SANDERS -v- CITY OF SOUTH PERTH [2019] WASC 226 (28 June 2019)

1. The use and development of residential lots in the City of South Perth, as is now typical in this State, is regulated by a combination of the 'deemed provisions' created by Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA)[4] (the deemed provisions) and the local planning scheme, which, in this case is the City of South Perth Local Planning Scheme No 6 (Scheme No 6).[5]
2. Part 7 of the deemed provisions prescribes the requirements for development approval in the scheme area.[6]
3. Clause 60 of the deemed provisions provides:

A person must not commence or carry out any works on, or use, land in the Scheme area unless -

(a) the person has obtained the development approval of the local government under Part 8; or

(b) the development is of a type referred to in clause 61.

1. 'Development' is a protean term in the Planning and Development Act, and includes both the construction of works on the land and the use of the land for particular purposes. As cl 60 recognises, depending upon the circumstances, local government approval may be required both for the construction of a building and for its use.
2. Relevant to the present case, development approval is not required for certain uses set out in cl 61(2) of the deemed provisions. That includes uses identified in the relevant scheme as a permitted use in the zone in which the development takes place. In the present case, Mr and Mrs Curtis' lot (Lot 19) is in the Residential Zone, in relation to which a 'single house' is a permitted (P) use. Planning approval is, therefore, not required for the use of Lot 19 as a house, per se.
3. Nevertheless, development approval was required, by cl 60 of the deemed provisions, for construction of the dwelling on Lot 19.
4. Applications for such a development approval are to be made in accordance with pt 8 of the deemed provisions. Part 9 of the deemed provisions, and in particular cl 67, sets out the matters in relation to which a local government is to have 'due regard' in considering an application for development approval, including the provisions of the local planning scheme.
5. Clause 68(2) of the deemed provisions provides that a local government may grant development approval (with or without conditions) or refuse to grant that approval.
6. Part VI of Scheme No 6 sets out various general development requirements, including certain building height restrictions in particular precincts. One such precinct is 'Precinct 13 (Salter Point)', so named in cl 3.2 of Scheme No 6.
7. Lot 19 is located within Precinct 13 (Salter Point).
8. In that regard, cl 6.1A(9) of Scheme No 6 provides:

(9) Building height restrictions in Precinct 13 'Salter Point'

In Precinct 13 'Salter Point', on any land which has been assigned Building Height Limits of 3.0 metres, 3.5 metres or 6.5 metres, a person shall not erect or add to a building unless:

(a) drawings are submitted showing, to the local government's satisfaction:

(i) the location of the proposed building in relation to existing buildings on lots potentially affected with respect to views of the Canning River;

(ii) the finished floor levels and the levels of the highest parts of those existing and proposed buildings; and

(iii) sight lines demonstrating that views of the Canning River from any of those existing buildings will not be significantly obstructed;

(b) notice has been served upon the owners and occupiers of the lots potentially affected in relation to views of the Canning River, in accordance with Deemed Provisions clause 64; and

(c) the local government is satisfied that views of the Canning River from any buildings on neighbouring land will not be significantly obstructed.

1. Both the applicants and the City accepted that cl 6.1A(9)(c) applied to the City's decision whether to approve the proposed development of Lot 19. That is, the City accepted that it had to be satisfied that the views of the Canning River, from existing buildings on neighbouring land (including Lot 18A and Lot 19A), would not be significantly obstructed.[7]
2. Many of the grounds of review were directed to this issue. Before turning to those grounds, it is necessary to set out the factual and procedural background to the development approval.

Factual and procedural background The initial development application

1. The initial application for development approval for Lot 19 (the development application) was lodged on 5 April 2017.[8]
2. The applicants in this matter opposed the development application, orally and in writing.[9]
3. A Council agenda briefing was held at the City's premises on 19 September 2017 (the September briefing). The September briefing included a briefing in relation to the development application.
4. Prior to the September briefing, by notice dated 15 September 2017, an agenda was distributed that included the following documents (the February briefing documents):[10]

(b) Mr and Mrs Curtis' submission, including a report from Dynamic Planning and Developments (Dynamic Planning), on behalf of Averna Homes, addressing the issue of the impact on views of the Application from Lot 19A;

(e) a photomontage provided by Mr and Mrs Sanders' relating to the impact of views from Lot 19A;

(f) a photomontage and 'view analysis' prepared by the City in relation to the impact of views from Lot 19A;

(g) a schedule of summarised submissions, Mr and Mrs Curtis' response and the City officers' comments;

1. As was explained in evidence from the Manager of Development Services at the City, Council agenda briefings are sessions conducted by the City, in which Councillors are briefed in relation to agenda items to be considered by the Council at the next Ordinary Council Meeting. Agenda briefings are not formal Council meetings, and no decisions are made at them. They are, rather, an opportunity for the Councillors to be briefed and for deputations to be made to the Council in relation to the agenda items, including on behalf of applicants for development approval and from other persons with an interest in the proposed developments.[11]
2. Following the September briefing, the City scheduled an Ordinary Council Meeting for 26 September 2017, to consider the development application (the September Council meeting). The documentation provided to the Council for the September Council meeting was identical to the documentation provided for the September briefing.[12]
3. The development application was considered at the September Council meeting and refused, for reasons that included that the 'proposed development significantly obstructs views to Canning River for the rear adjoining properties and in particular the view from 19A Salter Point Parade'[13] (the September refusal).

1. On 5 October 2017, Mr and Mrs Curtis applied to the State Administrative Tribunal (SAT) for a review of the September refusal (the SAT application).[14]
2. The SAT application was referred to mediation.[15]
3. The mediation of the SAT application took place on 24 November 2017. The mediation was attended by Mr and Mrs Curtis, representatives from Averna Homes and Dynamic Planning, the Mayor of the City (Mayor Sue Doherty), Councillor Colin Cala, staff of the City, and representatives of Allerding & Associates (the City's town planning advisors) and EPCAD (the City's independent architect).[16]
4. Prior to the mediation, the attendees (together with the SAT member conducting the mediation) attended a view of Lot 19 and, save for Mr and Mrs Curtis, attended Lot 18A and 19A to view Lot 19 from that property and hear the neighbours' concerns.[17]
5. Following the mediation, on 30 November 2017, the SAT application was referred to a second mediation. At that time, Mr and Mrs Curtis were ordered to file with SAT, and provide to the City, amended plans and supporting documentation by 8 December 2017 (the Amended Plans).
6. On or about 8 December 2017 Mr and Mrs Curtis filed the Amended Plans and provided them to the City. Allerding & Associates (Allerding), in turn provided a copy of the Amended Plans to the applicants.
7. The Amended Plans varied the proposed development in a number of respects, including:

(a) a loft and terrace was deleted from the proposed development;[18] and

(b) the roof pitch of the proposed development was altered to 16º42' degrees.

1. On 16 and 17 January 2018, the applicants provided written submissions to the City objecting to the Amended Plans. Those documents included:[19]

(a) a letter from Mr and Mrs Sanders dated 16 January 2018;[20]

(b) a letter from Mr and Mrs Stratford dated 17 January 2018;[21] and

(c) a letter from Mountford Architects dated 15 January 2018, enclosing 3D modelling depicting the proposed development based on the Amended Plans.[22]

1. Mountford Architects had previously prepared, on behalf of Mr and Mrs Sanders, 3D modelling depicting the proposed development based on the Original Plans.[23]
2. The second mediation at SAT was held on 29 January 2018.[24] It was attended by Mr Curtis, a representative from Averna Homes, Mayor Doherty, Councillor Cala, staff and advisors of the City, including representatives of Allerding and EPCAD.[25]
3. At the conclusion of the second mediation, the SAT member made orders:[26]

(a) requiring Mr and Mrs Curtis to file further amended plans (the Final Plans) by 2 February 2018; and

(b) inviting the City, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to reconsider its decision in relation to the development application.

1. It is apparent from the available material, that, as a consequence of the second mediation, it was proposed that the Final Plans would include a reduction of the roof pitch from 16º42' to 14º32', in addition to the removal of the loft proposed by the Original Plans.
2. This change was referred to in advice from EPCAD to the City (by an email to Allerding) dated 29 January 2018 (the EPCAD advice). The EPCAD advice, which included a description of the effects of the proposed development on the views from Lots 18A and 19A, was as follows:[27]

The essence of the issue is whether a development meets the test of not having 'significant impact' on the visual amenity of the adjacent properties. The term significant impact is to a great extent, subjective as what is significant to one individual will not necessarily be considered significant to another. In this situation, I believe that any change to the status quo of the residential building on Lot 276 19 Salter Point Parade, will be seen as being significant to the existing owners and occupants of both 19a and 18a.

TPS6 Clause 6.1A(9) in Precinct 13 'Salter Point', states that the Council has to be satisfied that views of the Canning River from any buildings on neighbouring land will not be significantly obstructed. So the test must be a significant obstruction. The modelling that EPCAD has undertaken suggests that there will be impacts on views from 19a with a single story house, however those impacts will be minimised by adopting a 14 degree roof pitch. The resultant development will no doubt be perceived as having a significant impact by the current residents as the present view is changed however in my opinion the development would not significantly obstruct views of the river.

The impact on views from 18a will be different and a specific view will be affected. The north eastern rooms of this residence and the balcony has views up the river to the north east over the top of the existing development. The views from these areas and in this specific direction will be significantly changed and can be said to be obstructed. This property however has the ability to view the river from other locations. Specifically, the property presently can view the river looking south over the adjacent dwelling and down the double driveway.

1. The particular views referred to in this advice may be illustrated by the following extracts from the material that was before the City when it made its decision to approve the development application. These extracts are not intended to reflect the entirety of the material before, or available to, the City. They are simply to illustrate pictorially the matters referred to in the EPCAD advice.
2. In relation to the views from Lot 19A:

(a) Lot 19A is directly behind Lot 19 (to the east). The aspect of the view affected by the proposed development was, therefore, the view directly to the west. A photograph of that view before the City was as follows:[28]

(b) The effect on that view was depicted in the material before the City as follows:[29]

(c) The material before the city also depicted the views from Lot 19A looking to the left and the right of where the proposed development was.[30]

(a) Lot 18A was not directly behind Lot 19 but to the south east (i.e. south of Lot 19A). Its views of the river were to the north east, the east and south-east.

(b) The 'specific view' referred to in the EPCAD advice as being affected (the aspect of the view to the northeast) can be seen in the following photograph in the material before the City:[31]

(c) The effect on that aspect of the view (albeit at a greater zoom) was depicted in the material before the City as follows:[32]

(d) The other view 'looking south over the adjacent dwelling and down the double driveway' referred to in the EPCAD advice, can be seen in the following photograph in the material before the City:[33]

(e) Lot 19 (i.e. the proposed development site) is to the left of the lot depicted in this photograph. The building depicted is the building that can be seen in the right hand side of the view depicted in [44(b)] above.

1. On 30 January 2018, the Final Plans were filed[34] and further modelling prepared for the City.[35]
2. A Council agenda briefing was held at the City on 20 February 2018 (the February briefing), which included a briefing in relation to the development application.
3. Prior to the February briefing, by notice dated 16 February 2018, an agenda was distributed that included the following documents (the February briefing documents):[36]

(d) the view analysis produced by EPCAD for the City;

(e) schedule of summarised submissions, Mr and Mrs Curtis' response and the City officers' comments;

1. The applicants obtained copies of the February briefing documents when the notice for the February briefing was published on 16 February 2018.[37]
2. Mr Alan Stewart of Stewart Urban Planning attended the February Briefing and made a deputation on behalf of the applicants objecting to the development application in its revised form. Mr Stewart was engaged on 7 February 2018 and used the February briefing documents as the basis for preparing his deputation.[38]
3. Mr Stewart gave an oral deputation at the February briefing and distributed a seven-page document to each councillor,[39] which included excerpts from a further analysis carried out by Mountford Architects on 17 February 2018 based on the Final Plans.[40]
4. Following the February briefing, the City scheduled an Ordinary Council Meeting for 27 February 2018, to consider the development application (the February Council meeting). The documentation provided to the Council for the February Council meeting was the same as to the documentation provided for the February briefing.[41]
5. The development application was considered at the February Council meeting and was approved.[42]
6. The approval was recorded in Minutes of the February Council meeting published on 2 March 2018,[43] and in a Notice of Determination issued on 6 March 2018.[44]
7. The February Council meeting was recorded and transcribed. The applicants rely upon certain comments made by councillors at the meeting, particularly in the context of Grounds 7 and 8 of the grounds of review. I will return to those comments in the context of those grounds.

1. Returning, for now, to the Minutes of the February Council meeting.
2. There was some contest between the parties as to whether the Minutes are properly to be regarded as the written record of the City's deliberations or the 'reasons' for the City's decision to grant the development approval.[45]
3. This issue arose in the context of the fact that, upon close examination, the relevant portions of the February briefing documents (prepared by the City officers)[46] and the Minutes of the February Council meeting[47] are identical. I readily infer that the contents of one were simply copied, without amendment, into the other.
4. I am satisfied that, to the extent that the Minutes, properly construed, reveal a legal error, they may be used for the purpose of inferring that the City indeed made such an error.[48] At the same time, if the reasons do not reveal error, the fact that some particular matter is not referred to in the Minutes, should not necessarily lead to the conclusion that the City failed to have regard to that matter.[49]
5. In construing the Minutes, I am also mindful of the admonition that I should not be concerned with 'looseness of language ... nor with unhappy phrasing' and that they should not 'be construed minutely and finely with an eye keenly attuned to the perception of error'.[50]
6. With those observations in mind, the relevant portion of the Minutes is as follows: [51]

Clause 6.1A (9) of TPS6 contains additional building height restrictions on lots located in Salter Point where building height limits are 3.0 metres, 3.5 metres or 6.5 metres. The Site has a building height limit of 3.5 metres measured from 2.3 metres above Australian Height Datum (AHD) pursuant to Clause 6.1A(2)(b). A person shall not erect or add to a building unless the Council is satisfied that's views of the Canning River from any buildings on neighbouring land will not be significantly obstructed.

The modified proposal has a maximum building height of 7.0 metres AHD (top of pitch), representing 4.7 metres above the minimum floor level of 2.3 metres AHD. The wall height of the modified proposal is 5.3 metres AHD, representing 3.0 metres above the minimum floor level of 2.3 metres AHD.

Clause 6.1A (4) of TPS6 also stipulates that, whilst the measurement of the height of a building excludes the roof height, the Council may impose restriction on roof height where the proposal would have an adverse impact on or be out of character with development on the development site or within the focus area; or contravene any planning policy adopted under clause 9.6 relating to the design of buildings, significant views, or maintenance of streetscape character.

Clause 7.8 (2) of TPS6 stipulates that Council's discretionary power shall not be exercised with respect to Building Height Limits referred to in clause 6.1A.

The neighbouring properties to the west and southwest of the site currently enjoy views of the Canning River (significant view). Upon consultation regarding the modified proposed development and the potential impact on their views, five written objections on the loss of views were submitted to the City.

Photos and illustrations on the image below show viewing corridors from rear lots along Salter Point Parade and River Way that would be potentially affected by the proposed development.

Intramaps Image showing the viewing corridors from the adjoining rear lots towards the Canning River

Photos taken from site visits to adjoining properties are provided at Attachment (c). The viewing corridors of the following properties would potentially be affected:

The potential view impacts on the above properties are further discussed below:

The City has commissioned an independent landscape architect to undertake 3D modelling of the view impacts based on information obtained from the available surveyed data and drawings of the proposed development.

The view impact analysis is provided in Attachment (d). On the basis of view impact analysis undertaken, Council is required to consider whether the proposed dwelling will cause significant obstruction to the existing views of Canning River from neighbouring properties.

20 Salter Point Parade - the proposed house will have minimal impact on this property and the landowners of 20 Salter Point have no objections to the proposal.

19A Salter Point Parade - A surveyed diagram and photomontage to demonstrate the potential obstruction on views of Canning River from this property are provided at Confidential Attachment (f) by the landowner. It is notable that the photomontage provided at Confidential Attachment (f) is based on a roof pitch of 16°42' which reflected the first modified proposal circulated to neighbours following the first mediation. The further modified proposal arising from the second mediation contains a roof pitch at 14°32'. The view impact of the further modified proposal has been modelled in Attachment (d). Whilst views of the Canning River are possible to the north-east and south-east from the first floor balcony and living area of this dwelling, the main easterly view of the Canning River is likely to be obstructed by the roof of the proposed development.

18A Salter Point Parade - this house has been designed to have its main view corridors of the Canning River toward the north-east which will be obstructed by the roof of the proposed development. The proposed development will not significantly obstruct the easterly view in front of the dwelling. Photos of main viewpoints have been provided at Attachment (c).

Properties along River Way - properties along River Way have also been consulted again with respect to potential loss of views during the public consultation period for the modified plans. It is considered that these properties are located on higher ground and their views will not be significantly affected. The aerial photo below shows the existing streetscape from Salter Point Parade:

Google Earth image of properties along Salter Point Parade and River Way in proximity of the Site.

Whilst it is acknowledged that the proposed building will cause obstruction of views of Canning River from neighbouring properties, the extent of obstruction has been reduced through the removal of the two-storey element (comprising the loft and terrace) from the building. The removal of the two-storey element will improve access to views of the Canning River from neighbouring properties.

As demonstrated in the view impact analysis is provided in Attachment (d), the roof pitch at 14°34' allows views of the river to be maintained for adjoining properties to the rear of the site. In addition it is noted that the applicant has had to increase the Finished Floor Level in order to comply with clause 6.9 of TPS6.

Accordingly, it is considered that the modified proposal will not cause significant obstruction to views of Canning River from adjoining properties and is in keeping with the existing character of the focus area.

1. The overall conclusion recorded in the Minutes was: [52]

It is considered that the modified proposal meets all of the relevant Scheme, R-Codes and/or Council Policy objectives and provisions. With modifications to the roof pitch at 14°34', it is considered that this specific modification has no significant obstruction of views to Canning River from the adjoining properties and will be in keeping with the existing character of the locality. The proposed dwelling satisfies the wall height and roof pitch, view corridors are maintained. Accordingly, it is considered that the application should be conditionally approved.

1. Turning then to the events following the development approval.

1. Following the grant of the development approval, Mr and Mrs Curtis took steps to build their home, in accordance with the approval.
2. To that end, on 23 April 2018 Averna Homes obtained from the City a demolition permit with respect to the pre-existing house and on 11 May 2018 obtained a building permit for the new house.[53]
3. Prior to the grant of the demolition permit, there was some contact between the applicants' solicitors and Mr and Mrs Curtis.
4. On 13 April 2018, the applicants' solicitors wrote to Mr and Mrs Curtis and advised them that the applicants were 'currently taking advice and serious consideration' was being given to judicial review proceedings. The letter concluded: 'We provide this notification so that you have an opportunity to undertake your own consideration of this matter and act accordingly'.[54]
5. On 17 April 2018, Mr and Mrs Curtis responded to the 13 April 2018 letter by email stating: [55]

We presume that any review would be between your clients and the city of south Perth so it is unclear what relevance this is to us,

Could you kindly advise what consideration your clients have in mind and how you envisage we might act accordingly.

1. In response, the applicants' solicitor suggested that Mr and Mrs Curtis seek legal advice.
2. Mr Curtis again wrote to the applicants' solicitor by email on 18 April 2018 (errors as in original):[56]

Can you please explain why we have received this letter.

On what grounds are your clients challenging the approval?

Our tenants were given notice to vacate months ago once we had approval from council. We now are without rental income and are in the process of demolition[.] If we are held up in our development, we will incur further loss of income and costs.

We feel this is the start of a vexatious litigation process, so we will now consider re engaging our legal team. We provide you this information so that your clients have the opportunity to undertake their own consideration of this matter and act accordingly.

Can You please advise when you will be lodging application for judicial review proceedings?

1. The applicants' solicitors did not respond to that email.
2. The next day, Mrs Curtis telephoned the applicants' solicitors and spoke to Ms Barnett. Mrs Curtis asked when the applicants were lodging a judicial review. Ms Barnett replied that they had no instructions and that she could not discuss the matter with Mrs Curtis. Mrs Curtis asked when the applicants would decide if they were going to file or not. Ms Barnett replied they had no instructions. There was then further discussion in relation to costs (which was again something Ms Barnett advised she could not discuss).
3. The conversation ended with Ms Barnett advising Mrs Curtis that there was a timeframe within which a judicial review should be filed but that they were not obliged to tell them before this. Mrs Curtis said words to effect, 'so we just have to wait and see if you file or don't'. Ms Barnett responded 'yes'.[57]
4. This conversation was four days prior to the grant of the demolition licence for the pre-existing home.
5. On the basis of the evidence before me, I find that, as at the date of the grant of the demolition licence (23 April 2018):

(a) the Minutes of the February Council meeting had been available since 2 March 2018;

(b) the applicants' solicitors advised Mr and Mrs Curtis that the applicants were giving 'serious considerations' to judicial review proceedings;

(c) neither the applicants nor their solicitors provided any information to Mr and Mrs Curtis (in response to their requests) as to the potential grounds for review, any relief that might be sought or when a decision would be made; and

(d) no judicial review application was filed and no interlocutory relief sought or foreshadowed.

1. Some weeks later, demolition of the pre-existing house began on 11 May 2018 and was completed on 28 May 2018.[58]
2. Averna Homes commenced earthworks for the new home on 4 June 2018. [59]
3. On 3 July 2018, the applicants' solicitors advised Averna Homes that they were taking advice in preparation for the commencement of judicial review proceedings,[60] and, on 6 July 2018, wrote to Mr and Mrs Curtis offering an opportunity to meet with the applicants prior to the commencement of judicial review proceedings.[61]
4. The applicants' solicitors and Mr and Mrs Curtis corresponded, by email, initially to arrange a meeting. Those arrangements broke down due to the requirement by the applicants' solicitors that the meeting take place at their offices, rather than at a local venue, and the Curtis' advice that they had not indicated that it was the intention of the meeting to come to an 'agreement' regarding the design and construction of the house.[62]
5. Over a month later, on 27 August 2018, these proceedings were commenced and were served the following day.[63]
6. In the meantime, work on the new home at Lot 19 had continued: [64]

1. As at the date of the commencement of these proceedings, 27 August 2018, approximately 90% of the brickwork was completed, and structural steel beams and lintels had been craned in and attached to the brickwork.[65].
2. In commencing the proceedings, the applicants did not apply for any interlocutory relief, including by way of an interlocutory injunction. I should also note that the relief sought in the application was a writ of certiorari and a declaration. The form of declaration was not identified, although presumably (as contended at the hearing) the declaratory relief sought related to the alleged invalidity of the decision of the City to grant the development approval. No specific relief was sought against Mr and Mrs Curtis.
3. Mr and Mrs Curtis' solicitors filed an appearance on behalf of Mr Curtis, and a Notice of Intention to Abide by the decision. Mr and Mrs Curtis thereafter took no active steps in the proceedings, until April this year, when they were invited to make submissions in relation to an issue that arose during the course of the hearing. I will return to that issue when addressing the issue of relief.[66]
4. The applicants' solicitors wrote to Mr and Mrs Curtis' solicitors on 19 September 2018 and 19 November 2018, in identical terms, setting out a further explanation for the judicial review application. [67]
5. On 17 October 2018, the roof of the new house was completed.[68]
6. Coincidentally, also on 17 October 2018 the first, and only, directions hearing in this matter was held. The matter was adjourned to a final hearing, with orders made for the filing of an agreed bundle of documents, affidavits and submissions.
7. The new house reached 'lock up' stage on 3 December 2018 and, at the time of Mr Curtis swearing an affidavit on 1 February 2019, the floor tiling was completed and the cabinetry was being fitted. At that time it was anticipated that Mr and Mrs Curtis would move into the house this month (June 2019).
8. The total cost of Mr and Mrs Curtis' building contract with Averna Homes was $1,009,971.
9. I turn now to the grounds of review.

1. The grounds of review underwent a number of changes following the commencement of the proceedings.[69]
2. In their final form grounds of review allege:
   1. The City failed to apply cl 6.1A(9) of the Scheme No 6, on its proper construction, in that it failed to undertake any real or proper comparative analysis of the existing views from the adjoining rear properties (existing views), the future views from those properties under the proposed development (future views) and an analysis of whether any obstruction of the existing views constituted a significant obstruction. (Ground 1)
   2. The City failed to have regard to a mandatory relevant consideration, that is, a comparative analysis of the future views and existing views to determine the level of obstruction, or at least failed to give that matter proper, genuine and realistic consideration. (Ground 2)
   3. The City failed to have regard to a mandatory relevant consideration, that is, the comparative analysis of Mountford Architects provided to the City by Alan Stewart at the February 2018 Council briefing, being the only comparative analysis that was available to the City, or at least failed to give that analysis proper, genuine and realistic consideration. (Ground 3)
   4. The City proceeded on a false premise and thereby took account of a false and therefore irrelevant and prohibited consideration, in that the City considered the Application on the basis that the position of the applicants was predicated on future views based upon outdated plans for the proposed development when in truth the position of the applicants and the representation made on their behalf were based on the updated plans. (Ground 4)
   5. The City took into account an irrelevant consideration, namely, the fact that the plans for the proposed development were an improvement over previous proposals. (Ground 5)
   6. The City misconstrued cl 6.1A(9) of Scheme No 6, in that the City concluded that the proposed development would not cause any significant obstruction of the river views because under the proposed development it will still be possible to have river views for adjoining properties to the rear notwithstanding any obstruction of existing views that might occur as a result of the proposed development, whereas on its proper construction the City was required to assess whether the views available under the proposed development constituted a significant obstruction of the views available to neighbouring properties at the time of the application for redevelopment. (Ground 6)
   7. The City took into account an irrelevant consideration, namely, the fact that the proposal was the product of a mediated outcome between the City and the first and second other parties. (Ground 7)
   8. The City's decision was affected by bias, alternatively apprehended bias, in that a fair minded observer would apprehend that the City had not brought a neutral and independent mind to the Application having negotiated with the proponent of the Application through a mediation process to reach a mediated outcome leading up to the City's deliberation of the Application. (Ground 8)
   9. The City acted beyond its powers as its decision was made in circumstances where it did not have drawings showing sight lines demonstrating that views of the Canning River from buildings on lots whose views would be affected, will not be significantly obstructed, as required by cl 6.1A(9)(a)(iii). (Ground 9)
   10. The City's decision that it was satisfied that views of the Canning River from any buildings on neighbouring land will not be significantly obstructed was a decision that lacked an evident and intelligible justification, was plainly unjust, perverse, illogical or irrational or was a decision that no reasonable decision-maker could have made. (Ground 10)
3. As will be apparent, there is considerable overlap in the grounds of review. Grounds 1 and 2, for example, raise a similar issue concerning the 'comparative analysis' of the existing and future views that the applicants submit is required by the cl 6.1A(9) of Scheme No 6.
4. Indeed, other than Grounds 7 and 8, which deal with the impact of the fact that the Final Plans arose out of a mediation, the grounds of review are all, in essence, concerned with the manner in which the City is alleged to have gone about its task in applying cl 6.1A(9) and, whether it made an error of law in doing so.
5. In that regard, while it is, of course, necessary to consider each of the grounds separately, in some respects all of the grounds (other than Grounds 7 and 8) can be reduced to the proposition that there was no reasonable basis upon which the City could have reached the conclusion that it did. That proposition is, of course, encapsulated in Ground 10.
6. Describing the relationship between the grounds of the review in this manner is not a criticism. Indeed, it is precisely how Senior Counsel for the applicants described their case in oral submissions:

However one puts this, whether one puts this as a failure to have regard to relevant matters or impermissibly having regard to irrelevant matters, putting aside the question of the bias in the mediation and the improvements, those other grounds, the fundamental question here is whether in circumstances where all the evidence showed that the primary views enjoyed by 18A were going to be almost wholly obstructed, there was no basis upon which the council could have come to the conclusion it did other than by taking account of the irrelevant factors which on its own record is what he (sic it) did.[70]

1. Before turning to the individual grounds of review, it is therefore appropriate to make some general observations in relation to the construction of a provision such as cl 6.1A(9) of Scheme No 6.

Construction of Scheme No 6 and the City's 'satisfaction'

1. Many of the issues in this case, ultimately, turn upon the construction of cl 6.1A(9) of Scheme No 6. As with statutory construction generally, that exercise of construction is a process of determining the objective meaning of the legislation by application of the recognised rules of interpretation to the legislative text as a whole, in light of its context and purpose. That task begins, and ends, with the legislative text.[71]
2. A relevant matter of context in the present case is that the legislative instrument being construed is a planning scheme. As the Court of Appeal confirmed in Australian Unity Property Ltd v City of Busselton,[72] focus on the legislative text facilitates the comprehension of the meaning of the legislation by the persons whose conduct it regulates. Their Honours continued:[73]

These considerations are no less important when the legislative instrument being construed is a planning scheme. The terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.

1. The Court of Appeal went on to note that, in construing a planning scheme, it is relevant that such schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Accordingly, planning schemes should be construed broadly, rather than pedantically and with a sensible practical approach.[74]
2. It is important to recognise, in the present case, that the relevant power being exercised by the City was dependent upon its 'satisfaction'. This is reflected in two places in cl 6.1A(9):

(a) that drawings show 'to the local government's satisfaction' the matters referred to in cl 6.1A(9)(a)(i) to (iii); and

(b) that the local government 'is satisfied' that views of the Canning River from any buildings on neighbouring land will not be significantly obstructed (cl 6.1A(9)(c)).

1. The use of the expressions 'to the local government's satisfaction' and the 'local government is satisfied' serves to emphasise that the evaluative judgment, ultimately as to whether the views will not be 'significantly obstructed', is reposed in the City. That evaluative judgement is an executive function to be carried out according to law, but cannot be construed so as to confer on the courts the power to substitute their judgment for that of the City.[75]
2. The authorities concerning the significance of a power being conditioned upon the decision-maker's 'satisfaction' (or some other state of mind) were usefully summarised by Gummow J in Minister for Immigration v Eshetu.[76]
3. Those authorities reviewed by Gummow J serve to identify the metes and bounds of the courts' jurisdiction to review a state of 'satisfaction'. His Honour concluded with reference to the judgment of Gibbs J in Buck v Bavone.[77] In that case, Gibbs J described the courts' jurisdiction in the following way:[78]

It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

1. Consistently with this passage, Gummow J observed in Eshetu that:[79]

where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.

1. It should be emphasised however, in this context, that while the 'satisfaction' of the City (for example, in relation to whether the views will be 'significantly obstructed') is an evaluative matter in relation to which reasonable minds may differ, it is not a 'discretion'.[80] It is a state of mind to be reached by the City by a process according to law.
2. Any 'discretion' on the part of the City only arose to be considered after it had reached that state of satisfaction. In the present case, for example, given the legislative context outlined above, if it was satisfied in accordance with cl 6.1A(9)(c), the City nevertheless retained a discretion (in accordance with cl 67 and cl 68 of the deemed provisions) as to whether to approve the application.
3. In the present case it is not that 'discretion' that is challenged by the grounds of review, but the state of satisfaction required by cl 6.1A(9)(c).
4. Turning, then, to the grounds of review. As was the case in the applicants' submissions, a number of the grounds have been considered together.

Grounds 1, 2 and 6 - Existing views vs Future views

1. The applicants submissions in relation to this ground centres on its construction of cl 6.1A(9)(c) of Scheme No 6, as requiring there to be a comparison of existing views from (in this case) Lots 18A and 19A, with future views from those neighbouring properties.
2. In this respect, the applicants focus on the words, 'views ... from any buildings on neighbouring land' in cl 6.1A(9)(c), and pose the question whether that is a reference to the particular views presently enjoyed from the buildings or a reference to views more generally.[81] The distinction was illustrated by the applicants by reference to a hypothetical existing view of the river of 160º that would be reduced by half by a proposed development (to 80º). In such a case, the applicants' posited, the obstruction of the 'existing' 160º view would be 'significantly obstructed', whereas the view generally may not be (as a 80º view would be retained). [82]
3. Accordingly, the applicants submit, on its proper construction, cl 6.1A(9) requires the City to:[83]

(a) identify the existing views of the Canning River from the buildings on neighbouring land;

(b) identify the future views of the Canning River from the buildings on neighbouring land under the proposed development;

(c) contrast and evaluate the existing views and the future views to determine whether the existing views will be obstructed, and if so, whether that obstruction is significant.

1. The applicants submit that the City did not undertake any real or proper comparative analysis of future views and existing views. The failure to do so, on the applicants' submissions, was both a failure to apply Scheme No 6 (Ground 1) and a failure to have regard to a mandatory relevant consideration (Ground 2).
2. In oral submissions the applicants addressed Grounds 1 and 2 together with Ground 6 and Ground 10. Ground 6 is, in essence, the inverse of Ground 1; i.e. that the City erred by reaching its conclusion because 'under the proposed development it will still be possible to have river views for adjoining properties' rather than assessing the views available at the time of the application (i.e. the existing views). I will return to Ground 10 later.
3. In relation to Grounds 1, 2 and 6, the City accepted that, on a proper construction of cl 6.1A(9)(c), the views to be considered were the views from the existing buildings at the time the development application is determined.[84] In that sense, the City accepted the requirement for a comparison of existing and proposed future views.
4. I readily accept the City's concession, and the applicants' submission, in this regard. The text and context of cl 6.1A(9)(c) support the conclusion that the assessment to be made by the City, and its 'satisfaction' was to be in relation to the existing views from neighbouring properties. Put more prosaically, cl 6.1A(9) is concerned with actual, rather than theoretical, views. Views cannot be said to be 'significantly obstructed' or 'not significantly obstructed' (as the case may be) without an understanding of what the views actually are. In that regard, an exercise of comparison between existing views and any 'obstruction' of them is a necessary part of the City's task in reaching a state of satisfaction, one way or the other.
5. It is also correct to say, as the applicants do, that the existing views, and the effect of the proposed development on them, is a mandatory relevant consideration. A relevant consideration is one which a decision-maker is bound to take into account in making a decision. Whether the decision-maker is bound to take a consideration into account is a question of the construction of the legislation conferring the power.[85] Clearly given the structure of cl 6.1A(9), the nature of the existing views (and any 'obstruction' of them) must be taken into account by the City.
6. Indeed in the present case, the relevant consideration relied upon by the applicants (the existing views), is not merely a relevant consideration but is an integral part of the legislative provision itself. In that respect, Ground 2 is, in a sense, subsumed by Ground 1.
7. In this regard, I would observe that the 'relevant consideration' ground will generally be of more significance as an independent ground in cases of discretion.[86] In such a case the exercise of statutory construction is directed to identifying what are the considerations relevant to an exercise of discretion. As noted above, the ultimate issue in the present case does not concern a discretion but rather an evaluative judgment, as to whether the City is satisfied that the views will not be 'significantly obstructed'.
8. However, in making that evaluative judgement as to the effect on 'existing views' the City is also correct to submit that Scheme No 6 prescribes no particular process by which the City must make its judgment as to whether those views will be 'significantly obstructed'. As the City correctly submitted, both quantitative and qualitative factors may be relevant to that assessment. The City's state of satisfaction cannot be reduced to a mathematical exercise and much may depend upon a variety of factors. A view is also, of course, not static, but is affected by the viewer: how the viewer stands, for example, or where she looks, or indeed how she moves her eyes or head.[87]
9. For these reasons, while I accept that cl 6.1A(9) requires the City to undertake a comparison between existing views and any potential future 'obstruction' of them (as Grounds 1, 2 and 6 contend), that exercise does not require any particular formula to be applied.
10. The real issue, in relation to Grounds 1, 2 and 6 is whether, as the applicants submitted, the City failed to undertake that comparative exercise based on the effect on 'existing' views.
11. In my view, it did not. On the contrary, in my view, the evidence supports the conclusion that the City did conduct a comparison of existing river views of the neighbouring properties with the effects of the proposed development on those views.
12. The Minutes of the February meeting, upon which the applicants rely, do not support the conclusion that the City misdirected itself in relation to the requirement that its 'satisfaction' was to be in relation to the existing views from neighbouring properties.
13. Indeed, those Minutes record the task before the City in precisely the terms for which the applicants contended:[88]

The City has commissioned an independent landscape architect to undertake 3D modelling of the view impacts based on information obtained from the available surveyed data and drawings of the proposed development.

The view impact analysis is provided in Attachment (d). On the basis of view impact analysis undertaken, Council is required to consider whether the proposed dwelling will cause significant obstruction to the existing views of Canning River from neighbouring properties. (emphasis added)

1. In this regard, the Minutes specifically refer to 'existing views', an expression that does not appear in cl 6.1A(9) of Scheme No 6 , but which the City correctly identified as the relevant comparator.
2. Moreover, the material before the City, in its entirety, demonstrates that a comparison of existing views and future views was what the City undertook and indeed was at the centre of its consideration.
3. The initial briefing to the City (the September briefing), included photographs of the existing views from the neighbouring properties,[89] and depictions of the effects of the proposed development (according to the Original Plans).[90] The City's initial refusal of the development application records the reasons as including 'significant view obstruction for 19A Salter Point' with specific reference to cl 6.1A(9).[91]
4. The motion to refuse the development application (based on the Original Plans) was moved by Councillor Cala and seconded by Mayor Doherty.
5. Councillor Cala and Mayor Doherty were among those attending the mediation before SAT. They, and other advisors of the City attending the mediation, personally attended the site and attended Lot 18A and 19A to view Lot 19 from that property and hear the applicants' concerns. [92]
6. The City received advice from planning consultants, Allerding, and an independent architect, EPCAD.[93] The final advice from EPCAD (reproduced at [41] above) sets out a comparison between existing views and the effects of the proposed development.
7. As is apparent from the Minutes of the February meeting reproduced at [60]-[61] above (which were in substantially the same terms as the February Briefing documents), the City referred to cl 6.1A(9) at a number of points, including reproducing the essential elements of the text of the clause.
8. The Minutes also record an assessment of the impact on views by reference to various attachments which address both existing and future views. Some of the material in those attachments consisted of photographs and some of it consisted of graphic depictions of the future views. The fact that the comparative exercise involved a combination of material does not mean that it did not occur. In that regard, the applicants complain that attachment (d), referred to in the Minutes, depicted only 'future views' and did not include a comparative analysis of the existing views with the future views.[94] The analysis, however, is evidenced by the material as a whole, including the other material (such as photographs) and, indeed the material provided by the applicants.
9. In that regard, while strictly relevant to Ground 3, the City also had material provided by the applicants and their consultants addressing the comparative exercise required by cl 6.1A(9), including the deputation from Mr Stewart who distributed a document to each councillor,[95] which included excerpts from the further analysis carried out by Mountford Architects on 17 February 2018 based on the Final Plans.[96]
10. The applicants, particularly by reference to Ground 6, rely upon the following passage in the Minutes as manifesting error (original emphasis):[97]

As demonstrated in the view impact analysis is provided in Attachment (d), the roof pitch at 14°34' allows views of the river to be maintained for adjoining properties to the rear of the site.

1. This, the applicants submitted, was 'not directed to any comparative analysis of future views and existing views, nor ... could it be, because the attachment (d) did not provide such an analysis'.[98] The applicants therefore characterise the City's conclusion that there was 'no obstruction of the river views because it will still be possible to have river views for adjoining properties to the rear'.[99]
2. I do not accept that this passage manifests an error. The fact that the City, in this passage, stated its conclusions in terms that views of the river would be maintained for the adjoining properties, does not indicate that the City ignored (or indeed forgot) the task it had accurately identified earlier in the Minutes. To so conclude would, in my view, involve reading the Minutes minutely and finely with an eye keenly attuned to the perception of error.[100]
3. Accordingly, I am not satisfied that the City misdirected itself in the manner alleged in Grounds 1 and 6 or failed to take into account a relevant consideration, namely a comparative analysis of future views and existing views as alleged in Ground 2.
4. In this latter respect, I proceed upon the basis that the preponderance of authority is to the effect that the duty to take into account a relevant consideration requires proper, genuine and realistic consideration of the relevant matter.[101] Nevertheless, where (as I find to be the case here) it is apparent that a decision maker has identified and given serious consideration to an issue, the need to give proper, genuine and realistic consideration of the relevant matter cannot become a Trojan Horse for merits review; for example, by a process of reasoning to the effect that proper, genuine and realistic consideration of a relevant matter would have led to a different outcome.[102]
5. Such reasoning is, properly, reserved for the 'unreasonableness' ground of review (Ground 10). For this reason, I propose to deal with the applicants' submission that 'it is not possible to properly, genuinely and realistically consider [the evidence as to Lot 18A] and not come to the conclusion that the view is significantly obstructed'[103] in the context of Ground 10.
6. Grounds 1, 2 and 6 must fail.

1. Ground 3 and Ground 4 both relate to the material provided by, or on behalf of the applicants, or the applicants' position in relation to the development application.
2. Both grounds arise out of the substantive content of Mr Stewart's deputation to the Council on 20 February 2018.[104]
3. It will be recalled that Mr Stewart gave an oral deputation at the February briefing on behalf of the applicants and distributed a document to each councillor,[105] which included excerpts from the further analysis carried out by Mountford Architects on 17 February 2018 based on the Final Plans (the Mountford Analysis).[106]

1. Ground 3 relates to the comparative analysis carried out by Mountford Architects.
2. Ground 3 alleges that the Mountford Analysis was a mandatory relevant consideration and that the City failed to give it proper, genuine and realistic consideration.
3. This ground must be rejected.
4. First, the Mountford Analysis was not, in my view, a relevant consideration in the sense identified in the authorities.[107] It was a piece of evidence, which was potentially relevant to the evaluative judgement to be made by the City. In that regard, as the Court of Appeal has made clear (citations omitted):[108]

There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other. In Xie Mian Shen v Minister for Immigation and Ethnic Affairs, French J said, at 15 - 16:

"There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of evidence - Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.

The allegations that the tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the tribunal to take into account particular pieces of evidence. None of the grounds in this respect is capable of sustaining a case that the tribunal failed to take into account relevant factors."

1. In the present case, the relevant consideration, arising as a matter of construction of cl 6.1A(9), was the comparative analysis of future views and existing views. There were a variety of sources of evidence relevant to that consideration: photographs, the depictions prepared by EPCAD, and the submissions from the applicants and other neighbours. The Mountford Analysis was, similarly, a piece of evidence that may be relevant to the consideration of the effect of the proposed development on the existing views. It cannot, however, be elevated to a mandatory 'consideration', in relation to which the City would commit a jurisdictional error should it fail to take it into account.
2. The failure to have regard to relevant evidence, such as the Mountford Analysis, might give rise to an error of fact and, depending upon the circumstances, might form the basis for an allegation of legal unreasonableness (as alleged by Ground 10). It does not otherwise give rise to an error of law.
3. In any event, in my view, there is no proper basis to conclude that the City did not have regard to Mr Stewart's deputation, generally, or the Mountford Analysis, in particular.
4. It is an agreed fact for the purposes of these proceedings that Mr Stewart provided the relevant parts of the Mountford Analysis to the Councillors on 20 February 2018.
5. The decision to approve the development application was made the following week at the Ordinary Council meeting on 27 February 2018. The transcript of that meeting reveals that the deputation made by Mr Stewart was referred to at the meeting. Indeed, it is clear from that transcript that members of the Council referred to the detail of the seven-page document provided by Mr Stewart (which included the Mountford Analysis) in a manner that gives rise to the inference that they were reading from it.[109] That inference is the most likely and I so find.
6. The City, therefore, had available to it and considered the material provided by Mr Stewart. At the very least, in my view, given that the members of the Council clearly had the document to hand, there is no basis to find that they nevertheless did not consider it.
7. The applicants rely on the fact that the February Minutes make no reference to the Mountford Analysis.[110] That is true. However, the fact that some particular matter is not referred to in the Minutes does not require the conclusion that the City failed to have regard to that matter.[111] Indeed, in the present case, as I have noted above, I infer that the Minutes of the February Council meeting[112] were relevantly copied, without amendment, from the February briefing documents.[113]
8. The Council was evidently satisfied that such an administrative 'short cut' was a sufficient record of the February Council meeting. While a more fastidious approach to the record of the meeting may have been desirable, the absence of reference to Mr Stewart's deputation and the Mountford Analysis in the February Minutes does not lead me to conclude that it 'was simply ignored'.[114]
9. Ground 3 must fail.

1. As in the case of Ground 3, Ground 4 finds its genesis in the fact that the February Minutes did not refer to, or incorporate, the material contained in Mr Stewart's deputation to the February briefing.
2. In particular, the applicants' rely upon the following passage from the February Minutes, which was taken holus-bolus from the February briefing documents (original emphasis):[115]

It is notable that the photomontage provided at Confidential Attachment (f) is based on a roof pitch of 16°42' which reflected the first modified proposal circulated to neighbours following the first mediation. The further modified proposal arising from the second mediation contains a roof pitch at 14°32.

1. The applicants' complaint in this regard is that, while that statement is 'perfectly correct',[116] the City 'proceeded on a false premise and thereby took account of a false and therefore irrelevant and prohibited consideration i.e. that the position of Sanders and Stratford was predicated on future views based upon outdated plans'.[117]
2. The applicants clarified in oral submissions, that this ground did not allege that the Council proceeded on the basis that the applicants did not object to the Final Plans.[118] Rather, they submitted that the 'Council proceeded on the basis that the objection was based on the higher roof pitch and not the lower'.[119]
3. As with Ground 3, I am of the view that the basis upon which the City understood the applicants to have objected to the development application was an evidential issue rather than one going to the considerations required or prohibited by the relevant legislative provisions. That is, if the Council had proceeded upon the understanding that the applicants' objection was based on the outdated plans only, that would be an error of fact. In the absence of that error amounting to legal unreasonableness, such a factual error would not amount to an error of law by taking into account an irrelevant consideration.
4. In any event, for the reasons set out above in relation to Ground 3, I do not find that the City proceeded upon any misapprehension of the applicants' objection to the development application, or the basis for their objection. The fact of the applicants' objections was clearly a matter of serious consideration to the members of the Council,[120] and I have found that the City had available to it and considered the material provided by Mr Stewart.
5. As in the case of Ground 3, the 'short cut' nature of the Minutes of the February Council meeting does not lead me to a contrary conclusion.
6. Ground 4 must fail.

Ground 5 - Was it irrelevant that the Final Plans were an improvement?

1. Ground 5 alleges that the City took into account an irrelevant consideration, namely, the fact that the Final Plans for the proposed development were an improvement over the previous plans.
2. Again, consistent with the authorities, an 'irrelevant consideration' in this context is one which the decision maker is forbidden from taking into account; that is, a matter that is extraneous to the proper exercise of power, so that to take it into account will reveal legal error.[121] In that regard, it is important to recognise that the categories of 'relevant' and 'irrelevant' considerations do not constitute an exhaustive description of matters which may be considered by a decision-maker. There will, in many cases, be a category of legitimate factors, consideration of which is neither mandated nor precluded. If a decision-maker takes such matters into account, or if it does not take them into account, in making its decision, it will not, for that reason, fall into jurisdictional error.[122]
3. In the present case, in my view, the fact that the Final Plans were an improvement on both the Original Plans and the Amended Plans was neither a factor that the City was bound to take into account, nor a factor that it was precluded (or forbidden) from taking into account. It was, rather, one of many matters that could legitimately be taken into account in the City making a decision in relation to whether it was satisfied that the views of the river from neighbouring properties would not be significantly obstructed.
4. Indeed, in one respect, for the purposes of the City's decision on 27 February 2018, it was necessary (albeit not sufficient) that the Final Plans be an improvement on the previous plans. That is because the City had previously (on 26 September 2017) refused the Original Plans, including for the reason the proposed development significantly obstructs views to Canning River for the rear adjoining properties.[123] If the Final Plans had not been an improvement, the approval of those plans would have been inexplicably inconsistent with the September refusal.
5. Of course, it would be impermissible reasoning for the City to reach the necessary state of satisfaction solely on the basis that the Final Plans were an 'improvement' on the previous plans. An improvement was necessary; it was not, however, sufficient to enable approval. That is, it would not have been proper, for example, for the City to reason: 'the Final Plans are an improvement, therefore, the views are not significantly obstructed'.
6. I am not, however, satisfied that that the City engaged in such prohibited reasoning. In this respect, the applicants relied upon two particular matters:

(a) the statement in the February Minutes that 'the two-storey element will improve access to views of the Canning River from neighbouring properties';[124] and

(b) the Mayor's remark during the Council meeting that the Final Plans 'reduced the impact on the extent of views and introduced a proposal that would render the view impact as not as significant (sic)'.[125]

1. As to the first matter, the statement in the February Minutes that the removal of the second storey improved the views was a correct statement of fact. It is only one of the statements in the February Minutes in relation to the assessment of the development application. It does not, in my view, reveal the impermissible reasoning I have identified above.
2. As to the Mayor's statement, just as it is necessary to be unconcerned by 'looseness of language [or] unhappy phrasing' in administrative reasons, the Court should be careful to avoid the discovery of error by a pernickety approach to the language used in course of deliberative discussions between members of a decision making body. As Senior Counsel for the applicants properly acknowledged, the Mayor's remark, in context, can be understood as meaning the proposal would render the view impact 'as not significant'; an understanding entirely in keeping with the City's task.[126]
3. For these reasons, Ground 5 must fail.

1. Grounds 7 and 8 both relate to the fact that the decision of the City followed, and arose out of the mediation before SAT. It will be recalled that at the conclusion of the second mediation, the SAT member made orders:

(a) requiring Mr and Mrs Curtis to file the Final Plans by 2 February 2018;

(b) inviting the City, pursuant to s 31 of the SAT Act to reconsider its decision in relation to the development application.

1. There can be no doubt, and I find, that the amendments to the proposed development, reflected in the Final Plans, arose as a result of the SAT mediation process.[127] That included both the removal of the loft and terrace (in the Amended Plans) and the reduction (which was in fact a reversion) of the roof pitch to 14º32' (in the Final Plans).
2. In this context, the applicants contend that:

(a) the City took into account an irrelevant consideration, namely, the fact that the proposal was the product of a mediated outcome between the City and Mr and Mrs Curtis (Ground 7); and

(b) the City's decision was affected by bias, alternatively apprehended bias, in that a fair minded observer would apprehend that the City had not brought a neutral and independent mind to the Application having negotiated with the proponent of the Application through a mediation process to reach a mediated outcome leading up to the City's deliberation of the Application (Ground 8).

Ground 7 - Was it irrelevant that the Final Plans arose from the mediation?

1. The fact that there had been a mediation before SAT, and that the Final Plans reflected matters that were discussed at the mediation was, in one sense, entirely unsurprising and unremarkable.
2. Mr and Mrs Curtis' development application had been refused by the City (the September refusal) and they had applied to SAT for a review.
3. In accordance with the SAT Act, SAT may refer a matter, or any aspect of a matter, to mediation at any stage of the proceeding.[128] The purpose of such a mediation is to facilitate resolution of matters, consistent with the objects of SAT to achieve the resolution of disputes, and review decisions, fairly and according to the substantial merits of the case.[129]
4. In the context of planning cases such as the present, the benefits of mediation were aptly expressed by Deputy President Chaney in Jacobs and City of Subiaco:[130]

Achievement of the objectives set out in s 9 of the SAT Act is greatly assisted by the efficacy of the mediation process. The protection of the process, and of the important elements of it, serves the public interest in the Tribunal meeting the s 9 objectives and achieving reliable outcomes acceptable to the parties to the dispute. This is particularly so in the planning area, where constructive discussion through the mediation process often gives rise to preferable planning outcomes than might be achieved by either approval or refusal of an original application.

1. As these remarks reinforce, in the context of the SAT Act a 'mediated outcome' should not be regarded as one that it antithetical, or opposed, to the substantial merits of the case. On the contrary, the mediation process is to serve those very ends.
2. Having been referred to a mediation, it would be expected that the parties would pursue discussions with a view to addressing the issues that had caused the City to refuse the development application. That expectation is reflected in the present case by the persons attending the mediation who could be expected to contribute to consideration of alternative designs for the proposed development, including representatives from Averna Homes and Dynamic Planning, a representative of Allerding and a representative of EPCAD. [131]
3. In the context of review proceedings before SAT it is also notable that there are (at least) two mechanisms by which a mediation might lead to a final decision:

(a) SAT may make orders to give effect to a settlement reached at mediation (pursuant to s 56 of the SAT Act); or

(b) SAT may invite the decision-maker to reconsider the reviewable decision (pursuant to s 31 of the SAT Act).

1. In the present case, SAT did not proceed in accordance with the former course, as it might have if there was a settlement reached at the mediation. Rather, it invited the City to reconsider the reviewable decision.
2. That order under s 31 was, as the Court of Appeal remarked in Nairn v Metro-Central Joint Development Assessment Panel,[132] 'routine and made consistently with the ordinary operation and application of' the SAT Act.
3. The fact that SAT made an order under s 31, rather than making orders under s 56, at least indicates that those attending the mediation did not have authority to reach a final binding settlement based on the Amended Plans or the Final Plans. The order under s 31 is consistent with the recognition that it was a matter for the Council to determine whether the amendments made to the proposed development as a result of the mediation process, were such that the development application should be approved.
4. In that regard, as noted above, the final approval of the development application involved both reaching a state of satisfaction under cl 6.1A(9) and, if so satisfied, the exercise of its discretion in favour of approval.
5. In that context, in my view, the fact that the Final Plans were a product of the mediation process was not a factor that the City was precluded (or forbidden) from taking that into account, in the sense that it could form no part of their consideration of the matter. Indeed, for the City not to have referred to the fact that there had been a mediation, and changes made to the development application as a result, would in my view have been quite artificial.
6. For these reasons, the fact that the Final Plans were the product of a 'mediated outcome' was not a prohibited consideration.
7. Ground 7 must fail.
8. As with Ground 5, the applicants' real compliant in this regard, appears to be that the fact that the Final Plans were a 'mediated outcome' had some controlling effect on the decision of the City. That is not said to arise from the documentary record, which the applicants accepted was in 'fairly neutral terms'[133], but from comments made by a number of the Councillors at the February Council meeting.
9. Again, that allegation, namely that the 'mediated outcome' had a controlling effect on the City's decision, is better considered in the context of Ground 8.

1. The applicants' submission in this regard is that the City's decision was affected by actual, or apprehended, bias in that the Councillors had not brought a neutral and independent mind to the development application, the City having negotiated with Mr and Mrs Curtis through the mediation process.
2. The relevant bias (actual or apprehended) alleged by the applicants is bias in the form of prejudgment.
3. In that regard the relevant test for prejudgment bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the question to be decided.[134] The relevant 'state of mind' to be apprehended is that identified by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (Jia Lengeng):[135]

Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. ... The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

1. In applying these general principles, it is necessary to have regard to the nature of the power, the character of the repository of the power, and the circumstances in which the power comes to be exercised.[136] As Basten JA observed in McGovern v Ku-Ring-Gai Council (McGovern), in a case concerning an allegation of prejudgment:[137]

There can be no doubt that the position of councillors sitting on a local government authority are far removed in the exercise of their functions from a judicial paradigm. In those circumstances, a significant degree of care must be taken in applying a test, the language of which is deemed appropriate both in respect of courts and in respect of elected administrative decision-makers.

1. Applying these concepts in the context of planning decisions, McLure JA observed in Re MacTiernan; Ex parte Coogee Action Coalition Inc:[138]

In the case of prejudgment, the question is whether there is a reasonable apprehension that the Commission is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. An alternative formulation is whether a reasonable and informed member of the public would conclude there was a possibility that the Commission was not open to persuasion, bearing in mind it could properly form a preliminary view (even a strong preliminary view) as to the planning merits of the proposed development.

1. This formulation of the relevant test (and in particular her Honour's use of the word 'possibility') in my view properly captures the necessary 'hurdle of proof' in the allegation of prejudgment.[139] In particular, I do not regard the authority of Jia Lengeng (or its application in McGovern and Re MacTiernan; Ex parte Coogee Action Coalition Inc) to have been affected by the decision in Isbester v Knox City Council (Isbester).[140]
2. Isbester was not a case involving an allegation of prejudgment bias but a case of alleged interest in the decision on the part of the decision-maker.[141] Indeed, the reasons of the plurality in Isbester make clear (without doubting their correctness) that both Jia Lengeng and McGovern were to be distinguished from the circumstances in that case.[142]
3. In submitting that there was actual or apprehended bias in the present case, the applicants rely principally on comments made by a number of the Councillors at the February Council meeting. As noted above, the applicants accepted that the documentary record was in 'fairly neutral terms'.[143]
4. In particular, the applicants emphasised the following remarks:[144]

(a) Councillor Cala referred to the 'opportunity to maintain the integrity of that mediated outcome by an approval';

I find it a challenge coming up with this determination and it's not something I've taken lightly however in good faith I entered the mediation and in good faith I am making the decision;

The applicants considered an appeal to SAT as we know they and the City agreed to mediate this matter in an attempt to agree a resolution rather than go straight to a full hearing of this matter. Both parties attended the mediation and conducted themselves in good faith. The mediation process resulted in the application that we see before us today. I think it's fair to assume that the parties to the mediation consider that the present application, to the original application that is, complied with the Town Planning Scheme...

1. In context, in my view, these remarks, neither individually nor in combination, suggest the possibility of a mind 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented'.
2. First, it must be recognised that all of the remarks made by the members of the Council were made after all of the evidence and the arguments had been presented. The members of the Council were not expressing pre-determined or preliminary views but, rather, views that they had reached, after considering all of the relevant information.
3. Secondly, the statements do not, on a fair reading, suggest that any of the members of Council considered that they were bound to give effect to a 'mediated outcome'. Indeed the remarks, as a whole suggest the Councillors were acutely aware that, whatever outcome had been 'agreed' at the mediation was matter for their independent consideration against the legislative criteria.
4. In relation to the particular members of the Council referred to by the applicants:

(a) There is, with respect, no basis upon which it might have been thought that Councillor Cala regarded the outcome produced following the mediation as being in any binding upon him or reflecting 'prejudgment' on his part. Councillor Cala in fact indicated an intention to vote against the approval recommended by the officers of the City and moved for a further amendment to the plans.[147] Councillor Cala was one of the two members of the Council to attend the mediation. His motion against the recommendation rather belies any prejudgment based on the outcome of the mediation;

(b) Mayor Doherty simply indicated that she had entered the mediation in good faith and was making her decision in good faith which she described as a challenge. That does not, in my view, suggest prejudgment. Her earlier remarks in support of the motion, as I have noted above, made specific reference to of the seven-page document provided by Mr Stewart, including his reference to the criteria he put forward in it.[148] She specifically referred to the presentations that had been made at the February briefing;

(c) Councillor Milner spoke at length, in relation to the merits of the development application, including confirming that he too had considered the four step assessment referred to by Mr Stewart at the February briefing. His reference to 'the parties to the mediation' considering that the application complied with the town planning scheme was, in context, a reference to the expert advice as to whether the development application could be approved.[149] Immediately after the comments relied upon by the applicants and before embarking on his discussion of the issues, Councillor Milner stated:[150]

So the question remains are the applicants entitled under the provisions of the Town Planning Scheme No. 6 to have their application approved.

This is not, in my assessment, the expression of a closed mind.

1. Thirdly, in relation to the fact that the Final Plans arose out of the mediation, I repeat my earlier observation that a 'mediated outcome' should not be regarded as one that it antithetical, or opposed, to the substantial merits of the case. It is entirely possible (indeed it is to be hoped that it would invariably be the case) that a particular proposal can at the same time be the product of a mediation and accord with a decision-maker's views as to the substantial merits of the case.
2. In this way, for example, the Councillors' acknowledgement that the Final Plans for their consideration were a mediated outcome does not preclude their ability to reach the necessary state of satisfaction as to the legislative criteria.
3. Finally, the context in which the various comments were made is important. It was the final consideration of the development application following a number of meetings and changes to the application. It is inevitable that some of the members of Council would by that stage have reached a view as to whether the application should be approved. In that regard, in my respect view, the following conclusion expressed in McGovern (in similar circumstances) are apposite:[151]

However, the fallacy underlying the appellant's case was that Councillor Ryan was required to keep an open mind on the merits of the application until the final meeting at which the Council determined its response. Where a councillor forms a firm view as to the appropriate course to be taken there is no reason why he or she should pretend to maintain an open mind whilst the debate proceeds. If further material is presented, no doubt it should be considered, but it will not be a demonstration of bias based on prejudgment merely to maintain one's original position if that position was properly adopted. The evidence demonstrated two critical factors in this respect: first, Councillor Ryan's initial view was not uninformed and, secondly, she acted on the basis that Council should vote in accordance with recommendations made by its expert officers, unless they were shown to be wrong. The Court, in such a case, is not involved in assessing the correctness of views formed by decision-makers, except to the extent that holding a view shown to be erroneous may demonstrate a reasonable apprehension of bias in the sense of prejudgment, or reveal some legal error.

1. For the above reasons, in my view, the Council was not affected by actual bias, nor might a fair-minded lay observer reasonably apprehend that the City might not bring an impartial mind to the question to be decided.
2. Ground 8 must fail.

Does the Local Government Act provide a Code in relation to Bias?

1. Before leaving this ground, I should briefly refer to an additional submission made by the City to the effect that the common law principles of bias are relevantly excluded by the framework of the Local Government Act 1995 (WA) (Local Government Act).
2. In that regard, the City submitted that the Local Government Act creates a comprehensive code in relation to the circumstances in which a councillor will be precluded from participating in a vote at a Council meeting. In the face of that 'code', the City submits, there is no place for the common law principles relating to bias to operate.[152]
3. In this regard, the City submits:

(a) pt 5, div 6 of the Local Government Act (headed 'Disclosure of financial interests') makes express provision in relation to disclosure of 'interests', including 'financial interests' and 'proximity interests';[153]

(b) a councillor is required to disclose 'interests' (so defined) in relation to matters to be discussed at a meeting, and must not participate in discussions or decisions in relation to the matter (subject to certain exceptions);[154] and

(c) otherwise a councillor who is present at a council meeting, unless prohibited by s 5.67, is required to vote. A person who fails to comply with the requirement to vote commits an offence.[155]

1. The City also referred to the Local Government (Rules of Conduct) Regulations 2007 (WA), which requires council members to disclose interests that could, or could reasonably, be expected to adversely affect their impartiality.[156] The City observes there is no statutory consequence that flows from a council member's disclosure of such an interest (such as the prohibition on participation that arises in relation to interests under pt 5, div 6 of the Local Government Act).
2. While it is not necessary for me to decide this issue, I would make the following observations in relation to the City's submissions in this regard.
3. The rule against bias, insofar as it concerns prejudgment, is an element of the principles of procedural fairness. It is well established, in relation to powers conferred by legislation, that the principles of procedural fairness may be excluded only by 'plain words of necessary intendment'.[157]
4. In relation to the principles of procedural fairness, as they relate to bias in the form of interests, in my view, there is a strong basis for concluding that the provisions of pt 5, div 6 of the Local Government Act have supplanted the common law principles in relation to procedural fairness to that extent.[158]
5. Whether those provisions otherwise replace the principles of procedural fairness in their entirety, including excluding the rule against prejudgment, is a significantly broader question. While I have considerable doubt that the Local Government Act has sufficiently 'plain words of necessary intendment' to bring about that result, in my view it would not be appropriate to express a concluded view in that regard, in the absence of a concrete factual scenario calling for its determination.

Grounds 9 and 10 - Clause 6.1A(9)(a)(iii) and Reasonableness.

1. Grounds 9 and 10, were proposed by the applicants shortly prior to the hearing of the appeal and, ultimately, their inclusion was not opposed by the City.[159]
2. While apparently raising different issues, it became apparent that Grounds 9 and 10 were closely related.
3. Ground 9 alleges that the City acted beyond its powers as its decision was made in circumstances where it did not have drawings showing sight lines demonstrating that views of the Canning River from buildings on lots whose views would be affected, will not be significantly obstructed, as required by cl 6.1A(9)(a)(iii).
4. It is to be recalled that the reference to drawings in cl 6.1A(9)(a)(iii) are drawings that have the relevant features 'to the local government's satisfaction'. As with the ultimate conclusion in cl 6.1(9)(c), that evaluative judgement is reposed in the City, although it might be that if there were no drawings at all it could be said that the precondition to the exercise of power was not met.
5. In oral submissions, the applicants clarified that in Ground 9 they were not suggesting that the drawings were not sightline drawings. Rather, the applicants submitted that the drawings referred to in cl 6.1A(9)(a)(iii) had to be of a certain type, namely 'it has to be a drawing that is capable of giving rise to a level of satisfaction'.[160] Indeed, the applicants accepted that Ground 9 ultimately posed the same ultimate question as that posed by cl 6.1(9)(c): i.e. could the City be satisfied that the views of Canning River would not be significantly obstructed by the proposed development?[161]
6. That is, ultimately, the issue pursued in Ground 10 namely whether the City's decision that it was so satisfied was 'plainly unjust, plainly unjust, perverse, illogical or irrational or was a decision that no reasonable decision-maker could have made'.
7. It is appropriate, therefore, to consider Grounds 9 and 10 together. Indeed, as noted above, many of the grounds of review ultimately devolved to this the question of reasonableness: in light of the available evidence could the City have been satisfied that the views would not be significantly obstructed?
8. Expressing the question in this way (that is, could the City have been satisfied, rather than should the City have been satisfied) captures the essential difference between the reasonableness ground of review and merits review. The Court is not concerned with whether it would have reached the state of satisfaction on the available material, but rather, whether it was open to the City, as a matter of law, to reach that state of satisfaction.
9. In this respect, Ground 10 deploys the well-known formula articulated by Lord Green MR in Wednesbury:[162] a decision so unreasonable that no reasonable decision maker could have made it. Following the decision of the High Court in Minister for Immigration and Citizenship v Li, the assessment as to whether a particular decision is legally unreasonable is not to be confined by reference to such a formula.
10. In Minister for Immigration and Citizenship v Li, Hayne, Keifel & Bell JJ, observed that the Wednesbury formula could more sensibly be taken to recognise that an inference of legal error may be objectively drawn even where a particular error of reasoning cannot be identified.[163] In this way, as their Honours recognised, the principle accords with that in relation to the review of judicial discretion in House v The King[164] and as expressed in the administrative law context by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation.[165]
11. As the Court also recognised in Minister for Immigration and Citizenship v Li, however the standard is expressed, in applying the standard of reasonableness the Courts will be cognisant of their constitutional role (citations omitted):[166]

The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.

1. While this statement of principle was expressed in the context of the exercise of a discretion, as the review of authorities at [101]-[104] make clear, it is equally applicable to a criterion in relation to which a decision maker is to be 'satisfied'.
2. The contemporary approach to legal unreasonableness was again addressed by the High Court in Minister for Immigration and Border Protection v SZVFW (SZVFW).
3. In that case Gageler J reiterated that the question of legal unreasonableness was 'a question directed to whether or not the decision or action is within the scope of the power conferred on the repository'.[167]
4. In this context, Nettle & Gordon JJ in SZVFW identified an important part of the lens for assessing legal unreasonableness, namely (original emphasis): [168]

error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. In that situation, the court is not undertaking merits review of an exercise of a discretionary power by a decision-maker. Rather, the court is asking whether the decision-maker's purported exercise of power was beyond power because it was legally unreasonable.

1. While this question is a question of law, it will, nevertheless, inevitably involve an evaluation of the particular evidence in each case. As Nettle & Gordon JJ continued in SZVFW (original emphasis): [169]

Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases.

1. Turning then to the particular circumstances of the present case.
2. Was is open to the City to be satisfied that the existing views from any buildings on neighbouring land would not be significantly obstructed by the proposed development?
3. I commence by observing that neither party made submissions as to the meaning of the word 'significantly', as it appears in cl 6.1A(9)(a)(iii) and cl 6.1A(9)(c). That is as it should be. 'Significantly' is not a term of art; any attempt to explain the word by a synonym would be a gloss.[170] The standard concerns a matter of degree but not one that is formulaic.
4. This is particularly so given that, as I have found, both quantitative and qualitative factors will be relevant to that assessment and state of satisfaction cannot be not reduced to a mathematical exercise. The 'significance' of any obstruction, is also, by reason of the nature of the exercise, subjective: what may be a significant obstruction to one person may not be a significant obstruction to another.
5. In that regard, the City's satisfaction involves the formation of an opinion. It is, therefore, appropriate to recall, as Gibbs J stated (in Buck v Bavone) that 'where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that ... its decision could not reasonably have been reached'. [171]
6. The applicants' submissions in relation to reasonableness, quite properly, principally focussed on the effect of the proposed development on the views from Lot 18A. In the course of submissions, the applicants' accepted that whether the effect on Lot 19A was significant was 'debatable'.[172] In that regard, in my view, it was well-open to the City to be satisfied that the view from Lot 19A was not 'significantly obstructed'. The views as they appear in the depictions in [430] and [430] above are in my view very similar, particularly when one has regard to the dynamic manner in which a person will relevantly experience or 'enjoy' a view. The City's conclusion that the views from Lot 19A were not significantly obstructed was consistent with the advice of EPCAD and it was open to the City to accept that advice.
7. The effect on the views from Lot 18A are more difficult.
8. The applicants in this regard, raised three principal matters in support of their submission that it was not open to the City to come to the conclusion that the views from Lot 18A would not be significantly obstructed.
9. First, the applicants emphasised the reference in the Minutes of the February Council meeting that the house on Lot 18A 'has been designed to have its main view corridors of the Canning River toward the north-east'.[173]
10. Secondly, the applicants observe that one aspect of the views (to the north-east) would, to a large extent, be obstructed by the proposed development. That obstruction can be seen in the drawings at [44(b)] and [44(c)] above. It is also depicted in the Mountford Analysis as follows:

1. Thirdly, the applicants submit that the view to the east (including the south-east) of Lot 18A was the not the subject of a drawing of the proposed development demonstrating that views would not be significantly obstructed. In this regard, the applicants placed particular emphasis on cl 6.1A(9)(a)(iii) on the basis that the available drawing 'tell us nothing about the contours of the view to the east'.[174]
2. This third issue can, in my view, be dealt with relatively easily. The reason that there was no drawing of the impact on the view from Lot 18A to the east, I readily infer, was because there was no predicted impact on the view to the east. If an aspect of the view of the river would not affected by the proposed development, it is, in my view, hardly unreasonable for the City not to prepare 'before' and 'after' depictions that are identical.
3. That absence of effect can be inferred from the predicted northeast views prepared by both EPCAD and Mountford Architects, both of which (in the bottom right of the images) depict the corner of the house to the immediate east of Lot 18A (depicted in [44(d)]). As a matter of logic, the eastern view, over that house, would be unaffected by the proposed development.
4. Indeed, the entirety of the depictions prepared by Mountford Architects were in evidence in these proceedings, including a number of projections not provided as part of the Stewart deputation.
5. Those projections do not suggest any impact on the views to the east from Lot 18A. Indeed, some of the depictions prepared by Mr Mountford suggest quite the opposite (that is an absence of effect on the views as the eye looks further to the east and southeast) such as:[175]

1. Accordingly, in my view, there is no substance to the criticism based on cl 6.1A(9)(a)(iii) that there was an absence of drawings depicting in the effect of the proposed development to the east (or the southeast). The view in that respect remained unaffected.
2. This leaves the undoubted effect of the proposed development on the aspect of the view to the northeast.
3. First, it is, as I have found necessary to consider the effect on existing views. To the extent that the design of an existing building has produced certain views, the design of the building is, therefore, relevant. Beyond that, however, I do not consider it particularly helpful to refer to views as 'primary' views (as if it were possible to attribute motive or purpose to the design); to do so adds a gloss to the words of cl 6.1A(9)(a)(iii). Rather it was necessary for the City to reach a state of satisfaction in relation to the entirety of the existing views.
4. Viewed in isolation, the impact on the northeast aspect of the view, looking directly at the proposed development, could well be described as a significant obstruction. Indeed, even with the substantial views from Lot 18A remaining to the east and south, in my view it may have been open to the City to refuse the development application on the basis that it was not satisfied that the existing views would not be significantly obstructed. If I were the primary the decision-maker (which of course I am not), I may well have reached that opinion myself.
5. Nevertheless, I am not able to conclude that the effect on the north-eastern aspect of the view from Lot 18A was such that the development application was, as a matter of law, was incapable of approval. In the end, that is what the submission based on unreasonableness must amount to: that it was not open to the City to reach the decision that it did.
6. In this context, the following matters are particularly important:

(a) the issue before the City was very much a matter of opinion, in relation to which reasonable minds may differ;

(b) the obstruction to the northeast formed part only of a larger view;

(c) the photographs and depictions, while of assistance and a necessary consideration, are an imperfect substitute for the views themselves. Even the most pronounced effect on the views (the northeast aspect of the view from Lot 18A) must be placed in its overall context, including the dynamic way in which a viewer experiences the view as a whole (as reflected in the entirety of the projections prepared by Mr Mountford);

(d) the City's conclusion was supported by expert advice. Those experts who assisted the City (Allerding and EPCAD) visited the site and observed the views from Lots 18A and 19A;

(e) a number of the members of the Council who made the decision had themselves the opportunity to observe the views, in their entirety. This was not limited to the members of Council who attended the mediation;[176]

(f) the material as a whole, in my view, demonstrates that the City gave the development application, and the relevant provisions of Scheme No 6, careful consideration.

1. In all of the circumstances, I am not satisfied that I can infer that the City's opinion was such that it could not have been reached by a process of proper reasoning.
2. Grounds 9 and 10 must fail.

1. In light of the conclusions I have reached in relation to the grounds of review, I am not satisfied that the City fell into legal error in approving the development application. For that reason, the application for judicial review must be dismissed.
2. In addition, however, for the reasons that follow, I would in any event have declined to grant relief setting aside the development approval as a matter of discretion. Those discretionary considerations are a separate and independent reason for my dismissal of the application.
3. Before stating those reasons, it is appropriate to briefly record how the issue of discretion developed in the course of the proceedings.

The parties' positions in relation to available relief

1. As I have recorded above, before these proceedings were even commenced, approximately 90% of the brickwork of the development was completed, and structural steel beams and lintels had been craned in and attached to the brickwork.[177]
2. By the time of the first directions hearing in the matter, on 17 October 2018, the roof on Lot 19 had been completed.
3. In relation to the issue of relief, the application for judicial review simply sought 'a writ of certiorari' and 'a declaration' (presumably as to the invalidity of the decision to approve the development application). No specific relief was sought against Mr and Mrs Curtis.
4. The submissions filed by the applicants prior to the hearing date made no reference to the relief sought in the application.
5. At the commencement of the hearing of the application, on 21 February 2019, I enquired of the applicants as to the nature of the relief sought, essentially enquiring as to the applicants' 'end game'.[178]
6. The applicants initially submitted that if I determined that the decision was in error, Mr and Mrs Curtis would 'have to accommodate that, no doubt by modifying the home in some way'.[179] The legal basis for why that would be so, however, was not at that point identified, save that it would involve the City invoking some statutory power. I indicated to the applicants that the potential consequence of a writ of certiorari quashing (or declaration declaring invalid) the City's decision was a matter relevant to the exercise of discretion and that I would be assisted by submissions as to the consequences of a finding of invalidity.
7. At the completion of that day, the matter was adjourned part-heard to 6 March 2019. The parties were asked to consider the issues in relation to relief.
8. On 5 March 2019, the applicants filed further submissions addressing discretionary considerations in relation to relief. While I will return to it in more detail, the applicants submitted that, if the decision were quashed it would have the effect that 'the development was undertaken in contravention of a planning scheme' which would enliven a power in the City, pursuant to s 214 of the Planning and Development Act, to issue a direction that the development be removed, pulled down or altered.[180] The submissions also noted that, arguably, Mr and Mrs Curtis had committed an offence for the same reason, contrary to s 218 of the Planning and Development Act.
9. At the resumption of the hearing the following day, the City made submissions that s 214 of the Planning and Development Act did not apply in the present case because:[181]

the development has not been commenced, continued or carried out otherwise than in accordance with the scheme, because it was commenced, continued and carried out, or has been, in accordance with what is, to this point in time, a valid development approval.

1. As a consequence of the City's submissions in that regard, both parties were provided the opportunity to file further written submissions in relation to the construction of s 214 and s 218 of the Planning and Development Act. Those submissions were to be filed by 20 March 2019.
2. On 12 March 2019, the City filed written submissions reversing its position in relation to s 214 and s 218 of the Planning and Development Act. The City accepted that if certiorari is granted, the development had been undertaken 'in contravention of a planning scheme' for the purposes of s 214 and s 218 of the Planning and Development Act. It withdrew its oral submissions to the contrary.[182]
3. As those submissions raised the prospect of criminal liability on the part of Mr and Mrs Curtis, my Associate raised with the applicants and the City my preliminary view that Mr and Mrs Curtis should be given an opportunity to make submissions in relation to the expression 'in contravention of a planning scheme' in s 214 and s 218 of the Planning and Development Act. The parties agreed with that view and Mr and Mrs Curtis were provided the opportunity to make submissions in relation to the issue.
4. The applicants' final submissions addressing Part 13 of the Planning and Development Act were filed on 20 March 2019.
5. Mr Curtis' submissions were filed on 10 April 2019.
6. Turning then to the discretionary issues in the present case.

Discretionary Considerations - Utility and Prejudice

1. There is no doubt that the remedies sought by the applicants (certiorari and declaratory relief) are discretionary.[183] In the context of the issues in the present case, of course, certiorari would be the primary remedy, as what is sought by the applicants is to quash the legal effect of the development approval.
2. The two discretionary considerations that loom largest in the present case are:

(a) Utility - an order quashing a decision will not be made if it would be a futile remedy;[184] and

(b) Prejudice to third parties - where the remedy would cause hardship or prejudice to a third party.[185]

1. In relation to utility, it is clear that quashing the development approval could not, by itself, have any consequence for the development. The development (in the sense of the works on the land) has been completed. Mr and Mrs Curtis no longer need to carry on any works on Lot 19 that relevantly require a development approval. Likewise, it was not contended that planning approval was required for the use of the building as a house. Nor has there been any suggestion that this Court could make any order requiring the demolition or modification of the house on Lot 19. It could not.
2. There would therefore be no immediate practical effect of an order quashing the development approval. This remains the position at law regardless of whether an order quashing the development approval operates retrospectively. A house exists, which Mr and Mrs Curtis require no approval to reside in.
3. In order for there to be any utility in the proceedings, there would need to be some mechanism by which quashing the approval could have a practical effect. It is to that mechanism that the parties' supplementary submissions were directed.
4. In this context, I accept that, generally, an order quashing an administrative decision operates retrospectively, in the sense that a decision affected by jurisdictional error is no decision at all. It is void ab initio.[186] This statement of general principle must, however, be qualified. Depending upon the particular statutory context, a purported decision affected by jurisdictional error may be treated as having some legal effect until set aside.[187] That is a question of statutory construction.
5. There was some hint of this is the City's initial reliance on the following proposition stated by SAT in Lakes Action Group Association (Incorporated) and Shire of Northam (original emphasis):[188]

A person who holds an approval, is entitled to rely on the validity of that approval until such time as it is quashed or declared invalid by a Court of competent jurisdiction - see Swadling v Sutherland Shire Council [1994] NSWLEC 45; (1994) 82 LGERA 431 at 436.

1. Nevertheless, the applicants and the City both agreed that if the development approval were quashed in the present case, s 214 of the Planning and Development Act would apply. Section 214(3) provides:

(3) If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development -

(a) to remove, pull down, take up, or alter the development; and

(b) to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.

1. This is, relevantly, the only substantive provision that could possibly affect the development in the present case. There has otherwise been no power identified.
2. Whether s 214 would be available in a case such as the present would depend upon whether a development carried out under a development approval that has been quashed would be 'a development has been undertaken in contravention of a planning scheme'.
3. That question is informed by s 214(1)(a) of the of the Planning and Development Act, which relevantly provides:

(a) a development is undertaken in contravention of a planning scheme ... if the development -

(i) is required to comply with the planning scheme ...; and

(ii) is commenced, continued or carried out otherwise than in accordance with the planning scheme ... or otherwise than in accordance with any condition imposed with respect to that development by the responsible authority pursuant to its powers under that planning scheme ...;

1. As is reflected in this definition, the notion of a contravention is concerned with conduct or activity ('commenced, continued or carried out'), albeit that the word 'development' in s 214(3) refers to the product of the activity.[189]
2. Section 214(1)(a) would obviously apply (and may be expected usually to apply) in two types of case:

(a) where the planning scheme itself creates a prohibition on a particular type of development (for example, an absolute height restriction in a particular zone) and works are carried out contrary to that prohibition; and

(b) where the planning scheme requires development approval prior to works being carried out and no such approval is, in fact, sought or obtained (such as the requirement under cl 60 of the deemed provisions).

1. In such cases there would be no decision or 'approval' of the local government involved. It would be clear that the works will have been 'commenced, continued or carried out otherwise than in accordance with the planning scheme'.
2. The real issue is whether works can be said to have been 'commenced, continued or carried out otherwise than in accordance with the planning scheme' where, at the time of the relevant conduct an approval was in place that is subsequently quashed by a Court. Is the conduct thereby rendered 'unlawful' (or to use the heading of s 214 'illegal') in the sense contemplated by s 214?
3. This question is in a sense the inverse of the question in Bright Image Dental Pty Ltd v City of Gosnells, in which the Court of Appeal rejected the argument that an approval of a development granted after the development had been carried out, rendered lawful the prior conduct of carrying out the development without prior approval.
4. In Bright Image, the Court rejected that contention as involving a construction 'which would, in effect, provide retrospective immunity to those who had flouted the scheme of the Act'.[190]
5. In the present case, the question does not concern a retrospective immunity. Rather, the applicants' contention is that s 214 should be construed such that it would, in effect, create a retrospective liability on the part of a landowner for conduct carried out by the landowner under the ostensible (but invalid) authority of a development approval granted under the planning scheme.
6. The retrospective liability, at least on the City's contention, would also involve retrospective criminal liability under s 218 of the Planning and Development Act which provides that a person who 'contravenes the provisions of a planning scheme' or 'commences, continues or carries out any development in ... any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme' commits an offence.
7. The applicants' final submissions were more reticent about accepting that the effect of quashing the development approval could lead to criminal liability. They submitted that the context made plain that 'contravention' means something different in s 218 as compared to s 214.[191] In that regard, the applicants relied upon the different tenses employed in the language of s 218. In the end, the applicants submitted that it was open to some doubt that s 218 could potentially create a retrospective offence.[192]
8. There was no doubt, however, that the applicants contended that the Planning and Development Act potentially created a 'retrospective'[193] civil liability under s 214 in a person who, by reason of legal error on the part of the local government, carried on works on the basis of the local government's approval. That new legal liability (to comply with a notice) itself results in criminal liability if not complied with.[194]
9. At first glance, such a result would, as a matter of legislative intention, be a surprising one. This was, in effect, the submission of Mr Curtis:[195]

The focus of section 214 is upon proponents following correct procedures that are required under a local planning scheme and the statutory intention cannot be one of punishing proponents who have done the right thing where development is completed in accordance with the correct procedures under a local planning scheme, but it later emerges that there was some legal defect relating to those procedures, at the fault of the local government as decision-maker.

The words "commenced, continued or carried out otherwise than in accordance with the planning scheme" in section 214(1) should be given a plain and ordinary meaning and do not necessarily need to be informed by more complex administrative law notions of the retrospective effect of granting certiorari.

1. The applicants submit, to the contrary, that if its construction is not adopted, s 214 would be rendered unavailable in the case of an invalid approval, no matter how 'flagrant or serious the error'[196] by the local government and that a 'wholly non-compliant development could not be removed'.[197] The difficulty with this submission, in a purposive sense, is that it nevertheless involves a construction that visits liability as a result of legal error on a person who is not responsible for the error. Further still, it has the peculiar result that legal liability is imposed by the action of the body that is responsible for the error (i.e. the local government).
2. For these reasons, in my view, there is much force in Mr Curtis' submission that s 214 does not apply to a conduct or works 'commenced, continued or carried out' at a time when a development approval is in place, and which has not been set aside by a Court.
3. The scope of s 214 does not, however, have to be finally determined in these proceedings. The issue of its application is, in a sense, hypothetical given that it is a proposed future step in the event that certiorari were to issue. It is the opportunity to agitate that further step that the applicants seek by an order quashing the development approval. For this reason it is appropriate that I proceed upon the basis that recourse to s 214 would be possible in the case of a development completed prior to the quashing of a development approval.
4. I, therefore, proceed upon the assumption that to grant certiorari would have utility as it might leave it open to the City to issue a direction under s 214.
5. Of course, this would be only one step. There is no guarantee that the City would exercise the power under s 214, if indeed it could. If it did not, the applicants submitted that they could seek a direction from the Minister under s 211 of the Planning and Development Act to order the City to enforce the provisions of the scheme in relation to an illegal development (that process in turn involves a referral to and recommendations from SAT, and a potential appeal to this Court).
6. In addition, if a notice were to be issued under s 214, Mr and Mrs Curtis would inevitably have a right of review to SAT under s 255 of the Planning and Development Act.
7. There are, therefore, a number of permutations of potential legal and administrative processes that might be engaged in relation to the development in the event that the decision to grant the development approval was quashed.
8. All of those processes would ultimately be directed to the ultimate 'utility' in quashing the development approval: the demolition or modification (if that is possible) of Mr and Mrs Curtis' home. Without that ultimate outcome, an order quashing the approval would have no practical effect.
9. This raises the second issue in relation to discretion: the prejudice to Mr and Mrs Curtis in quashing the decision.

1. As noted above, relief in a case such as the present may be refused where the remedy would cause hardship or prejudice to a third party.
2. Two illustrations of this principle from the authorities will suffice.
3. In Gavranich v Shire of Wanneroo,[198] Miller J refused to grant an order nisi in relation to an application for certiorari to set aside the approval of a subdivision. The approval was granted on 28 January 1998 to a company, Australand Holdings Ltd. At the time of the application a new road had been constructed for the subdivision (Grassington Entrance) in relation to which the applicants had complaints.
4. In refusing the application, Miller J stated:[199]

There is no doubt that the grant of an order nisi would occasion prejudice to Australand. Works at the relevant portion of the subdivision are complete and, perhaps more importantly, Grassington Entrance is fully constructed. The cost to Australand of the development has been substantial. Further, purchasers have entered into contracts (conditional and unconditional) in relation to the acquisition of lots in the area, some of which are immediately adjacent to Grassington Entrance. The dislocation to Australand, and to purchasers who have acquired land in good faith, in the event of reconsideration of the subdivision plan would be of major dimension.

Although counsel for the applicants contended that the entire subdivision would not be affected, I am of the view that the dislocation caused by reappraisal of the need for or location of Grassington Entrance would be very substantial indeed. The submission of counsel for the applicants that the question could not "just be measured in financial terms" overlooks the enormous investment made by Australand in the subdivision, which, to this point, has been the subject of regular process through the first and second respondents. In the exercise of discretion to grant or refuse certiorari, there is no doubt that the question of prejudice is relevant.

1. Similarly, in Woodley [No 2], Martin CJ refused to grant certiorari in relation to a consent granted by the Minister for Indigenous Affairs under s 18 of the Aboriginal Heritage Act 1972 (WA) that his Honour found to have been granted without a necessary pre-condition for a valid grant. The consent granted by the Minister related to the construction of a bridge and related works.
2. Martin CJ refused to grant the relief on discretionary grounds, including prejudice to the proponent, Robe River Mining Co Pty Ltd (Robe). In that regard, his Honour stated:[200]

I return then to the third ground upon which it is said that a discretion should be exercised to deny relief, namely, hardship to a third party. There are authorities that establish that prejudice to third parties can provide an appropriate basis for the discretionary denial of prerogative relief. Those cases include Re Smith and West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295; Gavranich v Shire of Wanneroo (Unreported, WASC, Library No 980473, 25 August 1998) and Savage v Tech Explorations Ltd (Unreported, WASC, Library No 7285, 16 September 1988). In the circumstances of this case, the hardship that would be suffered by Robe, in respect of the work that it carried out following the purported grant of the Minister's consent on 20 July 2009, if the Minister's decision is quashed provides an alternative basis for denying relief. It is, I think, clear that if I were to quash that decision because the requirements of the Act had not been adhered to, it would follow that the decision had always been invalid from 20 July 2009 onwards. That would mean that Robe would be denied the opportunity to rely upon the valid consent of the Minister as a defence to any prosecution for contravention of the Act in respect of work done after 20 July 2009.

The question of whether or not Robe would be able to rely upon the defence of honest and reasonable mistake of fact provided by s 24 of the Criminal Code is a complicated question and not one upon which I should express a concluded view. It is however sufficient for present purposes to conclude that the answer to that question is not so obvious as to deny acceptance of the proposition that the prospect of prosecution in respect of work done after 20 July 2009 exposes Robe to potential prejudice and hardship. As I have found, Robe had no way of knowing the matters that are said to have given rise to invalidity until some time well after it commenced work in late July.

1. The circumstances in both Gavranich v Shire of Wanneroo and Woodley [No 2] are, of course, different from those in the present case.
2. Nevertheless, they provide useful guidance in relation to the considerations relevant to the proper exercise of discretion on the grounds of prejudice: the cost to the third party, any effect on the third party 'other than in financial terms', the apparent regularity of the administrative process and the state of knowledge of the third party.
3. In all of the circumstances, in my view, to grant relief quashing the development approval granted to Mr and Mrs Curtis, exposing them to potentially protracted further proceedings culminating in the requirement to demolish or alter their home would cause them significant undue hardship. The prejudice to Mr and Mrs Curtis is such that the application should be refused on discretionary grounds.
4. In that context the following considerations are of particular importance.
5. First, Mr and Mrs Curtis, I find, at all times acted in good faith and in accordance with their obligations under Scheme No 6. They made application for development approval and engaged in a regular process for approval.
6. Secondly, Mr and Mrs Curtis obtained a development approval from the City in circumstances in which, I find, there was nothing about the process to alert them to the prospect that their approval was anything other than validly and regularly issued. They had, in a real sense, done everything that the law and the local government had asked of them. Regardless of the legal niceties as to the retrospective effect of an order quashing the City's decision, in a practical sense, to use the words in Lakes Action Group Association (Incorporated) and Shire of Northam,[201] Mr and Mrs Curtis were entitled to rely on the validity of the approval.
7. The applicants submit that Mr and Mrs Curtis 'knowingly assumed the risk that the development approval may be quashed' and they chose 'to build knowing an application for review was possible'.[202] In my view, that submission rather overstates the position.
8. Mr and Mrs Curtis were advised, approximately six weeks after the approval was granted, that the applicants were taking advice and giving serious consideration to judicial review proceedings. They were not told, at that time, or for months thereafter, what the potential grounds for review might be, what relief might be sought or when a decision would be made. Indeed, when they requested such information, they were expressly informed that they would have to 'wait and see'. [203] Even after the proceedings were commenced, the legal basis for the applicants' ultimate objective did not emerge until the hearing of the application itself.
9. At all times, it remained in the applicants' hands as to whether and when they commenced proceedings. In that regard, all of the material upon which they relied in the judicial review application was available to them at an early stage, including the Minutes of the February Council meeting that had been available since 2 March 2018.
10. The applicants submitted that any delay in commencing the proceedings was explicable by reason of the fact that Ms Sanders had made a number of applications under the Freedom of Information Act 1992 (WA) (FOI applications).[204] That may be so. Nevertheless, the only new documents of any relevance to come out of that process was the EPCAD advice, which was obtained by them on 8 May 2018.[205]
11. While the FOI applications may explain the applicants' reasons for waiting to commence proceedings, it remained within the applicants' power to commence proceedings earlier. In particular, given that the material upon which the applicants relied in the proceedings was available to them prior to any building works, it was open to them to seek interlocutory relief.
12. The applicants frankly acknowledged in their submissions that they 'decided not to bear the risk of applying for an injunction'.[206] It was their right to decide not to do so. Nevertheless, the absence of any application for interlocutory relief remains relevant to the issue of prejudice.
13. Had the applicants applied for an interlocutory injunction to prevent the building works, they would inevitably have had to provide the usual undertaking as to damages. Such an undertaking would, in the event of an injunction, have provided an appropriate allocation of risk in relation to any further delay.
14. As it is, any financial liability to which Mr and Mrs Curtis would be now exposed, if the development approval was quashed and the applicants' ultimate objective achieved, would be wholly borne by them. There is nothing to suggest, assuming the ultimate end of modification of Lot 19 was achieved, that Mr and Mrs Curtis could be compensated, for example, by the City, whose decision it is that is impugned. The financial impact to be considered not only includes the relevant building works, but also any cost associated with the legal and administrative processes contemplated by the applicants.
15. As to the financial impact, the applicants submit that Mr and Mrs Curtis 'have not put evidence before the Court of prejudice suffered by way of financial hardship or the lack of means to rectify the building of necessary'.[207] The financial hardship, is in my view, obvious. What is contemplated by the applicants' objective is, at the very least, removing and reconstructing the roof (if that can be done) of a home costing in excess of $1,000,000. In this context, unlike the third parties in Gavranich v Shire of Wanneroo and Woodley [No 2], Mr and Mrs Curtis are not commercial enterprises and the development is not a commercial development. It is their home.
16. It is true that the prospect of prosecution (if it be open) may be remote (although I would observe, no less remote than in Woodley [No 2]). But the prospect of future administrative proceedings and civil liability for Mr and Mrs Curtis is not only possible, but intended, by the applicants.
17. In that regard, as Miller J recognised in Gavranich v Shire of Wanneroo, the hardship to Mr and Mrs Curtis cannot just be measured in financial terms. To do so would be to ignore the obvious disruption involved in the redesign and reconfiguration of their family home.
18. In my view, having followed a regular process and obtained a development approval that they were entitled to regard as valid, Mr and Mrs Curtis should not be exposed to the prejudice involved in the spectre of further proceedings and the disruption to their home.
19. For these reasons, the prejudice to Mr and Mrs Curtis is such that, as a matter of discretion, relief should be refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Chief Justice Quinlan

[1] Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35-36 (Brennan J).

[2] See Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [63], [66] (Hayne, Keifel & Bell JJ), [88], [92] (Gageler J) (Li); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 [51]-[53] (Gageler J) (SZVFW); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 (Nettle & Gordon JJ) (SZMTA).

[3] Where the context requires, I have used the word 'Council' as a synonym for the City; the Council being the relevant decision making body within the City in this case.

[4] As to the application, and effect of the deemed provisions, see Planning and Development Act 2005 (WA) (Planning and Development Act), s 256 and s 257B; Planning and Development (Local Planning Schemes) Regulations 2015 (WA) reg 10(4).

[5] The Scheme Text of Scheme No 6 is Exhibit 2, Tab 1.

[6] Underpinning the deemed provisions and Scheme No 6 in this regard is s 162 of the Planning and Development Act, which provides that a person must not commence development on land to which a planning scheme applies without an approval that is in force under the relevant scheme.

[7] First Respondent's Submissions dated 5 February 2019 (City's Submissions) [2]. In oral submissions on 6 March 2019, Counsel for the City (faintly) raised the possibility that it was at least arguable that cl 6.1A(9)(c) of Scheme No 6, by imposing a pre-condition on the City's power of approval, might be inconsistent with cl 68(2) of the deemed provisions and so not binding by reason of s 257B(3) of the Planning and Development Act. Ultimately, as I have noted, the City accepted that it had to be satisfied as required by cl 6.1A(9)(c) and I proceed upon that basis. In any event, given that cl 6.1A(9)(c) would in any event be a relevant consideration for the City, a legal error in the consideration of that clause would itself affect the validity of the decision (see Ts 6 (6 March 2019)).

[10] Exhibit 1 [10]; Exhibit 2, Tab 2.

[18] The original (deleted) loft can be seen depicted in Exhibit 6, 11.

[22] Exhibit 2, Tab 16, 412-416 (Lot 19A), 428-429 (Lot 18A).

[36] Exhibit 1 [30]; Exhibit 2, Tab 16.

[39] Exhibit 1 [33]; Exhibit 2, Tab 17. Tab 17 of Exhibit 2 contains both what were Mr Stewart's notes for the oral deputation and the seven-page document. The seven-page document (marked Page 1 to Page 7) appears in Exhibit 2; Tab 17, 445-451.

[40] Exhibit 3 [10], Attachment AAS5.

[45] See Applicants' Outline of Submissions dated 7 December 2018 (Applicants' Submissions) [42]; City's Submissions [23], [39], [40].

[48] S & L Lenz Proprietary Limited v The Shire of Serpentine Jarrahdale [2017] WASC 191 [22] (Pritchard J).

[49] Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 [135] (Pritchard J) (Marshall); Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 [27] (Finn, Marshall and Mansfield JJ) (Applicant A169 of 2003).

[50] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271-272 (Brennan CJ, Toohey, McHugh & Gummow JJ) (Wu Shan Liang); Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, 287 (Neaves, French & Cooper JJ) (Pozzolanic).

[62] Exhibit 7 [10], Attachment LRB8.

[63] Exhibit 7 [11]-[13], Attachments LRB9 (marked LRB21 rather than LRB9), LRB10 and LRB11.

[66] Mr Curtis did swear an affidavit in relation to the construction of the house on Lot 19 (Exhibit 13). That affidavit was, however, filed and tendered by the City.

[67] Exhibit 7 [14]-[15], Attachments LRB9 (marked LRB21 rather than LRB9), LRB12 and LRB13. The two letters are identical in every respect, save that one is marked 'without prejudice' and the other is not.

[69] The applicants filed a Minute of Proposed Amended Grounds of Application on 7 December 2018, which were amended by consent order on 15 January 2019. On 14 February 2019, the applicants filed a Minute of Proposed Amended Grounds of Application seeking to add two further grounds (Grounds 9 and 10). The City ultimately did not object to the inclusion of those additional grounds and addressed them in oral submissions (see Ts 29 (6 March 2019)).

[71] Thiess v Collector Customs [2014] HCA 12; (2014) 250 CLR 664 [22]-[23] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).

[72] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38 [81] (Buss P, Murphy & Mitchell JJA) (AUP v City of Busselton).

[73] AUP v City of Busselton [82] (Buss P, Murphy & Mitchell JJA).

[74] AUP v City of Busselton [84] (Buss P, Murphy & Mitchell JJA). See also Re Shire of Mundaring; ex parte Solomon [2007] WASCA 132 [25] (McLure JA, Steytler P andPullin JA agreeing); Johnson v Minister for Planning [2018] WASC 334 [125] (Smith J).

[75] See Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 [57]-[58] (French CJ), [106] (Gummow, Hayne, Crennan & Bell JJ) (Plaintiff M70/2011).

[76] Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [127]-[137] (Gummow J) (Eshetu). This summary was relevantly adopted in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [183] (Gummow & Hayne JJ); Plaintiff M70/2011 [57] (French CJ); Wei v Minister for Immigration and Border Protection [2015] HCA 51 [33] (Gageler & Keane JJ).

[77] Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 (Buck v Bavone).

[80] Indeed, this distinction provides one of the distinguishing features of judicial review as opposed to appellate review by way of rehearing. See SZVFW [49] (Gageler J), [128] (Edelman J).

[85] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40 (Mason J) (Peko-Wallsend); Jacob v Save Beeliar Wetlands [2016] WASCA 126; (2016) 50 WAR 313 [50]-[51] (McLure P, Buss & Newnes JJA agreeing) (Save Beeliar Wetlands).

[86] As was the case, for example, in Peko-Wallsend.

[87] An obvious illustration of this is that a person standing in the position from which north-eastern view depicted in [44(b)] above was taken, but looking due east would be faced with a view akin to that depicted in [44(d)] above.

[89] Exhibit 2, Tab 2, 185, 186, 211, 219-226, 230, 231.

[90] Exhibit 2, Tab 2, 185, 186, 210, 214, 219, 228, 230.

[95] Exhibit 1 [33]; Exhibit 2, Tab 17.

[96] Exhibit 3 [10], Attachment AAS5.

[100] Wu Shan Liang, 271-272 (Brennan CJ, Toohey, McHugh & Gummow JJ); Pozzolanic, 287 (Neaves, French & Cooper JJ).

[101] Re Shire of Carnarvon; ex parte Humphrey [2005] WASCA 182 [60] (McLure JA, Le Miere AJA agreeing); Cf A v Corruption and Crime Commissioner [2013] WASCA 288 [92] (Martin CJ & Murphy JA).

[102] SZJSS [23]-[36] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[105] Exhibit 1 [33]; Exhibit 2, Tab 17.

[106] Exhibit 3 [10], Attachment AAS5.

[107] Peko-Wallsend Ltd 39-40 (Mason J); Save Beeliar Wetlands [50]-[51] (McLure P, Buss & Newnes JJA agreeing).

[108] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [57] (Buss JA, Wheeler & Pullin JJA agreeing; Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109 [53] (Owen JA, Buss & Newnes JJA agreeing).

[109] Both Mayor Doherty (Exhibit 2, Tab 22, 562) and Councillor Milner (Exhibit 2, Tab 22, 566) both refer to Mr Stewart's 4-step analysis based on Tenacity Consulting v Warringah Council, a decision of the NSW Land and Environment Court. That analysis appears on page 7 of Mr Stewart's seven-page document (Exhibit 2, Tab 17, 451). The Mountford Analysis is on pages 4, 5 and 6 (Exhibit 2, Tab 17, 448-450).

[110] Applicants' Submissions [44]; Ts 78-79 (21 February 2019).

[111] Marshall [135] (Pritchard J); Applicant A169 of 2003 [27] (Finn, Marshall & Mansfield JJ).

[120] See Exhibit 2, Tab 22: 'I want to acknowledge the emotional sensitivities ... ' (Mayor Doherty, 562); 'a very challenging matter ... I've been down there and stood on the balconies' (Councillor Burrows, 563), 'it's been quite an emotional task for both sides' (Councillor D'Souza, 564), 'I realise that this will disappoint quite a few people in the audience' (Councillor Milner, 567).

[121] Ballantyne v WorkCover Authority of New South Wales [2007] NSWCA 239 [113] (Basten JA) (Ballantyne).

[122] Marshall [135] (Pritchard J); Ballantyne [113] (Basten JA).

[123] Exhibit 1 [14]; Exhibit 2, Tab 5, 279-281.

[124] Exhibit 2, Tab 19, 503. See Applicants' Submissions [38(a)], [50]-[51].

[125] Exhibit 2, Tab 22, 562-563. See Applicants' Submissions [40], [50]-[51]. The Applicants' Submissions rendered the final words of this passage 'is not as significant'. Exhibit 2 renders them 'as not as significant'.

[127] The February Minutes expressly record at Exhibit 2, Tab 20, 499-500.

[130] Jacobs and City of Subiaco [2007] WASAT 84 [10] (Deputy President Chaney).

[132] Nairn v Metro-Central Joint Development Assessment Panel (2018) 53 WAR 20 [194] (Buss P, Murphy & Beech JJA) (Nairn).

[133] Applicants Submissions [55]. See also Ts 75 (21 February 2019).

[134] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] (Gleeson CJ, McHugh, Gummow & Hayne JJ), applied with respect to local government in McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504 [72] (Basten JA) (McGovern).

[135] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 2205 CLR 507 [71]-[72] (Gleeson CJ & Gummow J, Hayne J agreeing). See Nairn [187] (Buss P, Murphy & Beech JJA).

[138] Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 128 [83] (McLure JA, Wheeler & Pullin JJA agreeing).

[139] See McGovern [108]-[115] (Basten JA).

[140] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 (Isbester).

[141] Isbester [33] (Kiefel, Bell, Keane & Nettle JJ).

[142] Isbester [24]-[28] (Kiefel, Bell, Keane & Nettle JJ).

[143] Applicants' Submissions [55]; See also Ts 75 (21 February 2019).

[147] Exhibit 2, Tab 22, 563. Councillor Cala's amendment was defeated by a vote of the Council. The final approval of the development application was carried 8-1. It is not clear whether the vote against the motion was that of Councillor Cala.

[148] Both Mayor Doherty (Exhibit 2, Tab 22, 562) and Councillor Milner (Exhibit 2, Tab 22, 566) both refer to Mr Stewart's 4-step analysis based on Tenacity Consulting v Warringah Council [2005] NSWLEC 46. That analysis appears on page 7 of Mr Stewart's seven-page document (Exhibit 2, Tab 17, 451).

[149] Exhibit 2, Tab 22, 565. See the references to 'external representation' and Allerding in the words immediately following.

[153] Local Government Act, s 5.60, s 5.60A and s 5.60B.

[154] Local Government Act, s 5.65, s 5.67, s 5.68 and s 5.69.

[155] Local Government Act, s 5.21.

[156] Local Government (Rules of Conduct) Regulations 2007 (WA), reg 11.

[157] Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 [74] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ).

[158] Wilderness Society of WA (Inc) v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 [206] (Martin CJ).

[162] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[163] Li [68] (Hayne, Keifel & Bell JJ).

[164] House v The King (1936) 55 CLR 499.

[165] Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353, 360 (Dixon J).

[166] Li [66] (Hayne, Keifel & Bell JJ); SZVFW [11] (Kiefel CJ), [58] (Gageler J).

[168] SZVFW [83] (Nettle & Gordon JJ).

[169] SZVFW [84] (Nettle & Gordon JJ).

[170] In the matter of B (a Child) [ 2013] UKSC 33 [26] (Lord Wilson).

[171] Buck v Bavone 118-119 (Gibbs J).

[175] Exhibit 6, 39. Indeed, the above depicted rather demonstrates, in my view, the dynamic nature of a view and how the impression of it will be affected by perspective, position and movement.

[176] Mayor Doherty and Councillor Cala attended at the properties on 24 November 2017 (Exhibit 1 [18], [20]). Councillor Burrows remarked at the February Council Meeting 'I like you and quite a few of the Councillors, I've been down there and stood on the balconies' (Exhibit 2, Tab 22, 563).

[180] Applicants' Further submissions addressing discretionary considerations in granting relief filed 5 March 2019 (the Applicants' Further Submissions) [14], [15].

[182] Respondent's further submissions in relation to the construction of s 214 and s 218 of the Planning and Development Act filed 12 March 2019 [3].

[183] See Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187 [87] (Ipp J, Malcolm CJ & Wallwork J agreeing) (Varney); Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296 [38] (Martin CJ) (Woodley [No 2]); Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581-582 (Mason CJ, Dawson, Toohey & Gaudron JJ).

[184] Varney [87] (Ipp J, Malcolm CJ & Wallwork J agreeing).

[185] Woodley [No 2] [38] (Martin CJ).

[186] Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 [160] (Kirby J).

[187] SZMTA [84] (Nettle & Gordon JJ).

[188] Lakes Action Group Association (Incorporated) and Shire of Northam [2005] WASAT 8 [15] (Deputy President Chaney, Member Parry and Member Connor) (Lakes Action Group).

[189] Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 [109] (Buss P & Mitchell JA) (Bright Image).

[190] Bright Image [69] (Martin CJ), [111]-[112] (Buss P & Mitchell JA).

[191] Further Submissions of the Applicant filed 20 March 2019 [42].

[192] Further Submissions of the Applicant filed 20 March 2019 [51].

[193] I do not use 'retrospective' here in a technical sense. The liability would, of course, only arise in the future; nevertheless, it would be based upon conduct which, at the time that it occurred, could not have given rise to liability.

[194] Planning and Development Act, s 214(7).

[195] Outline of Submissions from the First Other Party filed 10 April 2019 [61]-[62].

[196] Further Submissions of the Applicant filed 20 March 2019 [32].

[197] Further Submissions of the Applicant filed 20 March 2019 [38]. As I have noted above, there would be no question that s 214 would apply to a 'wholly non-compliant development' in circumstances where the planning scheme itself creates a prohibition on a particular type of development.

[198] Gavranich v Shire of Wanneroo (Unreported, WASC, Library No 980473, 25 August 1998) (Gavranich).

[201] Lakes Action Group [15] (Deputy President Chaney, Member Parry and Member Connor).

[202] Further Submissions of the Applicant filed 5 March 2019 [48].

[203] Exhibit 7 [7], Attachment LRB5.

[205] Further Submissions of the Applicant filed 5 March 2019 [52]. The Notice of Determination of the development application was produced on 21 June 2018. That document, however, added nothing to the information already available.

[206] Further Submissions of the Applicant filed 5 March 2019 [48].

[207] Further Submissions of the Applicant filed 5 March 2019 [47].