was, in fact, a grant of approval for the Development Application pursuant to the TPS. As I explain below, that decision was not invalid on any of the bases advanced by the applicant.

42 One final matter should be addressed. Counsel for the Shire submitted that the June Decision constituted a 'conditional approval' of the proposed development, in that the approval given by the Council on 29 June 2015 was conditional upon referral of the development application to MRWA. He submitted that once MRWA gave its approval to the proposed development, the Shire became the sole determining authority (for approval under the TPS and the MRS), and that at that point, the Council's conditional approval became operative for the purposes of the TPS. He submitted that when MRWA gave its approval, 'there was a deemed approval ... pursuant to cl 26 of the [MRS]'.[41] He also submitted that by the time that that occurred, the Development Application that the Council had approved did not reflect what MRWA had agreed to, so it was necessary to deal with a revised application for development approval, which the Council did at the November 2015 meeting.[42]

43 I am unable to agree that the June Decision constituted a conditional approval of the Development Application, although (as I explain below) I agree that the Council dealt with an amended Development Application at the November 2015 meeting. Nothing in the evidence before the Court suggests that the June Decision was conditional on its referral to any other entity. The June Decision was not expressed as conditional. In practical terms, it is apparent that a development will be unable to proceed without approval under both the MRS and the TPS. However, nothing in the PD Act or in the terms of the TPS or MRS suggests that approval by a local authority under the TPS is in any way subject to, or conditional upon, the grant of approval for the same development under the MRS. Further, nothing in the PD Act, or the TPS, provides support for the conclusion that an approval under the TPS cannot be given independently of an approval under the MRS (in those cases where the approval of the WAPC under the MRS is required).

The Development Application is referred to the WAPC

44 On 7 July 2015, a Senior Statutory Planner from the Shire wrote to the WAPC and advised that the Council had received the Development Application, and had resolved to support that Application, subject to conditions. However, it was noted that MRWA objected to the proposed development because of the proposed road widening of the South Western Highway, and the Shire was not certain of the status of that widening request. Accordingly, the Planner advised that:[43]

In accordance with Schedule 1b of the Planning Instrument of Delegation, in the event where the recommendation provided by a public authority is not acceptable to the local government the application, together with the recommendations provided by all public authorities consulted and the reasons why the recommendation is not acceptable to the Local Government shall be referred immediately to the WAPC for determination. [sic]

45 I note that while the Planner purported to refer the Development Application to the WAPC, for it to determine whether approval should be granted pursuant to the MRS, there is no evidence that the Planner's letter was accompanied by a copy of an application for approval under the MRS.

46 Mr van der Linde deposed that before any response was received from the WAPC, the Shire received a 'new application' dated 20 July 2015 for the proposed development of 'Shop and associated parking and signage' in respect of the Land.[44] A copy of that application was in evidence.[45] It was an 'Application for Approval to Commence Development', which was set out on a document described as 'Metropolitan Region Scheme Form 1'. At the top of the form appear the words 'Council is requested to forward the original to the Department of Planning only when the approval of the Western Australian Planning Commission is required'.

47 There was no suggestion in the affidavits before the Court that the proposed development the subject of this application was any different from the proposed development the subject of the Development Application.

48 The inference which can be drawn from the evidence is that the need to submit an application for approval of the development pursuant to the MRS was overlooked when the Development Application was submitted to the Shire in March 2015, but was identified at some stage after the proposed development was referred to the WAPC for its consideration. Having regard to the requirements of the MRS to which I referred at [31], it is apparent that the application dated 20 July 2015, which Mr van der Linde described as a 'new' application, was an application for planning approval for the development of the Land for a supermarket, pursuant to the MRS. Because the Council did not agree with MRWA's views in respect of the proposed development, the Instrument of Delegation required that the WAPC determine whether approval should be given to that development under the MRS.

49 For convenience, I will therefore refer to the 20 July 2015 application as the MRS Application.

Further consultation with MRWA in relation to the Development Application

50 At some stage after the submission of the MRS Application, the firm Rowe Group also became involved in acting for the second respondent in the carriage of the MRS Application. That can be inferred from the fact that on 10 September 2015, the WAPC wrote to the Rowe Group, referring to its 'application for approval to commence development dated 1 May 2015' in respect of the Land, 'which was received on 21 July 2015'. (The reference to the application dated 1 May 2015 appears to be an error, as the letter otherwise clearly refers to the MRS Application.)

51 The WAPC's letter to Rowe Group indicated that assessment of the proposed development had identified an issue which had not yet been resolved, and which required 'further discussion between the proponent and Main Roads WA to resolve issues associated with future road widening on South Western Highway'. The letter requested that the applicant agree to an extension of the time within which the WAPC was permitted to deal with an application for development approval under the MRS. Agreement to that extension was clearly given because on 14 September 2015, the WAPC advised the Shire that it had received agreement to extend the period for consideration of the application.[46]

Amendment of the plans for the proposed development

52 Discussions between MRWA and the firms acting on behalf of the second respondent then occurred. It is apparent that following those discussions, the second respondent amended the plans for its proposed development on the Land. That much is clear from an email dated 30 October 2015, from an officer of MRWA to Hindley and Associates, which was in evidence. The MRWA officer advised as follows: [47]

Many thanks for providing a revised Farmer Jacks proposal for Byford based on a new road design for South Western Highway which now incorporate a north bound 80m left turn slip lane to Pitman Way.

The revised design for the Farmer Jacks development application has set aside sufficient land for the ultimate design of SWH.

53 ('SWH' appears to be a reference to South Western Highway.)

54 As a result of the amendment of the plans for the development, which it is apparent were made shortly before that email was sent, MRWA's attitude to the proposed development changed, so that from about 30 October 2015 it was not opposed to the proposed development on the Land.

55 Before dealing with the evidence concerning the November Decision, it is appropriate to mention a significant legislative development which had taken effect prior to the November Decision, namely the commencement of the substantive provisions of the 2015 PD Regulations on 19 October 2015.

56 The 2015 PD Regulations apply to all local planning schemes, and thus to the TPS.[48]

57 Schedule 2 to the 2015 PD Regulations contains 'deemed provisions' which from 19 October 2015 applied to all local planning schemes, whether or not those deemed provisions were expressly incorporated into the local planning scheme text.[49] Accordingly, from 19 October 2015, the deemed provisions in sch 2 to the 2015 PD Regulations formed part of the TPS. If those 'deemed provisions' are inconsistent with another provision of the local planning scheme, the 'deemed provision' prevails and the inconsistent provision of the local planning scheme is of no effect.[50]

58 The 'deemed provisions' of a local planning scheme set out in sch 2 to the 2015 PD Regulations included provisions dealing with applications for development approval. Part 8 of sch 2 to the 2015 PD Regulations outlines the form of the application for development approval, the material required to accompany an application for development approval, and the advertisement of development applications (when required).

59 Part 9 of the 'deemed provisions' set out in sch 2 to the 2015 PD Regulations sets out the procedure for dealing with applications for development approval.

60 The 'deemed provisions' provide that a local government may determine an application for development approval by granting development approval with or without conditions, or refusing to grant development approval.[51] As soon as practicable after determining an application for development approval, the local government is required to give the applicant written notice of the determination in the form set out in pt 11 of sch 2 to the 2015 PD Regulations (although minor variations are permitted to the form).[52] The determination has effect on the day on which the notice of determination is given to the applicant.[53]

61 I turn to the evidence in relation to the November 2015 Decision. There was no evidence to suggest that the WAPC made any decision in respect of the MRS Application. There was evidence, however, that on 23 November 2015 the Council again considered the development the subject of the Development Application.

62 The minutes of the meeting of 23 November 2015 were in evidence. They indicate that the Council was considering an application by 'Rowe Group Planning Design Delivery' on behalf of the second respondent, and that the application had a 'Date of Receipt' of 30 October 2015.[54]

63 Further, the Minutes record that the November Decision was:

1. That Council approves the amended application (incorporating the required road widening) from the Rowe Group Planning Design Delivery on behalf of the landowner ... to develop a Shop at [the Land] subject to the following conditions:

64 Considered in isolation, those aspects of the evidence provide support for the conclusion that what was before the Council on 23 November 2015 was the MRS Application.

65 In addition, Mr van der Linde deposed that the '20 July 2015 Application' that is, the MRS Application 'was considered and determined by the Council at its [meeting] of 23 November 2015'.[55] The basis for that statement is not set out. I infer that that statement is Mr van der Linde's understanding of the position. Viewed in the context of Mr van der Linde's other evidence, especially his evidence noted at [80], that statement cannot be understood as setting out the totality of what was determined by the Council in the November Decision.

66 Other evidence suggests that the November Decision was also a decision by the Council to approve an amended Development Application, pursuant to the TPS.

67 The evidence indicates that the matters considered by the Council in reaching the November Decision included the Development Application itself, the plans for the development, the amended plans, the June Decision (and, by inference, the first Officers' Report) and the matters set out in an officers' report which is referred to in the Council's minutes for the 23 November 2015 meeting (the second Officers' Report).

The purpose of this report is to consider an amended development application (incorporating a minor road widening) for a Shop on [the Land].

The proposal is presented to Council as Shire officers do not have delegated authority to determine applications to amend an approved application if such approval was granted by Council. (emphasis added)

69 The second Officers' Report referred to the 'Approved Development' to develop a supermarket. Under the heading 'Relevant Previous Decisions of Council' the report referred to the June Decision, which it described as 'Council resolved to Approve the Shop subject to conditions'.

70 The second Officers' Report indicated that the 'Proposed Amendment' was as follows:

In order to comply with the requirements imposed by Main Roads Western Australia (MRWA) for the widening of the South Western Highway, the footprint of the proposed development has been reduced. ...

71 That part of the evidence, considered in isolation, suggests that what was before the Council was an application under the TPS to grant approval to the amendment the second respondent sought to make to the Development Application. Even before the commencement of the 2015 PD Regulations, the Council had power to amend a planning approval, prior to the commencement of the development the subject of the planning approval, on the application of a land owner.[56] Further, under the deemed provisions introduced into the TPS by the 2015 PD Regulations, it was open to an owner of land to apply for the Council to approve an application 'to amend an aspect of the development approved which, if amended, would not substantially change the development approved'.[57] (An application of that kind is to be made and dealt with as if it were an application for development approval,[58] and the local government may determine such an application by approving it with or without conditions, or refusing the application.[59])

72 However, other evidence is inconsistent with that conclusion. On 1 December 2015, the Shire sent Hindley and Associates a letter enclosing a copy of the November Decision[60] which was set out in the form of 'Form 2 Planning Approval Town Planning Scheme No 2'. The form indicated that the 'Approval Date' was 23 November 2015. The Council's decision was noted as:

Application for approval to commence development as per application form dated 18 March 2015 and accompanying plans is APPROVED under the above authority subject to the following conditions.

73 That document indicates that what was approved by Council on 23 November 2015 was the application made by Hindley and Associates on 18 March 2015, and the accompanying plans (which by then had been amended). That evidence suggests that the November Decision was in fact a decision to grant approval to the entirety of the Development Application, as amended, pursuant to the TPS.

74 The applicant's case was that what was before the Council on 23 November 2015, in so far as it concerned approval under the TPS, was merely an application to approve the amendment which had been made to the Development Application, and that the November Decision was thus a decision to approve only that amendment. Counsel for the applicant submitted that the proper conclusion from the evidence was that the June decision was the operative decision to grant approval for the Development Application, and the November Decision simply approved the amendment which had been made to the Development Application. He submitted that that was apparent from the fact that the conditions of the approval remained unchanged.[61]

75 I am unable to accept that submission. The other evidence to which I have referred suggests that the November Decision was not confined solely to the approval of the amendment made to the plans for the development. In my view, the evidence as a whole supports the conclusion that what was considered by the Council, and what was the subject of the November Decision, was an application for approval, pursuant to the TPS, of the entirety of the Development Application, in its amended form. Approval of that amended Development Application would also be deemed to be an approval for the proposed development, pursuant to the MRS. I have reached that view for the following reasons.

76 First, the Minutes of the November meeting, and the content of the second Officers' Report which is set out in those minutes, together with the Notice of the November Decision which was issued by the Council, suggest that what was considered, and approved, by the Council was an amended Development Application, and not merely the particular amendment which had been made to the Development Application. The second Officers' Report traversed much of the same material that was considered in the first Officers' Report, and supplemented that material with information concerning further developments in the interim. By way of example, under the heading 'Community / Stakeholder Consultation', the report noted that the 'amended application was referred to MRWA for comment. MRWA advised that on 30 October 2015 that they were satisfied with the plans'.[62] The second Officers' Report then referred to 'Community Consultation' and essentially repeated the same observations which appeared in the first Officers' Report.

77 Secondly, all of the conditions which had previously been approved by the Council, in respect of the Development Application, were repeated in the November Decision. Had it been the case that the Council was only determining whether to approve the amendment made to the plans, it is difficult to see why all of those conditions would have been required in respect of the amendment.

78 Thirdly, that conclusion is consistent with the surrounding factual context. Following the amendment of the plans for the proposed development (in October 2015), and in view of the fact that the MRWA was not opposed to the development in view of that amendment, it was no longer necessary for the MRS Application to be determined by the WAPC. Instead, the MRS Application was, from that point, able to be approved by the Shire as the responsible authority pursuant to power delegated to it by the WAPC. As I have already noted, the evidence supports the conclusion that the WAPC did not make a determination of the MRS Application. Mr van der Linde's evidence was that: [63]

the Shire ... does not have any record of any determination by the WAPC of the 16 March 2015 Application. I have made enquiry with the WAPC however, and to the best of my knowledge, information and belief, the WAPC did not make a determination under the MRS in respect of the 16 March 2015 Application.

79 If it was the case that the approval sought from the Council on 23 November 2015 was also intended to be a deemed approval for the proposed development under the MRS, then it would appear that the Council would need to approve the Development Application, as amended, in its entirety. There having been no prior approval given to the development under the MRS, I do not see how it would have been adequate for the Council to merely approve the particular amendment made to the plans for the proposed development, rather than the development as a whole, if that decision was to constitute a grant of approval for the development under the MRS.

80 Finally, Mr van der Linde deposed that: [64]

The approval of the 16 March 2015 Application given at the 29 June 2015 [Council meeting] for the purpose of the Shire's TPS2 has been overtaken by the approval of the 20 July 2015 Application at the [Council meeting] of 23 November 2015.

81 That evidence clearly is not determinative of the legal status of the November Decision. But it is relevant because Mr van der Linde was the Acting Director, Planning, at the Shire when the Development Application was received and considered by the Council. He had the ultimate responsibility for the Officers' Reports that were presented to the Council at its meetings on 29 June 2015 and 23 November 2015. Accordingly, Mr van der Linde's evidence is of significance because it reflects what was understood by the Shire's most senior planning officer about what was being put before the Council, and determined, at those meetings.

82 In my view, the November Decision is therefore properly characterised as a fresh decision with respect to the Development Application, in its amended form, pursuant to the TPS. I note that it is open to administrative decision makers to re-exercise statutory powers in some circumstances.[65] Whether it is open to a decision maker to do so will depend on whether the statute pursuant to which the decision maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen.[66] In the circumstances of this case where the development had not commenced, where the Council had not (apparently) issued a notice of the June Decision, where the TPS permitted an application for approval of an amendment of a development application which was to be treated as if it were an application for development approval, and where the TPS did not prohibit an applicant from making a fresh application for approval of an amended development application (in terms similar to an application which had been previously approved) I do not immediately see any impediment to the conclusion that it was open to the Council to approve the Development Application, as amended, and in its entirety, on 23 November 2015, pursuant to the TPS.

83 Accordingly, in my view, the November Decision superseded the June Decision and was the operative grant of approval for the Development Application (as amended) under the TPS (as well as under the MRS).

4. The grounds for the relief sought, and an overview of the applicant's contentions

84 The applicant's application for judicial review seeks a writ of certiorari to quash the June Decision and the November Decision, and the grant of a declaration that clauses 5.18.6.2 and 5.18.6.3 of the TPS are invalid.

85 The grounds for that application were described in the application for judicial review as follows:

The grounds for the writ of certiorari are:

The Respondent erred in law by:

1. Impermissibly treating the [Structure Plan] as altering the zoning of the [Land] from the zoning as it appears in the [TPS] in circumstances where the Structure Plan could not as a matter of law have altered the zoning as found within the [TPS]; and
2. As a result granted a development approval that was not able to be approved under the [TPS].

1. Clauses 5.18.6.2 and 5.18.6.3 of the [TPS] seek to give effect to the Structure Plan as if it were the Scheme Map, without having been the subject of the processes for a Scheme Amendment required by the Town Planning Regulations 1967 and the Planning and Development (Local Planning Scheme) Regulations 2015.

86 The Applicant's contentions in support of these grounds of review were, in summary, as follows.

87 First, counsel for the applicant submitted that the Council erred in making the June Decision because the use of the Land for a supermarket was not permitted by the TPS. (The November Decision, on the applicant's case, merely amended the approval given by the June Decision, so as to approve the amendment to the plans for the development, to facilitate the widening of the South Western Highway in the future.)

88 Secondly, counsel for the applicant submitted that the Council reached the June Decision by erroneously treating the BTC Structure Plan as altering the zoning of the Land under the TPS, because the BTC Structure Plan classified the Land as 'Town Centre' and the TPS permitted land zoned 'Town Centre' to be used as a 'Shop'.

89 Thirdly, counsel for the applicant submitted that to the extent that the TPS purported to permit the BTC Structure Plan to alter the zoning of the Land, those clauses in the TPS (namely clauses 5.6.18.2 and 5.6.18.3) were invalid.

90 The grant of a writ of certiorari enables the quashing of an impugned decision upon one or more of a number of distinct established grounds, including jurisdictional error.[67]

91 Although not couched expressly in the language of jurisdictional error, I have understood the grounds for the application for judicial review to contend that the Council exceeded its authority or powers, and thus that it fell into jurisdictional error, because it made an error of law which caused it to ask itself a wrong question (namely, how the Land was 'zoned' under, or by virtue of, the BTC Structure Plan) or to reach a mistaken conclusion (namely that by virtue of the BTC Structure Plan, when read with the provisions of the TPS, the Land was to be treated as zoned 'Town Centre,' as opposed to 'Urban Development') which infected its exercise or purported exercise of the power to approve the Development Application.[68]

5. Why the applicant's contentions as to the invalidity of the June Decision must be rejected

92 Although I have formed the view that the November Decision was the operative decision in respect of the approval for the development of the Land under the TPS, the focus of the applicant's case was on the June Decision, and it is therefore convenient to begin by explaining why it is that the June Decision is not invalid.

How the TPS deals with land zoned 'Urban Development' and Structure Plans

93 Before turning to outline the applicant's case, it is necessary to briefly set out how the TPS deals with land which is zoned for 'Urban Development' and how the TPS contemplates that structure plans will be used in determining the development of such land. The TPS provides that the purpose of the Urban Development zone is:[69]

to provide for the orderly planning of large areas of land in a locally integrated manner and within a regional context, whilst retaining flexibility to review planning with changing circumstances. The zone will allow for the following:

...

(c) Provision of retail, commercial, industrial and mixed use facilities to service the needs of residents within the communities, and integration of these facilities with social and recreational service, so as to maximise convenience;

(d) Provision of retail, commercial, business park and industrial facilities to provide local employment opportunities; ... .

94 Amongst other things, the above objectives are to be facilitated by the '[e]stablishment of Structure Plans to ensure that development takes place in conformity with those Plans'.[70] The TPS recognises that Structure Plans may either be proposed by proponents of development, or by the local government.[71] In either case, they are to be approved by the WAPC.[72]

95 The TPS provides that the Shire requires a Structure Plan for a Development Area, or for any part thereof, before approving development of land within the Development Area.[73] Development Areas are described in Appendix 15 to the TPS.[74] The Land is located within the Byford Development Area. A District Structure Plan for the Byford Development Area was adopted by the Council of the Shire on 22 August 2005.[75] The District Structure Plan map denoted the Land as part of the 'Town Centre' precinct.

96 The TPS also provides that a 'detailed Structure Plan' is to be prepared in accordance with cl 5.18.2 of the TPS for each precinct within the Byford Development Area.[76] The BTC Structure Plan is the detailed Structure Plan which has been adopted by the Shire for the Town Centre within the Byford Development Area. (For completeness, I note that r 79 of the 2015 PD Regulations continued the BTC Structure Plan in force as if it were a structure plan made under the PD Act in accordance with the 2015 PD Regulations.)

97 The TPS provides that where a Structure Plan exists, the development of land is to generally be in accordance with that Plan and any associated provisions set out in Appendix 15 to the TPS.[77]

98 As I have already observed, the Zoning Table indicates that the use of land which is zoned 'Urban Development' for a 'Shop' is cross referenced (by a hash) to cl 5.18.6.3 of the TPS.

5.18.6.2 Subject to clause 5.18.6.5, if a Structure Plan imposes a classification on the land included in it by reference to reserves, zones or Residential Planning Codes then:

(a) the provisions of the Structure Plan apply to the land within the area as if its provisions were incorporated into the Scheme [TPS] and it is binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and

(b) provisions in the Scheme applicable to land in those classifications under the Scheme apply to the Development Area.

5.18.6.3 Without limiting the generality of clause 5.18.6.2, under a Structure Plan:

(a) in the areas designated as zones, the permissibility of uses is to be the same as set out in the Zoning Table as if those areas were zones under the Scheme having the same designation; [and]

...

(c) the planning approval procedures including the procedures for the approval of uses and developments under the Scheme are to apply as if the land were correspondingly zoned or reserved under the Scheme;

...

5.18.6.5 If a provision of a Structure Plan which imposes a classification on the land included in it by reference to reserves, zones or Residential Planning Codes is inconsistent with a provision of the Scheme, then the provision of the Scheme prevails to the extent of any inconsistency.

100 Further, I note that cl 5.18.7.1 of the TPS provides:

... no new development or use of land shall be commenced or carried out within the Urban Development zone until a Structure Plan has been approved for the relevant part of the zone.

101 I turn, next, to the terms of the BTC Structure Plan. A copy of the BTC Structure Plan was in evidence.[78] Clause 1.9.1 of the BTC Structure Plan provides that where the BTC Structure Plan imposes a classification on land which is the same as a zone or reserve of the TPS, development plans will be assessed pursuant to the requirements of the TPS and the BTC Structure Plan (amongst others). Clause 1.9.1 also notes that 'where there is any inconsistency between the provisions of the [TPS] and those of the [BTC Structure Plan]..., the provisions of the [TPS] prevail to the extent of that inconsistency'.

102 The BTC Structure Plan identifies the Land as 'Town Centre' and 'Town Centre (Retail Core)'. The Town Centre (Retail Core) area is described as 'the priority area for retail and commercial development'.[79] 'Town Centre' is also a zone under the TPS.

103 The thrust of the applicant's case in relation to the June Decision was that the BTC Structure Plan sought 'to zone the [Land] without adhering to the requirements for amending a Town Planning Scheme within the [PD Act] and the Town Planning Regulations 1967 (WA)'[80] and that the Council relied on that re-zoning to reach the June Decision to approve the Development Application. Counsel for the applicant submitted that the BTC Structure Plan sought to re-zone the Land as if the BTC Structure Plan had the same force and effect as a provision of the TPS, but that the BTC Structure Plan did not form part of the TPS and did not have legal force as a zoning instrument.[81] It was submitted that because the BTC Structure Plan had not been approved as a scheme amendment, and did not form part of the TPS, the BTC Structure Plan constituted an 'attempt to zone the [Land] in the absence of a scheme amendment' and was therefore invalid.[82]

104 Counsel for the applicant submitted that the process for the amendment of a local planning scheme, which was mandated by the PD Act and the Town Planning Regulations 1967 (WA) (which were in force when the BTC Structure Plan was adopted), had not been followed.[83] Section 75 of the PD Act permits a local government to amend a local planning scheme. That can be done by the local government preparing an amendment, which is then approved by the Minister and published in the Government Gazette.[84] The PD Act contains a number of requirements for the amendment of a local planning scheme, including referral of the proposal to amend the scheme to the Environmental Protection Authority,[85] advertisement of a proposed amendment,[86] approval of the proposed amendment by the responsible Minister,[87] and publication of the amended scheme in the Government Gazette, at which point the amendment 'has full force and effect as if it were enacted by this Act'.[88] It was not in dispute that those steps were not followed in this case.

105 Counsel for the applicant submitted that in so far as the TPS permitted its amendment by a structure plan, the TPS was invalid. Counsel for the applicant submitted that the 'delegation of zoning powers to the Structure Plan is an amendment to [the TPS]. Clauses 5.18.6.2 and 5.18.6.3 of [the TPS] are invalid for failing to comply with the mandatory procedure prescribed by Part 5 of the [PD] Act for amending a scheme'.[89]

106 The applicant's case that the June Decision was invalid therefore rested on three planks:

(i) The BTC Structure Plan amended the TPS to alter the zoning of the Land from 'Urban Development' to 'Town Centre';

(ii) A local planning scheme cannot be validly amended by the provisions of a structure plan (rather than by compliance with the requirements of the PD Act for the amendment of a local planning scheme) and to the extent that cl 5.18.6.2 and cl 5.18.6.3 purported to permit the TPS to be amended by the BTC Structure Plan, those provisions were invalid;

(iii) When it made the June Decision, the Council treated the BTC Structure Plan as amending the TPS.

107 The first and third planks of the applicant's case must be rejected, for the reasons which follow. It is unnecessary to decide the question at the heart of the second plank of the applicant's case.

The applicant's contention that the BTC Structure Plan amended the TPS to alter the zoning of the Land from 'Urban Development' to 'Town Centre'

108 The applicant's contention that the BTC Structure Plan amended the TPS depended upon acceptance of the following propositions:

(a) The TPS prohibited approval of the use of the Land for a Shop (whereas the BTC Structure Plan treated the Land as if it were zoned 'Town Centre' and if the Land were zoned 'Town Centre' its use for a shop would be a permitted use under the TPS);

(b) Clauses 5.18.6.2 and 5.18.6.3 of the TPS purported to permit a structure plan to amend the TPS;

(c) A local planning scheme cannot be validly amended otherwise than by the amendment process set out in the PD Act and the applicable regulations (which, as at June 2015, were the TP Regulations).

109 Propositions (a) and (b) must be rejected. It is unnecessary to consider the correctness of proposition (c).

(a) The applicant's contention that the TPS prohibits approval of the use of the Land for a Shop

110 The applicant's contention that the TPS prohibits approval of the use of the Land for a Shop rested on what it says is the proper construction of the TPS.

111 Land within the Scheme Area is zoned for broadly defined uses (for example, Residential, Commercial, Rural, Town Centre, and Urban Development). The Land is zoned 'Urban Development' under the TPS.

112 The TPS contains a Zoning Table (Table 1) which, subject to other provisions of the TPS itself, sets out particular uses of land which are permitted in the various zones within the Scheme Area.

113 Clause 3.2 of the TPS explains how the Zoning Table is to be read. It provides:

3.2.1 Subject to the provisions of the Scheme, the several uses permitted in the Scheme area in the various zones, are indicated in the Zoning Table by cross reference between the list of the use classes on the left hand side of the Zoning Table and the list of zones at the top of the Zoning Table.

3.2.2 The symbols used in the cross reference in the Zoning Table have the following meanings:

'P' means that the use is permitted provided it complies with the relevant standards and requirements laid down in the Scheme and all conditions (if any) imposed by the Council in granting planning consent;

'AA' means that the Council may, at its discretion, permit the use;

'SA' means that the Council may, at its discretion, permit the use after notice of the application has been given in accordance with Clause 6.3; and

'IP' means a use that is not permitted unless such use is incidental to the predominant use as decided and approved by the Council.

3.2.3 Where no symbol appears in the cross reference of a use class against a zone in the Zoning Table a use of that class is not permitted in that zone.

3.2.4 Where in the Zoning Table a particular use is mentioned it is deemed to be excluded from any other use class which by its more general terms might otherwise include such particular use.

3.2.5 If the use of land for a particular purpose is not specifically mentioned in the zoning table and cannot reasonably be determined as falling within the interpretation of one of the use categories the Council may:

(a) determine that the use is not consistent with the objectives and purpose of the particular zone and is therefore not permitted; or

(b) determine that the proposed use may be consistent with the objectives and purpose of the zone and thereafter follow the advertising procedures of Clause 6.3 in considering an application for planning consent.

114 In so far as it concerns land zoned Urban Development, the Zoning Table indicates that no uses of land have a 'P' symbol, while only two uses of land for cottage industries and for home business have a symbol 'SA'. All other use descriptions in the Urban Development zone (including 'Shop') are cross referenced with a single hash. The legend to the Zoning Table indicates that the single hash means 'refer to cl 5.18.6.3'. Clause 5.18.6.3 deals with the creation of Structure Plans, as discussed above at [99].

115 Accordingly, pursuant to the Zoning Table, the use class 'Shop' (which would cover the use of the Land for a supermarket) is neither permitted as of course ('P'), able to be permitted in Council's discretion ('AA'), able to be permitted in Council's discretion after notice of the application has been given ('SA'), or not permitted unless the use is incidental to the predominant use of the land as approved by Council ('IP'). In consequence, a use of the Land as a Shop is not expressly 'permitted' in the Zoning Table.[90] (I digress to observe that had the Land been zoned 'Town Centre' under the TPS, the use class 'Shop' would have been expressly permitted.[91])

116 The word 'permitted' is not defined in the TPS. Words and expressions used in the TPS are to be given their normal or common meaning unless a different meaning is given to them in the TPS, the PD Act or under the Residential Planning Codes.[92] The word 'permitted' is a derivation of the verb 'permit' which means to allow a person to do something or to let something be done or occur, or to grant permission or to allow liberty to do something.[93] Accordingly, use of the Land for a Shop is not a use which is allowed under cl 3.2.1 of the TPS. However, cl 3.2.1 of the TPS is 'subject to the provisions of the Scheme'. I consider the operation of cl 3.2.1 later in these reasons.

117 Counsel for the applicant relied on two arguments in support of the proposition that the TPS prohibits approval of the use of the land for a Shop.

118 The first argument concerned the proper construction of cl 3.2.3 of the TPS. Counsel for the applicant submitted that the word 'symbol' in cl 3.2 did not include a hash. In addition, he relied on the fact that cl 3.2.3 provides that a use class for which no symbol appears is 'not permitted' in the zone in question, and submitted that that meant that it was not open to the Council to permit a use for any such purpose.

119 I am unable to accept either of those arguments.

The applicant's case on the construction of cl 3.2.3 of the TPS whether a hash in the zoning table is a 'symbol'

120 Initially, counsel for the applicant accepted that the word 'symbol' in cl 3.2 of the TPS referred to any of the letters featured in the Zoning Table, and in addition, also referred to the hash which appears in the Zoning Table, especially in relation to land zoned 'Urban Development'. However, on the second day of the hearing of this application, counsel for the applicant sought to depart from that position. He submitted that the word 'symbol' in cl 3.2 referred only to the letters set out in cl 3.2.2, so that a hash was not a 'symbol' for the purposes of the TPS.[94] Instead, he submitted that the hashes (and asterisks) which appeared in the Zoning Table were not symbols, but simply a means by which a cross-reference was made between the zone referred to in the Zoning Table, and the other provisions of the TPS.[95]

121 The upshot of that argument was that the use of a hash in the Zoning Table in relation to land zoned 'Urban Development' was to be understood as amounting to no symbol at all. On that basis, none of the use classes for which the hash was used were permitted uses for land zoned 'Urban Development' and moreover, those use classes were not permitted in land zoned 'Urban Development'.[96]

122 Counsel for the applicant submitted that the consequence of that construction of the word 'symbol' was that the only permitted uses of land zoned 'Urban Development' were 'home business' and 'cottage industry'. He submitted that on the proper construction of cl 3.2.3 of the TPS, no other use was permitted for land zoned 'Urban Development'.[97]

123 In my view, the word 'symbol' in cl 3.2 encompasses a hash. I have reached that view for the following reasons.

124 First, it is a trite proposition that as the TPS is subsidiary legislation,[98] the ordinary rules of statutory construction apply. Having said that, it has been recognised that planning instruments of this kind are not drafted with the precision of legislation and must be approached on the basis that they are intended for use by people who are not legally trained.[99] For present purposes, the proper construction of cl 3.2.3 requires attention to the meaning of the words used, which is informed by the legislative context in which those words appear. I bear in mind that the words used in the TPS have their ordinary meaning unless they are given a specific meaning in the PD Act, in Appendix 1 to the TPS, or in the Residential Design Codes.

125 The word 'symbol' is not defined in Appendix 1 to the TPS. The starting point in determining its meaning is therefore the ordinary meaning of the word 'symbol'. A 'symbol' is 'something used or regarded as standing for something else' and 'a letter, figure, or other character or mark, or a combination of letters or the like, used to represent something'.[100] On its ordinary meaning, the word 'symbol' includes a hash or other character or mark, as well as a letter or combination of letters.

126 Secondly, I am not persuaded that cl 3.2.2 constitutes a definition of the word 'symbol'. That clause does not purport to define the word 'symbol'. What it does is to explain the meaning of the various symbols there set out. The explanation for the meaning of hashes and asterisks in the Zoning Table is set out elsewhere (at the bottom of the Zoning Table). Although the opening words of cl 3.2.2 are consistent with the applicant's construction of the word 'symbol', they do not mandate that construction, and moreover, do not preclude a construction of the word 'symbol' which encompasses the use of a hash.

127 Thirdly, the phrase 'no symbol' which is used in cl 3.2.3 to my mind more comfortably describes the situation where the cross reference between a use class and a zone is simply a blank space, rather than a space which is filled with some other character or mark apart from 'P', 'AA', 'SA' or 'IP'. There are many instances where there is a blank space in the land use for a particular zone, for example, the 'Automotive Repairs' use for land zoned 'Commercial'. On the applicant's construction, the phrase 'no symbol' encompasses both a blank space, and the use of a character or mark other than 'P', 'AA', 'SA' or 'IP'. That strikes me as an incongruous outcome.

128 Fourthly, having regard to cl 3.2, the use of a 'symbol' in the Zoning Table is simply designed to convey, in a shorthand fashion, information about the uses of land which are permitted in the various land zones. That information can be conveyed both by the meanings of the letters set out in cl 3.2.2 and by the other provisions of the TPS to which the use of hashes and asterisks direct attention.

129 Fifthly, consideration of the broader context supports the conclusion that the word 'symbol' should be construed with its ordinary meaning, so as to include a hash. In particular, to construe the word 'symbol' as the applicant contends would rob cl 5.18.6.2 of its intended operation. Clause 5.18.6.2 (see [99] above) clearly envisages that structure plans will be prepared which will impose a classification on land within the Scheme Area by reference to reserves, zones or Residential Planning Codes. The effect of cl 5.18.6.5 is that if a structure plan imposes a classification on land by reference to a zone, and if that is inconsistent with a provision of the TPS (as the applicant contends), then the TPS will prevail to the extent of the inconsistency. If the use of a hash is treated as 'no symbol' for the purposes of cl 3.2 of the TPS (as the applicant contends), then the effect of cl 3.2.3 would be that the use of land zoned 'Urban Development' under the TPS for any of the use classes for which a hash appears would be 'not permitted'. However, a hash appears next to every land use for land in the urban development zone, apart from 'home business' and 'cottage industry'. The result of the applicant's construction would thus be that a structure plan which indicated that a use class other than 'home business' and 'cottage industry' was a permitted use for land in the Urban Development zone would be inconsistent with cl 3.2.3 of the TPS, and cl 3.2.3 would prevail. That would entirely defeat the clear objective of cl 5.18.6. Such a construction would also defeat the clear objective of the Urban Development zone, which (as cl 5.17 indicates) is to ensure that development of land zoned 'Urban Development' takes place in conformity with structure plans.

130 In my view, therefore, the preferable construction of the word 'symbol' in the TPS is that it means any letters, figures, characters or marks, including a hash.

131 The result of that construction is that cl 3.2.3 is not engaged by the use of a hash next to a use class for land zoned 'Urban Development'.

132 However, even if I am wrong in that conclusion, in my view the applicant's case fails because I do not accept the construction of cl 3.2.3 and cl 6.4 advanced by the applicant.

The proper construction of cl 3.2.3 and cl 6.4

133 Counsel for the applicant submitted that the TPS consisted of 'power' provisions and 'procedure' provisions. He submitted that cl 3.2 was a 'power' provision because it identified, by reference to the Zoning Table, what uses of land were permitted, and thereby empowered local authorities to deal with those uses in accordance with the 'symbols' appearing in cl 3.2.2. He submitted that the effect of cl 3.2.3 was that it was not open to the local authority to approve a use where there was no symbol adjacent to that use in the Zoning Table.[101] Consequently, he submitted that the only land uses permitted for land zoned 'Urban Development' were the two which were expressly permitted by the use of symbols referred to in cl 3.2.2, namely 'home business' and 'cottage industry'.[102] Counsel for the applicant submitted that cl 6.4.2 of the TPS was a procedural provision which did not give the Council any power to proceed to make a decision to permit a use of land which was not a permitted use under the zoning table.[103]

134 As at June 2015, in determining an application for planning consent, cl 6.4.2 of the TPS required that the Council 'shall have regard to' a variety of factors, as it considered appropriate. Those factors included the purpose for which the subject land was reserved, zoned or approved for use under the TPS, the provisions of the TPS and any Council policy affecting the land, the orderly and proper planning of the locality, and the preservation of the amenity of the locality.

135 I am unable to agree that cl 3.2.3 or cl 6.4 operate in the manner for which the applicant contends.

136 In my view, the source of the Council's power to approve or refuse an application for development approval lies in cl 6.4 of the TPS. Clause 6.4.3 expressly permits the Council to grant or refuse its consent. The manner in which that power is to be exercised is set out in cl 6.4.2 of the TPS. Nothing in cl 6.4, nor any other provision of the TPS, prohibits the Council from approving a development application to use land for a use outside a use class which is 'permitted' under cl 3.2 of the TPS. Nor, by the same token, is the Council obliged to approve every development application for a use of land which is 'permitted' under cl 3.2. If that were not so, it would be unnecessary to require the Council to do more, when considering a development application, than to consider the zoning of the land in question, and the use classes which are permitted uses under the Zoning Table. In contrast, cl 6.4.2 requires the Council to consider a range of matters relevant to a development, which go well beyond the purpose for which the land in question is zoned, and the provisions of the TPS affecting that land.

137 Of particular significance is the fact that under cl 6.4.2 the Council 'shall have regard to' the 'orderly and proper planning of the locality'.[104] In Marshall v Metropolitan Redevelopment Authority[105] I discussed the meaning of the phrase 'orderly and proper planning'. I will not repeat the entirety of that discussion here. I concluded that the phrase 'orderly and proper planning' conveys that the exercise of discretion within the planning context should be conducted in an orderly way that is, in a way which is disciplined, methodical, logical and systematic, and which is not haphazard or capricious. The exercise of discretion in the planning context should also be directed to identifying the 'proper' use of land that is, the suitable, appropriate, or apt or correct use of land. In order to do so, the decision maker will need to have regard to any applicable legislation, subsidiary legislation and planning schemes, and policy instruments. However, there is no reason in principle why planning legislation and instruments would be the only matters warranting consideration in determining what would constitute an 'orderly and proper' planning decision. The matters which warrant consideration in each case will be a question of fact to be determined having regard to the circumstances of the case. Furthermore, identifying what would constitute orderly planning will involve the exercise of a judgment about what is suitable, appropriate, apt or correct in each case. Such a judgment is an objective one.

138 Nothing in the PD Act or the TPS itself suggests that it would be in any way inconsistent with 'orderly and proper planning' to have regard to structure plans prepared and adopted by the Council, and approved by the WAPC, which set out the Council's plan for the manner in which the development of land zoned Urban Development should proceed, in an orderly fashion. The position is quite the contrary. In my view, the terms of cl 5.18 leave no doubt that structure plans would properly be considered in having due regard to the orderly and proper planning of the Scheme Area.

(b) The applicant's contention that cl 5.18.6.2 and cl 5.18.6.3 of the TPS purported to permit a structure plan to amend the TPS

139 Counsel for the applicant submitted that the BTC Structure Plan designated a particular area of Byford (where the Land is located) as 'Town Centre,' and that the intent of cl 5.18.6.3(a) of the TPS was that the permissibility of uses in that area would, as a result, be the same as those set out in the Zoning Table for 'Town Centre', as if the area were zoned under the TPS with that designation.[106] Counsel submitted that the fact that the BTC Structure Plan referred to the Land as being zoned as 'Town Centre' instead of 'Urban Development' confirmed that the BTC Structure Plan sought to rezone the Land.[107] The applicant's case was that in so far as a structure plan designated land by reference to a zone which was different from that reflected in the Zoning Table in the TPS, that structure plan would constitute an amendment to the TPS.[108]

140 I am unable to accept those submissions. Even if the applicant's construction of cl 3.2 and the Zoning Table is correct, cl 5.18.6.5 is a complete answer to the applicant's contention that the BTC Structure Plan amends the TPS by changing the zoning of the Land. Clause 5.18.6.5 (which is set out above at [99]) refers to precisely that situation. The clause provides that if a provision of a Structure Plan which imposes a classification on land included in it by reference to a zone is inconsistent with a provision of the TPS, then the TPS prevails to the extent of the inconsistency. In this case, even if the BTC Structure Plan purports to change the zoning of the Land from 'Urban Development' to 'Town Centre', cl 5.18.6.5 makes clear that the TPS provisions prevail.

141 Counsel for the applicant appeared to recognise that that was so. He accepted that the operation of cl 5.18.6.5 'may mean that there is no basis for the declaration' that cl 5.18.6.2 and cl 5.18.6.3 of the TPS are invalid.[109] In my view, the operation of cl 5.18.6.5 means that no question arises as to the invalidity of cl 5.18.6.2 and cl 5.18.6.3 of the TPS.

142 In those circumstances, it is unnecessary to consider the applicant's contention that a local planning scheme cannot be validly amended by a structure plan, rather than by compliance with the requirements of the PD Act and the Town Planning Regulations 1967 (WA).

(c) The applicant's contention that when the Council made the June Decision, it treated the BTC Structure Plan as amending the TPS

143 The applicant's case was that when the Council made the June Decision, it impermissibly treated the BTC Structure Plan as a zoning instrument, when it had not been the subject of the amendment process set out in the TPS.[110] Counsel for the applicant submitted that the Council relied on the fact that the BTC Structure Plan identified the Land as 'Town Centre' and applied that identification 'by looking at the permissible land use within the 'Town Centre' zone, by reference to the Zoning Table contained within the [TPS]'.[111] In that way, it was said, in making the June Decision, the Council 'applied the Structure Plan as if it effected the zoning of the [Land]'.[112]

144 I am unable to accept that submission because it is not supported by the evidence before the Court. The matters considered by the Council in reaching the June decision clearly included the Development Application itself, the plans for the proposed development, and the contents of the first Officers' Report which is referred to in the Council's minutes. The first Officers' Report set out the consultations which had been undertaken in relation to the proposed development (including with MRWA) and explained why the Development Application had not been referred for community consultation:

The Application was not referred to nearby landowners for their comment. The Land Use of 'Shop' is permitted within Town Centre zonings, and there is no mandatory requirement for community consultation. The proposed land use is consistent with the Byford Town Centre Local Structure Plan and does not generate sufficient planning concern to warrant advertising.

145 Nothing in that statement suggests that the Council regarded the proposed development as permitted under the TPS. Instead, it is clear that this part of the first Officers' Report concerned how the BTC Structure Plan classified the land.

146 The first Officers' Report then referred to the 'Statutory Environment', including the TPS and indicated:

The Site is zoned 'Urban Development under the [TPS] and 'Town Centre' under the Byford Town Centre Local Structure Plan. In terms of Table 1 of [the TPS], a 'Shop' is categorised as a 'P' use.

'P' means that the use is permitted provided it complies with the relevant standards and requirements laid down in the Scheme and all conditions (if any) imposed by the Council in granting planning consent.

Clause 5.18.1.2 of [the TPS] stipulates that where a Structure Plan exists, the development of land is to be generally consistent with the Structure Plan.

147 The first Officers' Report thus correctly identified the zoning of the Land under the TPS, as distinct from how the Land was classified under the BTC Structure Plan, as well as the objective in the TPS that land zoned 'Urban Development' be developed consistently with structure plans.

148 The first Officers' Report then set out the 'Planning Assessment' undertaken by the Shire's officers, which indicated:

The applicant has sufficiently demonstrated that the proposed development is consistent with [the TPS]. The proposed development is consistent with the Urban Development zoning, as a 'Shop'.

The applicant has sufficiently demonstrated that the proposed development is consistent with the [BTC Structure Plan]. ...

As demonstrated in this report, the proposed development is generally consistent with the objectives of the Planning Policies which apply to the site. ...

The subject sites have been noted through the [BTC Structure Plan] process as having the potential for this style of shop development, making the sites suitable for the proposed development. ...

The submission by Main Roads Western Australia raises a number of general concerns... . Due to the nature of these concerns and the Shire's inability to facilitate alleviation of Main Roads concerns particularly regarding a pending Metropolitan Region Scheme Amendment, the Shire is required to provide a recommendation to the Department of Planning as opposed to being the Determining Authority for the Application.

149 This analysis is, in my view, consistent with the requirements of cl 6.4.2 of the TPS. The officers assessed the Development Application by reference to the manner in which the Land was zoned under the TPS, but also had regard to the manner in which the Land was classified in the BTC Structure Plan. Having clearly formed the view that the BTC Structure Plan was a consideration to which the Council should have regard, it was appropriate as a matter of orderly and proper planning to have regard to the BTC Structure Plan in reaching a decision on the Development Application. Further, the officers also clearly assessed the Development Application by reference to applicable planning policies. In addition, the officers considered the views expressed in consultations with a relevant agency (MRWA) in relation to the Development Application.

150 The first Officers' Report then indicated that the Council had two options:

Option 1: Council may resolve to endorse a recommendation to the Department of Planning to approve the application.

...

Option 2: Council may resolve to refuse the application.

...

Option 1 is recommended.

151 The conclusion of the officers set out in the first Officers' Report was that:

The Shire officers are generally satisfied that the proposed development is consistent with the Planning Scheme and Planning Policy which relate to the site. Some variations have been sought to cater for servicing requirements for the development, however these are considered appropriate modifications in order to facilitate appropriate development of the subject sites.

152 It can be inferred that the Council had due regard to all of the matters discussed in the first Officers' Report.

153 Had the Council in fact treated the BTC Structure Plan as having amended the TPS so as to re-zone the Land to 'Town Centre', the use of the Land as a Shop would have been a 'P' use, and thus permitted under cl 3.2 of the TPS. In that circumstance, one would expect that the focus of the Council's deliberations would have been whether there was any compelling reason why approval should not be given, and otherwise whether any conditions or requirements should attach to its approval of the Development Application. The fact that the officers, and in turn the Council, considered that the Council had a discretion as to whether to grant the Development Application at all suggests that it was understood that use of the Land for a 'Shop' was not a 'P' use under the TPS. Rather, approval of the development of the Land for that use would depend on an exercise of the Council's discretion under cl 6.4 of the TPS, after the Council had due regard to all considerations it identified as relevant to the Development Application, including the BTC Structure Plan.

154 In my view, therefore, it cannot be said that when the Council made the June Decision, it treated the BTC Structure Plan as having amended the TPS, so that the Land was zoned 'Town Centre'.

A further reason warranting the refusal of certiorari in respect of the June Decision

155 For the reasons set out, the applicant has not established that the June Decision was infected by jurisdictional error so as to be invalid. No basis has therefore been made out for the grant of a writ of certiorari to quash the June Decision.

156 For completeness, it is appropriate to mention that even had I concluded that the June Decision was infected by jurisdictional error, I would not have granted certiorari to quash that decision. That is because of the view I have reached that the June Decision does not have any ongoing legal and practical effect (having been superseded by the November Decision). The Court will not grant certiorari in those circumstances.[113]

6. Why the applicant's contentions as to the invalidity of the November Decision must be rejected

157 As I have already observed, the applicant's case rested largely on the proposition that it was the June Decision that granted approval for the Development Application, while the November Decision merely approved the amendment of the plans for the proposed development. Most of the submissions advanced by the applicant in respect of the June Decision have no separate application to the November Decision. Instead, as I understood the way the applicant's case was advanced, it was that the November Decision would be rendered invalid or of no practical legal effect because the substantive approval for the Development Application had been invalidly granted by the June Decision. Given that I have not found that to be the case, it is appropriate to set out, briefly, why it is that the applicant has not established that the November Decision was infected by jurisdictional error. I have reached that view for the following reasons.

158 First, for the reasons outlined at [75] [82] above, the November Decision was reached by a fresh exercise of the Council's power to grant approval for the Development Application (which by that stage had been amended) pursuant to the TPS.

159 Secondly, by the time that the Development Application was reconsidered by the Council, there had been a significant change in the legislative framework for the grant of development approval. The TPS had been amended by the inclusion of the 'deemed provisions' set out in the 2015 PD Regulations (discussed at [57] [60] above). Counsel for the Shire submitted that the provisions of the 2015 PD Regulations applied when the Council made the November Decision.[114] I accept that submission.

160 The 'deemed provisions' which were incorporated into all local planning schemes from 19 October 2015 include cl 67, which is found within Part 9 of the 'deemed provisions', and which sets out the matters which must be considered by a local government in determining whether to grant development approval. Clause 67 provides:

In considering an application for development approval the local government is to have due regard to the following matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application

(a) the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

(b) the requirements of orderly and proper planning ...;

...

(h) any structure plan, activity centre plan or local development plan that relates to the development;

...

(n) the amenity of the locality including the following

(i) environmental impacts of the development;

(ii) the character of the locality;

(iii) social impacts of the development;

...

(zb) any other planning consideration the local government considers appropriate.

161 From 19 October 2015, therefore, a local government considering an application for development approval under a local planning scheme was required to act in accordance with cl 67 of the 2015 PD Regulations. Furthermore, reg 81 of the 2015 PD Regulations provides that:

a development application made but not determined under a local planning scheme before [19 October 2015] is to be taken to be a development application made under the local planning scheme as that scheme is continued under regulation 79 and is to be determined in accordance with the local planning scheme as so continued.

162 In other words, a development application made but not determined under the TPS before 19 October 2015 was required to be determined in accordance with the provisions of the TPS, including the 'deemed provisions' included in the TPS by the 2015 PD Regulations.

163 In addition, the 'deemed provisions' set out in sch 2 to the 2015 PD Regulations included provisions which addressed the effect of a structure plan. Clause 27(2) provides:

A decision-maker for an application for development approval or subdivision approval in an area that is covered by a structure plan that has been approved by the Commission is to have due regard to, but is not bound by, the structure plan when deciding the application.

164 Accordingly, the inclusion of the 'deemed provisions' in the TPS had the result that in considering applications for development approval, or applications to amend development approval, on or after 19 October 2015, the Shire was expressly required, by the terms of the TPS itself, to have regard to the terms of any relevant structure plan, including the BTC Structure Plan.

165 The consequence of that alteration in the legislative framework was that the status of structure plans, in relation to a development application, was put beyond doubt. It was made clear that in considering an application for development approval, the Council was required to 'have due regard to' a structure plan approved by the WAPC, but that it was not bound by a structure plan when deciding an application for development approval.[115] Further, it was expressly confirmed that a structure plan which related to the proposed development was one of the matters to which the Council was required to have due regard (to the extent that the Council considered it relevant) in considering an application for development approval.[116]

166 In my view, those provisions, in addition to the other indicia which I have already discussed, leave no room for doubt that a structure plan is not intended to amend the zoning of land within the Scheme Area, nor to amend a local planning scheme in any other way. Had the position been otherwise, it would not have been necessary, in the 2015 PD Regulations, to separately mandate consideration of a structure plan, over and above consideration of the local planning scheme itself.

167 Thirdly, the evidence supports the conclusion that the Council complied with the requirement in cl 67 of the 'deemed provisions' that it 'have due regard to' a range of considerations, including any relevant structure plan, in determining whether to grant approval for the Development Application.

168 There are divergent authorities about the content of a requirement for a decision maker to take into account relevant considerations when exercising a statutory power.[117] I discussed the content of a requirement to 'have regard to' planning considerations in a similar context in Marshall v Metropolitan Redevelopment Authority.[118] The content of the requirement on the Council to have 'due regard' to the matters in cl 67 of the deemed provisions was not the subject of submissions by counsel, and for present purposes, it is not necessary to reach any final conclusion about that issue. That is because it is apparent that whether or not the Council was required to give those considerations it considered to be relevant (including a relevant structure plan) 'active and positive', or 'proper, genuine and realistic' consideration, or some lesser degree of consideration, the Council did so.

169 That is illustrated by the following examples. The second Officers' Report which was before the Council on 23 November 2015 indicates that the way in which the Land was treated under the BTC Structure Plan was actively and genuinely considered. Under the heading 'Statutory Environment', the report noted:

The site is zoned 'Urban' under the Metropolitan Region Scheme

The Site is zoned 'Urban Development' under the [TPS] and 'Town Centre' under the [BTC Structure Plan]. In terms of Table 1 of [the TPS] a 'Shop' is categorised as a 'P' use.

170 Further, the assessment of the amended Development Application which was conducted by the Shire's Officers also included an active and genuine consideration of whether the proposed development was consistent with what was envisaged in the BTC Structure Plan:

The proposed amendment ... is considered to be a minor departure from the approved development. As part of the original application the applicant sufficiently demonstrated that the proposed development is consistent with the [TPS].

In addition the applicant sufficiently demonstrated that the proposed development is consistent with the [BTC Structure Plan]. ...

...

The subject sites have been noted through the structure plan process as having the potential for this style of shop ... .

171 Finally, the second Officers' Report advised that the following options were open to the Council:

Options and Implications

With regard to the determination of the application for planning approval under [the TPS], Council has the following options:

Option 1: Council may resolve to approve the application subject to conditions.

...

Option 2: Council may resolve to refuse the application.

...

Option 1 is recommended.

Conclusion

The Shire officers consider the amendment to be minor and does not materially depart from the original approval with regard to [the] vision of the [BTC Structure Plan].

172 The weight that the Council gave to the BTC Structure Plan was a matter for it. In the absence of any statutory indication of weight, it is generally for the decision maker and not the court to determine the appropriate weight to be given to a relevant consideration.[119]

173 Fourthly, it is apparent that when the Council considered the Development Application (as amended) at its meeting on 23 November 2015, it clearly did not regard the BTC Structure Plan as having amended the TPS. Had the Council treated the BTC Structure Plan as having amended the TPS, so as to change the zone for the Land to 'Town Centre', rather than 'Urban Development', the proposed use of the Land for a Shop would (as I noted at [115] above) have been a 'P' use in the Zoning Table. In that event, one would expect that the focus of the Council's deliberations would have been whether there was any compelling reason why approval should not be given and otherwise whether any conditions or requirements should attach to the approval for the amended Development Application. In contrast, the fact that the second Officers' Report analysed various considerations (including the BTC Structure Plan), which were thought to be relevant to whether the amended Development Application should be approved, and that the officers advised that it was open to the Council to either approve or reject the Development Application, clearly indicates that the Shire's officers were of the view that the Council had a discretion as to whether to approve the amended Development Application. It can be inferred that the Council accepted that advice and approached the amended Development Application on the basis that it had the discretion to determine whether the use of the Land for a Shop should be permitted.

174 As the applicant has not demonstrated that the November Decision was infected by jurisdictional error, no basis exists for the grant of a writ of certiorari to quash that decision.

175 As the applicant has not established any basis for the grant of a writ of certiorari to quash the June Decision or the November Decision, and as it is unnecessary to consider the validity of cl 5.18.6.2 and cl 5.18.6.3 of the TPS, so that no question arises as to whether a declaration of the invalidity of those provisions should be made, the application for judicial review should be dismissed.

CITATION : S & L LENZ PTY LTD -v- THE SHIRE OF SERPENTINE JARRAHDALE [2017] WASC 191 (S)

Costs - Application for special costs - Where matter unusually difficult or complex - Where second day of hearing involved discrete legal issues - Turns on own facts

(These reasons were delivered extemporaneously on 2 November 2017 and have been edited from the transcript.)

1 This is an application by the first respondent for a special costs order in respect of the costs of this matter.

2 These reasons should be read and understood in conjunction with the substantive reasons for decision I delivered in this matter in S & Lenz v The Shire of Serpentine Jarrahdale [2017] WASC 191.

3 The evidence relied upon by the first respondent in this application was set out in an affidavit of Alexandria Anne Bishop, together with annexures thereto, sworn 16 August 2017. In that affidavit, Ms Bishop included a draft bill of costs which had been prepared in respect of the first respondent's costs of the judicial review application.

4 I understood from the argument advanced today that the thrust of the special costs order sought by the first respondent is in the following terms. The first respondent seeks an order that the applicant pay the first respondent's costs of the application for judicial review to be assessed, if not agreed: (a) without regard to the upper limits of item 28 of the 2014 scale in respect of work done before 1 July 2016, and item 11 of the 2016 scale in respect of work done after 1 July 2016; (b) so that an allowance is made for the costs of preparation of the hearing on the second day under item 11A of the 2016 scale as if that day of hearing constituted a first, rather than second, day of hearing.

5 For the reasons which follow, I am satisfied that a special costs order should be made.

6 I dealt with the principles governing special costs orders in my decision in BendTech Group (A Firm) v Beek:[120]

[34] Ordinarily, the taxation of bills of costs charged by a legal practice is regulated by costs determinations made by the Legal Costs Committee established under the [Legal Profession Act 2008 (WA)]. However, the applicable limits under the scale of costs set out in such costs determinations are able to be raised or removed by the Court pursuant to the power in s 280(2) of the Act, which provides:

(2) ... if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following

(a) order the payment of costs above those fixed by the determination;

(b) fix higher limits of costs than those fixed in the determination;

(c) remove limits on costs fixed in the determination;

(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.

[35] The principles concerning special costs orders under s 280(2) of the Act are now well-established. They were set out by the Court of Appeal in Wainwright v Barrick Gold of Australia Ltd. In Crawley Investments Pty Ltd v Elman, those principles were summarised by Edelman J as follows:

The principles concerning special costs orders under s 280 of the Legal Profession Act were recently set out by the Court of Appeal in Wainwright v Barrick Gold of Australia Ltd. They can be summarised, from that decision unless otherwise indicated, as follows:

(i) The court must form an opinion which has two components. First, the court must determine that the amount of costs allowable in respect of a matter under a legal costs determination is inadequate. Second, the court must conclude that the inadequacy arises because of the "unusual difficulty, complexity or importance of the matter".

(ii) Having heard the matter and being familiar with the way in which the case was conducted and the issues which were litigated, the court is in a position to form the opinions required under the section as matters of impression rather than "detailed evaluation", "precision", "science" or "mathematics".

(iii) As to the first question (inadequacy) the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant costs determination. Until that threshold is crossed, the power will not ordinarily be exercised.

(iv) A conclusion that it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the Scale does not always require evidence of the costs actually incurred.

(v) As to the second question (the cause of the inadequacy being unusual difficulty, complexity or importance), the word 'unusual' qualifies only the 'difficulty' of the matter and not its complexity or importance. The word 'unusual' in this context means unusual having regard to what one might describe as the usual run of civil cases determined in the Supreme and District Courts. That essentially involves the making of a value judgment by the court, having regard to the court's experience of the particular case when compared with the usual run of cases. And the word 'importance' in s 280(2) encompasses importance to the parties; it does not require broader importance to the public or a sector of the public.

(vi) Although replacing the amount of the Scale item with a different ceiling may be appropriate where sufficient information exists to make that assessment, it is not uncommon for an order to be made removing the limit for the Scale item without replacing that limit with a different ceiling.

(vii) One of the principles that should guide a court in addressing an issue under s 280(2) is that the court should not usurp the role of the taxing officer.

7 I turn then to the first issue which needs to be determined, namely the applicable item under the scale which applied in respect of the legal work done. The legal work done in this case by the first respondent is covered by the Legal Profession (Supreme Court) (Contentious Business) Determination 2014 (WA) and the Legal Profession (Supreme Court) (Contentious Business) Determination 2016 (WA), the latter of which applied to costs incurred after 1 July 2016. Table B of the schedule to the 2016 determination contains the scale of costs for costs incurred after 1 July 2016 (2016 scale). The scale in respect of costs incurred prior to 1 July 2016 is the scale in table B of the schedule to the 2014 determination (2014 scale).

8 As it emerged in the course of submissions this morning, the first respondent considered that there was some uncertainty in respect of which items in the 2014 scale would cover the legal work done in preparation for the hearing of this matter. That uncertainty was said to arise for reasons including that the applicant sought not only certiorari, but also a declaration, as a result of which the first respondent was concerned as to whether item 28 alone would apply. It also appeared that the uncertainty flowed from the fact that the items under item 28 of the 2014 scale drew a distinction between preparatory work done for a motion for an order to show cause, and preparation of the case for a final hearing. Given the recent changes to the approach to judicial review applications, whereby the old 'motion to show cause', or 'nisi hearings', are no longer the Court's approach to judicial review applications, a question might be said to have arisen in relation to the limit imposed by item 28 in respect of preparation of a judicial review application for hearing. I note that, under the 2016 scale, preparation for judicial review applications has now been brought under item 11. That has a significant implication, which is that the maximum preparation time under that scale item is now considerably greater than it was in respect of item 28 of the 2014 scale.

9 Having considered the submissions of counsel and the items in the scale, I have formed the view that for costs incurred prior to 1 July 2016 in this case, the applicable scale item was item 28 of the scale, which applies in respect of proceedings by way of prerogative writ. The fact that the applicant in this case sought also a declaration does not alter the nature of the proceedings which were by way of an application for judicial review. Having said that, there may well be a question as to the approach taken by the taxing officer to determine the upper limit of the scale for preparation of matters of that kind for hearing, that is, whether the taxing officer takes into account only the maximum preparation time of 10 hours under item 28(b), or a combined maximum preparation time of 30 hours under 28(a) and (b) of the 2014 scale.

2. Whether the First Respondent's bill will tax at an amount greater than the scale

10 Having regard to the principles to which I earlier referred, the first question for consideration in determining whether a special costs order should be made is whether there is a fairly arguable case that the bill submitted by the first respondent for taxation may tax at an amount greater than the limits imposed under item 28 of the 2014 scale and, in respect of costs incurred after 1 July 2016, item 11 of the 2016 scale.

11 Having regard to the draft bill of costs and to the work done in respect of preparation of the matter for hearing, on the first day of hearing, 2 June 2016, and on the second day of hearing, 12 September 2016, I am satisfied that there is a fairly arguable case that the bill for taxation may tax at an amount greater than the limit imposed under the relevant items of the scale. In reaching that view, I have taken into account the nature of the items of work which accounted for the total amount of preparation, and I have carefully considered the submissions of the parties in relation to the preparation of the affidavit of Mr Van Der Linde, which accounted for a significant portion of the hours reflected in the draft bill of costs.

12 This was a case involving some factual complexity and I accept the submission of counsel for the first respondent that, notwithstanding that the ultimate affidavit produced was not terribly lengthy, nevertheless a significant portion of time was taken up in its preparation. I will leave the precise allowance which should be considered reasonable in respect of that item of preparation for the hearing to the taxing officer. I simply rely on that consideration as being relevant to my satisfaction that it is likely that the draft bill of costs may tax at an amount greater than the limit imposed by the scale.

13 The only other matter about which I need to make an observation is this. If the first day of preparation for hearing is limited to the amount in item 28(b) of the 2014 scale, the scale limit is 10 hours of preparation. It is apparent, without any doubt, that the bill of costs is likely to be taxed at an amount exceeding that limit. It is less clear that the bill of costs would tax out at an amount higher than the 2014 scale if the limit is a total of 30 hours of preparation. For present purposes, I am prepared to accept that there is a fairly arguable case that it would. As I have already alluded to, the amount taxed by the taxing officer in due course will be entirely a matter for his or her assessment of the reasonableness of the work done.

14 Finally, in respect of the work which resulted in legal costs incurred after 1 July 2016, there is also no doubt that the bill of costs is likely to be taxed at an amount greater than the allowance permitted under item 11(b) of the 2016 scale for a second and successive day of hearing. The amount allowed for in the 2016 scale is $3,960 for counsel, including counsel's preparation for that day of hearing. It is that limit which has been the basis for the application by the first respondent that the second day of hearing should be taxed as if it was the first day of hearing.

(3) Whether the special costs order should be made

15 The next question which arises in respect of the special costs order is whether the inadequacy in the amount of costs allowable under the scale arises because of the unusual difficulty, complexity or importance of the matter. In my view, the inadequacy of the scale costs in this case is attributable to the unusual factual difficulty and the legal complexity of the issues raised by the application for judicial review. That difficulty and complexity is readily apparent from the reasons for decision I delivered in respect of the application for judicial review. I need highlight only the fact that, in terms of the legal issues which arose, they concerned the application and construction of provisions of the first respondent's town planning scheme and the application of the 2015 regulations which were discussed in those reasons. Both of those matters clearly had significance beyond the parties to the judicial review application. The case, therefore, is one in which I am satisfied that a special costs order should be made.

16 The difficulty and complexity of the factual and legal issues was borne out by the fact that two hearing days were required. In respect of the first day, it was not the case that a full day of hearing was required, but nevertheless, a significant amount of hearing time was involved, in the course of which I raised a number of issues and questions for the consideration of counsel. Having had the opportunity to reflect on those matters over the luncheon adjournment, and after having heard some further submissions from counsel, it became apparent that the preferable course was to adjourn the hearing of the judicial review application to a second day. In the interim, the parties filed further detailed submissions.

17 As it transpired, in total there were multiple sets of submissions filed by the parties in respect of the application for judicial review. The need to do so reflected, in my view, the complexity and difficulty of the factual and legal issues involved. Quite discrete issues arose for consideration on the second day of hearing, which were discussed in the further submissions filed by the parties. That fact has led the first respondent to seek an order that the second day of hearing be treated, in effect, as a first day of hearing.

18 The first aspect of the order which should be made is, in my view, an order that the costs of the application should be assessed without regard to the upper limits of item 28 of the 2014 scale in respect of work done prior to 1 July 2016. That is a direction which, in my view, is open to be made having regard to s 280(2)(d) of the Legal Profession Act 2008 (WA), which permits the Court to give directions for the purposes of enabling costs above those in the scales to be assessed.

19 Counsel for the applicant submitted that I should give a direction to the taxing officer that the limit imposed by the scale should effectively be replaced with a limit of 30 hours of preparation time to reflect the totality of the time allowed under the scale if items 28(a) and (b) preparation time are applied in a case of this kind. That submission was not without its attraction, but I ultimately was not persuaded to accept it for two reasons. First of all, the question of what is a reasonable amount is, of course, a matter for the taxing officer, and the taxing officer will take into account the reasonableness of the time actually spent. Secondly, and more importantly, it seems to me that there is a fairly arguable case that, even if the 30 hours is taken into account, there is a prospect that the bill will tax at higher than that amount and, in all the circumstances involving difficulty and complexity, I am persuaded that that limit should not apply.

20 In respect of the second day of hearing, counsel for the applicant submitted that it would not be appropriate to give the taxing officer a direction of the kind sought by the first respondent, namely that that second day of hearing be treated as if it were a first day of hearing so that the benefit of the much higher scale limit would apply for preparation. It was submitted that that was so because, notwithstanding that some additional issues were raised for consideration on the second day of hearing, nevertheless, much of the preparation for that second day of hearing was preparation properly done prior to the first hearing day. I am unable to accept that submission.

21 There was clearly a continued factual overlap between the matters the subject of the submissions on 12 September and those addressed on 2 June. Ordinarily, of course, second days of hearings are opportunities to continue arguments addressed by counsel on the first day of hearing, and that accounts for the much more modest allowance for preparation and appearance time in the scale. However, this case was of a very different kind. The legal issues which were the focus of submissions on the second day of hearing were very largely, if not entirely, quite discrete from those which had been the subject of submissions by the parties on 2 June. The amount permitted for preparation time should therefore reflect the fact that this was an unusual case in which the scale limit that would otherwise apply for the second hearing day is not appropriate. Bearing in mind that the taxing officer will consider what costs were reasonable, I see no real difficulty in giving a direction that the preparation for the second hearing day should properly take into account the fact that quite discrete issues were addressed on that day and, therefore, that that hearing day should not be subject to the limit imposed by item 11(c) of the 2016 scale.

22 I emphasise again that nothing in what I have said in the course of my reasons today is in any way intended to convey a view about the time spent on various items in the draft bill of costs. The amount ultimately permitted on a taxation will be a matter entirely for taxing officer. It is not for this Court to usurp the role of that officer.

[1] Abraham v The Hon Peter Charles Collier MLC, Minister for Aboriginal Affairs [2016] WASC 269 [56] [67].

[2] Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron & McHugh JJ); Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, 526 (Gibbs J), 537 (Stephen J), 547 (Mason J); Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 36 (Gibbs CJ).

[3] Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, 527 (Gibbs J).

[4] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 74 (Brennan J).

[5] Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron & McHugh JJ); Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 36 (Gibbs CJ), 42 (Stephen J).

[6] Shop Distributive & Allied Employees Association v Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552, 558 (Brennan, Dawson, Toohey, Gaudron & McHugh JJ).

[7] Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, 42 (Stephen J).

[8] Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, 528 (Gibbs J), referring to Robinson v Western Australian Museum [1977] HCA 46; (1977) 138 CLR 283, 327 328 (Mason J).

[9] See Argos Pty Ltd v Corbell [2014] HCA 50; (2014) 254 CLR 394 [34] - [35] (French CJ & Keane J), [73] [75] (Hayne & Bell JJ), [86] - [87] (Gageler J); Reynolds v Panten [No 2] [2000] WASCA 412; (2000) 23 WAR 238 [51] citing Re Bromfield; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153, 162, 190 191; Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421 [37] (Heydon J, French CJ, Gummow, Crennan, Kiefel & Bell JJ agreeing).

[10] Planning and Development Act 2005 (WA) s 162, s 218(a).

[12] Affidavit of Deon van der Linde sworn 26 February 2016, Annexure DvdL 4.

[13] Metropolitan Region Scheme cl 30(1).

[15] Planning and Development Act 2005 (WA) s 68(1).

[16] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) r 79(1), read with r 77 definition of 'planning instrument'.

[17] Serpentine Jarrahdale Town Planning Scheme No 2 cl 5.1.1.

[18] Serpentine Jarrahdale Town Planning Scheme No 2 cl 5.1.1, cl 8.3.2; Planning and Development Act 2005 (WA) s 218.

[19] Serpentine Jarrahdale Town Planning Scheme No 2 cl 6.4.3.

[20] Cf State Administrative Tribunal Act 2004 (WA) s 22.

[21] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2013) 231 FCR 437 [45] (The Court); Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, 360 (Dixon J); see also Acquista Investments Pty Ltd v Urban Renewal Authority [2015] SASCFC 91; (2015) 123 SASR 147 [345] (Debelle AJ); see also Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656, 663 664 (Gibbs CJ); Nairn v MetroCentral Joint Development Assessment Panel [2016] WASC 56 [55] (Chaney J).

[22] Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 176 (the Court).

[23] Affidavit of Deon van der Linde sworn 26 February 2016, Attachment DvdL 1.

[24] Metropolitan Region Scheme cl 24(1).

[26] Planning and Development Act 2005 (WA) s 16(1); Metropolitan Region Scheme cl 29(2).

[27] Metropolitan Region Scheme cl 26(1).

[29] Metropolitan Region Scheme cl 29(1).

[30] Metropolitan Region Scheme cl 29(1).

[31] Metropolitan Region Scheme cl 29(3).

[32] Affidavit of Deon van der Linde sworn 26 February 2016, Attachment DvdL 2.

[33] Serpentine Jarrahdale Town Planning Scheme No 2 cl 6.4.1.

[34] Metropolitan Region Scheme cl 30(1).

[35] See the Instrument of Delegation by the WAPC, esp cl 3 and sch 1: Affidavit of Deon van der Linde sworn 26 February 2016 annexure DvdL 4.

[36] Affidavit of Deon van der Linde sworn 26 February 2016, Attachment DvdL 3.

[37] Affidavit of Deon van der Linde sworn 26 February 2016 [12].

[38] Affidavit of Stephen Lenz sworn 11 December 2015, Attachment SL 10.

[39] Serpentine Jarrahdale Town Planning Scheme No 2 cl 6.9.1(a).

[40] Cf Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [46] (Gaudron & Gummow JJ).

[43] Affidavit of Deon van der Linde sworn 26 February 2016, Attachment DvdL 5.

[44] Affidavit of Deon van der Linde sworn 26 February 2016 [18].

[45] Affidavit of Deon van der Linde sworn 26 February 2016, Attachment DvdL 6.

[46] Affidavit of Deon van der Linde sworn 26 February 2016, Attachment DvdL 8.

[47] Affidavit of Deon van der Linde sworn 26 February 2016, Attachment DvdL 9.

[48] Planning and Development Act 2005 (WA) s 256(4).

[49] Planning and Development Act 2005 (WA) s 257B(2); Planning and Development (Local Planning Schemes) Regulations 2015 (WA) r 10(4).

[50] Planning and Development Act 2005 (WA) s 257B(3).

[51] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2, cl 68(2).

[52] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2, cl 70(1).

[53] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2, cl 70(2).

[54] Affidavits of Stephen Lenz sworn 11 December 2015, Attachment SL 11.

[55] Affidavit of Deon van der Linde sworn 26 February 2016 [23].

[56] Serpentine Jarrahdale Town Planning Scheme No 2 cl 6.7.

[57] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2, cl 77(1)(c).

[58] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2, cl 77(2).

[59] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) sch 2, cl 77(4).

[60] Affidavit of Deon van der Linde sworn 26 February 2016, Attachment DvdL 10.

[62] Affidavits of Stephen Lenz sworn 11 December 2015, Attachment SL 11.

[63] Affidavit of Deon van der Linde sworn 26 February 2016 [21].

[64] Affidavit of Deon van der Linde sworn 26 February 2016 [29].

[65] Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [5] (Gleeson CJ), [51] [53] (Gaudron and Gummow JJ), [67] (McHugh ).

[66] Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [8] (Gleeson CJ).

[67] Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 175 176 (the Court).

[68] Cf Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (the Court); see also Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 [67] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[69] Serpentine Jarrahdale Town Planning Scheme No 2 cl 5.17.

[70] Serpentine Jarrahdale Town Planning Scheme No 2 cl 5.17.

[71] Serpentine Jarrahdale Town Planning Scheme No 2 cl 5.18.3.1.

[72] Serpentine Jarrahdale Town Planning Scheme No 2 cl 5.18.3.10.

[73] Serpentine Jarrahdale Town Planning Scheme No 2 cl 5.18.3.1.

[74] Serpentine Jarrahdale Town Planning Scheme No 2 cl 5.18.1.4.

[75] Affidavit of Deon van der Linde sworn 26 February 2016 [39].

[76] Appendix 15 to the Serpentine Jarrahdale Town Planning Scheme No 2.

[77] Serpentine Jarrahdale Town Planning Scheme No 2 cl 5.18.3.1.2.

[78] Affidavits of Stephen Lenz sworn 11 December 2015, Annexure SL 2.

[80] Applicant's Submissions filed 3 May 2016 [16].

[81] Applicant's Submissions filed 3 May 2016 [17], [20].

[82] Applicant's Submissions filed 3 May 2016 [29].

[83]Applicant's Submissions filed 3 May 2016 [31].

[84] Alternatively, an amendment may be proposed by owners of land in a scheme area, and may then be adopted by the local government with or without amendments, approved by the Minister and then published in the Government Gazette: Planning and Development Act 2005 (WA) s 75(a), (b).

[85] Planning and Development Act 2005 (WA) s 81.

[86] Planning and Development Act 2005 (WA) s 84.

[87] Planning and Development Act 2005 (WA) s 87.

[88] Planning and Development Act 2005 (WA) s 87(4).

[89] Applicant's Additional Submissions filed 24 June 2016 [4].

[90] Serpentine Jarrahdale Town Planning Scheme No 2 cl 3.2.3.

[91] That is indicated by the use of the symbol 'P' in the appropriate column of the Zoning Table.

[92] Serpentine Jarrahdale Town Planning Scheme No 2 cl 1.9.

[98] Interpretation Act 1984 (WA) s 5 definition of 'subsidiary legislation'.

[99] Re Shire of Mundaring; Ex parte Solomon [2007] WASCA 132 [25] (McLure JA, Steytler P & Pullin JA agreeing).

[104] Serpentine Jarrahdale Town Planning Scheme No 2 cl 6.4.2.

[105] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [178] [183].

[110] Applicant's Submissions filed 3 May 2016 [2].

[111] Applicant's Submissions filed 3 May 2016 [26].

[112] Applicant's Submissions filed 3 May 2016 [28].

[113] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 (Mason CJ, Dawson, Toohey & Gaudron JJ).

[115] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) cl 27(1).

[116] Planning and Development (Local Planning Schemes) Regulations 2015 (WA) cl 67(h).

[117] See, for example, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J); Re Shire of Carnarvon; Ex parte Humphrey [2005] WASCA 182 [60] (McLure JA, Le Miere AJA agreeing); A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [88] [92] (Martin CJ & Murphy JA); Tobacco Institute of Australia Ltd v National Health & Medical Research Council [1996] FCA 1150; (1996) 71 FCR 265, 277 (Finn J).

[118] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [106] [116].

[119] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41 (Mason J).

[120] BendTech Group (A Firm) v Beek [2015] WASC 491 (S) [34], [35] (citations omitted).