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[2011] WASC 259
General information, not legal advice.
Supreme Court of WA
2011-09-15
Edelman J
Original judgment source is linked above.
1 This is an application for leave to appeal from a decision of the State Administrative Tribunal (the SAT). The SAT had reviewed a decision of the Western Australian Planning Commission (the WAPC) which had refused an application to subdivide grazing land in the Shire of Harvey. The SAT granted conditional approval of the proposed subdivision: Narcom Holdings and Western Australian Planning Commission [2011] WASAT 23.
2 One immediate cause for alarm is that the land in question is infested by mosquitoes. The mosquitoes are carriers of the Ross River virus. The public health risks are not insignificant and there is no realistic prospect that the mosquito population in this area will be brought under control.
3 The SAT was 'troubled' by the mosquito issue. It heard considerable evidence, including expert evidence, on this issue. After detailed and 'anxious' consideration, the SAT concluded that the mosquito issue should not prevent the proposed subdivision [6].
4 Appeals cannot easily be brought from a decision of the SAT. An appeal requires leave. And it must be on a question of law. The appeal is in the nature of judicial review proceedings: Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 331 332 [18] (French CJ, Gummow & Bell JJ). It is not enough that this court might have concern about the consequences of the decision. Nor is it enough that this court might have reached a different decision from the SAT.
5 In this application, the reasons of the SAT were subjected to microscopic analysis. The grounds and particulars upon which leave to appeal was sought run over numerous pages. Substantial argument was made about the proper construction of various sentences in the reasons of the SAT, without always providing full context to those sentences. Whilst the submissions by counsel for both parties were thorough, and well presented, the submissions of counsel for the WAPC need to be viewed in light of two propositions. These propositions, which are 'well settled' in judicial review proceedings, are that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the decisionmaker, and that the reasons for the decision under review should not be 'construed minutely and finely with an eye keenly attuned to the perception of error': Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh & Gummow JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 (Neaves, French & Cooper JJ).
6 Although five grounds of appeal are raised, with numerous particulars, there are essentially only four issues involved. They can be summarised briefly. First, did the SAT make an error of law by relying upon a planning policy which it construed to involve an intended future rezoning of the subject land as Special Use Special Rural and Landscape Protection? Secondly, and alternatively, did the SAT give the intended future zoning an impermissible 'force of law' or afford it priority over other parts of the text of the Scheme? Thirdly, was the SAT's decision so unreasonable that no reasonable decisionmaker could have made it? Finally, did the SAT rely on the absence of a specific State policy providing planning guidance on questions associated with biting insects in an impermissible way?
7 Narcom Holdings Pty Ltd (Narcom Holdings) is the owner of lot 102 Cathedral Avenue, Parkfield (the subject land). The subject land is almost 35 ha in area. It lies very close to the Leschenault Estuary, on the eastern side. The subject land is mainly cleared pastures with a house and shed on the northern part of the lot.
8 To the north of the subject land is lot 101. Another 5 km north is the beachside town of Binningup. To the south of the subject land is lot 103. Further south is an increase in the density of housing, with the Australind shopping centre lying 6.5 km to the south. To the east (southeast) of the subject land is Cathedral Avenue and slightly further east is Old Coast Road. To the west of the subject land is lot 100 which comprises 36 ha of regional open space which is part of the foreshore area of the Leschenault Estuary.
9 On 14 July 2008, Narcom Holdings applied to the WAPC for approval to subdivide the subject land into six lots. The WAPC refused that application. It gave the following reasons:
10 On 3 November 2009 Narcom Holdings applied to the SAT for a review of the decision of the WAPC. The review proceeding was brought under s 251(1) of the Planning and Development Act 2005 (WA) (the PD Act).
11 The SAT heard the matter over seven days. Narcom Holdings submitted a revised plan of subdivision. Substantial evidence, including expert evidence, was given. In the revised plan, Narcom Holdings still proposed the subdivision of the subject land into six lots. However, visual landscape experts gave evidence before the SAT that the revised plan from Narcom Holdings improved some aspects of screening and improved the intended view corridors.
12 The SAT rejected the conclusion of the WAPC that the Shire of Harvey's local planning scheme did not contemplate rural residential development. The SAT held that the intended future zoning of the subject land was to be 'in effect' Special Rural. It seems that the reference to 'in effect' was to summarise that the intended zoning was 'Special Use Special Rural and Landscape Protection'.
13 The SAT considered evidence of the visual, physical, and ecological issues in relation to Narcom Holdings' proposed subdivision. The SAT concluded that the only issue sufficient to warrant refusal of the proposal was the question of the impact and control of mosquitoes on the subject land: [5], [148]. The SAT, in its discretion, considered that the issue of mosquitoes was insufficient to refuse approval of the proposed subdivision: [6], [153]. The SAT gave conditional approval of the proposed subdivision and directed the parties to confer on the conditions necessary to regulate the subdivision and proposed development.
The legislative and planning context to this application
14 At the heart of this application is the local planning scheme entitled Shire of Harvey District Planning Scheme No 1 (DPS 1). This scheme was gazetted in November 1996. It was therefore in force prior to the PD Act. Section 68(1) of the PD Act provides that a scheme which was in force prior to the PD Act, 'continues in force' and has effect as if it were enacted by the PD Act. DPS 1 is subsidiary legislation: Interpretation Act 1984 (WA) s 5.
15 The PD Act provides that no person is to subdivide any lot without the approval of the WAPC: s 135(1). That approval can be given subject to conditions: s 138(1). In giving its approval for a subdivision, the WAPC is required to have due regard to any local planning scheme and, with some exceptions, it is not to give approval for a subdivision which conflicts with the provisions of a local planning scheme: s 138(2).
16 DPS 1 operates as follows. Part V, cl (b), divides the area of the Shire of Harvey into Planning Precincts. Each Planning Precinct is 'subject to Policy Area Statements which indicate Council's Strategy for the future development of that Area'. These policy area statements are part of DPS 1. They are matters which the Council of the Shire of Harvey must take into account in considering planning applications: DPS 1, cl 8.4 and cl 11.6.6 11.6.7.
17 The subject land falls within 'Precinct Area 1 - Leschenault'. The policy statement for Precinct Area 1 is the first policy statement in sch 14 to DPS 1 (the Leschenault policy statement). It is just over one page long. For convenience I have annexed it to these reasons as Annexure 1.
18 DPS 1, including the Leschenault policy statement, is therefore a local planning scheme which is in force as if it were enacted by the PD Act. And it is a matter to which the WAPC (and, on review, the SAT) was required to have due regard.
19 As mentioned above, the WAPC refused the application for subdivision by Narcom for the seven reasons set out above at [9]. However, the SAT allowed a review of the decision of the WAPC, set aside the decision, and substituted in its place an approval for subdivision upon conditions to be finalised.
20 When a review proceeding is brought before the SAT the review proceeds as a hearing de novo (from the beginning): s 27(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). As a hearing de novo, the SAT has the functions and discretions corresponding to those exercisable by the WAPC: s 29(1) of the SAT Act.
21 It was common ground before me that the proposed subdivision does not conflict with the provisions of DPS 1 (ts 8, 42). Hence, the WAPC conceded that the SAT had the power to make the orders which it made. Instead, the complaint by the WAPC concerns the exercise by the SAT of its power. The WAPC says that the SAT made errors of law in the exercise of its power; it also says that the SAT's exercise of power was manifestly unreasonable; and that the SAT took irrelevant considerations into account.
The application for leave to appeal to this court
22 The WAPC seeks leave to appeal from the decision of the SAT. An appeal lies only with leave and only on a question of law: s 105(1) and s 105(2) of the SAT Act.
23 The grounds of appeal raised by the WAPC are as follows:
(a) the intended future zoning of the subject land did not have the force of law in that:
(i) it was contained in a policy (made under Part V and clause 11.6 of the Scheme) which could not of its nature have the force of law but instead was applied by Scheme provisions which had the force of law, such as clause (c) of Part V and clauses 8.4, 11.6.6 and 11.6.7;
(ii) alternatively, it was an expression of future intention that could not have the force of law without a Scheme amendment, which amendment was uncertain given the requirement for the local government or Minister for Planning to initiate any Scheme amendment pursuant to sections 75, 76 or 77A of the Planning and Development Act 2005 (WA), the potential for environmental impact assessment of any proposed amendment under sections 81 and 82 of the Planning and Development Act and Division 3 of Part IV of the Environmental Protection Act 1984 (WA), and the Tribunal's findings that:
(b) alternatively, the intended future zoning of the subject land had no greater force than other parts of the text of the Scheme, including the existing zoning of the subject land, which must also be given appropriate weight,
and the intended future zoning of the land was one relevant consideration amongst other relevant considerations to which the Tribunal was required to give weight in exercising its discretion.
(a) the Shire of Harvey refused to rezone the subject land in 2009 and refused to support the proposed subdivision (Reasons at [16]);
(b) the subject land nests in an environmentally and ecologically sensitive area (Reasons at [67]);
(c) the subject land is sited at the front line of dense and recurrent infestations by mosquitoes carrying arboviruses (such as Ross River Virus) (Reasons at [128]);
(d) increased mosquito density increases the likelihood that a person will be bitten and, hence, this affects the risk of contracting a mosquito-borne disease (Reasons at [129]);
(e) there are likely to be considerable amenity problems and not insignificant public health risks to any present or future population of residents, no matter how small in number (Reasons at [129]);
(f) the Tribunal is not persuaded that effective and appropriate mosquito control measures are currently available for implementation around tidal and freshwater conservation wetlands adjoining the subject land (Reasons at [130]);
(g) there is no realistic prospect that the Respondent in this appeal, the Shire of Harvey and the other district and State authorities have either the intent or the capacity to plan to attempt control of the northern Leschenault Estuary mosquito population (Reasons at [132]);
(h) while a mosquito management plan could assist in limiting human interaction with mosquitoes, the extent, if any, to which implementing such a plan would actually reduce mosquito impacts on amenity or reduce disease risk was not demonstrated (Reasons at [127]);
(i) while it is possible that implementing a mosquito management plan could address amenity impacts and public health through built form, as well as educating for appropriate behavior, given the lack of feasible control measures there is no realistic prospect of the Shire of Harvey changing its view that the mosquito problem on the subject land is effectively unmanageable (Reasons at [133]);
(j) the prospects for sustainability of rural settlement on the subject land, at least with regard to mosquito-borne risk management, appear to be currently weak, with an outlook of increasing uncertainty (Reasons at [135]-[137]);
(k) with the exception of the likely environmental benefit from changing land use of reducing phosphorus export to the Estuary, there was no assertion or evidence of any significant public benefit from the proposed rural settlement of the subject land (Reasons at [138]);
(1) if rural settlement were to proceed on the subject land, this could give rise to land use conflict because new residents encountering seasonal or episodic peaks in mosquito activity would be likely to place pressure on the various authorities to carry out conventional control measures in the adjacent wetlands, which would be likely, if implemented, to constitute threats to the aquatic or terrestrial ecosystems of the adjacent Class A reserve (Reasons at [139]);
(m) the subject land lies in immediate juxtaposition to the area's major mosquito breeding area, which proximity seems to distinguish the circumstances of the subject land from other rural residential developments nearby, and there is no useful separation distance achieved between the pre-existing conservation wetland habitats, within which there are major mosquito breeding sites, and the proposed subdivision (Reasons at [140]);
(n) conventional treatments for mosquitoes include runnelling and larvicides which, if implemented, would disturb or degrade the samphire, rush beds and other valuable wetland habitat and aquatic values of the Estuary (Reasons at [144]);
(o) continuing advocacy for the expansion of mosquito control measures to relieve probably episodic, but repeatedly serious, mosquito problems likely on the subject land would arguably apply long-term pressure for the development footprint to extend, by ecosystem modifications of some soft, through Regional Open Space foreshore areas and a conservation category wetland (Reasons at [144]);
(p) extending mosquito control programs in support of such development does not appear to be consistent with the Environmental Protection Authority's objectives for the protection of State and regionally significant wetlands (Reasons at [146]);
(q) the development of the subject land is likely to place future residents at recurrent high levels of risk to lifestyle and amenity from mosquito concentrations around their extensive natural breeding areas around the Estuary (Reasons at [149]);
(r) as a consequence of this proximity, residents of the proposed development would be likely to be exposed to Ross River Virus, transmitted by biting mosquitoes, and at a significantly higher risk of disease than at preexisting subdivisions nearby (Reasons at [149]);
(s) there is insufficient basis for the assertion that a mosquito management plan, at least in respect of offsite ameliorative steps, would be likely, in practice, to meet the normal public expectation of effective reduction in risk levels through such mosquito control measures. Conventional off-site measures of the kind proposed in mosquito management plans would be likely to involve vegetation damage or clearing for drainage works, the disturbance of acid sulphate soils, and would seek to extend chemical control measures into and around Conservation Category Wetland and the Environmentally Sensitive Area of the northern Leschenault Estuary. Such measures, if implemented, would be likely to constitute relevantly threatening processes for the sustainability of wetland conservation values. These concerns are broadly reflected in aspects of the regional planning framework (Reasons at [150]),
and despite generally preferring the body of evidence led by the Appellant in this appeal from two experienced specialists (Reasons at [128]), which included evidence to the effect that:
(t) even with notifications on title, members of the public may underestimate the severity of the problem and then demand action from the authorities (Reasons at [115]);
(u) land use changes which reduced or removed a population of cattle were likely to increase the local risk of virus transmission to people (Reasons at [116]);
(v) it would be irresponsible for development to proceed over areas for which there is no current prospect of risk reduction from an already existing high level of risk (Reasons at [120]);
(w) from a public health perspective, residential development was not appropriate, due to the level of risk of virus exposure to future residents, a lack of effective mosquito management strategy for the northern Inlet regions and substantial environmental constraints (Reasons at [120]);
(x) residential development should only be considered if environmental approval was obtained from all relevant authorities to undertake whatever was necessary to ensure effective management (Reasons at [120]),
the Tribunal decided to approve the proposed subdivision on the basis set out in the Reasons at [153], which decision was:
(y) contrary to the weight of the evidence; and
(z) so unreasonable that no reasonable authority could have made it.
(a) relying upon the irrelevant consideration that there was no specific State policy providing planning guidance on questions associated with biting insects;
(b) alternatively, relying upon the absence of such a specific State policy as a basis for granting conditional approval for subdivision of the subject land,
such that, in the absence of such a specific State policy, the Tribunal did not regard itself as free to refuse the application for subdivision in light of the effects upon amenity and public health of the mosquito infestations which the Tribunal found would affect the subject land and could not be controlled (Reasons at [149][l50]) and thereby failed to give realistic consideration to the merits of the case and to properly consider whether the application for subdivision should be refused.
Ground 1: the intended future zoning of the subject land
25 In the introduction to its reasons, the SAT explained that upon a true construction of DPS 1, the rural residential development that was proposed was contemplated by the scheme [3]. Having found this to be the case, the SAT considered that there was no controlling planning instrument which was directly inconsistent with DPS 1 [4]. And, apart from the issue of mosquitoes, there was nothing in the visual, physical and ecological issues surrounding the development which could warrant refusal [5].
26 The first ground alleges that the SAT made an error of law in its construction of the Leschenault policy statement in sch 14 to DPS 1. In effect, the WAPC alleges that the SAT should not have concluded that rural residential development was contemplated in the Leschenault policy statement as a future possibility. The discussion of the Leschenault policy statement below can be read alongside that policy statement which is Annexure 1 to these reasons.
27 The SAT held, at [41], that the intended future zoning of the subject land was to be 'in effect' Special Rural, which contemplated the possibility of rural residential living, and at the lot sizes proposed by Narcom Holdings.
28 The subject land is currently zoned by DPS 1 as General Farming. The submission on behalf of the WAPC is that, contrary to the finding of the SAT, the Leschenault policy statement did not contemplate the future zoning of the subject land as Special Use Special Rural and Landscape Protection.
29 The key paragraph of the Leschenault policy statement is the final paragraph and the dot point which follows it. As can be seen from Annexure 1 to these reasons, the dot point which follows the final paragraph is the tenth dot point in the policy statement.
30 The final paragraph begins by explaining that in addition to the preceding general policy statements for the Leschenault area (which is approximately 4650 ha), there are the following requirements which apply to a (particular) smaller area within it: the Cathedral Avenue area. Annexure 2 to these reasons is a map which shows that Cathedral Avenue area. The subject land (lot 102) is 34 ha within that area.
31 The first sentence of dot point 10 which immediately follows the last paragraph says:
The zoning of the land shall be 'Special Use Special Rural and Landscape Protection', which implies special conditions.
Dot point 10 then continues, explaining the consequences of that zoning. Those consequences are that scenic rural character and lifestyle will be retained and the estuary and its flora and fauna will be protected. It also refers to the specific development criteria for Special Rural Zones in sch 4.
32 There are two lots of private land in the Cathedral Avenue area which are not zoned as Special Use Special Rural and Landscape Protection. The subject land and lot 101 immediately above it are both zoned General Farming. Lot 100, to the left of the subject land, was also zoned General Farming at the time DPS 1 was gazetted, but at that time it was part of lot 102. Lot 100 was later carved out from lot 102 as recreational open space.
33 As can be seen from Annexure 2 to these reasons, all of the other privately owned land in the Cathedral Avenue area is marked SR4. This is a reference to sch 4 of DPS 1 which identifies the Cathedral Avenue Area and describes it as zoned Special Rural and Landscape Protection.
34 Narcom Holdings says that the only sensible meaning of the first sentence of dot point 10 is that it refers to all the private land in the Cathedral Avenue Area. As I have explained, the words immediately before the dot point refer to the whole of the Cathedral Avenue Area. Narcom Holdings says that the reference to 'the land' in dot point 10 can only be a reference to all the private land in that area. Hence, dot point 10 includes the land in Annexure 2 which is marked SR4 (and zoned Special Use Special Rural and Landscape Protection) as well as the subject land, and lot 101 above it, which are zoned 'General Farming'. By saying that the zoning of the land 'shall be' Special Use Special Rural and Landscape Protection, dot point 10 discloses an intention that the subject land and lot 101 will be zoned in that way in the future so that all the private land in Cathedral Avenue shall then be zoned in that way.
35 The WAPC says that the final sentence quoted above should be construed not to refer to all the private land in the Cathedral Avenue area. Instead, the WAPC says that the sentence should be read, in effect, with the words in italics inserted and the words deleted as follows: 'the zoning of [that part of] the land [which is currently zoned Special Use Special Rural and Landscape Protection] shall be [is] Special Use Special Rural and Landscape Protection'.
36 Plainly, the construction of dot point 10 which is urged by the WAPC makes little linguistic sense. It requires substantial additional words to be read into the sentence. It also requires the word 'shall' to be read as if it meant 'is'. The meaning urged is very different from the natural meaning of the words in dot point 10.
37 In written submissions, counsel for the WAPC relied upon the remark of McLure JA in the leading judgment in Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132 [25], that 'planning schemes are not drawn with the precision of Acts of Parliament and should be construed broadly rather than pedantically and with a sensible practical approach'. I do not consider that, by this remark, McLure JA (as the President then was) was suggesting that there are different rules for construction of words in planning schemes from the rules concerning construction of words in statutes. Section 44 of the Interpretation Act explains that '[w]ords and expressions used in subsidiary legislation shall have the same respective meanings as in the written law under which the subsidiary legislation is made'. However, in all instances of construction, words must be placed in their context and circumstances. I understand her Honour to be explaining that in construing words in planning schemes one relevant aspect of context is that these words are not drafted by a Parliamentary draftsperson. That is part of the relevant legal and historical background which is always relevant to the exercise of construction: see Re Shire of Mundaring [24] (McLure JA) citing Burge v Swarbrick [2007] HCA 17; (2007) 234 ALR 204 [57]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. The reasonable reader of DPS 1 must appreciate that the drafting of that document can give rise to a greater likelihood of infelicities in the language used than might occur in an Act of Parliament.
38 In this case, with the appreciation that the words used by the author of the planning policy may not have been precise, there is still a significant feat of linguistic gymnastics which is required to reach the construction proposed by counsel for the WAPC.
39 More fundamentally, if the WAPC's construction were correct then the words in dot point 10 would be entirely redundant and contrary to the approach in the rest of the Leschenault policy statement. Perhaps for this reason, at the hearing before the SAT expert evidence was led on behalf of the WAPC in support of an argument that the final paragraph and dot point 10 had been included in DPS 1 in error (Application Book 926, 929). That expert evidence was rejected by the SAT, at [42], and in this court the argument that the paragraph was included in error was not repeated.
40 In exchange with the bench during oral argument, counsel for the WAPC properly accepted that ordinarily in a statutory instrument, one 'wouldn't expect to see something that has no work to do' (ts 19). But he submitted that a policy statement could be different because it is not drafted with precision. The submission for the WAPC is effectively that because planning policies are not drafted with precision then it is possible to construe the final paragraph as merely stating a fact, even though this would mean that the words are redundant. I do not accept this submission. Wherever words are construed there is a strong preference ('a court ... must strive') for a construction where 'no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent': Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 382 [71] (McHugh, Gummow, Kirby & Hayne JJ), quoting The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414 (Griffith CJ).
41 There is a further difficulty with the construction urged by counsel for the WAPC. The suggestion that the final paragraph and dot point 10 are merely statements of fact is contrary to the rest of the Leschenault policy statement, and with its purpose. The final dot point is the tenth in a series of dot points which are all concerned with policy issues. They are all governed by the heading 'Precinct Policy Area Statements'. The expressed purpose for all of them is to provide policy, not to restate facts.
42 In summary, the construction urged on behalf of Narcom Holdings is clearly the most natural construction of the words used and is a construction which would not render the words redundant. It is a construction which is consistent with the nature of the document in which it appears (ie a policy document). It is also consistent with the general policy introduced at the beginning of the Leschenault policy statement, being a policy for conservation and sustainable recreation, while permitting limited residential development.
43 Finally, the construction of the final paragraph of the Leschenault policy statement which is urged by Narcom Holdings is also consistent with the two other dot points in the Leschenault policy statement which affect the subject land.
44 The first dot point in the Leschenault policy statement explains the policy that there is a minimum lot size of 2 ha for lots south of Crimp Crescent and 5 ha for lots north of Crimp Crescent. This describes a policy of residential development which decreases in density north of Crimp Crescent. The same point is made in sch 4, par 4.4 of DPS 1: 'The Council will recommend to the [WAPC] that subdivision of land in this area should be a minimum lot size of 2 hectares south of Crimp Crescent and 5 hectares north of Crimp Crescent'. The subject land is north of Crimp Crescent. There is no suggestion in the first dot point that the subject land, and lot 101 above it, should, in the future, be treated any differently from the other private land north of Crimp Crescent. The subject land and lot 101 are currently zoned General Farming with minimum lot size of 40 ha (tables 27 29 on pages 76 78 of DPS 1).
45 The other dot point in the Leschenault policy statement which affects the subject land is dot point 3. The area described in dot point 3 refers to Crown land, the subject land and lot 101 above it. It describes a policy for use of that land as 'confined to conservation, controlled recreation and low intensity rural uses'. It was not suggested by counsel for the WAPC that there was anything inconsistent between a zoning future for the subject land of Special Rural and Landscape Protection, and the policy of use in dot point 3. No such inconsistency exists. Table 32 on page 82 of DPS 1 gives 11 examples of land use in relation to Special Use Special Rural and Landscape Protection. Each of those uses is classified as either AA ('the Council may, at its discretion, permit the use': cl 4.2.2) or SA ('the Council may, at its discretion, permit the use after notice of application has been given in accordance with Clause 2.3': cl 4.2.2). For reasons relating to the mosquito problem, discussed below, it might be expected that the council would refuse some of those proposed uses such as family day care (item 11) or health farm (item 8). But there is no inconsistency with the described policy for use in dot point 3 and an intended zoning future for the subject land of Special Use Special Rural and Landscape Protection.
46 For these reasons, I consider that no error of law was made by the SAT in its conclusion that the intended future zoning of the subject land was to be Special Use Special Rural and Landscape Protection.
Grounds 2 and 3: the hierarchy of planning values
47 These two grounds raise very similar issues. They were treated together by counsel for the WAPC in oral submissions and described as 'variations ... on the same theme' (ts 24). They are in the alternative to ground 1. The WAPC says that if it is wrong about ground 1, so that DPS 1 did manifest an intention that the subject land will be rezoned Special Rural at some time in the future, then the SAT made a different error of law. That error of law was said to be either:
(a) giving the zoning future of the locality priority in the application of any hierarchy of planning values; or
(b) treating DPS 1 as having the force of law and therefore giving it priority over all other relevant planning considerations.
48 If either of these approaches had been taken by the SAT then it would have committed an error of law. In Falc Pty Ltd v State Planning Commission (1991) 5 WAR 522 the Town Planning Tribunal had refused to allow a subdivision of land because it 'failed to give proper, genuine and realistic consideration to the merits of the case' (529) (Nicholson J). The tribunal had considered zoning to be a 'determinative matter' and did not regard itself as 'free to exercise its discretion contrary to that policy where the particulars required it to do so' (530). The Tribunal in Falc erred by taking this approach. The Tribunal had concluded that on all points apart from zoning (amenity, demand for holdings of that size, environmental impact) the case for subdivision had been made out (527 528). But the Tribunal did not merely give 'great weight' to zoning considerations (529); it tied the exercise of its discretion to the existence of a general policy not to permit rural subdivision unless land was zoned special rural (529 530). The Full Court of the Supreme Court of Western Australia held that the Town Planning Tribunal had made an error of law.
49 The question raised by grounds 2 and 3 is whether the SAT's reasons in this case disclose a similar error, albeit one in favour of allowing subdivision rather than refusing it. Counsel for the WAPC properly accepted that if the SAT had engaged in a weighing exercise of factors including the zoning considerations then these grounds must fail (ts 25). In my opinion this is exactly what the SAT did, and this ground cannot succeed. In any event, there is no error of law even if the SAT misattributed weight to one of the relevant factors: Real Estate & Business Agents Supervisory Board v Carey [2010] WASCA 109 [53] (Owen JA, Buss & Newnes JJA agreeing); Minister for Aboriginal Affairs v PekoWallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41 (Mason J).
50 Counsel for the WAPC focused closely on several sentences in the reasons of the SAT. The primary sentence to which attention was drawn is set out in italics below, in the context of the whole paragraph:
51 It was argued that the reference to DPS 1 having the 'force of law' discloses the same impermissible reasoning approach which was apparent in Falc. But the sentence must be read in its context. In the context of the reasons as a whole this sentence does not disclose an elevation of the intended future zoning by the SAT to a determinative, or even a prioritised, consideration. All that the SAT is saying is that the intended future zoning of the subject land means that there is no inconsistency between the proposed subdivision and the planning framework. There are seven reasons why the submissions in this court on behalf of the WAPC cannot be supported. All of them concern placing the statements of the SAT in their proper context.
52 First, the discussion of the intended future zoning must be read in light of the SAT's own summary of its decision, in its introductory paragraphs. Nothing in the summary of the SAT's reasons could suggest that it was engaging in a process of reasoning which elevated DPS 1, and the possible zoning future of the locality, to a decisive, or even a prioritised, consideration. To the contrary, in those paragraphs the SAT explains the reasons why it engaged in the exercise of construction of the final paragraph of sch 14 of DPS 1 and reveals its process of reasoning which weighed all the relevant factors.
53 In its summary, the SAT explains that the WAPC had refused to permit the subdivision because of alleged inconsistency with the planning framework. The SAT explains that by concluding that there was a future intention for rural residential development (by an intended rezoning in the future) 'it could not be said that the proposed subdivision was inconsistent with orderly and proper planning for the subject land' [4]. After making this point in the summary, the SAT explains that it conducted a lengthy review of the visual, physical and ecological issues surrounding the development [5].
54 Secondly, the SAT's reasoning concerning [42] needs to be read in the context of the structure of the issues which the SAT was addressing. The SAT sets out the issues which it had to decide in [37] of its reasons. There is no suggestion in that paragraph that the SAT considered that the zoning future of the locality had priority in the application of any hierarchy of planning values. Nor is there any suggestion that DPS 1 should have priority over all other relevant planning considerations. Instead, in introducing all the issues for decision, the SAT treats the planning framework of DPS 1 (including the intended future rezoning) as one of three significant considerations. The closing submissions filed before the SAT on behalf of the WAPC had also identified three grounds on which, it was submitted, subdivision should be refused. These were (1) adverse impact on views; (2) inconsistency with the intent of DPS 1 and the policies of the WAPC; and (3) risks to health and amenity: see respondent's closing submissions to the SAT, 24 August 2010, par 1.
55 In [37], the SAT identified, as issues for determination, the following: (1) 'Application of the planning framework' (assessing whether the proposed subdivision was consistent with the planning framework); (2) 'Visual landscape assessment'; (3) 'Environmental considerations'. Consequential upon these issues was the question of any conditions which should be imposed if the proposed subdivision were approved. The SAT then said that it would consider each of these areas and state its conclusions in respect of each [38]. The SAT was engaged in a proper weighing process of all relevant considerations. It was addressing the matters which had been raised in evidence and submissions before it.
56 Thirdly, [42] also needs to be read and understood in the context of the section of the reasons in which it appears. Paragraph 42 was in a section headed 'the impact of the planning framework'. This refers back to the discussion of the issues in [37] where the SAT explained that this issue concerned the examination of consistency of the proposed subdivision with issues raised by the planning framework. The concluding paragraph of the section, [48], explains that the SAT 'would not refuse subdivision because of any alleged inconsistency with the planning framework'.
57 Fourthly, [42] must be considered in light of the paragraphs which preceded it, in the same section, [39] [41]. Those paragraphs identified a conflict between expert evidence given by Mr Scibilia, the expert called by the WAPC, and Mr Barnett, the expert called by Narcom Holdings. Mr Scibilia gave evidence that the planning framework, including DPS 1 as well as the regional scheme, strongly suggested the conclusion that the subject land fell within an area designed for rural pursuits and for natural and landscape protection. He speculated that the drafters of DPS 1 had included the final paragraph of sch 14 of DPS 1 in error (Application Book 926, 929). In contrast, Mr Barnett focused upon the words in the final paragraph of sch 14 of DPS 1.
58 From these preceding paragraphs it can be seen that the purpose of the discussion in [42] was to reject the conclusions urged by Mr Scibilia. Paragraph 42 explains that the outcome urged by Mr Barnett (ie that there is an intended future rezoning of the subject land) could not be said to be unintended. The comment in that paragraph that DPS 1 has been given the force of law does not mean anything other than a reference to DPS 1 as subsidiary legislation, requiring its words to be construed accordingly, suggesting a future direction for zoning as identified by Mr Barnett.
59 Fifthly, [42] must be considered together with [43] and [44]. Those two paragraphs explain, and reinforce, the conclusion reached by the SAT in [42]. They support the ultimate conclusion by the SAT that the proposed subdivision is not inconsistent with the planning framework. In [42] [43], the SAT identifies general statements which might potentially be inconsistent with a conclusion that the intended future zoning of the subject land is Special Use Special Rural and Landscape Protection.
60 One of those possible inconsistencies identified was dot point 3 of the Leschenault policy statement which I have discussed above at [45]. That dot point describes a general policy for use of that land as 'confined to conservation, controlled recreation and low intensity rural uses'. Another is cl 9.1.4 which identifies a requirement that subdivision proposals for lots less than 40 ha in areas of landscape value would not be supported by the Council. This statement is generalised over a large area, in contrast with the specific focus on the Cathedral Avenue Area in sch 14.
61 The SAT explains that if there is an apparent conflict between these statements which are generalised, and specific statements such as the final paragraph of the Leschenault policy statement, then the latter should be preferred [43]. Although the SAT used the phrase 'priority in the application of any hierarchy of planning', it is apparent from the context that the point being made was that if there were any inconsistency, a particular statement in DPS 1 which refers to the specific future zoning intention should be preferred to any general statements in DPS 1 (such as those requiring a lot size of 40 ha in areas of landscape value). This is also reinforced by the SAT's citation of Spectator Investments Pty Ltd and City of Joondalup [2006] WASAT 232 [35] [36]. In Spectator Investments, the learned member quoted from Hassen v Murray Bridge District Council & Onsoy (1984) 35 SASR 448, 462 463 (Wells J) concerning the manner in which to resolve apparent conflict between 'principles of greater generality and those of less'.
62 Sixthly, [42] must also be read together with the remark of the SAT in [47] that the absence of rezoning is not fatal to a subdivision decision. The SAT then referred in that paragraph to the decision in Falc (535), where Ipp J explained that zoning under a town planning scheme is only one of the considerations to be taken into account in assessing a subdivision application (ie 'part of all the circumstances').
63 Seventhly, the reasons as a whole disclose the weighing process in which the SAT was engaged. I have already referred to issues set out by the SAT in [37] which included visual landscape assessment as well as environmental considerations (water and sewage [69] [82]; flood risk and protection of wetlands [83] [90]). In relation to the visual landscape assessment, the SAT explained that the protection of the locality's visual landscape was a 'particularly relevant factor' in determining whether subdivision should be permitted [49]. It considered eight different issues in detail [54]. Even if the SAT had erred by giving too much weight to the consideration of intended future zoning, this is not a matter which would amount to an error of law: Water Corporation v McKay [2010] WASC 210 [47] (Kenneth Martin J).
64 For the seven reasons above, there is no substance in a submission that the SAT impermissibly prioritised the intended zoning future of the subject land over other relevant considerations, or that the SAT gave the intended zoning future the force of law rather than engaging in the process of weighing the relevant considerations.
65 Two further submissions made on behalf of the WAPC must also be addressed. The first of these submissions concerned particular 3(a) of the WAPC's grounds for leave. This particular appears to suggest that the reference to 'force of law' in [42] of the reasons of the SAT shows that the SAT treated the intended future zoning as if it were an actual zoning. This point has no merit. The SAT explained that the subject land had not been rezoned, and that an attempt to rezone it in 2009 had failed [16]. In [47] the SAT reiterated that rezoning had not taken place but concluded that the absence of such rezoning is not fatal to a subdivision decision. As I have explained above, the SAT did not consider the final sentence of DPS 1 to be a decisive or determinative criterion, nor did it consider that the sentence suggested that a rezoning had occurred. The SAT was engaging in a 'legal' question of construction of words contained in subsidiary legislation related to the policy concerning intended future development of the subject land.
66 A second, related, submission was made in oral argument concerning a sentence in the reasons of the SAT when it was dealing with the eighth of the issues concerning visual landscape factors. That eighth issue was the degree of compliance of the visual landscape with relevant policies, plans and guidelines. When considering this issue at [62] [64], the SAT said that the resolution of that issue will 'inevitably turn to whether there can be reasonable accommodation between the visual landscape values identified by the experts and the development contemplated by the Scheme' [63]. Counsel for the WAPC seized upon this statement as evidence that the SAT had proceeded 'as if the rezoning ... had been given the force of law' (ts 28 29). Once again, when this statement is read in context it conveys no such meaning. It is directed only to one of eight issues concerning visual landscape, namely whether that landscape assessment is consistent with policies, plans and guidelines.
Ground 4: whether the exercise of the SAT's discretion was Wednesbury unreasonable
67 This ground of appeal, and the 24 particulars which accompanied it (above [23]) essentially concerned the issue of mosquitoes. The essence of the submissions on behalf of the WAPC was that the findings of fact concerning the impact of mosquitoes in the area of the subject land were such that the decision of the SAT was Wednesbury unreasonable. This ground rested only on the submission of Wednesbury unreasonableness.
68 The reference to Wednesbury unreasonableness is the common reference to the decision of Lord Greene MR (with whom Somervell LJ and Singleton J agreed) in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. That decision was delivered rapidly, without calling upon the respondent. The Master of the Rolls held that a condition imposed by a local authority was not invalid. His Lordship explained that the issue of unreasonableness in the context of discretionary decision making had a different meaning to lawyers from its common understanding (232). To be impugned, the decision must be 'so unreasonable that no reasonable authority could ever have come to it' (230).
69 In an Australian context, with a half a century of subsequent development, the label Wednesbury unreasonableness may no longer be particularly helpful. As Gleeson CJ has observed, 'unreasonableness is a protean concept': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 64 [20]. The label might also (incorrectly) be thought to be 'an emphatic [way] of saying that the reasoning is wrong': Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626 [40] (Gleeson CJ).
70 It has been held in Australia that this ground of review is 'extremely confined': AttorneyGeneral (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J). Further, 'a court should proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits': Minister for Aboriginal Affairs v PekoWallsend (42) (Mason J). The question for this court is therefore not whether this court would have reached a different decision. Nor is it even whether the court considers the decision of the SAT to be wrong. As authorities stand, the question can only be expressed as whether the SAT reached a decision that was so unreasonable that no reasonable tribunal could have reached it.
71 The SAT heard substantial evidence from four experts on the mosquito issue [100]. It heard evidence about a lack of complaint from the current four occupants of the residence on the subject land, albeit that this was not conclusive of a lack of a mosquito issue (Application Book 726). It assessed the prospects of solutions such as mosquito management plans, title notifications and the effect on the small increase in persons affected if the lot were subdivided from one lot to six.
72 The particular conclusions reached in relation to the mosquitoes, and the problems raised by them for the proposed subdivision, are set out in the particulars to ground 4 above at [23](c). In broad summary, some of the most important findings of the SAT concerning the problems raised by the mosquitoes were as follows.
(a) The subject land is sited at the front line of dense and recurrent infestations by mosquitoes carrying arboviruses (such as Ross River virus) [128].
(b) There are likely to be considerable amenity problems and not insignificant public health risks to any present or future population of residents, no matter how small in number [129].
(c) There is currently no realistic prospect that the mosquito population in the area will be brought under control [130] [132].
(d) The subject land is different from nearby rural residential developments because there is no significant separation between the subject land and the major mosquito breeding area. This gives rise to unusually high levels of risk to future residents of the subject land including likely exposure to Ross River virus [140], [149].
73 One of the experts who was called to give evidence by the WAPC, and whose evidence was generally preferred by the SAT [128], had also said that it would be irresponsible for development to proceed over areas for which there is no current prospect of risk reduction from an already high level of risk [120].
74 The SAT also referred to concerns raised by one of the experts that even if notifications to potential purchasers were made on the title, potential purchasers might underestimate the severity of the problem and then demand action from the authorities [115].
75 In light of this evidence, it was unsurprising that the SAT concluded that allowing the subdivision from one lot to six lots was a matter which 'troubled' it and which caused it to give 'anxious consideration' [6]. However, the SAT ultimately concluded that in the absence of a specific State policy giving guidance on such issues and where the proposal otherwise warrants approval, conditional approval of the proposed subdivision could be given because [153]:
(a) a relatively small number of persons are likely to be affected by one negative factor; and
(b) the mosquito issue can be brought to the attention of any purchaser under existing title arrangements.
76 The merits of the proposal, which 'otherwise warrants approval', included the consistency with the final paragraph and tenth dot point of sch 14 of DPS 1, and some positive aspects of landscape character and views [60]. The public health issues raised by the mosquitoes might be thought to outweigh these factors, even though the population of people affected might be small. However, the issue is not whether any balancing approach by this court might reach a different conclusion from the SAT. The question is whether the SAT's decision to approve the subdivision, on conditions, was so unreasonable that no reasonable decisionmaker could have reached it. I do not consider that it was unreasonable in this sense.
Ground 5: whether the SAT relied upon an irrelevant consideration or otherwise made an error of law
77 The final ground upon which leave was sought to appeal can be disposed of briefly. Counsel for the WAPC submitted that the SAT made an error of law by relying upon the 'general absence of any instrument that provides clear planning guidance on the many questions associated with "biting insects"' [152] (see also [151], [153]). This ground of the application alleged that the SAT had relied on this matter, although it was an irrelevant consideration. Alternatively, it was submitted that the SAT had relied on this matter in which a way that the SAT did not regard itself as free to refuse the application for subdivision despite the mosquito issue, and therefore that the SAT failed to give realistic consideration to the merits of the case.
78 Once again, the observations by the SAT concerning the absence of any policy guidance for decisions concerning biting insects must be read in context.
79 The SAT had asked the experts who gave evidence before it to consider the Biting Insects Code which was developed as part of the Caloundra City Plan 2004 in Queensland [108]. One expert, Dr Lindsay, explained that SouthEast Queensland was different from the circumstances here because in SouthEast Queensland there were substantial residential subdivisions in close proximity to mosquito habitats. Dr Lindsay said that local governments in SouthEast Queensland spend millions of dollars every year controlling mosquitoes. He said that those budgets are not available in Western Australia [109].
80 Dr Lindsay also accepted that there were no objective criteria released by the Department of Health concerning the development of land which might be subject to Ross River virus (Application Book 725).
81 The references by the SAT to the absence of a particular policy relating to biting insects must be understood in this context. The 'concern' of the SAT about the absence of such policy guidance in Western Australia was not a finding that the absence of such a policy supported, or opposed, the grant of subdivision approval [151]. Rather the SAT was saying no more than that in the absence of such a policy, the subdivision proposal should be assessed 'on its merits' [153].
82 The SAT did not rely upon the absence of a specific State policy as a factor in its determination of the merits of its decision. This ground of the application cannot succeed.
83 For the reasons explained above, I do not consider that any of the five grounds can succeed. Nor do I consider that, once the relevant passages are read in context, there is sufficient doubt to justify the grant of leave in relation to grounds 1, 2, 3 or 5: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 373 [16] [18] (Buss JA).
84 I consider that leave should be granted on ground 4, but I would dismiss the appeal on that ground.
SCHEDULE 14 - PLANNING PRECINCT POLICY AREA STATEMENTS PRECINCT
The area is bounded on the west by the coast and the southern point of the Leschenault Peninsula then follows the Shire Boundary across the inlet to the Collie River bridge, northwards along the western boundary of Old Coast Road to the same side of Cathedral Avenue, east along the northern boundary of Cemetery Road to the east side of Reserve 36031, then northwards along the eastern boundary of this reserve to the western edge of the park strip which has been defined on the Scheme Maps for land zoned Special Residential, to Old Coast Road, then northwards along the western boundary of Old Coast Road to Treasure Road, then westwards along the line of the northern boundary of Lots 14 and 7 Buffalo Road to the coast. The area is approximately 4,650 hectares.
The general policy for this area is conservation and recreation to the extent that latter activity is sustainable while permitting limited residential development without further degradation to the Inlet and environs. To this end it is the Policy that:
Any development proposal is subject to a catchment management plan incorporating nutrient run-off and drainage management programme.
In addition to the general Policy Statements for this particular area, the following requirements apply to the Cathedral Avenue area, which is bounded by Buffalo Road to the north, the road on the peninsula to the west, Elinor Bell Road to the south and the public open space ridge as identified on the Scheme Map to the east.
CITATION : WESTERN AUSTRALIAN PLANNING COMMISSION -v- NARCOM HOLDINGS PTY LTD [2011] WASC 259 (S)
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Citation : NARCOM HOLDINGS and WESTERN AUSTRALIAN PLANNING COMMISSION [2011] WASAT 23
Costs - Whether 'costs of each other party' in s 105(12) of the State Administrative Tribunal Act 2004 (WA) refers to 'indemnity costs' or to 'party and party costs'
1 On 15 September 2011, I delivered reasons for decision in this matter: Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259. My decision denied the appellant (the WAPC) leave to appeal in respect of the WAPC's grounds 1, 2, 3 and 5, granted the WAPC leave to appeal in respect of ground 4 but dismissed the appeal on that ground.
2 With one exception, the parties were agreed as to the appropriate orders which were consequent upon my reasons. The exception was in relation to the respondent's proposed order 4, which sought the respondent's legal costs to be paid by the appellant on an indemnity basis. Counsel for the respondent (Narcom Holdings) sought, and was granted, leave to file written submissions on this issue, with responsive submissions from the WAPC.
3 The only basis upon which the application for costs on an indemnity basis is made is one of construction of the State Administrative Tribunal Act 2004 (WA) (the SAT Act). Narcom Holdings submitted that on the proper construction of s 105(12) of the SAT Act, 'indemnity costs' should be the usual condition of a grant of leave to appeal.
4 The submission requires consideration of the nature of an 'indemnity costs' order, the historical and contextual background to the costs provisions in the SAT Act, and the proper construction of those provisions. Section 105(12) of the SAT Act does not empower, or require, an order of indemnity costs as the usual costs order in proceedings in the Supreme Court.
The terminology of 'indemnity costs' and 'party/party costs'
5 The terminology in this area is well known, although the nomenclature invites confusion. The common term 'party and party costs' means the costs awarded usually between the parties to the litigation. But 'party and party' costs are not always costs between the parties. There are circumstances in which these costs can be awarded against nonparties: s 37 Supreme Court Act 1935 (WA); Naidoo v Williamson [2008] WASCA 179 [42] (Steytler P).
6 The purpose of party and party costs orders is to indemnify partially the successful party: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 410 (Mason CJ, Brennan, Deane, Dawson & McHugh JJ). But the term 'indemnity costs' is used in contradistinction to party and party costs. This is unfortunate. Like party and party costs, 'indemnity costs' are also usually between the parties. Like party and party costs, indemnity costs also provide indemnity against legal costs incurred by the party who obtains the benefit of the order. Like party and party costs, 'indemnity costs' do not provide a complete indemnity against all legal costs.
7 The award of indemnity costs has been described as 'more or less' the same as costs 'between solicitor and own client' and it has been said that in the absence of a costs agreement 'there should be no difference between the items and amounts allowed under a party and party bill of costs and those under a solicitor and client bill of costs': Collins v Westralian Sands Ltd (1993) 9 WAR 56, 64 (Ipp J); repeated in Unioil International Ltd v Deloitte Touche Tohmatsu (a firm) (1997) 18 WAR 190, 191 (Ipp J).
8 Although the difference between party and party costs and indemnity costs may not be vast, one significant distinction is that the onus of proof that the costs are reasonable is borne by the party entitled to the costs order in the party and party costs, but in the case of indemnity costs it falls to the person against whom the order is made to show that the costs are unreasonable. The difference in onus may be a significant matter: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59, 65 (Megarry VC).
9 Despite the confusing terminology, the labels 'party and party costs' and 'indemnity costs' are well known descriptors of the different approaches to costs orders. That common terminology provides background to the statutory provision in issue here, so it is convenient to use that common nomenclature in these reasons.
10 The question in issue is one of construction of s 105(12) of the SAT Act, which is the statutory provision by which the costs discretion is exercised in this case. One matter which is relevant to the construction of that provision is the regularised discretion by which costs decisions were generally governed when the SAT Act was enacted. The nature of the well recognised costs discretion is part of the 'existing state of the law' which is relevant to the question of construction: AB v Western Australia [2011] HCA 42 [10] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).
11 Historically, when the court of chancery created the rule that costs could be awarded, the court decided that the award of costs was a matter of '[e]ntire discretion': Jones v Coxeter (1742) 2 Atk 400, 400; [1742] EngR 111; (1742) 26 ER 642, 642 (Lord Hardwick LC). Unlike the court of chancery, costs at common law derived from statute. They were introduced by the great reforming statute, the Statute of Gloucester, 6 Edw 1, passed by Edward I in 1278. The Statute of Gloucester introduced costs to the common law without any element of judicial discretion as to the award. As the former ViceChancellor and former Lord Chancellor emphasised in Garnett v Bradley (1878) 3 App Cas 944, the courts of common law were required to 'go back to a legislative enactment in order to arrive at their power, or rather their duty, for power they had none, of dealing with costs': (953 954) (Lord Hatherley).
12 It is now well established that the award of costs, by legislation and rule, is generally discretionary. Order 66 r 1 of the Rules of the Supreme Court 1971 (WA) provides that the costs of and incidental to all proceedings shall be in the discretion of the court. But the judicial discretion is not exercised as Deborah under a palm tree: cf Metropolitan Properties Co Ltd v Purdy [1940] 1 All ER 188, 191 (Lord Goddard CJ). It is a discretion 'governed by rule not by humour: it must not be arbitrary, vague, and fanciful; but legal and regular': R v Wilks [1770] EngR 32; (1770) 4 Burr 2527, 2539; [1770] EngR 32; (1770) 98 ER 327, 334 (Lord Mansfield).
13 In general terms, the starting point for the exercise of a costs discretion is that the 'usual order as to costs' means that costs are awarded to the successful party: O 66 r 1 Rules of the Supreme Court, Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, 97 (McHugh J, not dissenting on this point). The general approach is that the costs are party and party costs.
14 In contrast with the general order of party and party costs, an order for indemnity costs is exceptional: Re Malley SM; Ex parte Gardner [2001] WASCA 83 [2] (the Court). Some of the exceptional circumstances for an award of indemnity costs are set out in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10] (the Court). The situations in which they may be awarded include (but are not limited to) an unsuccessful party who brought proceedings for a collateral purpose or committed some species of fraud; an unsuccessful party who persisted in a hopeless case; and improper or unreasonable conduct by a party or that party's legal advisers. Narcom Holdings quite properly acknowledges that there is no basis for an award of indemnity costs in this case on any of these grounds.
15 Although these general principles in relation to party and party costs and indemnity costs are well recognised, as Lord Hatherley said more than a century ago, the fundamental consideration in determining the manner in which any costs order is to be exercised is the statutory power to do so. In Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184, 200, Kirby J emphasised that '[s]tatutory powers providing for costs appear in a multitude of forms ... preconceptions must not distract the Court from the task of construction which each statutory provision for costs invokes'. The general costs discretion in O 66 r 1 is also expressly subject to the provisions of any statute, including s 105(12) of the SAT Act. Hence, these general principles concerning party and party costs and indemnity costs are relevant only as interpretative material. They are part of the matrix in which s 105(12) was enacted.
16 Part 5 of the SAT Act is entitled 'Appeals from Tribunal's decisions'. The first section, s 105, is the relevant section to this application. It has the subtitle, 'Appeal from Tribunal's decision'. Section 105(9) of the SAT Act provides that '[t]he court dealing with the appeal may ... make any order the court considers appropriate'. That subsection provides the power to award costs in an appeal: Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17(S) [7] (the Court). Section 105(11) and s 105(12) then provide:
(11) If the Tribunal's decision is made in a proceeding prescribed by the regulations, a party cannot apply for leave to appeal under this section unless the party agrees to indemnify each other party to the proceeding against that other party's reasonable legal costs of the appeal.
(12) In the case of a decision in a proceeding coming within the Tribunal's review jurisdiction, any leave to appeal granted to the decisionmaker is to be granted on the condition that the costs of each other party are to be met by the decisionmaker, unless the court considers that it would be unjust or unreasonable to impose that condition, whether generally or in respect of the costs of a particular party.
17 No proceeding has been prescribed by the regulations, so currently s 105(11) has no application. However, that subsection remains relevant to the construction of s 105(12).
18 The argument for Narcom Holdings is that the word 'costs' in the phrase in s 105(12), 'the costs of each other party are to be met by the decisionmaker', should be construed as meaning 'indemnity costs'. I do not accept that submission for four reasons.
19 First, s 105(12) must be construed alongside s 105(11) which immediately precedes it. Both subsections are concerned with the matter of costs. Both subsections are concerned with costs as a condition of the grant of leave to appeal. But only s 105(11) uses language which is commonly associated with an indemnity costs order: 'indemnify each other party'; 'against that other party's reasonable legal costs'.
20 Secondly, the words 'costs of each other party' in s 105(12) are a general reference to costs. Although preconceptions about costs orders should not distract from the exercise of statutory construction, the reference to 'costs' as an undefined term invites consideration of the general approach to costs as the contextual background to the meaning of the use of the word 'costs' in the subsection: see above [10].
21 Section 105(12) was included as part of the SAT Act at its inception in 2004. Section 105 has been amended but only in minor ways and not in relation to s 105(11) nor s 105(12). The general approach to 'party and party costs' and 'indemnity costs' which I have described above at [12] [14] was well established in 2004; in particular the usual order is for party and party costs and indemnity costs only in exceptional circumstances. Section 105(12) must be construed in light of this well recognised approach that the usual order for costs is party and party costs, not indemnity costs.
22 Thirdly, s 105(12) does not merely omit the use of the words 'reasonable legal costs' which appear in s 105(11) and which might suggest an indemnity costs reversal of onus. Instead, s 105(12) specifically uses the words 'unjust or unreasonable' in the different context of deciding whether the condition to award costs against the decisionmaker at all should be undertaken. This is also another matter which shows a distinctly different, and less strict, approach to the award of costs in s 105(12) from that in s 105(11).
23 Fourthly, elsewhere in the SAT Act the use of the word 'costs' is a reference to party and party costs. Section 87, which is entitled 'Costs of parties and others' forms part of div 5, 'Costs'. The State Administrative Tribunal rarely exercises this power, but it is expressed in very similar terms to s 105(12). Section 87(2) provides a general power for the State Administrative Tribunal to make an 'order for the payment by a party of all or any of the costs of another party'. It does not contemplate indemnity costs.
24 These matters of construction ought to be sufficient to dispose of this application. The terms of s 105(12) are clear, in light of their statutory context and their well understood legal meaning. That subsection is concerned with costs in the usual understanding of that term. However, Narcom Holdings submitted that:
(1) this construction is contrary to the objectives of the SAT Act;
(2) this construction is contrary to the rarity of costs orders being made in the State Administrative Tribunal's review jurisdiction; and
(3) this construction is contrary to the 'clear legislative intent' behind s 105(12).
25 As to (1) - the objectives of the SAT Act - Narcom Holdings relies upon the objective described in s 9(b) of the SAT Act, 'to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties'. Section 87 and s 88 of the SAT Act are consistent with this objective, providing an indication that the State Administrative Tribunal should not usually exercise a discretion to award costs.
26 The purpose (or 'mischief') of a statutory provision is clearly relevant to the construction of the statutory words: s 18 Interpretation Act 1984 (WA). But Narcom Holdings does not explain how the making of an order for indemnity costs could further the objective of minimising the costs to the parties. I do not consider that it could. First, no order for the payment of costs will minimise the costs to the parties. Any order for costs will partly indemnify Narcom Holdings, but at the expense of the WAPC. Secondly, indemnity costs will generally be greater than party and party costs. It is difficult to see how a greater award of costs can have the effect of minimising the costs to the parties.
27 As to (2), Narcom Holdings is correct that the approach taken by the State Administrative Tribunal is that the 'contemplation of the SAT Act is ... that the Tribunal is generally a nocosts jurisdiction': Geographe Point Pty Ltd and Town of Claremont [2009] WASAT 98 [15] (Senior Member Parry). The established practice of the State Administrative Tribunal is that normally each party should bear its own costs, at least in relation to its review jurisdiction: Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries (WA) [2005] WASAT 206 [28] (Barker J).
28 Narcom Holdings submits that this general approach to the State Administrative Tribunal as a nocosts jurisdiction means that s 105(12) must contemplate indemnity costs as the usual order. But that asserted conclusion simply does not follow from the general nocosts nature of the State Administrative Tribunal. It might equally be supposed that, as a matter of general policy, the no-costs nature of the State Administrative Tribunal should require only party and party costs on appeals. These policy suppositions, in any event, do not assist in this case with the construction of the words of the SAT Act.
29 As to (3), the 'clear legislative intent' behind s 105(12), Narcom Holdings made substantial submissions concerning the parliamentary history of that section, particularly by reference to the Report of the Standing Committee on Legislation in relation to the State Administrative Tribunal Bill 2003 and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 (the Standing Committee Report) and to Hansard. The submission requires consideration of the parliamentary history of s 105.
30 Section 105 of the SAT Act was introduced to the Legislative Assembly as cl 104 of the State Administrative Tribunal Bill 2003 (the Bill). That clause was passed by the Legislative Assembly without amendment. The Legislative Council then referred the Bill to the Standing Committee on Legislation: Hansard, Legislative Council, 16 September 2003, 11195 11196.
31 The Standing Committee Report recommended a number of amendments to the Bill. Those amendments were made by the Legislative Council: Hansard, Legislative Council, 10 November 2004, 7753 7755, 7775 7776. The Legislative Council's amendments were accepted by the Legislative Assembly and the Bill was passed, as the SAT Act, without further amendment: Hansard, Legislative Assembly, 10 November 2004, 7871 7887.
32 Chapter 9 of the Standing Committee Report considered the question of appeals from the State Administrative Tribunal, including the issue of costs. The Standing Committee Report made observations which are entirely consistent with the construction of s 105(12) as concerned with 'costs' in the usual understanding of that term as party and party costs. For instance, the Standing Committee Report:
(1) explained that '[c]onducting proceedings in the Supreme Court can be extremely costly. Even if a party succeeds in the Supreme Court, the costs awarded never fully compensate a party for their legal costs' [9.18] (172);
(2) said that it had 'considered various options to limit the costs that a party will face in the event that a matter is appealed from the SAT' [9.19] (172) (emphasis added); and
(3) recommended the insertion of subclause 105(12) to 'ensure that government parties to matters before the State Administrative Tribunal are not able to use their greater financial resources to disadvantage other parties on an appeal to the Supreme Court' (174). Elsewhere, the Standing Committee had referred to this concern so as to ensure that the financial resources of the State are not used to appeal a decision 'to the significant financial detriment of the other party or parties' [9.20] (174).
33 Apart from the Standing Committee Report, Narcom Holdings also relies upon lengthy extracts from Hansard of the second reading speech by the Hon Peter Foss, on 27 October 2004 and 9 November 2004, as well as his speech during the Committee stage of the hearings on 10 November 2004.
34 Consideration may be given to these speeches, as with the Standing Committee Report, if they are 'capable of assisting in the ascertainment of the meaning of the provision': s 19 of the Interpretation Act. The issue is the meaning of the words in the legislation. Parliamentary materials are relevant to that task of construction.
35 A close focus on particular words used in a Parliamentary debate may not always be capable of assisting in the ascertainment of the meaning of words used in legislation. Further, the search for objective meaning of words should not become confused with a construction of the subjective views of legislators. References to 'Parliamentary intention' are not to the subjective intentions of the legislators. Nor are they references to 'a collective mental state to legislators': Tian Zhen Zheng v Deju Cai [2009] HCA 52; (2009) 239 CLR 446, 455 456 [28] (French CJ, Gummow, Crennan, Kiefel & Bell JJ). In United States v Public Utilities Commission of California [1953] USSC 60; 345 US 295, 319 (1953), Justice Jackson opened his concurring opinion with the words: 'I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress ... Never having been a Congressman, I am handicapped in that weird endeavour'.
36 At the time of the speeches relied upon by Narcom Holdings, the Hon Peter Foss was a member of the Opposition. He was not the responsible Minister for the SAT Act. The honourable member in these speeches refers to his views about the concerns of the Standing Committee (of which he was a member). He cited the concern that
some poor blighter ... gets his decision before [the] tribunal and feels good about it and then finds himself in the Supreme Court on an appeal. Even if he wins in the Supreme Court, he could still be on his way to the High Court of Australia. At that stage, the situation could become fairly disastrous ... the Government can get leave for an appeal only if it gives an undertaking to pay all the costs of the appeal': Hansard, Legislative Assembly, 9 November 2004, 7626.
37 At the 10 November 2004 Committee hearing, the honourable Member for the Opposition also said that the Standing Committee had 'created an ability for people to use the tribunal without fear that they will end up in a higher court and run the risk of being penalised through huge costs': Hansard, Committee hearing, 10 November 2004, 7754.
38 On neither of these occasions did the honourable member for the Opposition say anything about the nature or meaning of 'costs' or how the costs should be calculated. His words have little relevance as part of the factual matrix for construing the meaning of s 105(12).
39 For these reasons, nothing in the parliamentary history of s 105 contradicts the construction of that subsection as concerned with the usual understanding of costs, ie the order generally being party and party costs. This is, perhaps, unsurprising. Extrinsic materials, such as second reading speeches, are circumstantial guides to the objective meaning of a statutory text. They may not often assist in the construction of the words of the statute: Commissioner of Taxation v Anstis [2010] HCA 40; (2010) 241 CLR 443, 459 [40] (Heydon J). The exercise of construction of words is an exercise which draws from Parliamentary statements only to elucidate the objective meaning of words. As the joint judgment in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 264 265 [31] (the Court) emphasised:
Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.
See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Jemena Asset Management (3) Pty Ltd v Coinvest Limited [2011] HCA 33 [50] (French CJ, Gummow, Heydon, Crennan, Kiefel & Bell JJ).
40 Section 105(12) of the SAT Act does not require that indemnity costs be awarded generally in applications and appeals from the State Administrative Tribunal. None of the usual bases, nor any unusual basis, for an indemnity costs order applies in this case. Indemnity costs are not appropriate. The orders I make are as follows:
(2010) 241 CLR 320
(1996) 185 CLR 259
(1993) 43 FCR 280
(2007) 234 ALR 204
(1997) 187 CLR 384
(1998) 194 CLR 355
(1905) 2 CLR 405
(1991) 5 WAR 522
(1986) 162 CLR 24
(1984) 35 SASR 448
(2003) 198 ALR 59
(1999) 197 CLR 611
(1990) 170 CLR 1
(2007) 33 WAR 361
(1994) 179 CLR 403
(1993) 9 WAR 56
(1997) 18 WAR 190
(1998) 193 CLR 72
(1998) 195 CLR 184
(2009) 239 CLR 446
(2010) 241 CLR 443
(2010) 241 CLR 252
(2009) 239 CLR 27